Jurisprudence- Important elements

Jurisprudence Important Elements


The Latin word “Interpretari,” which meaning to explain, comprehend, or translate, is where the word “interpretation” comes from.

Simply said, interpretation is the process of explaining or translating any written law or document. To determine the true meaning of a law or statute’s language and provisions, interpretation is applied.

By giving the words of an act their common and natural meaning, interpretation refers to the skill of determining the true meaning of an act. It is the process of figuring out what a statute’s words actually imply. Since the court is not expected to interpret cases arbitrarily, a number of principles have emerged as a result of the courts’ ongoing work. These guidelines are often known as “rules of interpretation.”

The goal of statutory interpretation is to ascertain the legislative intent as expressed or suggested by the language used. By interpretation or construction, the courts’ process of attempting to determine the meaning of the legislative by the use of its authoritative expressions, is meant, according to SALMOND. As old as language itself is interpretation. Even at a very early period of Hindu civilization and culture, complex norms of interpretation were developed. In numerous ancient text books, it was emphasised how crucial it was to avoid literal interpretation: “Conclusions are not to be made only by following the wording of the law, for if such decisions are lacking in equity, a major failure of Dharma is caused.”

Need for Interpretation

-The statute’s use of ambiguous language: Some words may have more than one interpretation at a given time. And it might not be obvious which meaning should be applied. It could be interpreted in a variety of ways.

– Statute complexity: Typically, statutes are lengthy and complex. They include jargon, technical terms, and difficult-to-understand words. This complexity can cause confusion.

-Environment change: As we all know, society undergoes periodic change. If new developments are not taken into account, they may result in a society where future events are not predictable.

Advantages and Disadvantages of Legislation


– Existing laws that are not governed by several sources may be amended or repealed using the abrogative power. Additionally, legislation has both constitutive and abrogative purposes.

– Effectiveness: By separating the two responsibilities of creating and enforcing laws, legislation enables a more effective division of labour. Efficiency consequently increases .

– Declaration: It establishes that notions of law will be understood prior to their implementation. Despite the fact that the easing legislation functions retroactively, pertaining to events that took place before the law was enacted, justice demands that laws be known before they are implemented and upheld by the courts. Statutory law is rarely applied retroactively. Legislation therefore passes the litmus test of how a court of justice will read the statute. If any suggested amendments to the enacted law are made, they are made public and the public’s opinion is sought

– Dependence on Unintentional Law: – The legislation does not need to hold up to scrutiny until the first instance of legislation because it is self-contained and emerges as the supreme source of law.


Rigid and Inflexible: The law as written is both rigid and inflexible, and it is not adaptable. As a result, victims of injustice were treated unfairly in severe circumstances

In light of Hypothesis: – Most legislation is based on speculative certainty, taking into account the current environment and surroundings, in which it is frequently observed that established law is flawed in its application to the complex problems that arise in real life through piecemeal solutions arising from practical needs and convenience

– Lack of Clarity: It is a well-known fact that statutory laws are typically written in vague language and have many loopholes. It allows for a wide range of potential interpretations. The legislation is connected in a way that has various flaws and omissions and is not intuitive to the typical individual .

– Lack of Judicial Discretion: The judge must apply the law exactly as written and must uphold it. Application of the law as written. Other factors like social, economic, and other circumstances must also be taken into account by the judge when deciding the case, but this factor could not be found anywhere in writing, making it difficult for judges to pronounce judgments according to the letter of the law while ignoring the case’s merits and other factors.

Original and Declaratory

Original and Declaratory are types of judicial precedent .
Declaratory precedents make use of the application of a rule in a previous court decision. A declaration precedent only serves to enforce an already-existing law; it does not contribute to the creation of new legislation.
Original precedents are when the court has never made a judgement in a matter and it must apply its own judgement to reach a verdict, which results in the establishment of new laws. An original precedent is a situation in which a new rule of law is developed and used in a court case.

Possessory Remedies

Possession-protecting remedies are those that are available to safeguard possession even from ownership. Private remedies are those that can be used to safeguard ownership. Possession is a transitory or interim title even against the genuine owner in several legal systems. Even someone who has been wrongfully deprived of their possession has the right to recover it from anyone on the basis of their possession. Even the rightful owner who reclaims his property must first return it to the wrongdoer before securing it on the basis of ownership.


The legal term for claiming ownership of a right to something is title. When referring to a piece of property in real estate, the term “title” denotes ownership, which implies that you have the legal right to use it. Additionally, title denotes the ability to convey to others an interest in, or a portion of, what you possess. And when you have ownership, you only have ownership, and when you have title, you also have ownership. A title may pass from one person to another.

