Jurisprudence (chapter 1 9) 1st year online LLB YUDE

CHAPTER I
၁)
THE MEANING AND NATURE OF JURISPRUDENCE
The Word JURISPRUDENCE is a word combined with two
Latin words JURIS*
and PRUDENTIA**
.The meaning of these two
Latin words in its strict sense is Science of Law. According to this
original meaning, some writers publishes on Jurisprudence defined
that Jurisprudence is the formal science of positive laws.
(JURISPRUDENCE)
(JURIS) (PRUDENTIA)
(JURIS)
(PRUDENTIA)
Jurisprudence is a particular method of study, not of the law of
one country but of the general notion of law itself.
*
JURIS = Law
**
PRUDENTIAL = knowledge

2
Holland describes it as "the formal science of positive law",
Allen as the scientific synthesis of the essential, principles of law1
.
However, it may be defined, that it is a study relating to law, and
although the term law may seem to the uninitiated a simple one,
analysis reveal that there are many uses of this word.
Hence one of the first tasks of Jurisprudence is to attempt to
throw light on the nature of law. At first sight it would seem to be the
most logical procedure first to define law and then to discuss the
scope of Jurisprudence. But there are some various ways approaching
the problem, and each school2.
of Jurisprudence tries to set up its own
definition.
Jurisprudence is the most important and the most useful of legal
studies since it deals with the fundamental principles of law.
1.
PATON Grorge White cross. A TEXT BOOK OF JURISPRUDENCE Oxford E.L.B.S 1967, P.2
2.
School ( It will be discussed at next chapter)

3
The object of Jurisprudence is to examine the existing law on which
it is based, to analyse its concepts in so far they affect our social
welfare and above all, to suggest changes for the betterment of our
laws. Jurisprudence is thus a social study, and must comprise all those
subjects with directly or indirectly treat of the science of law. But
Jurisprudence is the word which has meant many different things at
different time. The nearest meaning and most common concept of the
definition is that.
Jurisprudence is the name given to a certain type of
investigation into law, an investigation of an abstract, general and
theoretical nature which seeks to lay bare the essential principles of
law and legal systems.
So we can consider that the nature of Jurisprudence by its own
definition is a consideration of the abstract science of positive laws
necessarily leads on to a study of the nature of law.

4
To study the nature of law, there are various concept and
meanings of the definition of law in the widest sense; we may say that
law means any rule of action.
Blackstone says "Law in its most general and comprehensive
sense signifies a rule of action, and is applied indiscriminately to all
kinds of action whether animate or inanimate, rational or irrational.
Salmond defines the law as the body of principles recognized
and applied by the state in the administration of justice.
Wilson states that law is the crystallization of habit and thought
of society.

5
Dr, Ba Han, a Myanmar Jurist defines Law as a body of rules
that defines the rights and duties of the citizens first in their relation
to one another and next in the relation to the sate of which they are
members.
There are two sides of law from one side it is an abstract body
of rules, from the other it is a social process for compromising the
conflicting interests of men. The sensible approach is to admit that
both these sides of law must be considered, clearly a Jurisprudence
which considers only the theoretical rules of the concise volumes will
be very different from one which attempts to study law in action.
Hence as short discussion of the schools of Jurisprudence is to be the
clearest way to approach the question and necessarily to cover the
value and nature of law.
( )

6
In short, Jurisprudence is a functional study of the concepts
which legal systems develop, and of the social interests which law
protects.
The uses of the study of Jurisprudence is the kind of problem
that can be approached in many ways, but is surely demands both a
broad theoretical perspective and an emphasis on social needs and
institutional potentialities. There also the problem of the scope of
Jurisprudence has many answers.
Kelsen (Hans Kelsen) in his pure science of law theory, would
divorce Jurisprudence form moral and sociology, Rescoe Pound would
study law in action, and the sociologist would turn to a science of
society itself.
Kelsen
Rescoe

7
pound
But instead of seeking for immutable principles, Jurisprudence
attempts to discover as much as possible concerning legal method, to
study, the concepts of the law, and trace the influence of the social
forces upon their development. Jurisprudence is not primarily
interested in discovering uniformities, for diversity may be even more
important, If we put the emphasis not on the concepts of law but on
the legal method used by varying societies to create order to resolve
disputes and to further denied changes in society peacefully the old
body of the diversity of legal rules ceases to be a tenor to
Jurisprudence and becomes a most significant factor.

1
CONTENTS
PAGES
CHAPTER II THE CONCEPT OF LAW AND 2
SCHOOLS OF JURISPRUDENCE
2.1 The Concept of Law 2
2.2 Schools of Jurisprudence 7
2.2.1 The School of Analytical Jurisprudence 8
2.2.2 The School of Historical Jurisprudence 11
2.2.3 The School of Ethical Jurisprudence 12
KEY TERMS 14
EXERCISE QUESTIONS 14

2
CHAPTER II
၂)
“The Concept of Law and Schools of Jurisprudence”
2.1 The Concept of Law )
Law is one of the great civilizing forces in human society. Law
may shortly be described in terms of a legal order tacitly or formally
accepted by a community. It consists of the body of rules which are
seen to operate as binding rules in the community. Hence taking the
definition of law in the widest sense, we may say that law means any
rule of action. It is this usual with jurists to divide laws into eight
different kinds of law. This classification is not based on any logical
reasoning, but in its widest sense of the term. This form of
classification is introduced by the great jurist Salmond*
. They are:-
(1) Imperative Law
(2) Physical or scientific Law
(3) Natural or moral Law
(4) Conventional Law
(5) Customary Law
(6) Practical or Technical Law
(7) International law (or) Law of the Nations
(8) Civil Law (or ) The Law of the State
)
*
P, J Fitzgerald, Salmond on Jurisprudence, London, Sweet & Maxwell (1966) 12th
Edition.

3
)
၂) )
) )
)
)
) )
)
)
(I) Imperative Law ( )
Imperative law, according to Salmond means a precept or rule
of action imposed upon men by some authority which enforces
obedience to it. In other words an imperative law is a command or a
rule in the form of a command, which is enforced by some superior
power.

4
(2) Physical or Scientific Law
)
Physical laws or the laws of science are expressions of the
uniformities of nature that is general principles expressing the
regularity and harmony observable in the activities and operations of
the universe. It is in this sense that we speak of the law of gravitation,
the laws of the tides, or the laws of chemical combinations.
(3) Natural or Moral Law (
)
By natural or moral law is meant the principles of natural right
and wrong i.e The principles of nature justice. The natural law was
conceived by the Greeks as body of imperative rules imposed upon
mankind by nature, the personified universal.

5
(4) Conventional Law )
By conventional law is meant any rule or system or rules agreed
upon by persons for the regulation of their conduct towards each
other. Agreement is a law for the parties to it. Examples are the rules
and regulations of a club or other voluntary society, and laws of
sports and games.
(5) Customary Law )
By customary law is meant any rule of action which is actually
observed by men i.e. any rule which is the expression of some actual
uniformity of department and etiquette customary law is the based on
well recognized customs which have stood the test of time and which
are reasonable. As custom differ in different places and at different
times and as customary law is based on custom, it cannot be said that
this type of law is universal or general, but customary. Customary

6
laws should not be identified with custom itself because custom is
only a source of law and not law itself. A custom becomes law, and
can really be regarded as law, only upon its recognition by the law
courts or by statute.
(6) Practical or Technical laws
)
These laws are the rules which guide as to the fulfillment of out
purpose which informs us to what we ought to do or must do in order
to attain a certain end. Examples of such are the laws of health the
laws of musical and composition, of science technologies and the
rules for the efficient conduct of any art or business.

7
(7) International Law )
International law or the law of nations consists of those rules
which govern sovereign states in their relations and conduct towards
each other as to the essential nature of International law there are at
least four rival theories.
(8) Civil Law )
By civil law is meant the law of the state or the land, the law of
the lawyers and courts. This is the law in the strictest and original
sense of the term.
2.2 Schools of Jurisprudence )
The above classification of law is essential to approach the
school of jurisprudence and their functional concepts. Apart from this
we can’t spot light the basis needs of school in study of jurisprudence.
In the words of Salmond-
Jurisprudence, in its specific sense as the theory or philosophy
of law, is divisible into three branches. This division of the schools of
jurisprudence is based upon the fact that certain basic assumption

8
about law characterizes the jurists of each school and distinguish
them those of other schools of thought.
It is common to separate jurists into various schools. As law is
the product of human reason and is intimately related to the notion of
purpose, hence the schools of jurisprudence are complementary rather
than confused. That is what to say, we will consider the approach of
the schools not in one school alone, but in order to understand,
intermingle with theoretical basis.
The general schools of jurisprudence as Salmond classified, are-
-
(a) The School of Analytical jurisprudence
(b) The School of Historical jurisprudence
(c) The Schools Ethical jurisprudence
2.2.1 (a) The School of Analytical Jurisprudence
)

9
According to Salmond the purpose of analytical jurisprudence is
to analyse the first principles of law. Speaking generally a book of
analytical jurisprudence will deal with the following subjects.
(1) An analysis of conception of law
(2) An examination of the relations between civil law and
other forms of law.
(3) An analysis of the various constituent ideas of which the
complex idea of law is made up.
(4) An account of the legal sources from which the law
proceeds together with an investigation of the theory of
legislation judicial precedents and customary law.

10
(5) An inquire into the scientific arrangement of the law.
(6) An analysis of the concept of legal rights.
(7) An investigation of the theory of legal liability, civil and
criminal …etc.
This school of law is described by various names as imperative,
positive and Austinian school. It is called imperative school, for law
is treated by the jurists of this school as an imperative or command. It
is called positive school of jurisprudence because the exponents of
this school are concerned with law as it. The founder of this school
was John Austin. Therefore, it is also known as Austinian School of
jurisprudence.

