English Jurisprudence

Course Contents:
By Shahbaz Haneef

Juris means Law or Legal or Wise and Prudentia means knowledge so Jurisprudence means knowledge of law.

There are two types of laws, God made and man made laws.

God made laws are natural, fixed, rigid, unchangeable, and uniform (same laws at all time and at all place), while man made laws are inverse in position. Man made laws are concerned with what ought to be.

Theoretical or general laws are those that are applied most of legal systems. Particular jurisprudence is developed in courts or in a particular society. Theoretical or General jurisprudence has three kinds:

1.      Historical: It deals with the past of the law and its evolutionary process. Also it deals with origin of the law. This is the jurisprudence of the past.

2.      Ethical: It deals with the philosophy of what ought or should be? It deals towards the supreme good. It seeks towards the ideal form of law. It is jurisprudence of future.

3.      Analytical: It deals with the analysis of laws, which are existed at present. It is the jurisprudence of present and being the student of law we are concerned with the analytical jurisprudence.

Definitions: “It is a science of civil law, John Salmond.” It does mean the systematic arrangement of knowledge. Civil law means the law of land or state or sovereign. “Formal science of positive law, Holland.” Positive law means man made law which deals with shape and not with material. “Scientific synthesis of essential principles of law, Allen.” By dictionary: “It is a name given to those studies, researches, and speculation, which aim primarily at answering the plain question what is law.”

Legislature made law is called statue law. Customs made law is called customary law. Precedent made law is called judgement law.

Contract is determinant of right and duties. Fundamental rights are inherited rather than law of land. Constitution just protects it and sometime limits them.

Social Sciences: Relation of individual with society and vice versa. Wine consumption in Europe is just right but strictly prohibited in Pakistan. In Iran wine was allowed but not at present. Ethics has close relationship with society. Sound ethics creates sound society. Good government creates good laws. Good economy creates good law. If economy is stable then law is stable.

Ethics: it deals with morals of person. It has two branches: 1. Ideal Moral Code, and 2. Positive Moral Code.

1.      Ideal Moral Code: Written/engraved on heart of everyone.

2.      Positive Moral Code: Man made, not uniform, not universal, convenient at certain place and at certain time. Wine consumption in Iran at different time.

Time: A – B:    Place: B – A. Time and place are variables.

Psychology: It is a mental science. It deals with root causes and elements which are behind the criminal mentality so it may be removed. Some time crimes are committed that due attention was not paid to certain people.

Sociology: Law what effects make to the society. Caveman was alone, hunting, might is right, self help, revenge. Chief of tribe. City-states, Nation. Community of the state. King was ruler. King was the foundation of justice. State came into being as artificial person. Constitution was made.

Question. How law was developed? It is a body of principles (legislature) recognized (courts) and applied (executive) by the state in the administration of justice.

Law is a collection of rules that are recognized by the courts. Weaker person was benefited by the social contract, which was made between the government and society.

Natural justice is universal, written and engraved in the human hearts and known to everyone.

Legal justice is modified form of natural justice.

Limitation Act: If case is not proceeded in the stipulated time period, it becomes time barred and cannot be sued. Law helps vigilant and not to the indolent. Why the time period is imposed in certain cases? Law does not like litigation. Lawsuit against the denied person must be proceeded within 3 years after it is denied. Ignorance of law is not excused. Time barred persona has lost his remedy.

Legal justice has two kinds, i.e., Private Justice and Public Justice. Public Justice has also two kinds, i.e., Civil Justice and Criminal Justice.

Civil justice involves remedy while criminal justice punishment. Tort is civil wrong independent of contract. Justice is provided according to the law. Courts have not free hand and they have to decide by fixed law.

Advantages of the fixed law:

1.      Uniformity and certainty: Law for every person and it is governed by the similar fixed law.

2.      Equality and impartiality: Law does not know a particular personality and decided without favourism. Law is not respective of personalities. Everyone is equal in the eyes of law.

3.      Protection of errors of individual judgement.

Disadvantages of the fixed law:

1.      Rigid: Law is made considering/visualizing of a particular time. Law is made in abstract form. There is possibility of injustice. Judge has to react according to law.

2.      Conservatism: Since law is rigid but human wants and needs ever changes accordingly. Society is dynamic, but the law is made in specific time and remains conservative.

3.      Formalism: There are many formalities in the process of law making. Bill is presented in the legislature, it is discussed in detailed by word by word and made after long time.

4.      Complexity: Huge law making make it very complex to understand particularly in Pakistan.

What result comes from the advantages and disadvantages of the fixed laws? It is held that magnitude of the advantages of the fixed laws is higher than the magnitude of the disadvantages, so it should be continued.

Subordinate courts are bound to decide according to the decision of the superior courts. Single Bench of High Court has to follow the lines of Double Bench and then Full Bench. It is the law that every subordinate Court has to follow to its higher courts. Same situation is followed in the Supreme Court. Law that is to be interpreted by the High Court, if has many interpretations, only the option will be decided which will be more nearest to the justice. This is moral obligation of the judges. Decision should be that which brings the ends of justice. Laws are valid because they have ethical element.

Is law territorial: It is made and applied for specific territory so it is territorial in nature. It not applicable to other countries beyond the territorial limits. There are some exceptions in the enforcement of territorial law. Law does not apply to the minorities they have their own personal laws. Also it is not applicable to the diplomats, and ambassadors etc.

Imperative means obligatory, compulsory, essential, important etc. John Austin introduced this theory. He was solider in the British army. At the time of presentation of this theory, Kingdom was at peak of its authority and all rules of king were considered law for whole of the society. Everyone was bound to obey the rules of king. They had to do the acts which were ordered to do and they had to refrain to do which were ordered to not to do.

“Law is a command of Sovereign with sanctions.” At first time looking at this definition of law impresses everyone. This definition is closely associated with the theory of punishment. It means this theory was backed up by the concept of punishment. And second one is that king or crown has lot of powers that are seemed unlimited. He can do everything and there was no authority that could impose embargo on his power. He is above to all and not subjects to the rules of others. Everyone has to follow him.

Now we look into the ingredients of the imperative theory of law that he means:

First ingredient of the theory is Command that means expression of wishes or desire to another person so that other person should do particular thing or act and refrain from doing a particular thing or act. Every positive law is a creature of sovereign and he is the supreme. Sovereign is the author of laws.

Second one is sanction or punishment that does mean in case of non-compliance with the command the person will face some evil consequences and some evils will be inflicted to him. Sanction is the another part of the Austin’s theory. It means if I do not complies with the wishes and no one will harm me or cannot harm me then it will not be a command. Command includes the punishment if wish is not complied with and also not to be done. Any command, which do not follow the punishment, cannot be called command. It will be just advice or set of advises.

Another part of the theory is sovereign who is determined superior human being not in the liability of obedience from alike of a given society that superior is sovereign in that society. He is also the force, which is behind the sanction.

Now we arrive at the point that command:

1.      Should be general to the people.

2.      Should prescribe cause of conduct.

3.      Should be enforced by the force of state.

There are Natural (God) and Political superiors in the society. Powers of the superiors are Unlimited, Indivisible, and He is independent of control internally (within the limits of geographically boundaries) and externally (internationally). Punishment and obligation as correlative matters is the theory of Austin. They go together. Where there is obligation, there is punishment, and vice versa.

Imperative theory of Austin has some defects that includes:

1.      In this theory Austin ignores the ethical aspect and emphasized on obligation while many laws are obeyed and followed by choice and on free will of the people. They feel inner satisfaction upon submission. Law was permissive in nature in primitive societies. Personal laws are not command of sovereign but they are laws without punishment and obligations and are followed habitually since the birth of universe. Law of will, inheritance, marriage, divorce, etc. are not of obligatory types. Law always not obligation and there are many exceptions while Austin’s law is always obligatory while many laws are not enforceable externally but people accept them internally.

2.      In modern era, law has been divided in two main categories, i.e., criminal law and civil law with the difference of punishment and remedy. There is not punitive aspect in civil while they regulate our civil matters and also regulate the system of society. If we accept the Austin’s theory then we have to negate the civil laws, which consist almost on half of the total laws.

3.      Life of a person does not follow any command of sovereign. Life does not come into being with the command of sovereign while laws of birth, welfare, and willingness regulate the social integrity. Before the emergence of legislature, people were regulated their lives with religion, customs, ethics, etc. They are complete laws but Austin does not accept them as law on the base of exclusion of obligation and punishment.

4.      Many laws come to repeal the existing laws. They are complete laws excluding obligation and punishment. According to Austin’s theory they cannot be considered as laws while they are complete laws.

