Hi everyone welcome to other Academy YouTube classes so till yesterday we have discussed about various schools and legal theories as well as legal rights and duties so we have left one School uh which is the realistic school so today we will be discussing about the realistic School of jurisprudence and
What realistic School of jurisprudence has to tell about so let’s start realistic School of Juris Prudence realistic school is a type of school which focuses on decisions they believe that law is only an official action so the key word here is judicial decisions when we were discussing in
Short about this school I have told you that realistic school does not see how the law has come into force or how the law should be rather it sees that what is the law right now so it focuses on the judicial decisions or the judgments given by the judges or the lawyers
Debates they believe that law is only an official action this school is also known as realistic because it focuses on approach that studies law as it is in the actual working and its effects ahead this school rejects traditional definition of law and also avoids any dogmatic formulation and only
Concentrates of decisions given by the court so this school actually focuses on actual working of the courts because the judges give deliver judgments only in courtroom and when they deliver the judgments they actually uh brain do brainstorming related to the facts of the case and what lawyers have to tell
About that particular case so the judicial decisions are considered as law in realistic School so now we will be studying about the various proponents of realistic School of Juris Prudence so first proponent is Justice Holmes which has given a very famous Theory which is known as badman
Theory the seeds of realism were shown by Justice Holmes he said that law is not like mathematics law is nothing but a prediction so Justice Holmes is also considered father of realistic school so he considers that law is a prediction and it is not a straight mathematical formula what does it mean
Let us take an example 2 + 2 = 4 so this is a mathematical formula but we can also predict the answer for in some another way so what will what can be the other way it can be 5 – 1 = 4 or 6 – 2
Is also equal to 4 so this is what is production which is late emphas which is emphasized by Justice Holmes according to him the life of law is logic as well as experience the real of the law cannot be explained by formal deductive logic judges make their own
Decisions based on their own sense of what is right in order to see what the law is in reality he adopted the standpoint of a hypothetical badman facing child therefore his theory is also known as Batman Theory so what does this Batman Theory actually tells us
About consider in a courtroom there is a accused person who is facing a trial and there are lawyers on the both sides the party who is accusing the person tells various facts in support of getting him uh suffer punishment but what the offender is thinking in his mind he is
Thinking that there are some facts which are hidden or which can be taken by him in order to get rid of the punishment so he knows some loopholes which are there in the law as well as facts which the court as well as the other party will
Not be able to identify so he knows in his mind that he will face equital and not conviction so how this is relevant in the present scenario in what Justice Holmes has to tell about Justice Holmes try to tell that we can consider that what law is is actually what law is
Deemed to be by a Badman who’s facing a trial it means that badman knows exactly what law is and what law how law should have been and how what are the loopholes in it so in order to understand better understand law we should think from the
Point of view of a bad man facing a trial this Theory says that a bandman successfully predicts the actual law that other people on the basis of this prediction homes defined the law as prophec ability to predict of what the court will do in fact and nothing more
Pretentious so he actually knows that what will be the decision or what are the points on which the court may decide accordingly next proponent about the realistic school is Justice G he his approach was certainly as Court oriented as realistics so as he was he is also a proponent of realistic School his
Approach will also be that whatever judges deliver or whatever is given in judgments is actually law for agree the law was simply what the court decided everything else including statutes were simply sources of law so what did gr considered gr considered legislation statutes Etc to be sources of Law and not
Law so according to Justice gr the decisions given by the courts our law and all the statutes and legislations which help to arrive at that decision are actually sources of the law he said the law of the state or any of organized body of men is composed of
The rules which by the court status the judicial organs of that body laid down for the determination of legal rights and duties so these rules or what the court has decided actually becomes the legal rights and duties which have to be followed by both the parties as well as
Has to be followed by the society at large because this is how Society will know that what is desirable to do and what should not be done so till now we have studied two jurists or two proponents of realistic School of Juris Prudence first we have studied about Justice homes and next we
Have studied about Justice gr so the third proponent which we be studying now is LIN according to Lin realism means a movement in thought and word about law car Leon outlined the principal features of realistic approach as follows there has to be a conception of law influx and
Judicial creation of Law Society changes faster the law so there is constant need to improve the law so first we will understand what this first point tells it tells that Society is also in flux and law is also in flux because Society is progressing it is not stagnant so