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(imperative school)
The chief exponents of Analytical School of jurisprudence were
an English jurist, John Austin who was Professor of jurisprudence in
the University of London between 1828 and 1832. The method of
approach of the school to the various problems of judicial science was
expounded by Austin in his Province of jurisprudence determine first
published in 1832.
၂ ၂
John Chipman Gray was another American jurists and Professor
of law of Harvard University who led this school. Other leading
exponents of the analytical school are Mark by, Holland and Salmond.
John Chipman Gray
2.2.2 (b)The School of Historical Jurisprudence
( )
According to Salmond that branch of legal philosophy which is
termed historical jurisprudence is the general portion of legal history.

12
It bears the same relation to legal history at large as analytical
jurisprudence bears the systematic exposition of the legal system. It
deals, in the first place with the general principles governing the
origin and development of law and with the influence that affect the
law. It deals in the second place with the origin and development of
those legal conceptions and principles which are so essential in their
nature as to deserve a place in the philosophy of law. Historical
jurisprudence is the history of the first principles and conceptions of
the legal system.
2.2.3 (c) The School of Ethical Jurisprudence
)
In the words of Salmond, ethical jurisprudence deals with the
law from the point of view of its ethical significance and adequacy. It
is concerned not with the intellectual content of the legal system or
with its historical development, but with the purpose for which it
exists and the measure and manner in which that purpose is fulfilled.
Ethical jurisprudence is concerned with the theory of justice in its

13
relation to law. It is the meeting point and common ground of moral
and legal philosophy of ethics and jurisprudence. Ethical
jurisprudence has for its subject, the conception of justice, the
relation between law and justice and ethical significance and validity
of those legal conceptions and principles which are fundamental in
their nature as to be the proper subject, matter of analytical
jurisprudence.
Hobbes (1588-1679) first introduced this school of thoughts.
Later Immanerl Kant (1724-1804) an eminent legal philosopher
improved this concepts. His celebrated works were "The critique of
lure reason and the critique of practical reason.
- )
၂ - ၀ )

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2.2.4 The Other School of Jurisprudence
Nowadays there are two more schools of jurisprudence under
the condition of philosophical changes. These two schools emphasised
the society and imperial works of jurists in the sphere of present day
community. They are –
(1) Sociological School of jurisprudence
(2) Functional School of jurisprudence
This Functional School of thoughts is not merely concerned
with jurisprudence, but with the concept of law.
2.2.4.1 (1) Sociological School
A survey of the schools of jurisprudence will not be complete
without a reference to the sociological school which has become
prominent in recent years. Dean Rescoe Pound, the American jurist is
one of the most important exponents of this school. The sociological
school attaches the importance to the relations of law to societal
institutions. The sociological jurists look upon law as a social
phenomenon. Law is a social function, an expression of human
society concerning the external relations of its individual members.
According to Pound (1) They look more to the working of law than to
its abstract content (2) they regard law as a social institution which
may be improved by intelligent human effort and hold it their duty to
discover the best means of furthering and directing such effort (3)
they have stress upon the social purpose which law sub serves rather
than upon sanction. (4) they urge than legal precepts are to be
regarded more or guides to results which are socially just and less as
inflexible moulds.

15
2.2.4.2 (2) Functional School
George Whitcross Paton in his work on 'jurisprudence' refers to
the sociological school as the functional school. The basic principle
of this school of thinkers is that we cannot understand a thing unless
we see it actually applied in practice. To the functionalists
Jurisprudence means the study of law in action not in mere text books.
An extreme theory of functionalism can be called realism under
which it is said that law is what the courts do and not what they say.
According to Homes (an American famous justice), "The prophesies
of what the courts will do in fact and nothing more pretentious are
what I means by law." A judge in giving his judgment will
undoubtedly be influenced by various factors, his environment the
system under which he grew, his beliefs and views. He may even be
amenable to corruption and other undue and immoral factors. Even the
physical state of his digestion and his irritable temper may influence
him at the time of his giving judgment in a particular case. For this
reason jurisprudence is called digestive jurisprudence. They give so
much undue prominence to the extra-legal factors that may influence
judges in giving their decisions.
In short jurisprudence is a functional study of the concepts
which legal systems develop, and of the social interests which law
protects. But the element of interest brings in the question of value. It
is clear, therefore, that functional jurisprudence cannot be
satisfactorily developed without complementary study of the purpose
for which society exists.

CONTENTS
PAGES
CHAPTER III LEGAL THEORIES 2
3.0 Legal Theories 2
3.1 The Theory of Natural Law 3
3.2 The Imperative Theory 8
3.2.1 Austin’s Theory 8
3.2.2 Other’s Theory 14
3.3 The Realist Theory 16
KEY TERMS 17

2
CHAPTER III
၃)
LEGAL THEORIES
3.0 Legal Theories )
General legal theory is an attempt to answer the
question "what is law "? But it differs from definition of
law. Legal theory itself is the kind of method that is most
appropriate to the inquiry of 'what is law?'. It is a great
controversial factor to solve this problem since the legal
philosophy developed in medieval age. As for the students
of jurisprudence, it is quite enough to consider three
particular approaches to law on account of the influence
which they have had the insight which they provide into
the nature of the law. These are –
(a) The Theory of Natural Law
(b) The Imperative Theory
(c) The Realist Theory

3
၃) -
)
)
၃)
3.1 The Theory of Natural Law
)
Natural law is that portion of morality which supplies
the more important and universal rules for governance of
the outward acts of the mankind.
In short the law of nature is written by the fingers of
nature in the hearts of mankind.

4
It consists of rules which nature, personified as a
guiding power, is deemed to have evolved and prescribed.
Such rules are the principles of natural right and wrong or
the principles of justice in its widest sense. Salmond
distinguishes between natural and positive justice. Natural
justice is as indeed and in truth, in its perfect idea and
positive justice is more or less incompletely and
inaccurately.
)
)
Bentham (Jeremy) who regarded natural law as
nothing but a phase and natural rights as ' nonsense on

5
stilts' considered that natural law reasoning resulted from
confusing scientific laws with moral and legal laws.
Natural law is meant the principles of natural right or
wrong. This natural law was conceived by the Greeks as a
body of imperative rules imposed upon mankind by nature.
)
It has also received many other expressions of its
various aspects.
(1) It is Divine Law – the command of God imposed
upon men.
(Divine Law)

6
(2) Natural law is also the law of Reason, as being
established by that Reason by which the world is
governed.
The law of Reason)
(3) It is the unwritten law in the sense that it is
written not in statue but in the soul of men.
)
(4) It is Universal Law of Common as being of
universal validity, the same in all places and binding
on all peoples and not confined to one particular
nation.
)

7
(5) It is the Eternal Law as having existed from the
commencement of the world.
)
)
(6) It is also called the Moral Law, as being the
expression of the principles of Morality.
Moral )
Ideally, there is only one moral law which is the
universal law giving by God to man.
In practice, however, this universal law may not be
followed on grounds of convenience or expediency.

8
For example, in one community marriage with
certain degrees of blood relationship may be forbidden,
while in another this may be recognized as lawful.
Similarly in one place or community polygamy may
be allowed whilst in another it may not only be prohibited
but also made an offence.
)
3.2 The Imperative Theory
)
3.2.1 Au ’ Th o y ( )
Opposed to the theory of natural law is the positivist,
or the imperative theory of law.

9
)
The term positive or imperative law was a title
invented by medieval jurists to denote law made or
established by human authority as apposed to natural law
which was uncreated and immutable. It is from the
contrast that the term positive derives all its point and
significance.
According to Austin, whose version of the theory
will be considered here, positive law or Imperative Theory
has the three characteristic features.
)
၃)
It is -

10
(a) a type of command )
(b) laid down by a political sovereign
)
(c) enforceable by a sanction
)
First we have to clarify the term ' command ' To
Austin all these are expression of desire, while commands
are expressions of desire given by superiors to inferiors.
(command)
-
This show that law is taken here in the sense of a
command, and it is imperative because it must be obeyed.
Austin emphasized that ' a law is a command which obliges a person
or persons to a course of conduct'. In this sense, a rule, the
observance of which is left to the good pleasure of those for whom it
is laid down is not a law. It is the opinion of many eminent jurists
that the civil law, (the law of the state) is nothing more than a

11
particular form of imperative law. They consider that civil law
consists of general command issued by the state to its subjects and
enforced if necessary by the physical power of the state. Hobbes
says ' the civil laws are the commands of him who is endowed with
supreme power in the state concerning the future action of his
subjects.
Similar opinions have been expressed by Bentham and Austin
and these opinions have been accepted by other English writers. It
may be stated here that this view to a certain extent expresses an
important aspect as to the real nature of civil law, though it falls
short of an adequate analysis. It rightly emphasizes the central fact
that the civil law is based on the will and physical power of the
state.

12
To Austin all laws are laid down by the supreme
power of the state exercising sovereign.
Austin says a sovereign is any person or today of
persons whom the bulk of a Political society habitually
obeys.
This is the several characteristics feature of Austin
Thirdly. Austin's distinguishing mark of law is that "Law
stands in need of sanctions".

13
Positivists expressed this for a practical need. Law is
something for the citizen to obey, not as he pleases but
whether he likes it or not and this, it cannot be without
some method of coercion. 'Sanctions are a logical part of
the concept of law.
They consists of the penalties inflicted on the orders
of the sovereign for the violation of the law in other words
of institutionalized punishments.

14
3.2.2 O h ’ Th o y
)
Hobbes's theory on Imperative Law emphasis that
law has its source not in custom, not in consent but in the
will and power of the sovereign and people must obey the
law whether it be pleasant or not.
Salmond says that this imperative theory contain only one element in
the conception of law, and disregards absolutely the ethical element
which is equally essential in the entire conception of the law. It is
this one sides and inadequate. The idea of right and justice is as
essential as the idea of force. Law is not right alone, or might alone,
but a perfect combination between the two. Although the established
law may not accurately correspond with the true rule of right, yet in
idea law and justice are coincident and it is for the expressive
realization of the latter that the former has been created. That is why
it is said that courts of law are courts of justice and legal terms like
"duty" right and wrong are also ethical terms. The purely imperative
theory therefore neglects this essential element in the law.
Moreover, this theory fails to include within its compass law
in the real sense of the term. They are (i) certain permissive rules of
law, namely, those that declare that certain conduct is not wrongful

15
(ii) rules of procedure (or) (iii) declaratory laws and laws conferring
franchise. Salmond's view, therefore, is that all the three elements,
imperative, non imperative and the ethical constitute the true theory
of law.
)
)
)

16
၃)
3.3 The Realist Theory )
Theories of legal realism, like positivism (Imperative
theorists) look on law as the expression of the will of the
state.
Like Austinian theory a law, the realist looks on law
as the command of the sovereign, but the sovereign mean
that it is not supreme legislative authority (Parliament) but
the judges, for the realist the sovereign is the court.
)

17
One version of realism was held by Salmond, He
argued "All law are not made by the legislature. But all
law however made is recognized and administered by the
courts and no rules are recognized and administered by the
courts which are not rules of law.