5.      Sanction is imposed to those who rebel against the government. It means magnitude of law is very low and other matters of society do not follow any rule or law while the law is very important element to run the matters of society. Laws regulate the social requirements. Austin’s theory implements the law on very limited class of people and left the rest of society, which is not acceptable.

6.      Law, which merely declares rights, will not be law as per the imperative theory of Austin.

7.      International law is also a law, which regulates the trade, economy, mutual relationship, and respect of boundaries. It subjects to states and not people. It is not command of any sovereign. States make agreements, which called treaty, pact, convention, accord etc. There is no sovereign in international law. United Nations charter regulates the relationship of states. Although United Nations has General Assembly that is law making authority which are soft, International Court of Justice for the settlement of disputes among the member states, and Security Council that is law enforcing agency, but it is fact that there is not sovereign and international law is complete law without the command of sovereign and punishment. These laws are followed by way of courtesy. International law is collection of rules to regulate the mutual relationship of the states.

8.      Constitutional law of state does not a command of sovereign, made on the willingness of the people reflecting of their demands includes the laws for sovereign. Although it has an element of obligation and punishment in some cases, but most of its Articles do not follow any punishment and obligation.

Question of Fact: When a case is brought into Court of justice, Court is responsible to decide and settle the nature of question in the case. All the cases consist on law and fact. Case consists on story, event, circumstances etc. are called fact. Name of the parties, plaintiff and defendant, address, whether agreement exist between them, disputes exists, is there any violation is called question of fact.

Question of Law: This question can be understood in three senses:

In first sense this question can be understood in the sense that the question, answer of which is already exists. Case had brought into the Court and Court had been decided the nature of case, punishment has been decided, degree of sentence is understood, amount of evil consequences are determined. Answer of question, which is already, exists in law. Law is not in need to bother for the determining to question of law. Law, which is applicable in a particular case whether law of contract will be applicable or Pakistan Penal Code will be applicable. It is a question in regard to which discretion of the judge is ruled out.

A child less than seven year has not sufficient mental capacity to commit a crime. This rule is laid down in law. Maximum sentence of a particular crime is already mentioned in law is a question of law.

In second sense what law on a particular instance will be applied where the law is not present already. This situation arises where there case comes before Court first time for interpretation and the law is not present earlier. What law will be applicable in a particular situation? This question arises in uncertain situations and if the answer is already exists then this question will not arise and this will fall in first sense described before.

In third sense any question, answer of which is decided by the judge and not by the jury. The jury system in Pakistan has been abolished.

Discordance between law and fact: Law consists of principles recognized and applied by courts in the administration of justice. This is a theory, and may or may not conform to the reality of things outside.

Example: Under The Contract Act a person under 18 years of age has not capacity to enter in contract and also insane. This is a rule because it is the age of maturity in normal circumstances. If the age is two days less, why he cannot be considered mature? What are the factors, which make him, mature after two days? This is the discordance between the law and fact. Law bounds a person to be major at 18 years, while facts are different, he may achieve wisdom before 18 years, in the age of 16 years, or in other case may not achieve even after 18 years, till 25 years. It is discordance between law and fact.

This problem is solved with presumptions and fictions. Presumption is a rule of evidence by which circumstances are proved to divert law.

Accused below seven year of age is not liable. Pakistan Penal Code has presumed that he has not sufficient mental capacity to commit crime with which he is charged. But a child between seven to twelve year of age can be charged after cross examination upon the proof that he has become mature and can discriminate the matter under question.

A Muslim woman may get her marriage agreement dissolved upon the claim and proof that her husband is not heard for seven years. He is presumed to be dead. It can be rebutted by contrary evidence.

When the law was originating/bearing no legal system, judge had greater discretionary powers in order to achieve justice object. There were only customs that were provided the sufficient ground to establish legal system or justice, so it was necessary to delegate the maximum authority to judges to decide cases. Judge had almost 80% discretionary powers and only 20% law was available. Remaining portion of law was filled in by the discretionary powers of the judge. With the passage of time law moved forward, law constantly increased which decreased the discretionary power of the judge. Now in modern time law has been developed upto 90% and still there is gap or room of 10% discretion. Legal system has continuously converted the discretion into law. Why the 100% legal system has not been achieved, whether it has any defect or weakness. Not at all! Law cannot be developed at 100%. 10% discretionary powers are used to administer the justice by way of humanitarian aspect. 10% discretion develops the law in changing circumstances. It helps in growth of new law. Human being is living entity and living being changes ever. If the 10% discretionary authority is not given to judges, law will become stagnant and its growth will stop. Law is made in particular time and circumstances while all the cases are not identical and cannot meet with the law available. So 10% discretionary power is necessary to achieve the object of law, i.e., justice.

Legal Fiction or Presumption: Any assumption, which conceals and tends to be concealed the fact in which rule of law remains unchanged while its operations are changed is called fiction. Fiction is a device by which law deliberately departs from truth occasionally.

Examples: An adopted son is considered as a son upon the status is given to him as real son. Company is a common example of legal fiction in which group of people are incorporated. Company is a abstract reality. It can never be seen but exists. Company can sue and can be sued. Fiction was developed in Rome. Rome was super power and its law was applicable only on Romans and not on aliens. Alien was dealt with natural rule of justice. But what will be done if dispute arises between Roman and alien. They solved this problem by way of fiction. Alien was given an opportunity to have nationality of Rome. Then he was considered Roman and not alien and law of Rome was applied on him. In this example it can be seen easily that operation of law was changed remaining the law unchanged. This is the legal fiction. Democratic state, king as an institution, king’s bench is examples of fiction.

Law and Equity: Equity was developed in UK and in its colonies. Common law was legal system associated with King, as justice. Before King’s justice, Lords, in different localities, provided the justice. All the cases were decided on the base of customs and usage’s of that particular locality. In order to administer justice, king started to send judges in the different parts of the country. They were learned and having good reputation. They traveled place to place. They were mobile courts. King was accompanied with them. His judges surrounded King. This king justice became very popular in UK. This type of justice brought the different localities under the one type of justice. There were differences in the decisions of cases earlier. Case in one locality was different than of others. Same case in different localities had different decisions. There were variations in decisions. Mobile courts removed these anomalies and started to give similar decisions in identical cases. This sort of justice discovered the common customs. All decisions became based on common customs, and applied in judgement. Identical cases in different localities had same judgement. A new system evolved named Common Law System, means same decision in same case at all places. Out of the king Court, drew a department, Exchequer, a Finance Department. Its responsibility was to collect royal revenues. Later on another Court drew with the name of Common Law Court. This was responsible for the jurisdiction on common pleas matter. In these courts king was not a party, but both parties were common people. Court of common pleas was still mobile Court. Where there was king, there was Court. Under the Magnacarta, 1215, courts were stationed at West-minister. Remaining portion of Court became king’s bench. It was responsible in criminal matters. In these courts king was the party. Later on, too, made it stationary at one place.

In the time of Henry II and Edward I, Common Law became in shape of codified form.

In the 14^th century Equity Courts were established. Chancery courts were at work on the bases of natural justice. It does mean fair and equitable. If someone feels un-satisfaction in the courts, and found no relief, he come in equity courts for relief. Later on equity and chancery courts merged into a Court, responsible for both, natural justice system and common law system. In 1875 High Court, Supreme Court, and Appeal Courts founded. Now law divided into three categories, i.e., Statute Law, Common Law, and Natural Justice Law. Now these principles evolved and adopted in UK that inferior courts will follow the jurisdiction of superior courts. Decision of superior Court became binding authority for lower courts. This principle was not only adopted in UK, but in all of its colonies, i.e., Canada, Australia, and Sub Continent etc.

Brief summary of the law and equity arises as follows:

1.      King’s Courts – Mobile from locality to locality.

2.      Exchequer – Finance Department to collect royal revenues.

3.      Court of Common Pleas – Both private parties.

4.      King’s Bench – Criminal cases in which King was a party.

5.      Court of equity – Natural Justice Principal.

6.      1873 – 1875  - High Court, Supreme Court, and Court of Appeal.

Now law has been divided in two kinds, i.e., General Law and Special Law.

General law is the law that is generally applicable to all of the people of the state. It is also called the law of land. It includes civil and criminal laws. It also includes statues, principles of natural justice, and common law.

Special law, generally, is not applicable to all of the people of the state. It is applicable on certain group of people. It does not form a part of the general law.

Special law has also its two kinds, i.e., Local Customary Law and Local Enacted Law.

Local customary law is comprised on local customs found in the particular locality.

Local bodies/governments make law for the particular locality. Local enacted laws come from local legislature that is empowered to make rule by legislature. Municipality is the best example, rules of which are made by the local legislature and applied in such locality.