Whenever new situations arise new conflicts arise the law has to take note of that prevaling situation so it’s not possible the society be stagnant and law being stagnant both are in a flux in the present scenario so what should be done to get rate of any ambiguities or conflicts
Society changes faster than law so there is constant need to improve the law this I have given you an example of Sati pra we have discussed in our previous classes that is that our society has progressed very radically from previous or ancient time now the Society is much
More developed is much more westernized and much more modern so will it allow Sati pra to be followed in today time of course not so by this we can say that the law if has it has been come here or the society has come to this level then
The law should also come to this level from this level so both society and law should be at equal footing so if Society changes faster than law there’s constant need to improve the law there has to be temporary separation between what ought to be and what is the
Purpose of law so what analytical School want told that how we should consider law we should consider law as it is and not how it is supposed to be so in this case also uh in realistic School L tried to tell that we should not look
On how law is supposed to be but rather we should look on how law is because if we take both the angles that how law should be and how law is then we will be in a chaos or confusion as to should we follow this law at the present or should
We wait till it get amended and then we follow it so to avoid this confusion we have to consider that the law is as it is now today car Lin describe the basic functions of law as law jobs law is an institution which is necessary in society and which is
Comprised not only of rules but also contains an ideology and a body of persuasive and Powerful ideals which are largely unspoken largely implicit and which pass unmentioned in the books so law Lin car Lin has given uh functions of law or law jobs so what are the different functions of law we will
Be studying now law has jobs to do within a society these are the disposition of the trouble case a wrong a grievance a dispute this is the garage repair work of the growing concern of the society with its continuous effect upon the remarking of order of society
So let us consider this is a society and it is facing a trouble it means that there are individuals who are um out who are on the lives of others or who are just thinking that how should they get the property of other or how should they damage the other person life
Liberty or profession so in this society and in that case the society is in trouble so to get rid of that trouble law comes comes into picture so law actually makes the society’s trouble go away and results into a peaceful Co existence of individuals so disposition of trouble case is a job of
Law the preventive channeling of conduct and expectation so as to avoid trouble and together with it the effective reorientation of conduct and expectations in similar fashion so what do you mean by this [Applause] statement so we the citizens have to do a conduct or should do a conduct in a
Expected way which a society expects them to do it means that they should not do something which is out of the box or which the society does not accept a normal human or normal prudent man to do and act third point the allocation of authority and the arrangement of
Procedures which Mark action as being authoritative which includes all of any Constitution and much more arrangement of procedures what does it mean it means that there should be some hierarchy establish in arrangement of laws so that individuals are not confused that which law is supreme and which is subordinate
For example let us take consider the Constitution is always at the top as it is the supreme law then comes the IPC then comes the CPC and then engine Evidence Act so this is the arrangement of procedures and Authority which actually helps in better governing or better governance of the
Society the positive side of laws work is net organization of society as a whole so as to provide integration Direction and incentive so what does law want to do it wants that all people should um live together and should not quarrel on minute things and should live
Peacefully that what law wants to do so law wants us that we should inculcate the feeling of Brotherhood which is also written in our pble as fraternity so it wants us to provide integration and Direction and incentive to the society the next philosopher on our next proponent which we’ll be studying is
Jerum Frank father symbol Theory so until now what which all philosophers have we studied we have studied the father of realistic school which is Justin Holmes who believes who gave the very famous Theory which is known as badman Theory which which tells that a person a Badman actually knows that what
Law has which loopholes and how can he get rid of being convicted then just Justice gray Justice gray says that judicial decisions are only the source of Law and legislations and statutes will be considered as source of Law and not law levelin says that we have to see the
Society is also in flux and law is also in flux so what what can be done to avoid that flux is that we the law and Society should progress on the same footing call Lin has also told about the law jobs so disposal of trouble case is the
First job conduct an expectation and arrangement of procedures is the third job now we will look at what jerum Frank has to tell about law he theory is far the symbol Theory his thesis is that a law is UNC or certainty of law is legal myth he
Exploded the myth that law is continuous uniform certain and invariable and asserted that the judges do not make the law instin to discover it so what does it mean it means that as the father of a child nurtures him and the child has full faith in his father
That he will the father will Pro protect him and will provide all the security which the son needs similarly the society also considers that the law which is prevalent now will actually make them feel safer and they will be able to work more efficiently so judges do not make law instead they