1
CHAPTER IV
ADMINISTRATION OF JUSTICE
4.1 Necessity for administration of Justice 2
4.2 Origin of administration of Justice 3
4.3 Civil and Criminal Justice 5
4.3.1 Some Writers 6
4.3.2 Salmond 9
4.4 Criminal Justice 11
4.4.1 Origin and Development of Criminal Law 11
4.4.2 The Purposes of Criminal Justice 13
4.4.2.1Deterrent and Preventive 14
4.4.2.2Reformative Theory 16
4.4.2.3Retributive Punishment 19
4.5 Civil Justice 20
4.5.1 Primary Rights 20
4.5.2 Sanctioning Rights 23
4.6 Summary of Judicial Remedies 24
4.7 Secondary functions of the courts of Law 25
KEY TERMS 31

2
CHAPTER IV
(၄)
ADMINISTRATION OF JUSTICE
4.1 Necessity for administration of Justice
( )
It is not difficult to imagine what would happen in any State if
there was no effective administration of justice. In the first place
there would be no peace and order: might will obviously prevail over
right. Because man is by nature a fighting animal, without a common
power to keep him in check, it is impossible for men to live together
in any but the most primitive forms of society. Without an effective
administration of justice, therefore, civilization is unattainable,
injustice is unchecked and triumphant, and the life of man is, as
the author of Leviathan, Hobbes tells that "solitary, poor, nasty,
brutish and short". It is for this reason that some other person or
persons are endowed with unlimited powers to enforce rights and to
redress wrongs. The State need not actually exercises its force of
coercion in the administration of justice, but the very presence of
such a power is sufficient to keep the people in submission to its
laws, and thereby help the State in the maintenance of law and order.

3
(unattainable)
(unchecked)
(injustice) Leviathan,
Hobbes
(solitary)
(poor) (nasty)
(brutish and short)

4
4.2 Origin of administration of Justice
( )
The administration of justice is the modern and civilized
substitute for the primitive practices of private vengeance. In the
beginning people used to redress their wrongs through self-help, and
it necessity arose, with the help of the friends. But at the present day
the citizen is defended by the power of the state through its courts of
law. One of the most important improvements in the present times is
the substitution of the force of the organized community for the force
of the individuals. The evils of the earlier system were too great and
obvious to escape notice even in the most primitive communities.
Every man was made by it a judge in his own cause and might was
made the sole measure of right. Even then the substitution was
effected only with difficulties and by slow degrees. It was only with
the growth of powers of government did the State venture to suppress
with a strange hand the ancient barbarious system and lay down the
command that all quarrels shall be brought for settlement to the courts
of law.

5
4.3 Civil and Criminal Justice
( )
The administration of justice has been defined as the
maintenance of rights within a political community by means of the
physical force of the State. We have to notice that it is divisible into
two parts which are distinguished as the administration of civil justice
and the administration of criminal justice. A wrong regarded as the
subject-matter of civil proceeding is called a civil wrong; one
regarded as the subject matter of a criminal proceeding is called a
crime. When a person has, by actual or threatened wrong doing
exposed himself to legal proceedings, it is either civil or criminal
according to the nature of the proceedings that may follows. In short
the distinction between the two is one of procedure.
(administration of civil
justice)

6
(administration of criminal justice) ( )
(a civil wrong)
(a crime)
4.3.1 Some Writers ( )
Some writers are not content with making this procedural
distinction between crimes and civil wrongs. They have suggested
various other distinctions considering them to be more fundamental
than the procedural one. (I) Salmond stated that "The difference
between the two is that the former consists of the enforcement of
rights, whereas the latter is concerned with the punishment of them.
Both in civil and criminal justice there is a wrong complained of. In
civil proceeding, the plaintiff claims the enforcement of a right and
the court secures it by putting pressure on the defendant. In a criminal
proceeding on the other hand, the prosecutor claims no rights, but
accuses the defendant of wrong "(2) The distinction between a
criminal and a civil proceeding is very often identified with that

7
between public and private wrongs. Very often a public wrong is
spoken of as an offence committed against the community at large and
dealt with by proceedings to which the State is a party, whilst a
violation of private rights is dealt with at the suit of the private
person injured. But to Salmond this explanation is not sufficient. In
the first place all public wrongs are not crimes. A refusal to pay taxes
is an offence against the State and is dealt with at the suit of the
State, but it is a civil wrong for all that. The breach of a contract
made with the State is no more a criminal offence than is the breach
of a contract made with private individuals. On the other hand many
crimes may be prosecuted at the suit of a private person such as for
criminal libel.
(၁)
( )

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(libel)
4.3.2 Salmond ( )
The statement of Salmond (1) as to the distinction between
Civil and Criminal wrongs, presents an element of truth but it is not
the whole truth. Because in the first place punishment is not always
present in the criminal proceedings, nor always absent in the civil
proceedings. Criminal proceedings, for instance, may end in a more
binding over to keep the peace, which is more in the nature of a
warning than of a present punishment. On the other hand, in civil
cases the protection of rights may sometimes be secured through the
medium of punishment, as for example, where a defendant is
imprisoned to obey an injunction granted against him in a civil action.
It may therefore be said that the distinction between civil wrongs and
crimes relates to the legal consequences of acts. Civil justice is
administered according to one set of forms and criminal justice
according to another set. Civil justice is administered in one set of
Courts and Criminal justice in a some what different set. Civil
proceedings, if successful, result in a judgment in favour of the
Plaintiff which may be in one of the forms recognized by law for the
enforcement of diverse rights vested in him as Plaintiff, and the
criminal proceedings if successful, result in the punishment of the
accused, ranging from hanging to a fine or in binding over to keep the
peace or even a release with administration*
.
(၁) -
*
Jurisprudence Popular Law Series P. 38

10
-
(injunction)
(hanging)
(fine)

11
4.4 Criminal Justice ( )
4.4.1. Origin and Development of Criminal Law
( )
In primitive times where there was no State to prevent men,
self-protection was the only course open for the primitive people for
their protection of themselves and their families. Every individual had
to protect himself against aggressions from his fellows. Might
prevailed, and in order to protect one's life or property he had to keep
himself ready for any emergency. Killing was frequently resorted to
and that was found the most effective method of freeing himself from
danger all around. Revenge was the order of the day "A tooth for a
tooth, an eye for an eye, a limb for a limb used to be the punishment
for any crime committed by one against another."

12
With the development of the instruction of the State, the power
to punish crimes and to protect the members of the State against
criminal and wrongful acts became the responsibility of the State, and
law incorporating the reasonable and age-old customs was enacted.
Crimes then came to be a wrong not only against the injured party but
also against the State. With the development of criminal Law, the
development of the public conscience and social morals, the present
form of Criminal justice has taken place.

13
4.4.2 The Purposes of Criminal Justice
( )
We can look at punishment from two different aspects. We can
regard it as a method of protecting society by reducing the occurrence
of criminal behaviour or else we can consider it as an end in itself.
Punishment can protect society by deterring potential offenders by
preventing the actual offender from committing further offences and
by reforming and turning him into the law abiding citizen. The
problem of punishment consists largely of the competing claims of
these three different approaches.
( )
(potential
offenders)
(actual offender) (further offences)
(by reforming)
The end of the criminal justice is four in number, and in respect
of the purposes served by it punishment may be distinguished as –

14
(1) Deterrent
(2) Preventive
(3) Reformative
(4) Retributive
(၄)
(၁)
( )
(၃)
(၄)
4.4.2.1 Deterrent and Preventive (
)
(1) The deterrent forms the most important end of the criminal
justice, the other three being merely subsidiary. The chief end
of the law in criminal justice is to make the evil doer, an
example for others to think well of the consequences before
trying to make an attempt at breaking the law.
-
(deterrent forms)
(၃)

15
(evil doer)
(2) Preventive punishment-The second end of criminal justice is to
disable the offender from committing the same offence once
again. This is done by such penalties as imprisonment, death,
exile, or forefeiture1
. Its aims are to prevent a repetition of the
offence by rendering the offender incapable of its commission.
The most effective method of disablement is the death penalty.
Imprisonment has not only a deterrent (and possibly
reformative) value, but it serves also as a temporary preventive
measure. Less dramatic forms of disablement are such measures
as disqualification orders, for instance, a person may be
disqualified form driving and so forbidden by law to put him in
such a position as to be able to commit motoring offences2
.
-
(forefeiture) ( ) (exile)
(death) (imprisonment)
1.
Jurisprudence, Popular law series P. 39
2.
Salmond on Jurisprudence P. 94

16
(death
penalty)
(deterrent)
(reformative)
(temporary preventive)
-
4.4.2.2 Reformative Theory (
)
(3) The reformative theory of punishment consists in identifying
crime with disease and consequently it consists of applying
such curative and medicinal forms of punishment as will make
the criminal cured of the disease. From this point of view death
is no fitting penalty for we must cure our criminals, and not kill
them. Flogging and other corporal punishments are condemned

17
as the relics of barbarism. Imprisonment and that too in a mild
form and probation, are the only instruments available for the
purpose of such a purely reformative system/ According to this
theory if criminal are imprisoned in order that they may be
transformed there into good citizens by physical, intellectual
and moral training, prisons, must be turned into dwelling
houses where they can have opportunities to improve which
they might not have had before. It must however be admitted
that there are in the world men who are incurably bad, men who
by nature are even in their youth beyond the reach of
reformative influences. With respect of such people, the opinion
is that they should be abandoned in despond as no fit subjects
for penal discipline. Thus it tends to convert prison-houses into
comfortable dwelling houses and abandons in despair an
incorrigible offenders who is in spite of such facilities do not
improve.
(Flogging)

18
(physical)
(intellectual)
(moral)
It is true that the primary and most important end of
criminal justice must be to deter by tear of punishment. But in
the case of juvenile (young) offenders the changes of
reformation are greater than in the case of repeaters, and in
such cases the application of the reformative principle is likely
to reform him.