Foreign Laws or Conflict of Laws or Private International Laws: It does mean conflict between the laws of two countries. If two parties enter into contract belonging to two different nationalities, then which law will be applicable on them? Normally law is applied of the country where it is formed. For instance, a contract is made in USA, enforceable in India, will not be regulated according to Indian laws, but according to USA laws, of the law of place where is was made.

Conventional Laws: It means contract or agreement laws. It is specific law, which is created by parties for themselves. They bind themselves of rights and duties. Contract Act or Companies Act is good example of conventional law. This law is applied to particular class of individuals.

Autonomic Law: Institutions or individuals make these laws only applicable on them. These rules are enforced by courts but they do not constitute a part of the general law, as they are not of general application. For example, rules made by Sheikh Zaid Hospital are not applicable on Services Hospital and rules made by PIA will be applicable only on PIA.

Martial Law: It means body of rules applied in martial courts in the administration of justice apart from civil law. Military takes measure in the interests of state. Martial law can be understood in three different senses:

1.      Rules and regulations that govern the military itself. These rules are used to administer and regulate the soldiers. They maintain discipline and organization in army.

2.      In the second sense martial law can be understood the rules which are applied during the time of war on the enemy territory which is occupied by the army. Such territory is governed by the rules of Victorious State by its army. Civil courts of the occupied territory may continue their functions upon the permission of occupying commander.

3.      When there is disturbance, disorder, threat to integrity of state, civil war, then army chief suspends the constitution of state and takes over the government powers to maintain peace and law and order. Threat to peace is not tolerated at any cost. During the war, laws are silent. This maxim is applied in last sense.

Administration of Justice: In primitive societies justice was existed in the form of self-help system. Rights of every person were not secured under self-help system. There was thinking that it should be avoided. Later a doctrine of justice emerged that law should not be taken into hands of individuals. Victim should go to Court to invoke for justice. Law breaking should be avoided. Under the self-help system it was impossible that violation occurs but the law may not be taken into hands. Under this doctrine there are some exception, in which law can be taken in hands, i.e., if anybody attacks to peaceful person, or if anybody trespass to other’s property, or under the doctrine of necessity, law can be taken into hands. But in any case/circumstances/situation force should not exceed to the force applied by accused/offender. It should be defensive rather than offensive. It should be taken into consideration that boundaries of rights have been defined/determined. Boundary of the right of one person becomes end where the boundary of right of other person begins.

What administration of justice means: It is maintenance of rights in politically organized community/society by the physical force of the state. It means, in nutshell, that rights of other should not be disturbed.

Kinds of justice: Natural Justice and Legal Justice.

			Kinds of Justice
	Legal				Natural
Private		Public
	Retributive		Remedial

1.      Natural Justice: It means justice, which appeals to nature and deals with just and unjust. It is true and ideal state. The enforcement of rights and punishment of wrongs in ideal form according to the moral standards presented by sages of ages. It also deals with concepts of right and wrong that appeals to the mind of a man. In this sense justice is independent of state recognition.

Natural law is also known as Divine law, sent by Allah for human being. It is a law that is equal forever in all the nations. It is also a Divine law written in the hearts of everyone. This is inner voice of people. It refrains people from all those are repugnant. It is also a universal, social, and equal for all. It is collection of rights, truth, justice, equality etc. It is also constant and never changes over the time. It is common to all human kind.

2.      Legal Justice: It is adopted and applied by courts. No doubt that it is extracted from natural justice, but it is imperfect form of natural justice. It is enacted by parliament. Legal justice is reflection of natural justice in the form of imperfect realization. It is also modification of natural justice.

Administration of justice is a smooth flow of justice that guarantees the protection against disturbances. Where there is disturbance, there is justice. If there is defect in the administration of justice then again the self-help system will evolve. There is a contract between state and individual where an individual limits his rights and gives authority to state to protect his rights, life, property, and safeguards his respect. Law abiders expect that their paid taxes will bring prosperity for them. Every State guarantees the two functions, i.e., Protection of individuals internally and Protection or defence of territory. If there is no defence of territory, there is no protection of individuals. Justice has two kinds, that is, Private and Public.

Private Justice is a kind of justice that is privately settled before going to Court individually or personally. In this justice legal proceedings are not involved while it depends upon the option of parties. This justice is provided on minor wrongs.

Public Justice is that which do courts through legal proceedings. This justice is provided in serious wrongs because these wrongs are big in magnitude but against the whole community. Single person is not enough powerful to punish the wrongdoer so State takes action to prevent and punish the wrongs.

Objectives of Criminal Justice: Criminal justice is awarding punishment to offenders. It has four common objects according to Salmond.

1.      Deterrent: It means harsh and severe punishment. This administration of justice is warning to potential perpetrators who are going to commit crimes. It is a bad bargain for the offenders so as to other members of the society stop to commit crimes. Infliction of punishment serves as a check on others who are evil minded. People feel it example that it may be inflicted on them, if they act wrong. This is a lesson to other to stop enter in the crime world.

Objection: There is objection of the deterrent of punishment. First of all when the punishment is inflicted, it is not only lost its fear but the offender may weigh it before commission of crime. If a dacoity of Rs. 100,000,000/- amounts 10 years’ rigorous imprisonment, then it is not a bad bargain on the part of wrongdoer. Every offender thinks before committing crime that laws upto what extent may inflict punishment. If the punishment is tolerated, he must commit crime. He thinks that this is the maximum action which law can take against me. Feelings of people are destroyed while affection and care end.

2.      Preventive: It means prevent repetitions of the offences by imposition of such penalties as life imprisonment, death, exile, beheaded, amputation of hands or foot or both etc. Punishment in this sense is preventive. In this way murderers are hanged for not only to deter others people from meeting the similar fate but it is better that such offenders should be out of world.

Objection: Young people may commit crime due to lack of knowledge, due to bad companies, provocation, or instigation. They may be refrained with little reformative actions. Some crimes are committed in a moment of excitement. Anger and provocation deadens the intellect, and chills senses. First offender may not be preventive.

3.      Retributive: It is satisfaction of the people who have revenge against the wrongdoer and want to take law into their hands. It is much better that emotions must be satisfied. It is recognition of social feelings. In this theory punishment should not exceed and be inflicted by State rather than individuals. It should be within limits. It is also called retaliation, i.e., treatment of offender with same evil be inflicted to victim. He is punished in the same manner or he is subject to the same evil. The principle is “life should go for life, eye for eye, tooth for tooth, hand for hand, and foot for foot.” This is ideal scheme of criminal justice.

4.      Reformative: It objects to reform the criminal as to prevent him from further crimes. Crimes are like diseases. They should be properly diagnosed and treated psychologically. Punishment should not be regarded to end the criminal but to end the crime. It is immoral that young offenders are mixed with professional or trained ones. They should be separated, provided education, good fare, clothes, skill, and training so that they leave the jails as responsible citizens.

Objections: In this way jail will become luxurious places/homes. And people will be reluctant to receive education and training. They will prepare to go to jails. It also deadens the economy.

Every human being has rights. State is responsible to protect them. Rights are of two kinds, i.e., Primary and sanctioning rights.

Primary or basic Rights: These rights are those that are inherited and guaranteed by constitution and every person enjoys them. This is a bundle of privileges, e.g., a personal right to liberty, safety, speak, writing, reputation, movement, expression, thoughts, protection of self, marriage, adoption of religion, property, pure environment etc.

Every free person or citizen has these rights. If these rights are infringed or violated then remedy is available to enforce these rights. Upon violation of basic rights, it gives rise to sanctioning rights. Then my rights are not called primary rights but sanctioning rights. State come into operation when basic rights of an individual are violated or legal injury is inflicted.

Two methods are available for sanctioning rights: Specific enforcement and sanctional enforcement.

Specific enforcement: It is enforcement of specific right. For example, A makes an agreement with B, for the sale of a house for Rs. 500,000/- within six months. A has received Rs. 100,000/- as earnest/token money. At the end of six months, B comes to A to pay the balance amount to buy that house. A refuses to sell house to B with no reason. Primary right of B has been violated. A says, he can pay him compensation but B does not agree. B goes to Court and Specific Relief Act comes into action. This will be called specific enforcement. There may be many reasons not to sell that house. It may be not possible for A, being contrary to public policy, damaged by earthquake, flood, act of God, beyond human control etc.

Sanctioning enforcement: It has two kinds, penal and compensation. Penal enforcement is that in which ill will is involved. Compensation involves something extra on the base of devaluation or inflation.

Restitution: It means undo of undue advantages without extra gain. A has lend Rs. 25,000/- to B for six month. B fails to repay after six months are passed. It means B is getting undue advantages of debt. A can go to Court for restitution. In this sense neither compensation nor penalty is inflicted.

