Jurisprudence: Schools, Concepts and Theories of Justice
What it is
Jurisprudence studies what law is, why it binds, and its building blocks: rights, duties, persons, property, possession and liability. UGC-NET tests exact attribution of ideas to jurists, contrasts between schools and tools such as Hohfeld's scheme, plus theories of justice: law and poverty, global justice and the post-modern critique.
Core concepts
Nature and sources of law. Austin defined law as a command of the sovereign backed by a sanction; the sovereign is a determinate superior habitually obeyed by the bulk of a society and obeying no like superior. Salmond defined law as the principles recognised and applied by the State in administering justice; its main legal sources are legislation, precedent and custom. Precedent binds by its ratio decidendi, not obiter dicta (Goodhart: material facts plus decision; Wambaugh: the inversion test), and Article 141 binds all Indian courts to law declared by the Supreme Court. A valid custom must be immemorial (in English law, from 1189), continuous, peaceable, certain, reasonable and consistent with statute.
Schools of jurisprudence. Natural law grounds law in reason; Aquinas ranked eternal, divine, natural and human law. Analytical positivism separates law as it is from law as it ought to be: Austin's command theory; Kelsen's Pure Theory, where validity flows from a presupposed Grundnorm; Hart's The Concept of Law (1961), primary rules of obligation plus secondary rules of recognition, change and adjudication. Historical school: Savigny's Volksgeist (law is found, not made) and Maine's movement "from Status to Contract" (Ancient Law, 1861). Sociological school: Ihering (law as a means to social ends), Ehrlich (living law), Duguit (social solidarity), Pound (social engineering). Realists: Holmes (law as prophecy of what courts will do), Llewellyn (rule-sceptic), Frank (fact-sceptic) and the Scandinavian realists (Olivecrona, Ross).
Law and morality. Positivists keep the two conceptually separate, though Hart conceded a "minimum content of natural law" drawn from human vulnerability, approximate equality, limited altruism, limited resources and limited understanding and strength of will. In the Hart–Fuller debate (1958) Hart held that an evil law is still law; Fuller's inner morality of law (The Morality of Law, 1964) lists eight desiderata: generality, promulgation, non-retroactivity, clarity, non-contradiction, possibility of compliance, constancy, and congruence of official action with declared rule. The Hart–Devlin debate followed the Wolfenden Report (1957): Devlin would let society enforce shared morality; Hart, after Mill's harm principle, rejected legal moralism. Navtej Singh Johar v Union of India (2018) preferred constitutional to popular morality in reading down section 377 of the former IPC.
Concept of rights and duties. Salmond gives five elements of a legal right: person of inherence, person of incidence, content, object and title. The will theory (Savigny, Hart) treats a right as a protected choice; the interest theory (Ihering, Bentham) as a protected interest. Rights are perfect or imperfect (a time-barred debt is recognised but not enforceable), in rem or in personam. Austin's absolute duties have no correlative right. Hohfeld split "right" into claim-right, privilege, power and immunity, each with a correlative and an opposite.
Legal personality. A legal person is any entity capable of rights and duties; Indian law treats corporations and a Hindu idol as juristic persons. Theories: fiction (Savigny, Salmond — personality is a creation of law), concession (it exists only as the State grants it), realist (Gierke, Maitland — a group has a real will), bracket (Ihering) and purpose (Brinz). A corporation aggregate has many members; a corporation sole is one office-holder in succession, such as the Crown. Salomon v Salomon & Co (House of Lords) settled that a company is a person separate from its members.
Concepts of property, ownership and possession. Property theories include labour (Locke), metaphysical (Hegel) and psychological (Bentham). Austin defined ownership as a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration; Salmond made it a relation to rights, so incorporeal things can be owned. Savigny required corpus plus animus domini (intent to hold as owner), so a tenant merely detains; Ihering rejected that special animus, seeing possession as the visible exercise of ownership; Salmond required corpus plus animus possidendi (intent to exclude others) and distinguished mediate from immediate possession. A finder has title against all but the true owner (Armory v Delamirie, 1722), and twelve years' adverse possession of private immovable property extinguishes title under the Limitation Act 1963.
Concept of liability. The maxim actus non facit reum nisi mens sit rea demands mens rea: intention, recklessness or negligence, which is a careless state of mind on Salmond's subjective theory and sub-standard conduct on Pollock's objective theory. Rylands v Fletcher (1868) imposed strict liability for the escape of a dangerous thing brought onto land for a non-natural use, subject to act of God, the plaintiff's default, consent, act of a stranger and statutory authority. M.C. Mehta v Union of India (the oleum gas leak case) made enterprises in hazardous activity absolutely liable, with no exceptions and damages scaled to their capacity.
Law, poverty and development. S.P. Gupta v Union of India (1981) relaxed locus standi for public interest litigation; Hussainara Khatoon v State of Bihar (1979) read speedy trial into Article 21; Olga Tellis v Bombay Municipal Corporation (1985) held that the right to life includes livelihood. Article 39A (42nd Amendment, 1976) promises free legal aid, delivered under the Legal Services Authorities Act 1987, which makes a Lok Adalat award a deemed civil-court decree. Amartya Sen's Development as Freedom (1999) treats development as expanding real freedoms and poverty as capability deprivation.
Global justice. Rawls (A Theory of Justice, 1971) chose principles behind a veil of ignorance: equal basic liberties first (lexical priority); then inequalities only under fair equality of opportunity and to the benefit of the least advantaged (the difference principle). In The Law of Peoples (1999) he declined to globalise the difference principle, accepting only a duty of assistance to burdened societies; cosmopolitans such as Beitz and Pogge argue for global distributive duties. Nozick's entitlement theory (Anarchy, State, and Utopia, 1974) rests on justice in acquisition, transfer and rectification. Sen's The Idea of Justice (2009) contrasts niti (institutional propriety) with nyaya (realised justice).