19
4.4.2.3 Retributive punishment (
)
(4) Retributive punishment – The primitive conception of justice
was private vengeance. A tooth for a tooth, and eye for an eye
used to be considered as the most fitting form of punishment.
But punishment in the present State of society is scarcely by
such pure and simple desire for vengeance. However, the
emotions and instincts that lie deep are still present and it is a
distinct thought a subordinate function of criminal justice to
afford to the society its satisfaction of private revenge.
Retributive punishment can only be justified on the ground that
it serves to satisfy that sense of retribution which in all healthy
communities is stirred up when any member acts in such a
manner as to be condemned by them to some kind of
punishment.
( )
-

20
4.5 Civil Justice ( )
Primary and Sanctioning Rights (
)
4.5.1 Primary Rights ( )
A primary right may be explained as the bundle of those rights
which are the privileges enjoyed by any person. For example a
person's right to liberty, safety and reputation. A violation of any of
these rights produces a sanctioning right. Thus may right not to be
libeled or assaulted is primary, but my right to obtain pecuniary
compensation from one who has libeled or assaulted me is a
sanctioning right.
(primary right)
-
(liberty) (safety)
(reputation)
(sanctioning right)
(libeled)
(assaulted)
The Administration of civil, justice, therefore falls into two
parts, according as the right enforced belongs to the one or the other
of these two classes. Sometimes it is possible but not expedient. If by
negligence I destroy another man's property, his right to this property
is necessarily extinct and no longer enforceable. The law therefore

21
gives him in substitution for it a new and sanctioning right to receive
from me the pecuniary vale of the property that he has lost. If on the
other hand I break a promise of marriage, it is still possible, but it is
certainly not expedient, that the law should specifically enforce the
right, and compel me to enter into that marriage, and it enforces
instead a sanctioning right of pecuniary satisfaction. A sanctioning
right almost invariably consists of a claim to receive money from the
wrongdoer, and we shall here disregard any other forms as being quite
exceptional1
.
( )
The enforcement of a primary right may be conveniently termed
specific enforcement. For the enforcement of a sanctioning right there
1 .

22
is no very suitable genetic term, but we may venture to call it
sanctioned enforcement2
.
(specific enforcement)
Examples of specific enforcement are proceedings where by a
defendant is compelled to a pay debt, to perform a contract to restore
land or chattels wrongfully taken or detained, to refrain from
committing or continuing a trespass or nuisance or to repay money
received by mistake or obtained by fraud. In all these cases the right
enforced is the primary right itself, not a substituted sanctioning
right. What the law does is to insist on the specific establishment or
reestablishment of the actual state of things required by the rule of
rights, not of another state of things which may be regarded as its
equivalent or substitute.
2 .
Ibid. P. 101

23
4.5.2 Sanctioning Rights ( )
Sanctioning rights may be divided into two kinds by reference
to the purpose of the law in creating them. This purpose is either (1)
the imposition of pecuniary penalty upon the defendant for the wrong
which he has committed, or (2) The provision of pecuniary
compensation for the plaintiff in respect of the damage which he has
suffered from the defendant's wrongdoing. Sanctioning rights,
therefore, are either (1) rights to exact and receive a pecuniary
penalty, or (2) rights to exact and receive damages or other pecuniary
compensation3
.
(၁)
3 .

24
( )
( )
(၁)
( )
4.6 Summary of Judicial Remedies (
)
Legal proceedings may thus be divided into five distinct
classes, namely (1) actions for specific enforcement, (2) actions for
restitution (3) actions for penal redress, (4) penal actions and (5)
criminal prosecutions.
( )
(၁)
( )
(၃) (၄)
( )
The above is a summary of legal remedies, also known as
judicial enforcement of rights through the medium of the courts. In
addition there are various forms of extra judicial remedies, sometimes

25
known self-help. In certain cases it is lawful to redress one's injuries
by means of self-help without recourse to the courts. They are self-
defence, prevention of trespass, re-entry on land, reception of goods,
abatement of nuisances and distress damage peasant4
.
4.7 Secondary functions of the Courts of Law
( )
Hitherto we have confined our attention to the administration of
justice in the narrowest and most proper sense of the term. In this
sense, it means, as we have seen, the application by the state of the
4
Jurisprudence Popular Law Series , P. 47

26
sanction of physical force to the rules of justice. It is forcible defence
of rights and suppression of wrongs. The administration of justice
properly so called, therefore involves in every case two parties, the
plaintiff and the defendant, a right claimed or a wrong complained of
by the former as against the latter, a judgment in favour of the one, or
another and execution of the judgment by the power of the State if
need be. We have now to notice that the administration of justice in a
wider sense includes all the functions of courts of justice, whether
they conform to the foregoing type or not. It is to administer justice in
the strict sense that the tribunals of the State are established, and it is
by reference to this essential purpose that they must be defined. But
when once established, they are found to be useful instruments, by
virtue of their constitution procedure, authority, or special knowledge,
for the fulfillment of other more or less analogous functions. To these
secondary and non-essential activities of courts, no less than their
primary and essential functions, the term administration of justice has
been extended. They are miscellaneous and indeterminate in character
and number, and tend to increase with the advancing complexity of
modern civilisation. They fall chiefly into four groups-:
(physical
force) (rules of justice)
(defence of rights)
(suppression of wrongs)
(plaintiff) (defendant)
(two parties)

27
(a right claimed)
( ) (complained)
(၄)
-
(၁) ( )
(Action against the State)
( )
(Declaration of right)
(၃) (Administrations)
(၄) (Titles of right)

28
(1) Action against the State ( ( )
)
The court of law exercise in the first place the function of
adjudicating upon claims make by subjects against the sate itself. if a
subject claims, that a debt is due to him from the crown, or that the
crown has broken a contract with him, or wrongfully detain his
property, he is at liberty to take a proceedings in the court of law –
formerly by petition of right in the matter. Although the action is
tried as if it were a claim between subjects (with some procedural
variations), and although the outcome may be a judgment by the court
that the plaintiff is entitled the damages, we must notice that the
element of coercive force is lacking. The State is the judge in its own
cause, and cannot exercise constraint against itself. Nevertheless in
the wider sense the administration of justice includes proceedings,
against the State, no less than a criminal prosecution or an action for
debt a damages against a private individual.
( )
(2) Declaration of right (
)
The second form of judicial action which does not conform to
the essential type is that which results, not in any kind of coercive
judgment, but merely in a declaration of primary right. A litigant
may claim the assistance of the court of law, not because his rights
have been violated, but because they are uncertain. What he desires

29
may be not any remedy against an adversary for the violation of a
right, but an authoritative declaration that the right exists. Such a
declaration may be the ground of subsequent proceedings in which the
rights, having been violated,… receives enforcement, but in the
meantime there is not enforcement nor any claim to it. Examples of
declaratory proceedings are declaration of legitimacy, declarations of
nullity of marriage declaration of the legality or illegality of the
conduct of State officers’ advice to trustees or executors as to their
legal powers and duties, and authoritative interpretation of wills and
Statues.
(3) Administrations ( )
A third form of secondary judicial action includes all those
cases in which courts of justice undertake the management and
distribution of property. Examples are the administration of a trust,
the liquidation of a company by the court, and the realization and
distribution of an insolvent estate.

30
(4) Titles of right ( )
The fourth and last form includes all those cases in which
judicial decrees are employed as the means of creating, transferring or
extinguishing rights. Instances are a decree of divorce or judicial
separation, an adjudication of bankruptcy, and order of discharged in
bankruptcy, a decree of foreclosure against a mortgagor, an order
appointing or removing trustees, a grant of letters of administration
and vesting or changing orders. In all these cases the judgment or
decree operates, not as the remedy of a wrong but as the title of a
right5
.
5
Salmond on Jurisprudence P, 106

31
These secondary forms of judicial action are to be classed under
the head of the civil administration of justice. Here, as in its other
uses, the term civil is merely residuary, civil justice is all that is not
criminal.

CHAPTER V
LEGAL RIGHTS 2
5.1 Wrongs 3
5.2 Duties 5
5.3 Rights 8
5.3.1 Legal Rights 10
5.3.2 The Characteristics of a legal right 13
5.4 The kinds of rights 16
5.4.1 Perfect and imperfect rights 16
5.4.2 Positive and negative rights 19
5.4.3 Rights in rem and rights in personam 20
5.4.4 Proprietary and Personal rights 23
5.4.5 Rights in re-propriety and rights in re-aliens 24
5.4.6 Principal and accessory rights 27
5.4.7 Primary and sanctioning rights 28
5.4.8 Legal and equitable rights 29
KEY TERMS 31

2
CHAPTER -၅)
)
We have seen that the law consists of certain types of rules
regulating human conduct and that the administration of justice is
concerned with enforcing the rights and duties created by such rules.
The conception of a right is accordingly one of fundamental
significance in legal theory and the purposes of this chapter is to
anlayse it, and to distinguish its various applications. Before
attempting to define a right, however, it is necessary to define two
other terms which are closely connected with it, namely, wrong and
duty.
(legal theory)
(wrong) (duty)

3
5.1 Wrongs )
A wrong is simply a wrong act contrary to the rule of right and
justice. A synonym of it is injury. Wrong or injuries are divisible for
our present purpose into two kinds, being either moral or legal.
wrong)
(injury) )
(moral wrong)
legal wrong )
A moral or natural wrong is an act which is normally or naturally
wrong, being contrary to the rule of natural justice. A legal wrong is
an act which is morally or naturally wrong, being contrary to the rule
of legal justice and a violation of the law.
)