Primary Functions of Courts: Administration of justice is the primary function of a law Court in its first sense. They decide the cases according to the laws. These rules are enforced by the physical force of state in the politically organized society through the courts. They enforce rights and punish wrongs. In every case plaintiff party claims rights and defendant defends his position.

Secondary Functions of the Court: In addition to primary functions they perform many of others functions. Social contract limitizes the people’s rights and gives authority to state for their protection. But actually courts protect these rights. These are granted to courts besides primary functions to discharge. These functions are delegated by state and adopted by courts. Secondary functions are four in number as follows:

Petition of Rights: This is function of state to protect rights of people. But there may be situation where a party has complaint against state for her wrongs. Victim may go to Court of law to invoke his grievances. It is non-sense that he go to seek toward the agency that is self-wrongdoer. In order to avoid this difficulty, power is given to courts. In a case in which judge is party, it is not trustworthy that he himself hears the case. It is unethical. If wrong is committed by state, i.e., public functionaries, officers, servants, agents, etc. State is vicariously liable.

Declaration of Rights: It is determination in uncertainty. In case of violation of right, an individual may ask Court to clarify the right rather than its enforcement. Courts do not create rights but interpret against created rights.

Administration: In certain cases, courts play their role in administration and management. In case of bankruptcy, insolvency, liquidation, guardianship of minor etc., courts take control of the institutions, so that rights of the affected may be protected.

Titles of Rights: Every right has its title. Transfer of property, succession certificate, deceased property, divorce, marriage, is title. Purchase, gift, theft, inherent are also titles realized by courts.

Sources of law: It means the origin from where law derives or sources in reverse from where law comes. According to Salmond, there are two types of laws, i.e., formal and material.

Formal means shape. Every law is derived from shape or form. Noting exists without shape. Wood and nails are material and chair is its shape or form. Material is same in different shapes. It may be found in table, bed, black board etc. All shapes are different while material is same.

State is a force that validates the enforcement of law. Legislative body of state makes laws being the competitive law making authority. Law making body means National Assembly, Congress, Senate, Ordinance made by President or Governor. All have force to make theirs law valid.

Material source has its two kind. One of them is historical and second one is legal source.

Historical sources are those which consist on opinions of sages of ages, thinking of ancient jurist, research work, writing of scholars, references of old people etc. It is important to mention that these sources lack power of enforcement. They do not have binding force. They are not valid being law. Courts are at option to refer and adopt them if seem fit in a particular case.

Legal sources are those which have binding force, creator of rights, applicable to all, generally, either derived from legislature in shape of statue, from precedent as case law, from custom being customary law, and from agreements in the form of conventional law.

Legislation is a law made by a competitive law making authority of state having binding force. It is also called Act of Parliament. Law derived from parliament is called statute. New rules are made through this process.

Precedent is the judge made law in a situation where a case is brought before Court first time to determine its meaning. Courts lay down laws are called case laws. These laws not only create rights but also applicable to other people.

Customs are the conduct of people consisting of long standing habits of a majority of people. Practices and habitual conduct form customary law.

Agreement is a set of promise enforceable at law. Agreement creates laws that are recognized and applied by courts. When a right of one is infringed, Contract Act comes into force for remedy. Although agreements are concerned with parties and rest of the world is not bound in case of its breach, but the laws once recognized are applicable to all. Agreement produces conventional law.

Ultimate legal principles mean the principles that are final and authoritative in law. Every law has its background and legitimacy. It can be understood with an example. A commits culpable homicide amounting to murder. Where he will be tried for his act? He will be tried in criminal Court. Why the criminal Court is authority to try criminal’s act? From where it’s authority is derived? Criminal Procedure Code justifies it. What sentence can be awarded against his offence? Punishment of murder is death. What is validity of the said sentence? Who is the authority over the punishment? Pakistan Penal Code (PPC) decides the punishment. Where the authority of Pakistan Penal Code (PPC) lies? Legislature has enacted the Pakistan Penal Code (PPC). How the legislature is emerged? Constitution is the law that not only forms the legislature but also gives it rights to make laws. It means constitution is the supreme law of the land. From where constitution is derived? Constitution does not derive from elsewhere, it is supposed to exist and this is itself ultimate legal principle of death sentence. When we move from bottom to top, we move towards general principles and it is called general, while it is called concrete in contrast.

Custom is usage or conduct of people. This is a source of law. This was the only method to regulate the people in primitive societies. Law was derived from customs. Why people had lot of believes on usage, customs, habits, conducts etc.? People had belief on it because it was convenient for them to follow to regulate society. Every locality had their separate laws. Where there sources of income was agriculture, their customs were different than of trade. There was no legislative authority, no king, and no Court. Only custom was the source of law. This process was slow. Customs took long time, but it had force because people had belief in it. When the institution of king emerged, there was no change in customary practices. Customs and religion were the only laws. King and customs were not divergent. Customs could not taken away.

All customs are to come before Court to become statute. There was an element of error in customs. Customs have two kind, i.e., legal customs and conventional customs.

Legal customs are those which are operative per se (itself). There is no choice of people or parties to change or cancel the legal customs.

Conventional customs are the product of agreements made by parties. These agreements are made to regulate business and trade according to conventional customs. This is upto the choice of parties. They have autonomy and independence to form contracts.

All the customs are of two types, i.e., expressive and implied. Everything which is laid down, written, spoken etc. is express custom, while the implied customs are conduct of people, not written elsewhere but only understood. Child labour is an abuse and does not need to mention in agreements at all.

All the customs are to undergo from tests to be passed for recognition under strict parameters or yardsticks. This is requirement of law.

1.      Reasonableness is the first requirement of any custom. If we have problem for which custom is available to resolve the matter, must be brought into the notice of Court. Court will check whether it is reasonable to recognize. If it is just and fair and has conformity the principles of natural justice, Court will recognize it, otherwise Court will throw away it. That is no law which hurts the public policy and all the customs in contrast to public policy are thrown away. Burning of woman after the death of her Hindu husband is in contrast to public policy. This custom could not achieve Court’s recognition on the ground of unreasonableness.

2.      It must conform statute law: Competitive authority makes Statutes and customs should must conform it. If it could not conform to statute or is in contrast will be rejected. If there is tie between custom and statute, statute will be adopted.

3.      It must be observed as law or right: It must be exercised openly and not secretly. People cannot be compelled to adopt hidden ideas. Prevailing is adopted against concealed one.

4.      Immemorial antiquity: It should be very old as no one its narrator can be produced. Memory couldn’t work to perceive its origin.

5.      Continuity: If the immemorial status is discontinued once, cannot be called immemorial because its narrators can be had easily. Its origin will be beginning of last phase/era.

The word legislation is derived from two Latin words, Legis means law and Latum meaning to make, it means the making of law.

Legislation can be understood by two senses. First one is called broad while second one is narrow or strict sense.

Narrow or direct sense means law making by the competitive legislative authority. It is general understanding that legislature is a law making authority, but there are other institutions that have power to enact laws. That is broad sense of legislature. There are many other authorities that enact laws. These authorities are other than competitive law making authority.

There are two types of legislatures, i.e., supreme legislation and subordinate legislation.

Supreme legislation is competitive legislative authority which can enact laws and can repeal itself and no other institute may repeal their laws, but this authority can be annulled the laws of other institutions.

Subordinate legislation can be understood as the law making by the subject and it’s law are not supreme, powers of law making are delegated by competitive legislative authority, and laws can be repealed by supreme legislature. Subordinate cannot be annulled the laws of supreme legislature. There are five kinds of subordinate legislation.

1.      Colonial: A colony is dominated state by foreign rule. This is subjected state by foreign force. A state that is dominated irrespective of lingual, social values, religion, culture etc. Period of colonization is gone now but economic colonization is still there. Colonies have been de-colonized. Colonies had legislature that was not an independent. Foreign rulers controlled it.

2.      Executive is the one of organ among the three of state. Its function is administrative. It has authority to enact law for self to run its administrative matters or functions. It has limited powers.

3.      Judicial legislation means rules of procedure to regulate courts’ matters. These rules are made for their own guidance.

4.      Municipal legislation makes the rule within the limited power given to them. Law of one municipality cannot be implemented to other municipalities.

5.      Autonomous legislation relates to the institutions that are made self-supportive to generate their funds with their own sources, e.g., Sheikh Zaid Hospital, Punjab University etc.

Why the subordinate legislation is authorized and important:

1.      Supreme legislative authority has bulk of work to do. It is very difficult for her to look after every aspect of state. Workload or burden is reduced with delegation of legislative authority. There are certain technicalities to form laws for all state.