Discovered it what does it mean it means that the law is already made for example let us take article 21 which tells us about right to life so what does Sight To Life includes it means that all persons will have life right to life and right to
Life is a very basic uh fundamental right so but this right is already written judges do not have to write this that there’s this right existing so judges do not make the law it means the judges have not written what is article 21 instead they have interpreted article 21
To include right to privacy right to environment right to Safe Drinking Water right to dignity in which are included in right to life so they have discovered that right to privacy livelihood environment Etc are included in right to life Frank of deserves that a judge decisions are the outcome of his entire
Life history his friends his family vocation schools religion and all these factors are influential so Frank is very Frank in telling that a judge is also a person he has also passed the stages he has also been a young boy and he has also been an adolescent a a youngster
And an adult and a mature person so while passing through all these stages he have encountered many experiences which actually tell him that this should not have been done or this should have been done he actually analyzes the past and tries that the same thing is not
Repeated in present and future if it is morally or legally wrong so judges are also influenced by their past lives so this is what Frank is telling about judges in this regard J Frank has given the father’s symbol Theory the child puts his trust in the power and wisdom
Of his father to provide an atmosphere of security in the other the counterpart of this feeling is the trust reposed in the stability and immutability of human institutions so this is what I have told you that the father as the child has trust and in his father father similarly
People of the country have dressed in law Frank accordingly divided realistics into two camps described rule Skeptics and rules and fact Scapes so what is the difference between rues Scapes and fact Scapes rues Scapes rejected legal rules as providing uniformity in law and tried instead to find uniformity in rules
Evolved out of psychology anthropology sociology economics politics Etc so rule Skeptics wanted to tell us that they can’t be a law which is always in a s same and which does not change over years a law has to change with the change in society and how the society
Changed Society is also influenced by many factors and many Sciences for example Society is influenced by anthropology sociology econom ecomics politics social science Etc so rtics want to S tell us that legal rules keep on evolving similarly the fact Skeptics rejected even this aspiration toward uniformity they also did not believe in
Uniformity he AB he abandoned all attempts to seek rule certainty and pointed to the uncertainty of establishing even the facts in the trial cours so facts cap SS tells that facts are also not uniform it means that if two parties are there then the facts may change according to the
Circumstances because the parties TR to mold the facts and so that they can either be equ aced or either they can make the other party suffer penalty so both law as well the facts are not uniform is what is the theory of L captic and btics now we will look at the various
Legal personalities so this is a very interesting topic because now we will be looking at the logic behind why to consider a person a person or what is actually a legal personality what is personality what is natural person what are legal persons so let’s start now introduction it means position of
Certain characteristics particularly belonging to mankind example power of thought of speech it is derived from Latin word Persona which means who recognized by law as being capable of having legal rights and duties so what does personality means personality means a set of traits which define a person it it can be uh Speech
It can be um different things like walking it can be the ability to think it can be the ability to analyze but these are the various traits a person has which makes him a personality so now we will be looking at what various authors have to tell about legal
Personality so so a question might come in your mind that whether a person who is in coma for last 70 years can he can he be considered a legal personality or can an unborn child be considered or can a dead person be considered a legal or natural personality so these questions
We will address now so definitions salmon salmon according to Salman who is a legal personality a person is any being whom the law regard as capable of right and bound by legal duties so according to sment it can be any person who is bound by legal duties as well as he has right
So a person according to sment is what we generally consider in modern scenario because we consider that a person existence is because of the fact that he has some legal rights and he has some legal duties towards others so this is a very basic or basic definition which we
Follow now what SV has to tell about the term person the term person as a subject obor of a right so according to s a person is a person is considered a person when he Bears a right so we can uh actually infer from this St statement
That saving me is not talking about Duty so can an unborn child be considered a person according to S KN or can an infant be considered as a person by Seri yes infant can be considered as a person by Cy because he has rights and
How do he how can he have rights he has rights in property he has some to because of the fact that he is born in that family but does he have any Duty no because he is not mature enough to have the a capability to think right and
Wrong so he does not have duty but he has right so according to S an infant can also be considered as legal as a person person now what has gay has to tell a person is an entity to which rights and duties may be attributed so he considers person as an