4
It is an act which is authoritatively determined to be wrong by a rule
of law, and is therefore treated as a wrong in and for the purpose of
the administration and conversely a moral wrong may or may not be a
wrong in law.
The essence of a legal wrong consists in its recognition as wring by
the law not in the resulting suppression or punishment of it. A legal
wrong is a violation of justice according to law1
.
)
)
1
P.J Fitzgerald; Salmond on Jurisprudence, 12th
Edi: p-216

5
5.2 Duties )
A duty is an obligatory act that is to say, it is an act the
opposite of which would be a wrong2
.
The duty and the act, however, are not strictly identical. We
have duties, may be under a duty, can be in breach of a duty. We
cannot have acts be under, or in breach of, acts.
To ascribe a duty to a man is to claim that he ought to perform
a certain act. Yet not all the acts which a man ought to do constitutes
duties3
. His duties, his woes to other by virtue of his position or
station. The servant has a duty to serve his master, the child has to
obey his parent and so on.
2
Popular Series; Guide to the study of Jurisprudence p-31
3
Brandt; the Concept of Obligation and Duty, (1964) 73 Mind 374)

6
)
Duties, like wrongs are of two kinds, being either moral or
legal.
)
(moral duty) (legal duty)
These two classes are partly coincident and partly distinct. For
example, in England there is a legal duty not to sell or have for sale
adulterated milk, whether knowingly or other-wise and without any
question of negligence. In so far as the duty is irrespective of
knowledge and negligence it is exclusively a legal, not a moral duty.
)
)

7
On the other hand, there is no legal duty in England to refrain
from offensive curiosity about one's neighbours, even if the
satisfaction of it does them harm. Here there is clearly a moral though
not a legal duty.
(legal duty)
(moral duty)
Finally, there is both a moral and a legal duty not to steal.
(moral duty)
(legal duty)
When the law recognizes an act as a duty, it commonly enforces
the performance of it, or punishes the disregard of it. But this
sanction of legal force is in exceptional cases absent.

8
A duty is legal because it is legally recognized, not necessarily
because it is legally enforced or sanctioned.
5.3 Rights )
We have seen that in the strict sense a duty is something owed
by one person to another. Correspondingly the latter has a right
against the former. The master has a right against his servant, the
parent against his child and so on. To ascribe a right to one person is
to imply that some other person is under a corresponding duty.
The term ' right', like duty, can be used in a wider sense. To say
that a man has a right to something is roughly to say that it is right for
him to obtain it. This may entail that others ought to provide him with
it, or that they ought not to prevent him getting it, or merely that it
would not be wrong for him to get it4
.
4
P.J Fitzerald, Salmond on Jurisprudence, 12th
Edi; P. 217

9
Salmond defines a right as " an interest recognized and
protected by a rule of right that is by moral or legal rules5
.
)
Interests are things which are to a man's advantage; he has an
interest in his freedom or him reputation.
)
His rights to these, if he has such rights, protect the interests,
which accordingly form the subject of his rights but are different from
them. To say he has an interest in his reputation means that it is to
his advantage to enjoy a good name; to say he has a right to this is to
imply that others ought not to take this from him6
.
5
J.W Salmond on Jurisprudence, 11th
Edi; P.261
6
H.L.A Hart Definition and theory in Jurisprudence, (1954)70L.Q.R.37

10
5.3.1 Legal Rights )
Rights, like wrongs and duties, are either moral or legal. A
moral or natural right is an interest recognized and protected by a rule
of morality-an interest the violation of which would be a moral wrong
and respect for which is moral duty.
(moral right)
(legal right)
(moral right)
(natural right)
A legal right, on the other hand, is an interest recognized and
protected by a rule of law-an interest the violation of which would be
a legal wrong done to him whose interest it is, and respect for which
is a legal duty.

11
As we shall see, there are classes of legal rights which are not
enforceable by any legal process; for example, debts barred by
prescription or the lapse of time. Just as there are imperfect and
unenforceable legal duties, so there are imperfect and unenforceable
legal rights.
The following are the chief kinds of rights with reference to
their objects:
)
(1) Rights over material things;
-
(2) Rights in respect of one's own person ;

12
-
-
)
(3) The right of reputation;
-
(4) Rights in respect of domestic relations; e.g. a right to the
society, affection and security of the wife and children and so on;
-
(5) Right in respect of other rights; e.g. if I contract to
purchase land I obtain a right to the conveyance of it, and on the
conveyance being executed, the right of ownership itself;
-

13
(6) Rights over immaterial property, e.g. copyrights, trade
marks, etc.,
-
(7) Rights to services – as that of a master over that of his
servant7
.
-
5.3.2 The Characteristics of a legal right (
)
Salmond says that every legal right has the five following
characteristics:
7
Ibid - P .84

14
၅)
(1) It is vested in a person who may be distinguished as the
owner of the right, the subject of it, the person entitled, or the person
of inherence.
(2) It avails against a person, upon whom lies the correlative
duty. He may be distinguished as the person bound, or as
the subject of the duty, or as the person of incidence.
(3) It obliges the person bound to an act or omission in
favour of the person entitled. This may be termed the
content of the right.
(4) The act or omission relates to something (in the widest
sense of that word), which may be termed the object or
subject matter of the right.

15
(5) Every legal right has a title, that is to say, certain facts or
events by reason of which the right has become vested in
its owner.
Every right, therefore, involves a three – fold relation in
which the owner to it stands:-
)
(i) It is right against some person or persons.
(ii) It is a right to same act or omission of such person or
persons.
(iii) It is a right over or to some thing to which that act or
omission relates8
.
8
P.J Fitzgenald, Salmond or Jurisprudent 12th
Edi P. 222

16
5.4 The kinds of rights
)
The rights and their correlative duties may be distinguished in various
ways.
5.4.1 Perfect and imperfect rights
)
A perfect right is one which corresponds to a perfect duty, and a
perfect duty is one which in not only recognized by the law but
enforced.
In the case of a perfect right the Courts of law not only recognize
that particular right, but enforce it, even if it is necessary with the
help of the physical force of the estate.

17
Enforceability is the general test as such as sight. On the other hand,
an imperfect right is one which will undoubtedly be recognized by
the law , yet such a right falls short of a perfect rights9
.
Example of such legal rights are claims barred by lapse of time,
claims unenforceable by action on account of the absence of some
strict legal requirement, such as, the non registration of a document
where registration is compulsory and so on.
These are rights which receive recognition by the courts, but they are
imperfect because no action will lie for the enforcement of such
rights.
Thus the statute of limitation does not provide that after a certain
time the debt shall become extinct, but merely states that no action
9
Ibid, p. 233

18
can be brought for its recovery. All these cases of imperfect right are
exceptions to the maxim, ubi jus ibi remedium, where there is a right
there is a remedy. The law will recognize such imperfect right only
for the following purpose;
(i) An imperfect right may be good as aground of defense thought
not as aground of action. I cannot sue on an unregistered instrument
required by law to be registered, but if money is paid to me or
property delivered to me in pursuance of it. I can successfully defend
any claim for its recovery;
)
(ii) An imperfect right is sufficient to support any security which has
been given for it. A mortgage or pledge remains valid, although the
debt secured by it has ceased to be recoverable by action:

19
)
(iii) An imperfect right may posses the capacity of becoming perfect.
Thus a promise to pay a time –barred debt will be enforced by the
courts10
.
)
5.4.2 Positive and negative rights
)
A positive right corresponds to a positive duty, and is a right
that he on whom the duty lies shall do some positive act on behalf of
the person entitled.
10
Popular Series; Guide to the Study of Jurisprudence P. 87

20
A negative right corresponds to a negative duty and is a right that the
person bound shall refrain from some act which would operate to the
prejudice of the person entitled.
The former is a right to be positively benefited; the latter is merely a
right not to be harmed.
5.4.3 Rights in rem and rights in personam
)
A real right or right in rem is one which corresponds to a duty
imposed upon the people in general. A personal right or right in
person is one which corresponds to a duty imposed upon a particular
individual11
.
A right in rem is available against the world at large; a right in
persons is a variable only against particular persons. The distinction
11
Guide to the Study of Jurisprudence P-88

21
is one of great prominence in the law, and we may take the following
as illustrations of it.
My right to the peaceable occupation of many farm is in rem, for all
the worlds is under a duty towards me not to interfere with it. But if I
grant a lease of the farm to tenant, my right to receive the rent from
him is in persons, for it avails exclusively against the tenant himself.
For the same reason my right to the possession and use of the money
in my purse is in ram, but may right to receive money from some one
who owes it to me is in personal12
.
-
12
P.J Fitzgerald; Salmon or Jurisprudence. 12th
Edi; P 235

22
The distinction is clearly one of importance. The law confers
upon me a greater advantage in protecting my interests against all
persons than in protecting them only against one or two13
. The
distinction between rights in rem and in personam applies not only to
rights in the strict sense, but also to liberties, powers and immunities.
Thus freedom of speech is, within its limits, a liberty in rem, while a
license to walk over the land of a particular land owner is a liberty in
persons. The power to make a contractual officer is a power in ram,
while the power to accept an offer made, and thus to create a contract
is a power in person availing only against the person who has made
the offer14
.
13
W.N Hoofed; Fundamental Legal Conceptions. 1921, p. 91
14
J.W Saloml Jurisprudence. 17th
the Edi; P. 287

23
5.4.4 Proprietary and Personal rights
)
Another important distinction is that between proprietary and
personal rights. The aggregate of a man's proprietary rights
constitutes his assets, or his property in on elf the many senses of that
most equivocal or legal terms. The sum total of a man's personal
rights, on the other hand, constitutes his status or personal conditions
as opposed to his estate. if he owns land, or patent rights, or the goods
will of a business , or shares in a company, or if debts are owing to
him, all these rights pertain to his estates. But if he is a free man, a
citizen, a husband and a father the rights which he has as such pertain
to this status or standing in the law15
.
15
P.J Fitzgenrald< Salmond on jurisprudence, 12th
Edi, p-238