2.      Subordinate legislature has better understanding and the requirements related to her. There are no technicalities to form laws for them.

Precedent is nearest to legislature. There are six differences between legislation and precedent described as follows:

Legislation	Precedent
(1)   It has constitutive and abrogation powers. It can create and abolish the law as well. New law is created.	(1)   It has constitutive power but not power of abolishment.
(2)   There are three organs of state which have their own different functions, legislation makes laws, judiciary interprets laws, while executive enforce laws.	(2)   All functions unite in judiciary. Laws are made and applied herself.
(3)   There are two tests from which a statute undergoes, i.e., legislative and Court, where defects are removed.	(3)   Only one test is applied. Where it is made, there it is applied. Another cannot check it.
(4)   It is known in advance. They know how the conduct is regulated. Principles of natural justice are applied. It is known before hand.	(4)   No one knows before its creation. It is created immediately as required. It is surprising to parties concerned.
(5)   Most of law making is based on imagination, visualizing, and hypothetical.	(5)   Unnecessary law making is avoided. Judge cannot lay down rule until or unless dispute arises and comes to the Court.
(6)   They are brief in length, easily understandable, and approachable to the point and readily available for application.	(6)   These are made after discussion on facts, made by judge, and long in length.

Interpretation: Every law comes in Court for explanation. This explanation follows principles, i.e., grammatical and logical.

1.      Grammatical means words that convey meaning. These should easy to understand and adopt. Same meanings are attached according to circumstances. There may be more than one meaning.

2.      Logical interpretation does not look to the words but the meaning and objective behind the statute. There can be mistake, error, or doubt in statute. It should neither be inconsistent nor disturb other laws. It patches up defects according to spirit of law to be interpreted.

Precedent means judicial decision, which creates new rule and quotes as authority for subsequent identical cases. It is a product of superior Court and has binding force for lower or subordinate courts. Precedent also contains in itself a principle, the latest principle, which forms authoritative elements. It also provides proof of customs, that it shows respect for the opinion of one’s judge that the dispute once decided be not subjected to re-arguments in all future similar cases. Precedent has importance in English System and its colonies, but the rest of the world follows Civil Law Legal System, in which precedent is not binding authority.

Kinds of Precedent: There are three most important classifications of precedent among the different modes:

1.      Declaratory precedents and original precedents:

a.      Declaratory precedents are those which exist already and are applied in coming identical cases. They do not lays down new rule but declare only principle of law, which exists already.

b.      An original precedent lays down new rule with new interpretation. It contributes in the development of law.

2.      Authoritative precedents and persuasive precedents:

a.      Authoritative precedents are those which must be followed even judge feels the principle lays down is correct or otherwise.

b.      Persuasive precedents are those for which courts are not bound to follow. They have no binding authority. They are purely on the discretion of judges, if they convince, they adopt it, otherwise they are refused.

3.      Absolute authority precedents and conditional authority precedents:

a.      Precedents of absolute authority are the decisions of superior courts and have binding force regardless of judges’ opinion them correct or incorrect. Subordinate courts are bound by the decisions of superior courts.

b.      Conditional precedents are binding but not absolutely. It is the decision of single bench and binding for lower Court but not for the similar bench. It is binding with similar condition.

Obiter dicta or dictum: If you look into case law, precedent outcome of which is, you will look arguments of counsels and then you will look the judgement of Court. Pakistan Legal Decision (PLD) is a book in which all cases are published with the series of facts, arguments, and then judgement. Facts are the stories of cases, name and addresses of parties, arguments are the discussions of the counsels, references etc., while judgement is outcome of facts and arguments, i.e., decision of Court. Obiter dicta is seen into judgement, but not in law. It includes remarks given by judge, his opinion, adjurations, wisdom, reason, references of other cases irrespective of relevance or irrelevance, law points, legal problems while judgement, being expert and learned judge. Sometime judge de-tracks from his path due to discordance of law and fact; this is called obiter dicta. Since obiter dicta are the opinion of expert person, so it is binding to lower courts. Although it is many times irrelevant to current case, even it is binding. It may be sometime irrelevant or indirectly relevant. These are not precedents. These are more or less general statements.

Ratio decidendi is contrary to obiter dicta, as it is directly relevant to judgement, so binding for lower courts. It is a rationale or reason. Every judge gives his judgement because he is bound to do so within the limits of laws. His judgement must include rationale or reasons. Why he cannot deviate from track? He is bound by law to give arguments in support of his judgement. It should be hitting directly to facts came with case.

Dissenting note: Where there are more than one judges, come to same judgement with different reasons that is called dissenting note of judge or judges. There are always more than one ways to reach the conclusion for judgement, and if two out of five judges give different decision and rest otherwise, it will be regarded as disagreement. Dissenting opinion must conclude judgement similarly, but there should be different reasons to reach the judgement, and it constitutes the dissenting opinion. In brief decision is same but reasons are different.

How the precedent is regarded or what are circumstances, which increase its validity or binding force:

1.      Unanimous decisions of all judges or jury members increase its regard.

2.      It should have the capability to convince other judges to adopt, and if adopted, then it is regarded in other cases.

3.      It should be product of eminent judges who are competent in their field, well versed in law, honest, and their previous decisions are good.

4.      It contains learned arguments on preparation before appearing to Court.

5.      It should be free from criticism by the same professionals.

6.      The level of precedent should be high enough so that parliament recognizes it as Act or statute without making any change into it.

Circumstances which reduce its importance:

1.      This decision is product of majority and not of all judges.

2.      Failure to notice contrary decision.

3.      If judgement is miss-leaded would not have weight.

4.      If judgement is compromised base would destitute from regard.

5.      If there is lack of argument and not regarded by bar council or there is no criticism, it would decrease its validity.

6.      Hurry denies justice, haste judgement decreases its importance.

7.      All cases are reported in Pakistan Legal Decision (PLD), but if reported incorrectly, would be definitely disregarded.

8.      Unreasoning of judgement is also a factor, which reduces it validity.

9.      If the judgement is according to law but against the public policy would have less importance.

When precedent can be disregarded: A precedent may be disregarded in two cases:

a.      When it opposes the well existing rule of law and

b.      It hurts to public policy, Saima – Arshad Case is one of the example.

How precedent is disregarded:

a.      When the new rule of law lay down, then old one precedent loses completely its force as a source of law.

b.      When it is over age and needs and wants of people are changed

Right: An interest recognized and protected by a rule of justice.

One person’s capacity of obliging others to do so or forbear by means not of his own strength but by the strength of a third party. If such third party is God, the right is divine. If such third party is public generally acting through opinion the right is moral. If such third party is the state acting directly or indirectly the right is legal.

That power which a man has to make a person or persons do or refrain from doing a certain act or certain acts, so far as the power arises from society imposing a legal duty upon a person or persons.

Rights are legally protected interests.

A legal right is an interest recognized and protected by a rule of legal justice.

A legal right is nothing but a permission to exercise certain natural powers and upon certain conditions to obtain protection, restitution, or compensation by the aid of the public force.

Moral rights are moral obligations of others but not enforced by Court. Do not backbiting, do not be jealous are moral rights. Wife can go to Court of law to enforce maintenance right. It is legal right. Moral right is dealt with natural justice. When right is violated, wrong is committed which is contrary to right.

Moral wrong is an act, which is morally wrong, because of the fact that it is contrary to the rule of natural justice, like disobeying one’s elders.

Legal wrong is an act legally wrong and contrary to the rule of legal justice and violation of the law, e.g., non-performance of the contract.

Legal damage is unauthorized interference to legal right. Actual loss is no more necessary, simply wrong is enough.

Duty is a obligatory act. Right is not without duty. Right and duty both are correlative. There is right where is duty and vice versa.

Private rights are those which are related to civil wrongs. Public rights are available in world at large.

Essentials of legal rights:

1.      Subject of right: Right is not existed without person, or persons, or individuals, or owner.

2.      Subject of duty: It means who is under obligation, to perform duty in favour of right.

3.      Object of right: It relates to thing or property.

4.      Title of right: Every legal right has title.

Contents of right: Something to do or not to do, omission to do act or commission.

Negative duty means thing no to do, e.g., I have duty not to defame anybody. This duty is toward public at large. It constitutes tort. Positive duty is performance of contract.

Title is a fact, event, circumstances, and reason, which create right.

Classifications of rights according to objectives:

1.      Material rights: These are related to tangible things such like table, furniture etc.

2.      One’s own person: Negative types of rights like not to kill for life and not to imprison for liberty.

3.      Reputation: It is enjoyment of images.

4.      Domestic relations: Right of every person’s relative like parents, sister, brother etc.

5.      Concerning others rights: These are related to contractual relationships.

6.      Immaterial property: New idea of invention, trade mark, goodwill, intellectual’s property rights are immaterial rights.