Entity and he considers person as any being so now what Austin has to tell the term person includes physical or natural person including everything which can be deemed human so Austin has given a very broad definition of what is person he includes legal personality as well as natural persons in his definition of
Person so he also includes corporations partnership firms Etc to be considered as persons physical or natural person so this is a very broad definition kinds of person natural persons a natural person is a human being possessing natural personality so now we’ll be looking at what Holland has to tell about a person
Being a natural person according to Holland a natural person is a human being as regarded by the law as capable of Rights and duties requisite of normal human being is that he must be born alive moreover he must possess essential human characteristics generally a person human being who has
Capacity to Sue and be sued as a person so according to Holland there are two essential points for a person to be a person first that he should be born alive that means a person is is only the person who is alive a dead person cannot be considered a person according to the
Holland’s definition of person and second point which Holland has emphasized on is that the person should have some legal rights and duties it means that in the court of law he can see somebody and he can be sued by the other party so these are the two essential conditions
First he must be born alive and should have rights and duties present now next few study about legal persons also called as juristic fixes or artificial persons a legal person has a real existence but its personality is fictious a fous thing is that which does not exist in fact which is deemed to
Exist in the eye of law legal persons are beings were treated for purposes of law as human beings so consider an example company a company as such is a legal entity because it is artificial person so the company consist of many persons like the board of directors managers
Secretary to the company Etc so can the company be considered as a legal person yes of course it can be considered because even if it does not exist in fact but it is deemed to exist in the lies of Law and why it is deemed to
Exist in the eyes of law is because whenever a suit is filed against in the against the company then the company’s board of directors are liable and have to stand for the company so it’s not that that whatever company does it can do anything it should also a law is
Applicable on company as well so for law to be applicable on company corporations firms they have to be considered legal persons that person he is not a legal person they do not remain as Bearer or rights and duties they do not have action person is marure comp Persona action dies with the
Death of men so do you think a dead person has some rights and duties towards other he does not have any right and he does not have the duty but do you know that a dead person have the have has the chance that he can actually make some wishes of
Prior previously the wishes which have been made should be fulfilled by the other party who is actually the relative or the caretaker of the dead person so he can actually make wishes and the wishes have been made previously so the wishes and what he wanted to do should out actually be done
According to law but he does not have rights and duties wishes or desires or intentions of a deceased person is recognized law ensures decent burial their disposal of property protection of reputation or continuation of pending Source instituting a person who is deceased consider an example where a
Dead person has uh before his death has instituted a suit against other party and that suit is continuing so can the suit continue after the death of a person of course yes because uh death of the person does not give him a chance to have new rights and duties but the previous commitments
Which he has done in his earlier stages should have been should should be kept in Mind by the next Generations in order to get uh better in the society so he also has a right for a decent burial the disposal of property protection of reputation so one cannot
Say anything MiFi with relation to dead person because he also has a right of reputation and pending suits should also can also be continued after the death of a person it ALS La down in the English courts that permanent trust in the name of disease you might have heard that U
Some dead persons wanted that they should actually give all their money and all their property in charity this is the wish or desire of the disease so a permanent trust or a charitable institution can be created after the death of a person unborn person law does not prevent a man from owning property
Before he is born when is a person cons when is uh somebody considered a person when a a child is there in a womb of a mother then till 3 months he is not considered a person then after 3 months he’s considered to be a forus so this is
How he’s considered to be a person Lord does not prevent a man from owning property before he is born so can property be given before a person has taken birth can property in his name be transferred yes let us take an example let us take example of a grandfather
Giving property to his grandson at the time of at his death Beth uh when the grandson has actually not taken birth so this is possible this ownership is contingent because he might not be born at all but suppose the child is not born he dies in
The mother’s womb so will that will uh will which the grandfather has given for the grandson will that hold true now also of course not because the child the person the person has not come into existence at all under English law a child in the womb of the mother is treated as the
Existence and property can be vested in its name according to IPC and law of thoughts the child in wom is considered to be person following other references to rights of unborn child under Section 13 of TPA transfer property act for benefit of unborn person so section 13 of transfer