24
Salmond concludes that distinction lies in the fact that
proprietary rights are valuable, and personal rights are not. The
former are those which are worth money, the latter are those that are
wroth name. The former are the elements of a man's wealth, the latter
are merely elements in his well being16
. On the other hand, a man's
rights of personal liberty, and of reputation and, of freedom from
body harm are personal, not proprietary. They concern his welfare,
not his wealth they are judicial merely not also economic17
.
-
5.4.5 Rights in re-propriety and rights in re-alien
)
A right in re-propriety is a right which the possessor can
exercise without any interference logs another; a right in re aliens is a
16
G.W Patton, A Text book of Jurisprudence 3th the Edi, p-268
17
D.W Logan, A Civil Servand and his pay (1965) 61 L.Q.R 240

25
right which a person possess with respect to the property owned by
another. It frequently happens that a right belonging to one person is
subject to an adverse right vested in another, e.g. the right of an
owner of one piece of land to use a way over the property of his
neighbor. Such rights are called easements or servitudes. A right in
re-aliens is positive such as a right of way over the neighbours field
or negative. e.g. prohibiting his neighbor from building in such a
manner as to obstruct light and air to his house. A right subject to an
encumbrance is designed as servient right, and the right with respect
to which the encumbrance exists is called the dominant right18
. The
chief classes of encumbrances are four in number, namely, leases,
servitudes, securities and trusts.
(encumbrance)
18
Popular Sereis; Guide to the Study of Jurisprudence p. 91

26
(servient right)
(dominant
right)
A lease is the encumbrance of property vested I in one man by a
right to the possession and use of it vested in another19
. Servitude is a
right to the limited use of piece of land unaccompanied either by the
ownership or by the possession of it; or example, a right of way or a
right to the passage of light or water across adjoining land.
(right of
way)
A security is an encumbrance vested in a creditor over the property
of his debtor, for the purpose of securing the recovery of the debt; a
right, for example, to retain possession of a chattel until the debt is
19
G.C Cheshire, Modern Real Property 8th
Edi, p. 342

27
paid. A trust is an encumbrance in which the ownership is limited by
an equitable obligation to deal with it for the benefit of someone else.
The owner of the encumbered property is the trustee; the owner of the
encumbered property is the trustee; the owner of the encumbrance is
the beneficiary20
.
5.4.6 Principal and accessory rights
)
The relation between principal and accessory right is the
reverse of that just considered as existing between service and
dominant rights. For every right is capable of being affected to any
extent by the existence of other rights; and the influence thus
exercised by one upon another is either adverse or beneficial. It is
adverse when one right is limited or qualified by another vested in a
different owner. It is beneficial, on the other hand, when one right has
added to it a supplementary right vested in the same owner. In this
case the right so augmented may be termed the principal. While the
one so appurtenant to it, it is the accessory right. Thus a security is
accessory to the right secured, a servitude is accessory to the
ownership of the land for whose benefit it exists; the rent and
covenants of lease are accessory to the landlord's ownership of the
properly21
.
20
P.J Fitzgerald, Salmond on Jurisprudence, 12th
Edi, p, 243
21
P.J Fitzgerald, Salomnd on Jurisprudence, 12th
Edi, P. 243

28
(principal
right)
(accessory
right)
5.4.7 Primary and sanctioning rights
)
A primary right may be explained as the bundle of those rights
which are the privileges enjoyed by any person e.g. a person's right to
liberty, safety, and reputation. A violation of any of these rights
produces a sanctioning right. Thus my right not to be libeled or
assaulted is primary; but my right to obtain pecuniary compensation
from one who has libeled or assaulted me is a sanctioning right22
. My
right to the fulfillment of a contract made with me is primary; but my
right to damages for its breach as sanctioning23
.
(primary right)
22
Popular series Guide to the study of Jurisprudence p. 44
23
Edi, P. 101

29
(sanctioning right)
It should be observed that a primary right can be either a right
in rem, e.g. my right not to be assaulted, or a right in personam, e.g.
my right that you perform your contract with me. But the sanctioning
right which arises from the violation of a primary right will be all
cases a right in personam. If you break your contract I now have a
sanctioning right in personam to damages. But equally if you violate
my right, it is not to be assaulted. I now have a sanctioning right in
personal to damages24
.
5.4.8 Legal and equitable rights
)
The difference between legal and equitable rights is the
outcome of the distinction between law and equity. We have seen that
in England till the passing of the Judicature Act 1873, two distinct
and coordinate systems of law were being administered at the same
time by different tribunals. The existence of this double system has
led to the existence of a double system of rights. Legal rights
recognized by the Common Law Courts, and equitable rights or
equities recognized only by the court of Chancery. Now although all
24
Edi, P. 244

30
Courts recognized both legal and equitable rights, the distention is
still of practical importance.
(equitable rights)
(legal rights)
(legal rights)
(Common Law Courts)
(equitable rights) (Court of
Chancery)

CHAPTER VI
OWNERSHIP
6.1 The Meaning and Nature of Ownership 2
6.2 Corporeal and incorporeal ownership 5
6.3 Sole ownership and co-ownership 9
6.4 Trust ownership and beneficial ownership 12
6.5 Legal ownership and equitable ownership 14
6.6 Vested and contingent ownership 16
KEY TERMS 19

2
CHAPTER VI ( -၆)
OWNERSHIP )
6.1 The Meaning and Nature of Ownership
)
Ownership denotes the relation between a person and an object
forming the subject-matter of his ownership. It consists in a complex
of right, all of which are rights in ram, being good against all the
world and not merely against specific persons. Though in certain
situations some of these rights may be absent; the normal case of
ownership can be expected to exhibit the following incidents.
First, the owner will have a right to possess the thing which he
owns. He may necessarily have possession, for he may have been
wrongfully deprived of it or may have voluntarily divested himself of
it.

3
If 'A' watch is stolen by 'B' the latter has possession but the
former remains the owner with an immediate right to possession.
'A' 'B' 'B'
'A'
If ' A ' lends his watch for hire to 'C' 'A' now has neither
possession nor an immediate right to posses. He is still the owner,
however, for be retains a reversionary interest in the watch, is a right
to repossess it on the termination of the period of there, and though he
lacks in English Law the remedies available to possessor for wrongful
interference, he is protected by a remedy in the form of an action on
the case against interference damaging his reversionary interest.
'A' 'C'
'A'
'A'
Secondly, the owner normally has a right to use and enjoy the
thing owned; the right to manage it; the right to decide how it shall be
used; and the right to the income from it. Where as the right to
possess is a right in the strict sense, these rights are in fact liberties;
the owner has a liberty to use the thing, i.e. he is under no duty not to

4
use it, in contrast with others who are under a duty not to use or
interfere with it.
-
Thirdly, the owner has the right to consume, destroy or alienate
the thing.
The right to consume and destroy is straight-forward liberties.
The right to alienate, i.e. the right to transfer his rights over the
object to another, involves the existence of a power. A non-owner
even though he has possession, cannot normally transfer the rights of
ownership over a thing to another; for the law acts on the principle
memo dat quod non habet. To this principle there are certain
exceptions.

5
Fourthly, ownership has the characteristics of being
indeterminate in duration. The position of an owner differs from that
of a non-owner in possession in that the Latter's interest is subject to
be determined at some future set point, whereas the interest of the
owner can endure theoretically for ever. The interest of the bailer or
lessee comes to an end when the period of hire or of the lease
determines; the owner's interest is perpetual, being determined neither
by any set point nor by the owner's death, because the property owned
can descend to the owner's hire or next-of kin, and if he had sold the
property prior to his death, then the new owner's interest would
continue unaffected by the previous owner's death.
Fifthly, ownership has a residuary character. If, for example, a
land –owner gives a lease of his property to 'A', an easement to Band
some other rights such as a profit to 'C', his ownership now consists
of the residual rights, i.e. the rights remaining when all these lesser,
rights have been given away.
6.2 Corporeal and incorporeal ownership
)
The distinction between corporeal and incorporeal ownership is
the out-come of this distinction between corporeal and incorporeal
things.

6
Corporeal things are those things which can be seen and felt by
the senses; for example a house, a coin and such other things.
Therefore corporeal ownership means ownership over things which
can be perceived by the senses; the owner of a house owns a corporeal
things.
Incorporeal things are those that cannot be perceived by the
senses; for example a debt, a patent. The owner of a patent owns an
incorporeal thing. But this distinction between corporeal and
incorporeal ownership is only the mode of expressing ownership
because in all cases ownership is a right and not an object. We usually
speak of acquiring and transferring land but strictly speaking it should
be the acquisition and transfer to the rights in land. Nevertheless, in a
narrow sense we speak of the ownership of a material object as
corporeal ownership and the ownership of an incorporeal thing as
incorporeal ownership.

7
The use of the word corporal ownership in its corporeal sense is
not always per miss able. I may be said to own the money in my hand,
but as to that which is due to me. I own, not the money but a right to
it. In one case I own material coins; in the other the material debt. So
I own land, but merely a right of way over the land of my neighbour.
In order not to create confusion, Salmon said that the ownership of a
material thing peens the just in reprogram in respect of that thing.
When on the other hand, a right in respect of property belonging to
another, as for example, a right of way over my neighbour's field is
called a jus in realign. The ownership of a jus in re alien is always
incorporeal even though the object of the right is a corporeal thing.

8
In this and normal compass corporeal ownership is the right in
its-entirely of the lawful uses of a corporeal thing. This compass may
however be limited to any extend by the adverse influence of aura in
re-alien a vested in other person. The right of the owners of a thing
may all be catena up by the dominant right of lessees, mortgages and
other encumbrances. His ownership may be reduced to a mere name
rather than reality. Yet he none the less remains the owner of the
thing, which all others own nothing more than rights over it. He is the
owner of a material object, but out of the bundle of rights, some have
been taken away and vested in the encumbrances who are owners of
their respective encumbrances. Thus this forms and example of
duplicated ownership.

9
(encumbrances)
6.3 Sole ownership and co-ownership
)
It may often happen that a right is vested in more than one
person at one and the same time. This is called co-ownership for
example partners are co-owner of all the properties which constitute
the partnership assets.