7.      Services: Master and servant; client in buyer; patient in a doctor etc. are services.

Legal right in wider sense: A legal right in its strict sense is, an interest, which correlates duty, and this interest is recognized and protected or enforced legally. But legal right in wider sense is “benefit or advantage conferred by law on a person with or without any duty being imposed in this respect on any other person.” Legal right has three kinds in its wider sense:

1.      Liberties: It is to do something without any duty. He is free to do something provided in law. It carries no corresponding duty. These are privileges. A person what may do is liberty. He may do or may not do. It may go to B’s garden being licensee but this license can be cancelled. If I have right to go to B’s garden, then B cannot prevent me from entry.

2.      Power is defined as “an ability conferred upon a person by law and determined by his own will, to determine the rights, duties, and liabilities or other legal relations of himself or of others.” Power confers ability to effect or changes others’ status or relation or position. Also there is no corresponding duty. Law assists us in carrying out powers. Powers are enforced. I have power to marry at my option and Court assists me in carrying out power. Here power is varied from legal right, in which duty lies as corresponding against right, while power is exercised without duty.

3.      Immunity is an exemption by law from having a legal relations changed by another. It is “privilege or protection of people, such as foreign diplomats, sovereign, ambassadors etc. They carry counter immunity in their countries. It was implied desire in older time that messenger apart from hostile relationship will be given respect and contrary will be declaration of war. Reason behind immunity to foreign delegation is to provide them opportunity to discharge their duties independently and smoothly. Same immunities they provide in their own countries, i.e., vice versa. Prime Minister, Governor, President are also immune. King can do no wrong does not mean that he cannot commit wrong, but he is immune. They have no corresponding duty.

Classification of rights:

According to Salmond, rights are classified in eleven ways:

1.      Perfect and Imperfect rights: Perfect rights are those which are recognized and enforced by law while imperfect rights are those which only have recognition without its enforcement. A debt can be got enforced it is not time barred, means perfect right. Time barred loan can not be got enforced. It lost its remedy while right is there. Removal of defect, in imperfect agreements, puts it into perfect right. All public wrongs are not crimes, but all crimes are public wrongs. Non payment of tax is not a crime because it is contractual breach. Claim against foreign sovereign in foreign country is an imperfect right for it cannot be enforced in the Court.

2.      Positive and negative rights: Positive rights always demand positive duty and negative rights demand negative duty. Negative rights means not to do something and positive rights to do something. All torts are negative rights, which demand not to do. Do not defame, do not trespass etc. If I lend some money to A. Money in the pocket of A is negative right of A, while it is my positive right. Selling of house is negative right for me while receiving of money is positive right.

3.      Rem and Personam rights: Rem rights are those, which are available in public at large while personam rights are available in individuals. Rem is related to benefit or tort and personam are related to contract, as with not to harm.

4.      Proprietary and Personal rights: Proprietary rights can be measured in term of money or monetary. It can be liquidated. Its conversation into money is easy. Inventory can be converted into cash after selling. Personal rights have no monetary value. They are related with honor, respect, status, goodwill etc.

Status is not used here in its ordinary meaning. It is used in term of any kind of personal or proprietary legal conditions.

·         It signifies the whole position of an individual in the eyes of law, legal rights, duties, and liabilities or other legal relations.

·         Personal legal condition means only personal rights and liabilities excluding proprietary relations.

·         Personal legal capacities and incapacitates mean ability to enter into contract or to get married etc.

·         Conventional personal rights: Law imposes duties. A man is free to do certain acts, otherwise he is under liability. Slave and servants have not personal rights. Concept of servant is derived from slavery.

5.      Rights in re propria and rights in re aliena: Dominant right of a person over his property is re propria while re aliena is the right which is not fully right of ownership of the other person. It is just right of passing the way or easement on other’s property. Right, which is exercised in property is called dominant tenement. Legally burden created right is sevrient tenement.

Value of servient right becomes low due to continuous interference and this unnecessary interference is encumbrance on the property. There are four kinds of encumbrance.

a)      Lease in one of the example, which renders the property from dominant right to encumbered. Lessor is the person who leases out his land or property. Person who acquires the dominant right over the property of lessor is called lessee. Lessor cannot sale the property leased out until the period of lease agreement is over being the encumbered property due to dominant right of the lessee.

b)      Easement is also an instance, which renders the property encumbered due to right of way, and creates encumbrance on property and decreases its value.

c)      Security is a thing or amount, which is used to secure the interest of creditor, i.e., person or institution who lends money to person called debtor. There are two types of securities.

i)        Pledge: It is defined as “The bailment of goods as security for payment of debt or performance of a promise is called pledge.” It is the mode of taking goods as security. It is occurred when goods or document is delivered to creditor by customer to be held as security for the repayment of an advance. Ownership remains with pledger but the pledgee has the possession of property until the advance is repaid in full. Moveable property can be pledged.

ii)      Mortgage is defined as “A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan and existing or future debt, or the performance of an engagement which may rise to a pecuniary liability.”

Both pledge and mortgage are made with or without right of sale, conditionally. Both render the property encumbered and consequently gets low the price.

d)     Trust is defined as “Trust is an obligation annexed to the ownership of property and arising out of a confidence proposed in and accepted by him for the benefit of another, or of another and the owner.” Trust must be created for lawful purpose. The person who declares the confidence is called the “Author of the Trust”. The person who accepts the confidence is called the “Trustee”. The person who gets the benefits from the confidence is called “beneficiary”. The subject matter of the trust is called “Trust Property” or “Trust Money”. The trust can be created for limited or unlimited period. Since the property of Trust cannot be sold, so it is called encumbered property until the period of Trust is over.

6.      Principal and accessory rights: Principal right is the right, which as such, is available while the supplementary right is accessory right.

Principal right is main right while accessory right is connected with principal right.

For example, A purchases a plot X which has right of way on Y, attached with X. X is principal right of A, while Y is accessory right of A.

7.      Legal and equitable rights: Legal right is originated and recognized as common law. It is formally created, i.e., by the sale deed. These are also permanent. Equity rights are created informally. They come from equity courts.

8.      Primary and sanctioning rights: Primary rights are fundamental and available to everyone. Right of life, speech, movement, writing, business, marriage etc. are primary rights. Sanctioning rights are available after the primary rights are violated or infringed. Law comes into action after primary rights are violated. It is available for those, primary rights of whom, are violated.

9.      Vested and contingent rights: Vested rights are those for which no condition remains to be satisfied. Thus where A transfers a piece of land to B by deed, a living person, B acquires a vested right. Where a property is given to minor on the attainment of age of majority, he acquires a contingent right.

10.  Public and private rights: Public rights are those in which state as third party is involved and every person of the society possesses these rights. Violation of public rights starts criminal proceedings. Private rights are civil rights, created by individuals by contract. State has no involvement in it. Infringement of private rights is proceeded in civil courts.

11.  Municipal and international rights: Municipal courts within country provide Municipal rights and international rights are created by states bilaterally for the relationship. They regulate or govern states’ affairs.

Ownership is a important concept in English Jurisprudence. It is a relation between a person and vested right of any type. It does not matter that this right is material or immaterial, tangible or intangible. Ownership is classified in five categories as follows:

1.      Corporeal and incorporeal ownership: Corporeal ownership is refereed to tangible things, such as, land, building, book, fan, coin, table etc. These are the things, which can be seen, touched, and felt either by the five senses. Incorporeal ownership is known as intangible ownership on intangible things, i.e., things that cannot be seen or touched. It includes air, light, good will, intellectual property, copyright, trademark, and easement etc.

Illustration: A person has two properties. One of them is leased and second one is mortgaged. In both cases possession has been transferred and rights of other have been created but the right of ownership still stands.

2.      Sole and co-ownership: Sole ownership is the ownership in which rights of ownership are vest to single person. If these rights are vested to more than one person jointly, it is co-ownership.

Co-ownership is of two types, i.e., common ownership and joint ownership.

In common ownership more than one persons hold undivided possession. On the death of one of them ownership does not descends to co-owner or survivor but to his legal heirs.

In joint ownership, on the death of one joint owner, his part of ownership is vested to survivors. Survivor becomes sole owner.

3.      Trust and beneficial ownership: Trust ownership is duplicate ownership. Two people own it at the same time. Trustee is under obligation to administer or manage or looks after the trust. Trustee uses the ownership for the benefit of beneficiaries. Ownership of trust is called trust ownership while the ownership of beneficiary is called beneficial ownership. A trustee is nominal while beneficiary is real owner.