Modernism and post-modernism. Modernism treats law as an autonomous, coherent, universal system of rules applied neutrally. Post-modernism doubts this. Lyotard diagnosed a loss of faith in grand narratives; Derrida's deconstruction exposes unstable oppositions and separates deconstructible law from justice; Foucault traced power through knowledge and discipline, using Bentham's panopticon (Discipline and Punish, 1975). Critical Legal Studies (from 1977; Duncan Kennedy, Roberto Unger) holds doctrine indeterminate and law to be politics; Kimberlé Crenshaw coined intersectionality (1989).
Worked example
Hohfeld applied to one field. A owns a field; B is a neighbour. Give each position's correlative (other party) and opposite (same holder).
| Step | Situation | Position | Correlative | Opposite |
|---|---|---|---|---|
| 1 | A may demand that B keep off | A: claim-right | B: duty | no-right |
| 2 | A licenses B to cross | B: privilege | A: no-right | duty |
| 3 | A may revoke the licence | A: power | B: liability | disability |
| 4 | The executive cannot take the field save by authority of law (Article 300A) | A: immunity | executive: disability | liability |
Steps 1–2: the licence turns B's duty to keep off into a privilege, leaving A a no-right against B. Step 3: revoking alters legal relations, so it is a power, and B bears a liability. Step 4: an executive order alone cannot take the field, so A has an immunity and the executive a disability. Check twice: correlatives read right–duty, privilege–no-right, power–liability, immunity–disability and always link two persons; opposites read right–no-right, privilege–duty, power–disability, immunity–liability and describe one person.
Common traps
- Placing Maine among analytical jurists: he belongs to the historical school.
- Swapping the realists: Llewellyn is the rule-sceptic, Frank the fact-sceptic.
- Confusing correlative and opposite: privilege's correlative is no-right, its opposite is duty.
- Mixing animus domini (Savigny, intent to hold as owner) with animus possidendi (Salmond, intent to exclude).
- Equating strict and absolute liability: only the former allows exceptions.
Speed technique
- Keyword to jurist: Volksgeist → Savigny; Grundnorm → Kelsen; living law → Ehrlich; social engineering → Pound; social solidarity → Duguit.
- Hohfeld: correlatives link two people, opposites describe one person.
- Liability ladder: fault, then strict (exceptions), then absolute (none).
Check yourself
- Which jurist made a presupposed basic norm the source of validity for a legal order?
Show answer
Hans Kelsen — the Grundnorm of the Pure Theory. - Name Hart's three secondary rules.
Show answer
Recognition, change and adjudication — they supplement primary rules. - In Hohfeld's scheme, what is the correlative of a power?
Show answer
Liability — borne by the person whose position can be altered. - Which two elements did Savigny require for possession?
Show answer
Corpus and animus domini — control plus intent to hold as owner. - How does the M.C. Mehta rule differ from Rylands v Fletcher?
Show answer
No exceptions apply — absolute, not strict, liability.
Try it: Jurisprudence: Schools, Concepts and Theories of Justice questions
Real questions from the NET Law bank on exactly this skill. Pick an answer to see the full solution — the intuition, the worked steps, the faster methods and the traps.
The test that identifies the ratio decidendi by reversing a proposition and asking whether the decision would then have been different is associated with:
Show the answer and worked solution
Answer: option D
Precedent binds through its ratio decidendi, not through obiter dicta, so jurists devised tests to find the ratio.
Wambaugh's inversion test reverses a proposition: if the decision would then change, the proposition is part of the ratio; Goodhart instead looks to the material facts plus the decision.
So the inversion test is Eugene Wambaugh's, option D.
The view that a corporation is a real person with a group will of its own, rather than an artificial creation of law, is chiefly associated with:
Show the answer and worked solution
Answer: option A
The realist theory, developed by Gierke and carried into English thought by Maitland, holds that a group has a real will and personality that the law recognises.
Savigny held the fiction theory, Ihering the bracket theory and Brinz the purpose theory, none of which treats the group will as real.
So the realist view of corporate personality is chiefly Otto von Gierke's, option A.
Ownership described as a right 'indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration' is the definition given by:
Show the answer and worked solution
Answer: option C
This three-part definition, stressing indefinite user, unrestricted disposition and unlimited duration, is Austin's.
Salmond instead treated ownership as a relation between a person and rights, which lets incorporeal things be owned, while Holland spoke of plenary control over an object.
So the definition is John Austin's, option C.
Match each Hohfeldian position in List – I with its jural opposite in List – II and choose the correct answer from the options. List – I (Position) | List – II (Jural opposite) --- | --- (a) Claim-right | (i) Liability (b) Privilege | (ii) Duty (c) Power | (iii) No-right (d) Immunity | (iv) Disability
Show the answer and worked solution
Answer: option B
A jural opposite describes what the same person lacks: the opposite of a claim-right is a no-right (a – iii) and of a privilege is a duty (b – ii).
The opposite of a power is a disability (c – iv) and of an immunity is a liability (d – i); correlatives, by contrast, link two persons.
So matching List I, from "Claim-right", gives a – iii, b – ii, c – iv, d – i, option B.
A, the owner of a field, gives a neighbour, B, a revocable licence to cross it. In Hohfeld's scheme, what is B's position while the licence lasts, and what is B's position in relation to A's ability to revoke it?
Show the answer and worked solution
Answer: option C
The licence turns B's duty to keep off into a privilege to cross, and A is left with a no-right against B's crossing.
A's ability to revoke alters B's legal position, so it is a power, and the correlative position borne by B is a liability.
So B holds a privilege and bears a liability, option C.
Answer above — every one shows its working.