10
It is not correct to say that a right owned by co-owners is divisible
between them. Each one of them owns a separate part. The right is an
undivided unity which is vested at the same time in more than one
person.
If two partners have a credit balance of a hundred kyat there is one
debt of kyat 100 owing by the bank to them at once and not two
separate debts of fifty due to each of them individually. So co-
ownership involves the undivided integrity of the property owned.
)
)
)

11
Co-ownership assumes two different forms distinguished as
ownership in common and joint ownership. The most important
difference between the two relates to the effect of the death of one of
the co-owners. In ownership in common the right of the dead man
descends to his successors, like any other her table right. But on the
death of one of the joint owners his ownership die with him, and the
survivor becomes the sole owner by virtue of his survivorship.
(ownership in common)
(joint ownership)

12
6.4 Trust ownership and beneficial ownership (
)
Trust property is that which is owned by two persons at the
same time, the relation between them being such that one is under an
obligation to use his ownership for the benefit of the other. The
former is called the trustee, and his ownership is trust ownership, the
latter is called beneficiary, and his ownership is called beneficial
ownership. The trustee has no right to make use of his ownership for
his own benefit and his right is nominal, rather than real, but in law
he is the legal owner.

13
In legal theory however, he is not a mere agent but an owner.
He is a person to whom the property of some one else is fictitiously
attributed by the law, to the extent that the rights and powers thus
vested in a nominal owner shall be used by him on behalf of the real
owners. As between trustee and beneficiary the law recognizes the
truth of the matter: as between these two, the properly belongs to the
latter and not to the former. But as between the trustee and the third
persons, the fiction prevails the trustee is clothed with the rights of
his beneficiary, and is so enabled to personate of represent him in
dealings with the world at large.
The purpose of trusteeship is to protect the rights and interests
of persons who for any reason are unable effectively to protect them
for themselves. The law vests those rights and interests for safe
custody, as it were, in some other person who is capable of guarding
them and dealing with them, and who is placed under a legal

14
obligation to use them for the benefit of him to whom they in truth
belong1
.
Trust-ownership and beneficial ownership are independent of
each other in their destination and disposition. Either of them may be
transferred, while the other remains unaffected. The trustee may
assign to another, who thereupon becomes a trustee in his stead, while
the beneficiary remains the same; or the beneficiary may assign to
another. In like manner either kind of ownership may be
independently encumbered. The trustee may in pursuance of the
power of the trust, lease or mortgage the property without the
concurrence of the beneficiary; and the beneficiary may deal in the
same way with his beneficial ownership independently of the trustee.
6.5 Legal ownership and equitable ownership
Legal ownership is that which has its origin in the rules of
common law; while equitable ownership is that which proceeds from
the rule of equity divergent from common law. This distinction
between legal and equitable ownership is still maintained in spite of
the fusion of common law and equity. The distinction between legal
and equitable ownership is not identical with that mentioned as
existing between legal and equitable rights. The equitable ownership
1

15
of a legal right is not the same as the legal ownership of an equitable
ownership of a legal right is not the same as the legal ownership of an
equitable right, for example when a debt is verbally assigned by A to
B, A still remains the legal owner but B becomes the equitable owner
of it. Thus there happen to be two distinct owners, although the debt
is the same. In the same way if A, the legal owner of a share in a
company, makes a declaration of a trust in tabor at B,B becomes forth
with the equitable owner of that share, which is in effect an equitable
right to a legal right which is at the same time the legal right of A.
Similarly the legal ownership of an equitable mortgage is a different
thing from the equitable ownership of a legal mortgage because in the
former there is only one, owner, where as in the latter there are two
distinct owners the one being the legal and the other the equitable
owner.
The distinction between legal and equitable ownership must be
distinguished from trust and beneficial ownership. It is true that in a
trust ownership and beneficial ownership all the element of legal and
equitable ownership are present. A trustee is always the legal owner,
and a beneficiary the equitable owner. But an equitable owner that is
the beneficiary might himself be a trustee for another person. Thus a
person may settle upon trust his equitable interest in a trust fund. In
such a case either the trustee or the beneficiary will have nay interest
in the fund.

16
6.6 Vested and contingent ownership
)
Ownership is either vested or contingent. It is vested when the
owners’ title is already perfect; it is contingent when his title is as yet
imperfect, but is capable of becoming perfect on the fulfillment of
some condition. In the former case the ownership is absolute; in the
latter it is merely conditional. In the former case the investiture fact
from which he derives the rights is complete in all its part; in the
latter it is incomplete, by reason of the absence of some necessary
element, which is nevertheless capable of being supplied in the future.
In the meantime, therefore, his ownership in contingent and it will not
become vested until the necessary condition is fulfilled.
(owners’ title)
(vested ownership)
(contingent ownership)

17
A testator, for example, may leave property to his wife for her life
and on her death to A, if he is then alive out if A is them dead, to B,
A and B are both owners of the property in question, but their
ownership is merely contingent. That of A is conditional on his
surviving the testators’ widow; while that of B is conditional on the
death of A in the widow's lifetime.
A
B
B
It is to be noticed that the contingent ownership of a thing is
something more than a simple chance or possibility of becoming the
owner. It is more than a mere spas acquisition. I have no contingent
ownership of a piece of land merely because I may buy it, if I so
wish, or peradventure its owner may leave it to me by his will.
Contingent ownership is based not upon the mere possibility of future
acquisition but upon the present existence of an inchoate or
incomplete title.
The condition on which contingent ownership depends is termed
conditions precedent to distinguish them from another kind known as
conditions subsequent. A condition precedent is one by the fulfillment
of which an inchoate title is complete; a condition subsequent is one
on the fulfillment of which a title already compete is extinguished. In
the former case I acquire absolutely what I have already acquired
conditionally. In the latter case I lose absolutely what I have already
lost conditionally. A condition precedent involves on inchoate or

18
incomplete invective fact; a condition subsequent involves an
incomplete or inchoate devastative fact. He who owns property
subject to a power of sale or power of appointment vested in someone
else owns it subject to a conditional subsequent. His title is complete,
but there is already in existence an incomplete devastative fact, which
may one day complete itself a cut short his ownership.
It is to be noticed that ownership subject to a condition
subsequent is not contingent but vested. The condition is attached not
to the commencement of vested ownership but to the continuance of
it. Contingent ownership is that which is not yet vested, but may
become so in the future while ownership subject to a condition
subsequent is already vested, but may be divested and destroyed in
the future. It is ownership already vested, but liable to premature
determination by the completion of a divesture fact which is already
present in part.
It is clear that two persons may be contingent owner of the
same right at the same time; the ownership of each is alternative to
that of the other. The ownership of one is destined to become vested,
while that of the other is appointed to destruction. Similarly, the
vested ownership of one man may co-exist with the contingent
ownership of another, for the event which in the future vest the right
in the one will at the same time will divest it from the other. Thus a
testator may leave property to his wife, with the provision that if she
marries again, she shall forfeit it in favour of his children. His
window with have the vested ownership of the property, and his
children the contingent ownership at the same time. Her marriage is a
condition subsequent in respect of her own vested ownership and a
condition precedent in respect of the contingent ownership of the
children.

19
(condition subsequent)
(condition precedent)
KEY TERMS
Ownership -
Possession -
Consume -
Alienate -
Patents -
Copyright -
Exploitation -

20
Corporal and Incorporeal ownership -
Mortgagee -
Sole ownership and co-ownership -
Debtor -
Trust ownership and beneficial ownership -
Legal ownership and equitable ownership
Vested and Contingent ownership -

1
CHAPTER VII
POSSESSION
7.0 Possession 2
7.1 Possession in Fact and in Law 4
7.2 Relation between possession and ownership 5
7.3 The two elements in the conception of Possession 7
7.4 Corporeal and Incorporeal possession 11
7.5 Immediate and Mediate possession 14
7.6 Kinds of mediate possession 15
7.7 Concurrent Possession 17
7.8 Possessory remedies 18
KEY TERMS 19

2
CHAPTER VII -၇)
POSSESSION )
7.0 Possession )
Salmond says that in the whole range of legal theory there is no
conception more difficult to understand than that of possession.
၏
Because the legal consequences which flow from the
acquisition and loss of possession, these are many and serious.
Possession for example is evidence of ownership the possessor
of a thing is presumed to be the owner of it and may put all other
claimants to prove their title.
၏
၏
Long possession is a sufficient title event the property which
originally belonged to another. The transfer of possession is one of
the methods of transferring ownership.

3
The first possession of at thing which as yet belonged to non
confers a good title of right. Even in respect of property wrongfully
owned the wrongfully possession of it is a good title for the
wrongdoer against all world, except the true owner.
Moreover a possessor in many cases confers a good title on
another even though he himself has none as when I obtain a banknote
form a thief.
၏

4
7.1 Possession in Fact and in Law (
)
Possession may and usually does exist both in fact and law. The
law recognizes all that is so infect unless there is some reason to the
contrary. Secondly possession may exist in fact but not in law, for
example possession by a servant of his master's property and thirdly
possession may exist in law but not in fact, for example constructive
possession. In consequence of this divergence between the law and
the fact of possession it is not possible to formulate any abstract
theory which might completely harmonies the different aspects of the
concept of possession.
(Possession in fact) Possession in law)
၏
၏

5
constructive
possession)
၏
7.2 Relation between possession and ownership
၏ )
Possession is the objective realization of ownership. It is infact
what ownership is in law. Possession is de facto exercise of a claim;
ownership is the de jure recognition of one.
၏
“ (infact)
“ (in law)
(de facto)
(de jure)
When I own a thing the law guarantees my ownership, but when
I possess a thing, my claim to it is maintained by my own will.
၏
၏

6
Speaking generally, ownership and possession have the same
subject matter. Whatever may be owned by may be possessed and vice
versa.
၏
This statement is subject to two important qualifications (1)
there may be possession without ownership, for example, trade marks,
copy-right might be possessed in fact, although at one time the law
refused to recognize or defend them:
)
(2) there are many rights which are capable of being owned, but
owing to their transitory nature are not capable of being possessed.
Rights which do not admit of continuing exercise do not admit of
possession either. A creditor for example, does not possess the debt
that is due to him for, this is, a transitory right which by its very
nature cannot survive its existence. But a person may possess an
easement over land because its continued existence and exercise are

7
consistent with each other. It is for this reason that obligations
generally do not admit of possession.
၏
7.3 The two elements in the conception of Possession
၏
) )
The possession of a material object is the continuing exercise of
a claim to the exclusive use of it. It involves two distinct elements,
one of which is called the mental or subjective, the other physical, or
objective.
)
(subjective elements)
(objective elements)
7.3.1 The first conception of possession ၏
)
The first element-the first conception of possession, namely
animus possidendi consists in the intention of a person to appropriate
for himself the exclusive use of the things possessed.