The author of trust creates trust. Author of trust appoints trustees but he is no more responsible for the act of beneficiaries or trustees as in master and servant relationship, where master is vicariously responsible for the tort of his servant. Principal employs an agent and accepts his responsibilities but in trust, author is no more responsible.

4.      Legal and equitable ownership: Legal ownership is outcome of legal justice or common law while equitable ownership comes from equity courts who acts on the principles of natural justice. The basic difference in two is the origin form where they are derived.

5.      Vested and contingent ownership: Vested ownership arises when essential conditions to vest the property have happened and owner’s right is already perfect. All the events, which are necessary, are completed make vested ownership. It is contingent ownership when necessary events to vest property are to be happened in future time. Ownership remains incomplete until the specific event is happened.

There are subsequent and precedent conditions that render the perfect ownership imperfect and vice versa.

A, makes a will in favor of his wife that she will be the sole owner or she will inherit after his death provided not remarried. If she remarries then right will be vested to his two or more chidden. Here in life of A, the right of wife remains incomplete. Since her right on A’s ownership comes after his death, so she is subject of conditions subsequent being incomplete right or in choate. Upon death of her husband, her right becomes complete or vested right thus condition precedent applies. Her children remain subjects of condition subsequent because they will become owners later. In case she remarries, her right becomes incomplete and condition subsequent applies and her children will be vested owner being the application of condition precedent because their right over the property of father becomes complete and complete is called precedent which make imperfect right to perfect.

Possession is very difficult to define in English Jurisprudence. But it very important topic. Human life and society would become impossible without retention and consumption of material and non-material things. Food, clothes, tools, etc. are essential items to use. We get hold over the first to claim possession. It is not just acquisition of things but it is continuing claim for use of them. It may be legal or illegal.

How the possession is acquired: Following are some points which can be referred to acquire or loss the ownership:

1.      Possession itself is evidence being owner. Pen in my hand is evidence being owner, regardless legally or illegally.

2.      The person in possession is presumed to be the owner. A house in my possession is presumed my ownership along-with all the things lying in it.

3.      Anything can be held wrongfully or by fraud.

4.      Long possession of twelve years confers the title in property, which may belong to others. When a title is conferred to another even without ownership is acquisition of possession.

Possession is defined as “it is continuing exercise of a claim to the exclusive use of it.” It does not cover incorporeal possession. Possession is different from ownership but normally possession and ownership lie together.

How the possession is acquired: Lease, renting out, pledge, mortgage, theft, fraud, and bailment etc. is the general mode of acquisition of possession.

Possession is of two kinds, i.e., possession in fact or de facto and possession in law or de jure. Some discordance in law and fact occurs. Law something presumes which may not actually exist. Normally possession in law and possession in fact exist in a person but it may vary.

1.      Possession in fact or de facto: It means the possession, which physically exists in term of control over it. It can be seen landlord and tenant where tenant holds possession of house physically or de facto, but it is not possession in law or de jure.

2.      Possession in law or de jure: It is the possession which, in the eyes of law, exists. It may exclude physical control over it. It is also called constructive possession. A servant may possess car, but in the eyes of law, it is possession of master. Possession of bailor through bailee is de jure possession on the part of bailor.

Corporeal and incorporeal possession: Corporeal possession is the possession of a material or tangible objects, thus it is continuing exercise of a claim on the use of material or tangible object.

Incorporeal possession is the possession of a non-material or intangible object. Thus it is continuing exercise of a claim on the use of non-material or intangible object.

There are two essential elements of possession, i.e., animus and corpus.

1.      Animus is the intent or mental condition or activity or claim of exclusive use of the thing possessed. Cloth at tailor’s shop is in possession of tailor but he may not intend to exclude the owner or subject of the owner.

Animus may be legal or illegal. The only test is whether the man in possession intends to exclude others or not. General intent is enough to constitute possession.

All books in library, all fishes in net, all sheep in flock, are subject of intent whether in knowledge or not, thus possession completes.

2.      Corpus is second element, which is essential and completes possession. It is objective part of possession. Both animus and corpus are necessary for possession.

The intent to exclude to others from interfering with the object possessed must be evidenced by physical facts. If there is no action then no intention is expressed. Pen in my pocket, ring on my finger, or goods in my home, are corpus of my possession of each of these.

Completion of possession:

1.      Power of possession: It shows possession. Books or watch in my hand excludes others thus possession is complete. Things under lock and key are also possession.

2.      Presence of possession: A person may be feeble and unable to exclude other but his presence may command respect. Cash in the hand of child is possession.

3.      Secrecy: Mere knowledge that I have cash in bank, which is exclusive knowledge, is possession.

4.      Continuing use: I use pen continuously, read book continuously, use of transport continuously, is possession.

5.      Customs: In some localities people are not allowed to interfere to other things even presence is not there, like in Saudi Arabia where people leave their shops remain open and go to offer prayer and no interference is allowed. It is possession even in absence.

6.      Respect of rightful claim: In law-abiding societies people do not interfere in the right of other and rightful claim generally obtain security from general acquisition.

Res nullius means ownerless things or objects. Terra nullius means no man land. A person, who finds lost goods, while passing on road, e.g., a wallet, being first finder, he has good title against the whole world except the true owner, even if it is found on another person property without committing trespass. This is the rule. Any other person who looks at finder of lost goods cannot demand his share from lost goods.

If a customer finds a lost wallet while shopping in a store which is not identifiable, can retain till reasonable time to wait its true owner. He is obliged to bring this matter into the knowledge of shopkeeper and give him his own address. If true owner did not come till reasonable time, he will hold title.

There are many other things which have no owner, i.e., gems stone, metal, gold, silver, natural resources, bird, animal, provided these things are found in way, without committing trespass. Precious stone cannot be held from the area specified by government. Bird or fish cannot be hunt from the area of property holder. Things cannot be hold from others house. Bird cannot be hunt, which is prohibited.

There are three exceptions in this rule:

1.         Owner of the property on which the thing is found is in possession of the thing itself as well as property, or

2.         If the finder is servant or agent then master or principal has title, or

3.         Wrongful act does not constitute possession. Trespass is not allowed.

Natural resources in economic zone like water, sea, land etc. belong to government. If treasure comes out from others property will also belong to government.

Kinds of corporeal possession: Immediate possession means direct or proximate possession without agency and mediates possession means in between or remote possession. It is acquired with agency.

F     A being a servant holds something for his master B. A has immediate possession while possession of B is mediate.

F     Where both claim possession, e.g., tenant and landlord.

F     In case of bailment, pledge or mortgage, both have claim.

A has exclusive right of possession on his land while right of way over his land is concurrent.

Acquisition of possession: Possession is acquired when both the animus and corpus are acquired:

1.      By taking: When someone takes anything, he has possession. It may either be rightful or wrongful possession.

2.      By delivery: The thing is acquired by delivery with consents of previous possessor.

Actual delivery is a kind in which goods are delivered while constructive delivery is the rental or sold goods.

Personality: In an ordinary meaning any living human being either male or female is person. In old Roman law slaves were not supposed to be person because they were not possessed rights.

In legal term a being who is capable to possess rights and obligation and liabilities is person. All human being are person. Any being whom law regards as capable of rights and duties.

Kinds of persons: There are two kinds of person in law, i.e., natural persons and legal person.

Natural persons: All the human beings are natural persons. The entire male and female are persons. All the living beings which are recognized as person by state, they are persons in law and persons in fact.

Legal persons are created artificially and law regards them as legal person. They are persons only in the eyes of law. They are also created by legal fiction so called as fictitious also. They are also called juridical, conventional, imaginary, and they have rights and obligations as natural person. They can sue and be sued.

Animals: They are no persons because they do not possess rights and obligations. Some people say that they are persons because law prohibits cruelty to them. They should be treated sympathetically and kindly. But this is our cultural heritage and the duty of society and not the duty of animals. Rights always correlate with duties. Since they do not have any duty so no rights and are not persons although in ancient Roman law a rooster was prosecuted and punished but in modern law master of animals can be sued and punished and not the animals itself.

Dead human beings: They cease their rights and obligation at the moment they go away from this world and their connection is cut down. They are immune from duties and not subject of rights. Law recognize the compliance of will, burial ceremony, no defamation, no desecration of graves, but despite of this fact they are not persons and these duties lie to their legal heirs or living society members.

Statues of unborn babies: In civil law they can sue after they are born through their next friends or at attaining the age of majority. A child in womb has certain rights and inherits property. These all things are subject to his living birth.

Following are important points:

1.      He can claim damages after birth, for the injuries he received before birth.

2.      He can claim compensation for the death of his father or mother in fatal accidents.

3.      He inherits even his father is died before his birth. He is natural person even his birth is only for a moment.

4.      A woman cannot be punished after conviction if she is pregnant, till birth of baby.

Legal person is created by legal fiction thus called fictitious and has the rights and obligations as natural person.

