Jurisprudence and Legal Theory

This standard work incorporates all important developments in the subject. Prof. Pillai has elicited from amidst the explosive volume of case-law available today, the basic jurisprudential principles and presented them in a precise form. This comprehensive book covers the complete syllabus of jurisprudence and Legal Theory of the different Indian Universities and every possible aspect of present day jurisprudence and the diverse and varied theories of the great ancient and modern jurists have been covered.

In the jurisprudential part, the chapter on precedents has been exhaustively revised incorporating the modern doctrines of prospective overruling, etc.

A noteworthy contribution to the literature on the subject.

• Academy Law Review :

This book has already gained appreciation from the student community as a dependable text book on the subject. The present edition of the book narrates not only the traditional legal concepts but also the recent developments on the subject, within the framework of 41 chapters. The Eastern Book Company deserves congratulations for bringing out this handy and neatly printed book at a moderate price.

• Kerala Law Times :

The learned author has produced a scintillating commentary with the aid of Indian and English decisions in an orderly, analytical and critical manner. This book will be of much help to the reader to examine the history of law, its Principles and Rules of conduct. It will be of incomparable value to the lawyers & students in their search for valuable precedents and precise and authoritative statements of law.

• All India Reporter :

The lawyers and judges in search of basic principles of law and justice in the decisions of cases would find this book a mine of information. This treatise on Jurisprudence and Legal Theory is exhaustive and illuminating and contains in a small compass, precise information on the subject.

• Central India Law Quarterly :

The language of the book is clear, simple, direct and lucid. The price is very moderate and within the reach of students and advocates.

                   TABLE OF CASES XIV

                   Jurisprudence - its Meanings 4
                   Divisions of Jurisprudence and its Scope 5

                   Imperative Law 16
                   Physical or Scientific Law 18
                   Natural or Moral Law 18
                   Conventional Law 19
                   Customary Law 19
                   Practical or Technical Law 19
                   International Law or the Law of Nations 20
                   Civil Law or the Law of the State 20

                   Evolution of Law 22
                   Definition of Law 23
                   Law and Justice 26
                   Advantages and Disadvantages of the Administration of Justice
                   according to Law 26
                   Law, Ethics and Positive Morality 27
                   Imperative Theory of Law 28
                   Natural Law 31
                   Three Classes of Duties 32
                   Private Justice and Public Justice 33

                   Question of Fact and Judicial Discretion 36

                   Local Law 43
                   Conflict of Laws 43
                   Conventional Law 44
                   Autonomic Law 44
                   Martial Law 44
                   International Law-Prize Law 45
                   General Law 46

                   Necessity for Administration of Justice 47
                   Origin of the Administration of Justice 48
                   Civil and Criminal Justice 48

                   Praesumptiones juris or Presumptions of Law 56
                   Praesumptiones hominis or Presumptions of Fact 57
                   Presumptions and Fictions 58

                   State and Society 60
                   State and Nation 60
                   Government and State 61
                   State and other Groups 61
                   Essential Functions of the State 61
                   Membership of the State 62
                   The Constitution of a State 63
                   Flexible and Rigid Constitutions 64
                   Rule of Law 65

                   Historical Outline of the Development of this Theory 69
                   Criticism 70
                   Can Sovereignty be Divided? 72
                   Law does not imply Sovereignty 73
                   Sir Henry Maine's Criticism 74
                   Criticism of Sovereignty by Jenks 75

                   Legal Sources of English Law 77

                   Supreme and Subordinate Legislation 78
                   Autonomic and Conventional Law 80
                   Advantages of Legislation 80
                   Codification 81
                   Interpretation of Enacted Law 81

                   Declaratory and Original Precedents 85
                   Ratio Decidendi 86
                   Obiter Dicta 87
                   Authoritative and Persuasive Precedents 87
                   Doctrine of Stare Decisis 88
                   Hierarchy of Courts 90
                   Doctrine of Prospective Overruling 94
                   Advantages and Disadvantages of Precedent 101

                   Reasons for the Reception of Customary Law 104
                   Kinds of Custom 105
                   Custom and Prescription 109
                   Relation of Custom to Law 110
                   General Custom of the Realm 111

                   Text books 114

                   Wrongs 120
                   Duties 120
                   Rights 121
                   Elements of a Legal Right 121
                   Ownerless Right an Impossibility 122
                   Different Meanings of the word Right 123

                   Perfect and Imperfect Rights 128
                   Rights against the State 128
                   Positive and Negative Rights 129
                   Real and Personal Right or Right in Rem and Right in Personam 129
                   Jus Ad Rem or a Right to a Right 130
                   Proprietary and Personal Rights or Estate and Status 130
                   Rights in re Propria and Jura in re Aliena 131
                   Principal and Accessory Rights 133
                   Legal and Equitable Rights 133