Of property act tells that the property can be transferred to an unborn person for his benefit section4 of Indian sucession Act creation of PR interest before person The Unborn person so an unborn person can have prior interest before the birth is written in Indian succession act it means
That what example I have given you previously that the grandfather has transferred the property by by Will to his grandson who has actually not taken birth is what is covered in section 114 of Indian succession act section 313 of IPC offense of child destruction in the womb so a child is
Protected this way if a child is distracted in the mother’s womb then the mother has also some rights and child has also the right that he should live and he should become a person then let us consider lower animals law does not recognize Beast or lower animals as person because they are
Merely things and have no natural rights salmon regards them as mere objects of legal rights and duties but never subjects of them so can lower animals should lower animals be considered persons some might think yes they should be they should be considered because in the present scenario we see many cases in which
Animals are are tortured are killed by humans because they think they are Commodities but till now the law has not recognized lower animals as persons so law does not recognized dogs Beast fishes Etc to be persons because they are treated as mere objects we are we buy and sell animals
We buy them as commodity so the owner is a person who is buying that dog so let us consider a bought a dog for 30,000 rupes from B so the object of this sale or this um this agreement to sale is dog and who has bought a person a living
Human being has bought that and who is the object of this which I have told you dog so here dog is just considered as a commodity or thing which is bought and sold by persons mere objects they cannot be owner of property from person to animal so so have you
Heard some fancy cases like uh people have given all their property in the name of the dog and can that really happen no it is not possible because the dog is not considered as a person this is what is written in third line they cannot be owner of property from person
To animal they themselves considered property to be owned as I have told you that they are the object of the property any wrongs done by animal the master held liable in love thoughts and is a strict liability consider a NE the the dog of your neighbor bites the
Person who is going on the street so will that uh Street person has have some remedy against the dog of course yes because he can sue the owner of the dog he can’t sue a dog because dog is not considered a person he it is considered
As a commodity so the owner will suffer VI carious liability any wrong stand animal Master his her liable the animal is only a legal personality if the liability of Masters consider vicarious theories of legal personality fiction Theory concession Theory purpose Theory bracket Theory symbolistic Theory realistic Theory and organism
Theory fiction Theory promulgated by pop innocent Pope Innocent fo so now we will be studying about the various theories in relation to Legal personality so first is fiction Theory it is promulgated by Pope Innocent four supported by savic and salmon this Theory suggests that the legal personality of entities other than human
Being is a result of fiction salmon has cleared that a human being is the only natural person while legal person govern any subject matter other than a human beings to which the law attributes personality State Corporation and institutions cannot have rights of person but they are treated as if they
Are persons so by this what can you understand that does fiction Theory consider uh legal personality to be a person or just natural personality to be a person it considers only legal personality as humans as persons and other than human beings are are result of fiction it means that we
Can make laws for corporations to work for firms to work for partnership to work but we can’t make them cons to we can’t consider them as persons because according to salant and S legal persons are only persons are to Only Natural persons are considered as persons then next is concession Theory it is
Linked with philosophy of sovereign national state so what does concession means concession or creation who will create right and duties actually a state confers the rights on an individual and gives him gives him or her some duties to perform so it is the state which actually gives
The rights and duties to a person this Theory considers the state is considered to be the same level as the human being and as such it can confer or withdraw legal personality it means that state can give somebody some rights or duties as well as it can withdraw rights and
Duties from a person when it thinks that it should withdraw from the other groups and Association within its jurisdiction as an attribute of sovereignity so juristic person is merely a concession or creation of state so what state wants to is to be considered as person and what state does
Not want should not be considered as a person jist believing in this Theory are sey DIY and Salon so before that we have done about one Theory which is the fiction Theory and the proponents of fiction theory was sey and salmon and the proponents of concession Theory are sey tyy and
Salant it is merely a legal conception which indicates the law making Power unresting by any legal limits now next we will look into the purpose Theory so what does the name purpose suggest you when you look at the word purpose what does it em in your
Mind it means that it will talk about something for with for the it will talk about the purpose of making of somebody or something as a legal person or person so it declare that only human beings can be persons and have rights entities other than human are considered an