8
၏
၏
More possession without the intention to claim possession over
it is ineffective. A person does not possess a field because he is
walking over it unless he has the intention of excluding other from the
use of it.
၏
I may be alone in room with money that does not belong to me
lying on the table. I have absolute physical power to appropriate it but
I have no possession of it because I have no intention with respect to
it.
၏

9
၏
As to the nature of animus possidendi- Salmond makes the
following observations:
animus possidendi ၏ ၏
(a) The intention to possess it need not necessarily be a claim
of right. It may consciously be wrongful. The thief has
the possession of it no less real than that of the real
owner.
(b) The claim of the possessor must be exclusive but this
power of exclusion need not be absolute. Thus, I may
possess my land notwithstanding the fact that some other
person or even the public at large possess a right of way
over it;
၏

10
(c) The animus possidendi need not amount to claim or intent
to use it as owner. Thus a tenant or a borrower or a pledge
may have possession no less real than actual owner.
(d) The animus possidendi need not be a claim on one's won
behalf. I may possess a thing either on my own account or
on behalf of another. A servant trustee or agent may
claim it on behalf of another.
၏
(e) The animus possedendi need not be specific, but may be
general. Thus I posses all the books in my library, though
I may have forgotten the existence of many of them. That
is to say animus does not involve the full knowledge of
the thing possessed.

11
7.4 Corporeal and Incorporeal possession
)
Corporeal possession is of a material object , for example , a
house, a farm a piece of money.
Incorporeal possession is the possession of any thing other than
material thing, for example a way over another man's land, a title of
honours, a profit and soon.
၏
All these things may be possessed and owned. The possessor
may or may not be the owner of them, and the owner of them may or
may not be in possession of them.

12
Corporeal possession is termed in Roman law as possession
corporis and incorporeal possession as possession Jurist. In corporeal
possession is usually called the possession of a right, and corporeal
possession is distinguished from it as the possession of a thing.
Thus my claim to the possession of the watch in my pocket is
corporeal possession. With respect to incorporeal possession, the
thing claimed may be either the non-exclusive use of a material
object, for example, a way or other servitude over a piece of land or
some interest or advantage unconnected with the use of material
objects, for example, a trade-mark, a patent, or profit.
)
၏ )
In the case of corporeal possession, the possession of the
material object is essential to constitute possession.
In other words the possession of a material object is the
continuing exercise of a claim to the conclusive use of it.

13
Actual use of it however, is not essential. I may lock my watch
in a safe instead of keeping it in my pocket, and, thought I do not lock
at it for twenty years; I remain in possession of it none the less.
၏
)
၏
In the case of incorporeal possession, on the country, actual
continuous use and enjoyment is essential, as being the only possible
mode of possession. I can acquire and retain possession of a right of
way only through actual and repeated use of it. In the case of
incorporeal things continuing non-use is inconsistent with possession,
though in the case of corporeal things it is consistent with it.
၏

14
7.5 Immediate and Mediate possession
)
One person may possess a thing for and on account of another.
In such cases, the former is in possession of a thing on another's
behalf.
၏
The possession thus held by one man on behalf of another is called
mediate, whilst that which is acquired or retained directly and
personally may be distinguished as direct or immediate possession.
If I myself go to purchase a book, I acquire immediately possession of
it; but if I send my servant to buy it form me. I acquire mediate
possession of it through him until the book is in my hands when it
becomes immediate.
၏
၏
၏

15
၏
7.6 Kinds of mediate possession
)
There are three kinds of mediate possession.
)
The first is that which I acquire through an agent or a servant. In
such cases the person who acquires it holds it solely on my own
account, and makes no claim of his own.
The second is that in which direct possession is in one who
holds it both on my and his own account, but who recognizes my
superior right to obtain from him the direct possession whenever I
chose to demand it, e.g. a hirer, a borrower or a tenant at will.
၏

16
The third case of mediate possession is that in which the
immediate possession is in one person who claims for himself until
sometime is clasped, or some condition is fulfilled, e.g. I deliver my
watch as a pledge to be returned on the payment of a debt; I still
retain possession of the thing so far as third person are concerned.
၏
၏ ၏
၏
၏
In all cases of mediate possession two persons are in possession
of the same thing at the same time. It forms an example of duplicate
possession. It similar duplicate possession exists in the case of master
and servant, land lord and tenant, bailor and bailee, pledgor and
pledgee. There is however, an important distinction to be noted. For
some purposes mediate possession exists as against third persons

17
only, and not against the mediate possessor. Immediate on the other
hand, is valid against all the world, including the mediate possessor
himself. Thus it I deposit goods with a warehouse man, I retain
possession against all other persons, but as between the
warehouseman and myself, he is in possession and not me.
၏
၏
7.7 Concurrent Possession )
It is often expressed that two person cannot be in possession of
the same thing at the same time. As a general proposition this is true;
for exclusiveness is the essence of true possession. Two adverse
claims of exclusive use cannot exist at one and the same time; Claims
however which are not adverse to each other may co-exist; they are
the several cases of duplicate possession. e.g. (1) Mediate and
immediate possession co-exist in respect of the same thing (2) Two or
more persons may posses the same thing in common just as they own
it in common (3) Corporeal and incorporeal possession may co-exist
in respect of the same thing. Thus A may possess the land whilst B
may possess a right of way over it at the same time.
၏

18
၁)
(Mediate and
immediate possession) )
၏
)
(Corporeal and incorporeal possession)
A
B
7.8 Possessory remedies ( )
Possesory remedies are those remedies which are available for
the protection of possession; whereas proprietary remedies are those
available for the protection of ownership itself. In English law,
possession is a good title of right against anyone who cannot show
better.

19
Possesory remedies )
proprietary remedies)
၏
In old times possession was generally guarded against by means of
violent self-help. But the tendency of the modern times, if to attain
this end by a much more satisfactory and reasonable way.
KEY TERMS
Nuisances -
Distress -
Interruption -
Bailee -
Bailor -
Tenant -

20
Sole ownership and Co-ownership -

1
CHAPTER VIII LIABILITY
8.1 The nature and kinds of liability 2
8.2 The theory of Remedial Liability 4
8.3 The theory of Penal Liability 7
8.4 Acts 9
8.4.1 The two classes of wrongful acts 12
8.4.2 Damnum Sin Injuria 15
8.4.3 Mens Rea 17
8.4.4 Intention 22
8.4.5 Motive 25
8.4.6 Malice 27
8.4.7 Negligence 28
8.5 The Duty of Care 33
8.6 Theory of Strict Liability 35
8.6.1 Mistake of Law 35
8.6.2 Mistake of Fact 37
8.6.3 Accident 39
8.7 Vicarious Liability 42
8.8 Measure of Criminal Liability 46
8.9 Measure of Civil Liability 50
KEY TERMS 51

2
CHAPTER VIII
(၈)
LIABILITY
8.1 The nature and kinds of liability (
)
A person who commits a wrong is said to be liable or
responsible for it. Liability or responsibility is the bond o necessity
that exists between the wrongdoer and the remedy of the wrong. A
man's liability consists in those things which he must do or suffer
because he has already failed in doing what he ought to have done.
Liability has its sources in the supreme will of the State1
.
Liability may be in the first place either civil or criminal and in
the second place remedial or penal. Civil liability is the liability to
1
Popular Series: Guide to the Study of Jurisprudence P. 127

3
civil proceedings whose direct purpose is the enforcement of a right
vested in the plaintiff. Criminal liability is the liability to criminal
proceedings whose direct purpose is the punishment and the wrong-
doer. The liability of a borrower to repay the money borrowed by him
is remedial; that of the publisher of a libel to be imprisoned, or to pay
damages to the person injured by him, is penal. All criminal liability
is penal; civil liability, on the other hand, is sometimes penal and
sometimes remedial2
.
2
P. JFitzgerald, Salmond on Juriprudence, 12th
Ed P. 349

4
8.2 The Theory of Remedial Liability (
)
The theory of remedial liability presents little difficult. It might
seem at first sight that, whenever the law creates a duty it should
enforce the specific fulfillment of it. There are, however, several
cases where, for various reasons, duties are not specifically enforced.
They may be classified as follows:
(1) There are duties of imperfect obligation-duties the breach
of which give no cause of action, and create no liability at
all, either civil or criminal, penal or remedial. A time-
barred debt is no doubt a legal debt, but the payment of it
will not be enforced by any court of law3
.
3
P.J Fitzgerald, op, cit, p,, 350

5
(2) Where the duty violated is by its every nature in capable
of specific enforcement; there are duties which cannot be
specifically enforced when once they are broken. Thus it
is the duty of every person to refrain from doing anything
that is likely to injure the reputation of others. But once a
libel is published, the miscreant cannot be made to undo
what he has already done. Wrongs of this nature cannot
be remedial, they can only be punished.
(reputation)
(to refrain)
(libel)

6
(3) Where the specific enforcement of the duty is
inexpedient. There are duties, the specific enforcement of
which the law can, but will not enforce, because it is
either inadvisable or inexpedient to do so. Thus the law
will refuse to enforce specific performance of a promise
of marriage, or breach of contract of service, on the
ground of public policy. In such cases the law provides
pecuniary compensation4
.
(inexpedient)
(inexpedient)
(inadvisable)
(public policy)
4
Guide to the Study of Jurisprudence P. 128

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