                   Corporeal or Incorporeal Ownership 135
                   Corporeal or Incorporeal Things 136
                   Sole Ownership and Co-ownership 137

                   Essentials of Possession 143
                   Corporeal and Incorporeal Possession 144
                   Animus Possidendi 146
                   Corpus Possessionis 148
                   Mediate and Immediate Possession 151
                   Duplicate or Concurrent Possession 152
                   Acquisition of Possession 152
                   Commencement and Continuance of Possession 153
                   Relation between Possession and Ownership 154
                   Constructive Possession 155
                   Seisin 155
                   Possessory Remedies 155

                   Nature of Personality 157
                   Legal Status of Animals 158
                   Legal Status of Dead Men 158
                   Legal Status of Unborn Persons 159
                   Double Capacity and Double Personality 159
                   Legal Persons 159
                   Corporations 160

                   Acts in the Law and Acts of the Law 173
                   Agreements 174
                   Classes of Agreements 175

                   Nature and Kinds of Liability 182
                   Acts 184
                   Damnum Sine Injuria 186
                   Mens Rea 187
                   Non Est Reus Mens Sit Rea 187

                   Intention, Negligence and Recklessness 188
                   Intention and Expectation 188
                   Doctrine of Transferred Malice 189
                   Intention and Motive 190
                   Malice 191
                   Malice and Fraud 192
                   Relevance and Irrelevance of Motives 192
                   Criminal Attempts 193

                   Duty to Take Care 199
                   Standard of Care 200

                   Mistake of Law 202
                   Mistake of Fact 203
                   Accident 204
                   Vicarious Responsibility 204
                   Measure of Criminal Liability 206
                   Motive of the Offence 206
                   Magnitude of the Offence 206
                   Character of the Offender 207
                   Measure of Civil Liability 207

                   Meaning of the term Property 208
                   Kinds of Property 209

                   Possession 216
                   Prescription 217
                   Agreement 218
                   Inheritance 219

                   Choses in Action 221
                   Solidary Obligations 222
                   Sources of Obligations 223

                   Substantive Law and the Law of Procedure 225
                   Five Stages of Judicial Procedure 226

                   Kinds of Evidence 228
                   Valuation of Evidence 230
                   Production of Evidence 231

                   Pound's Classification of Interests 235
                   Social Interests 236
                   Economic Prosperity of the State 236
                   The Protection of Religious - Moral and Humanitarian and
                   Intellectual Values 238
                   Health and Racial Integrity 240
                   Private Interests 241

                   St. Thomas Aquinas (1226-74) 259
                   Duns Scotus (1265-1308) and Williams of Occam
                   (1290-1349) 260
                   Reason and the Law of Nature 261
                   Natural Law and Social Contract Theory 262
                   Grotius (1583-1645) 263
                   Hobbes (1588-1649) 263
                   Locke (1632-1704) 264
                   Rousseau (1712-1788) 265
                   Hume (1711-76) 266
                   Natural Law Theories in England and America 267
                   Revival of Natural Law Theories 272

                   Ehrlich (1862-1922) 274
                   Analytical Legal Positivism 275
                   Kelson (1881-1973): Pure theory of Law 275
                   Hart's Concept of Law 278

                   The American Realist Movement 282
                   The Scandinavian Realists 283
                   Law and Utilitarianism 285
                   Legal Theory and Social Problems 287

                   Duguit (1859-1958) 288
                   Roles 290

                   Immanuel Kant (1724-1804) 292
                   Fichte (1762-1814) 293
                   Hegel (1770-1831) 293
                   Stammler (1856-1938) 295
                   Philosophy of Values and Law 296
                   Phenomenology and Existentialism of Law 298
                   Nature der Sache (Nature of the Thing) 298
                   Existentialism 299
                   Sir Henry Maine (1822-1888) : Historical Theory 301

                   Rights of the Individual 303
                   Freedom of the Person 304
                   Equality before Law 305
                   Government by the People - Democracy 306
                   Rule of Law, Freedom and Planning 306
                   The Role of Law and the Function of the Lawyer in the
                   Developing Countries 308

                   Marxist Theory of Law 310
                   Doctrine of Withering away of Law and State 311
                   Criticism of Marxist Theory 311
                   Soviet Legal System 312
                   Revolutionary Legality 313
                   Socialist Legality 314
                   Titoism 315
                   China 318

                   Empirical Theories 321
                   Application of Higher Law in the Nuremberg Trial 324
                   Law, Morality and Social Change 326

                   Divisions of the Law 328
                   Private and Public Law 328
                   Civil and Criminal Law 328
                   Substantive Law and the Law of Procedure 329
                   Public Policy 331
                   SUBJECT INDEX 333