Artificial person that mely function as a legal device for protection of getting effect to some real purpose the property of juristic person does not belong to anybody but it may be dedicated and legally found by certain objects this Theory rationalize the existence of charitable organization trade unions
Etc this Theory considers only humans as persons but it also tells us that persons may have something associated with it and what is that something associated with it and because that the persons will have purpose and the purpose can be in the form of charitable institutions which is written here or in
The form of trade unions so trade unions and charitable institutions are not persons but are the result of person’s purpose so these are the results of person’s purpose so the proponents of this Theory are brins and Baker next is breaket Theory the proponents are hering and marus the connection of corporate personality is
Essential and merely an economic device by which simplify the task of coordinating legal relations so have you heard a famous theory in company law which is lifting of the corporate wheel it suggests that that whenever a company has is is accused of doing any damage to the third
Party then will the company be sued or on on the company’s behalf the key manager persons will be sued of course the key manager persons will be sued so how will we know that who is actually liable to be sued for that we have to go
Into the depth of the working of the company and how we will go into the depth by lifting the corporate wheel it means that we have to enter into the company see how it functioned and what all it did and what all it avoided so this is this theory is actually what is
The main theory of bracket Theory the connection of corporate personality is essential and mly an economic device by which simplify the Tas of coordinating legal relations it emphasis that law should look behind the entity to discover the real State of Affairs so this is what I have told you that law
Should actually look behind the company or behind the uh existence of company it should look into the person’s doings so big believer is lifting of corporate will now next theory is realistic theory is proponent is Jour or alteris so this Theory is actually very practical theory in the modern scenario
As the name only suggests this Theory suggests that legal persons is Rec real personality in an extrajudicial and prejudicial sense of the world it assumes that the subjects of right need not belong merely to human beings but to every being possesses a will and life of its own so what does realistic Theory
Tell us about so this story actually considers human beings as also persons so natural persons are also considered person in realistic Theory and legal persons are also considered legal personality is also considered person in realistic Theory it assumes that the subjects of right need not belong merely
To human beings but to every being possessing a will and life of its own in this Theory a coroporation exists as an objectively real entity and the lawly recognize and gives effect to this existence so according to this Theory coroporation also exists as a real entity it means it exists as a person
And what does law do law only recogniz IES that the coroporation is a person so the function of law is recognition here this Theory also contends that law has no power to create an entity but morally having the rights to recognize it so this Theory talks about recognition of Rights and considers both
Natural person and legal persons to be persons organism Theory proponents Auto and this Theory assert that coroporation is like organism and it has limbs in form of members and headtop authorities and other organs so it considers that a corporation there are some top managing staff in a corporation and the a normal
Staff which actually looks into the day today functioning of the corporation so the key manager staff is the head of the organism and the staff which is lower to them them is are the limbs of the organization so according to this Theory corporate has its own will and body
Which is subject to some legal right and obligations as well according to this Theory corporate personality is a social organism which has its members will so by reading this could you tell that whether natural persons are only considered person or legal persons are also Al considered person according to this
Theory so as it very straightforwardly talks about corporate being a person so of course natural person natural personality and legal personality both are considered to be persons according to organism Theory next theory is ownership Theory proponents business beer and Deus according to this Theory they assert in
The same manner that human beings only are subjected to Legal DS not corporations other beings are subject less property which is creation of Law and this fictious personality are their only for position of property in common so by reading the first paragraph what do you think is ownership
Theory human beings are only subjected to legal rights so it means that only natural person’s personality is considered as person in ownership Theory and what are other things other things are only the subject of natural personality if means the ownership of a property Etc are subject of the personality these person personalities
Are only form of ownership being in such ownership those personalities makes contract sustain legal proceedings like actual persons means that whatever the the natural person’s owns or because of which it enters into contract or various law various agreements is only possession of property and it is not considered to be a natural person
So these are the various theories which we have discussed in today’s class and also we have discussed about last school which is which was realistic school which we have not discussed in detail previously so till now we have discussed about half of the course and in the remaining lectures we will be discussing
About the remaining course as well so till then stay tuned and bye
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