Modes of Acquisition

Possession: The concrete realisation of ownership is a possession. Possession refers to having physical control over something or someone. It serves as first ownership proof. The first owner of the property, known as Res nullius, becomes the legal owner of it and obtains a title that is good against everyone else. When a property is gained through possession, the possessor acquires a good title against all third parties aside from the actual owner.

– Salmond states that prescription can be understood as the result of passing time establishing and erasing rights; it is time acting as a vestitive fat. Positive or acquisitive prescriptions and negative or extinctive prescriptions are the two types of prescriptions.

– Salmond defines prescription as “the action of time as a yestitive fact; it is the effect of lapse of time in creating and destroying rights.” Positive or acquisitive prescriptions and negative or extinctive prescriptions are the two types of prescriptions.

Agreement – Property may also be purchased through an enforceable agreement. A right’s holder may assign it to another party with or without payment of compensation. An agreement must have the following four components.

1) An agreement should involve two or more parties.
2) Agreement between the parties
3) It needs to be explained;
4) To change the legal relationship, there needs be an agreed-upon intention.

Inheritance – When a person passes away, some rights follow him and are passed on to his heirs and successors. Others pass away alongside him. His inheritable or heritable rights are those that endure after him. Uninheritable rights are those that do not pass to him with the passage of time. As long as they have value, proprietary rights can be passed down.

Investigative facts give rise to rights. For the first time, this right is created for unowned items.
If I catch the fish myself, it is my original title; if I buy it from someone else, it is a derivative title.
Divestitive facts are second rights that are created after the original rights have disappeared.

Example: In this situation, “A” purchases a bike from “B.” Since A is gaining a title from B and B is transferring to A, this fact is divestitive for B.

Divestitive facts

A right that is transferred or lost is referred to as a distributive fact.

Types of Divestitive Facts

Alienative rights are rights that can be divided up or transferred.
Example: The current lessee transfers the lease to a new lessee.
indissoluble right

Extinctive rights are those that are suppressed or eliminated.
Example: A tenant terminates a property’s lease.


In a philosophical sense, personality refers to a person’s intellectual foundation. A right and duty-bearing unit is what it signifies in law. It is important to distinguish personality from humanity. Humanity only refers to actual human people, while the term “personality” also refers to inanimate objects in a technical sense. Personality therefore transcends humanity. Humanity and personality sometimes mesh together, sometimes they don’t. Similar to how there are legal entities like an idol or a corporation that are not human beings
Legal personality in law thus raises two issues. Whom does the law identify as a person, and what are the guiding ideas or theories for that recognition? The second query concerns the scope of these (legal) people’ rights and obligations

The term “capacity” refers to a person’s inherent rights and powers in a certain situation. A human is capable of many things. If someone has the position of judge, they simultaneously hold the one of citizen. However, having two capacities does not imply having two personalities. He only has one legal personality.

Any subject matter other than a human being to which law ascribes individuality is referred to as a “legal person.” It includes a thing, a bunch of stuff, a place, a bunch of people, etc. They are regarded by the law as having rights and obligations, just like a real person. Although personification is a prerequisite for legal personality, simply because something is personified in common speech does not imply that it has been given legal personality. Although we refer to a bench of judges or a cabinet of ministers as individuals, they are not recognised as such by the law.

When a single entity is granted legal personality by the law, it is recognised as being separate from the group of individuals or the thing it represents but still belonging to that group. The group (corporation) as a whole and the group or company as a legal person are clearly separate from one another. Even if a firm went bankrupt, the millions of shareholders would still be kept.

Theories of Juristic Personality

1. Fiction Theory

Von Savigny, Salmond, Coke, Blackstone, and Holland, among others, proposed this theory. According to this theory, a corporation’s personality differs from that of its members. According to Savigny, a corporation is an exclusive creation of law, with no existence apart from the individual members who comprise the corporate group and whose acts are attributed to the corporate entity. As a result, any change in membership has no effect on the corporation’s existence.
It is critical to recognise the element of legal fiction at work in this process. In law, a corporation is distinct from its shareholders or members. In law, the company’s property is not the shareholders’ property. The company may go bankrupt while its shareholders remain wealthy.

Gray supported this theory by stating that only human beings are capable of thinking, so we attribute ‘will’ to non-human beings through human beings who are capable of thinking and assign them legal personality through fiction.

According to Wolf, this theory has three advantages. It is more analytical, more elastic, and makes it easier to disregard juristic personality when desired.

2.  Concession Theory

This theory is concerned with a state’s sovereignty. It assumes that a corporation has great importance as a legal person because it is recognised by the state or the law. A juristic person, according to this theory, is merely a concession or creation of the state.
Concession Theory is frequently regarded as a descendant of Fiction Theory because both theories assert that the corporation within the state has no legal personality except as conceded by the State. Fiction theory proponents such as Savigny, Dicey, and Salmond are found to support this theory.

Nonetheless, it is clear that, while the fiction theory is ultimately a philosophical theory that a corporation is merely a name and a thing of the intellect, the concession theory is oblivious to the question of a corporation’s reality because it focuses solely on the source (State) from which the corporation’s legal power is derived.

3 . Group Personality Theory or Realist Sociological Theory

Otto Van Gierke advanced this theory, which was proposed by Johannes Althusius. This school of thought held that every collective group possesses a real mind, a real will, and a real power of action. A corporation has a real existence, regardless of whether or not it is recognised by the state.

Gierke believed that the existence of a corporation was real and not made up. It is a psychological reality rather than a physical one. He went on to say that law has no power to create entities, but only the right to recognise or reject them .

According to realists, a corporation is a social organism, whereas a human is a physical organism. Sociologists, rather than lawyers, supported this theory. Most realist jurists claimed that the fiction theory failed to identify the relationship of law with society in general when discussing the realism of corporate personality. According to realist jurists, the main flaw of the fiction theory was an ignorance of sociological facts that evolved around the law-making process.

However, Horace Gray denied the existence of a collective will. He referred to it as a figment.

4. The Bracket Theory or the Symbolist Theory

Rudolph Ritter von Jhering proposed this theory (also Ihering). According to Ihering, the concept of corporate personality is necessary and is merely an economic device for making the task of coordinating legal relations easier. As a result, it is emphasised when necessary that the law should look behind the entity to discover the true state of affairs. This is analogous to the concept of lifting the corporate veil.
This group held that the juristic personality is merely a symbol used to facilitate the operation of corporate bodies.

5 . Purpose Theory

This theory’s proponents include Ernst Immanuel Bekker and Alois von Brienz. This theory is also related to the fiction theory. It stated that only humans can be considered persons with rights. According to this theory, a juristic person is nothing more than a “subjectless” property destined for a specific purpose. There is ownership, but there is no owner. Thus, a juristic person is built around an object and a purpose rather than a group of people.

The assumption that only living people can be the subject of rights and duties would have prevented the imposition of rights and duties on corporations, which are not living entities.

6 . Hohfeld’s Theory

He claimed that juristic persons are the result of arbitrary procedural rules. According to him, only human beings are capable of having rights and duties, and any group to which the law ascribes juristic personality is merely a procedure for determining legal rights and jural relations and transforming them into human beings.

7. Kelsen’s Legal Personality Theory

He stated that there is no distinction between a company’s legal personality and that of an individual. Personality in the legal sense is simply a technical personification of a set of norms and rights and duties.

Jus Necessitatis

One such law, Section 81 of the IPC, addresses acts performed out of necessity.
Jus necessitatis is the foundation of IPC Section 81. The doctrine of necessity is another name for this one. This philosophy is based on two maxims: necessitas vincit legume necessity, which means necessity, and necessitas non habet, which means necessity knows no law .
According to the Black Law Dictionary, “necessity” is a governing force, an implacable compulsion, or a force or drive so strong that it forbids any other course of action. The foundation of this philosophy is the maxim “Salus populi suprema lex esto,” which states that the wellbeing of the people must come first.

The jus necessitatis doctrine acknowledges that sometimes breaking the law is necessary to further one’s interests. According to theory, a law may be broken but forgiven due to necessity. When a person commits a crime or a criminal act in the midst of an emergency in order to prevent a greater harm to anyone or any property from happening, they are protected by the defence of necessity, which allows them to avoid prosecution because their actions were justified in order to avert a situation that would have caused more harm than the crime they committed.
Although this is not a common rule of international law, it might be used in specific unique situations for equitable reasons. This adage may be used solely as a cynical justification for breaking one’s legal commitments. How the Doctrine of Jus Necessitatis operates is demonstrated in Section 81. It should be noticed that even though section 81 doesn’t mention greater or lesser evil expressly. It actually addresses the issue of the lesser evil.

3.Jurisprudence and Legal Theory Book by Vidya Dhar Mahajan
4.Introduction to Jurisprudence Book by Avtar Singh and Harpreet Kaur

Author: Harsh Srivastava,
Second Year /The University of Petroleum & Energy Studies

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