Kinds of legal persons: They are three in number as follows:

1.      Institutions are not personified or group of persons but institutions itself are legal persons, such as, mosque, library, hospital etc.

2.      Corporations are a group or series of persons and natural persons are its members.

3.      Funds or estates are used for specific purpose. Property or fund of deceased person for trust or charity is kind of legal person.

Corporation is of two kinds, i.e., corporation aggregate and corporation sole.

1.      Corporation aggregate is a group or collection of persons who become joint to accomplish a task. Even all members of this corporation die, it will remain live and continue until death by law. Common example of this corporation is Municipal Corporation or registered company.

2.      Corporation sole is series of successive persons or individuals. It consists of only one person at a time like king, postmaster general, Assistant Commissioner, or Prime Minister. When a person dies, second one comes, fills in vacancy and performs functions. After death of office holder, for the time being, office becomes dormant or inactive or goes in sleeping position and as well as other person fills in the position, it become active.

Difference between corporation and firm: A corporation has different features than of a firm, explained in the following manners:

Corporation	Firm
1.      A corporation is a legal person apart from its members.	1.      Firm is not a legal person.
2.      Property of corporation and persons is separate and different.	2.      Firm does not possess property. Property of the firm is of its members.
3.      Bankruptcy lies in corporation.	3.      Members become bankrupt.
4.      It can enter into contract with others.	4.      Firm has not ability to do so.
5.      May exist with one member or even survive as a sole member.	5.      Single person does not form firm. Firm dies as soon as its member dies.
6.      It is a permanent legal entity.	6.      There is not permanence in firm.
7.      Losses bearence upto the extent of share.	7.      Losses are recovered from personal property.
8.      Profit or losses are proportioning divided.	8.      Profit and losses are unlimited or equal.
9.      Can sue and be sued.	9.      Cannot sue.

Difference between corporation and natural person:

1.      Corporation comes into existence in following three ways:

a)      By filing an application of incorporation in the office of Registrar of Joint Stock Companies.

b)      By orders of the state, special Act of Parliament or by special authorization. For example WAPDA, WASA etc.

c)      By prescription treated as corporation from time immemorial like East India Company.

Natural person is born by natural process and not by legal process.

2.      Corporation can die only through legal process while natural person dies through natural process.

3.      Natural person acts himself whereas corporation acts through its agents.

4.      Capacity of corporation is limited because of memorandum of association but in case of natural person there is no such restrictions.

Matters of Corporation are run under the constitution of corporation, which is called Articles & Memorandum of Association. It is a document, which regulates corporate affairs. Function beyond it is called ultra vires. Directors have to work within four-walls/limits prescribed. Corporation is liable in civil wrongs and in criminal offences as well, where element of mens rea is not required. Misfeasance is a duty performed improperly. During the road construction it is duty of corporation to provide iron fencing and sufficient light at site to prevent any possible loss so that no accident may occur. It is also case of negligence. Where duty neither imposed nor performed at all that is called nonfeasance. For example, no sign or caution is placed and marked at broken bridge. Where duty is not imposed but work is done without authority is called malfeasance. For instance, road construction is not allowed at certain place but it is so done. Why is corporation is created? There are many-fold advantages of creation of corporation. In the modern age trade, business, and commerce has grown up. Large-scale business cannot take place unless corporation is created. Corporation attracts capital and reduces liability. So corporation is advisable even on small scale.

State is also a corporation being the group of persons who are public functionaries. Its agents are natural persons. State itself is legal person. Citizens of state are its members.

Title is a link between a person and an object to establish ownership of property. A title is the de facto antecedent of which the right is the de jure consequent. Right of possession on ownership comes in term of de facto first and later de jure. For example, I have a watch on my hand. How it can be said that it is my, or I have title over it. I have either purchased it, or someone has gifted me, or I have inherited it from elsewhere. Title is created even of stolen objects. It is right of ownership in fact and in law over property.

Titles have two kinds as follows:

			Titles
	Investitive				Divestitive
Original		Derivative		Alienative		Extinctive

1.      Investitive facts create rights. This right is created first time on the objects, which are ownerless. When I catch fish it is my original title and if I purchase it from elsewhere then it is called derivative title. Derivative right is second right, which is created after gone away of original right.

2.      Divestitive facts are those, which loss or keep away of right is termed as divestitive facts.

3.      Alienative right is right which is separated or transferable.

4.      Extinctive right is right which is kept away or destroyed.

Agreement enforceable at law is contract. They are of two types, i.e., voluntary and involuntary.

Voluntary agreements are acts of party in term of contracts and involuntary agreements are acts of law like devolution of property or enforcement of will.

Acts of law are the creation, alienation, or extinction of rights by operation of law without reference of the will to the parties.

Acts in law are really acts of the parties done voluntarily. Such acts are recognized as creating, transferring, or extinguishing rights, but they express the will of the parties. They are most common and important.

			Acts in law
	Unilateral				Bilateral
					Contracts
					Grants
					Assignment
					Release

1.      Unilateral Acts are those in which will of only one party is operative without consents of other persons who really effect, e.g., will is formed by single person which effect his legal heirs. Law protects one person.

2.      Bilateral Acts or Agreements are those which involve the will of two or more parties

i)        Contracts create rights and obligations between the parties voluntarily.

ii)      Grants are agreements by, which right other than contractual rights are created, e.g., lease, mortgage, change, licence etc.

iii)    Those agreements, which transfer rights, are called assignments. Selling and buying is assignment.

iv)    Release is discharge of obligation or rights are extinguished.

According to legal effect agreements are of two types, i.e., valid and invalid agreements.

1.      Valid agreements are those, which are enforceable at law and law protects rights of the parties.

2.      Invalid agreements are not enforceable at law being defective. They are further sub divided into two kinds:

a)      Void agreements are those which are invalid right from their beginning. For example agreement of theft, distribution of stolen property etc.

b)      Void-able agreements are those which due to any defect void-able at the option of one party. Its operation is conditional. It may be ratified and becomes valid agreements.

Causes of the invalidity of agreements:

1.      Incapacity: Minor and person of unsound mind are not capable to enter in the agreements.

2.      Informality: Where law requires to fulfill some formalities and those formalities are not fulfilled, e.g., own the property and not registered.

3.      Illegality: Agreement containing to civil or criminal wrongs is void.

4.      Mistake of fact: Where both parties commit mistake of fact, e.g., selling of house different in the mind of seller and different in the mind of buyer.

5.      Coercion: Absence of free consent renders an agreement invalid. It must not be obtained by means of compulsion, undue influence, fraud, and misrepresentation.

6.      Consideration: It is the price and essential part of the agreement. Its presence is very necessary.

Substantive Civil Law or Corpus Juris (entire law of land)

Public Law

Private Law

Civil

Criminal

Constitution

Administrative

Substantive Criminal Law

Criminal Procedure Law

Substantive Civil Law

Civil Procedure

Law of Property

Law of Obligation

Law of States

Corporeal

Incorporeal

Encumbrance

Over immaterial things

Material Things

Immaterial Things

1.      Public Law is related to rules of structures, powers, rights, and activities of the state.

2.      Private Law deals with relationship of private person with private person and private person with state. Non-payment of tax for the purpose of bridge or road construction is civil wrong and not crime.

3.      Constitutional Law is a body of principles that regulate the organs of the government, their rights, obligations, and objectives etc.

4.      Administrative Law deals with day-to-day activities of officials in relation to the members of the public.

5.      Civil Law concerns with the enforcement of rights. Both parties are private.

6.      Criminal Law deals with the punishments of wrongs. This law may be regarded as public law because crimes are taken as offences against whole society. But it is a branch of private law. Parties are private person and state.

7.      Substantive Civil Law concerns with property and it rights, obligations, and personal rights. It is found in tort and contract. It is an aim.

8.      Civil Procedure means how to achieve aim. It is found in Civil Procedure Code (CPC).

9.      Substantive Criminal Law is related with lodging of First Information Report (FIR) or charges and punishments. It is found in Pakistan Penal Code (PPC).

10.  Criminal Procedure deals with how to Pakistan Penal Code (PPC) is proceeded. How after First Information Report (FIR), proceedings are done. It is found in (CrPC).

11.  Law of Property is concerned with rights of ownership. Property is described as any object, which is owned.

(a)         In widest meaning own the thing and all kinds of legal rights is property.

(b)         In narrow sense all proprietary rights, which can be weighted and measured in monetary value, excluding personal rights are property.

(c)          In narrower sense proprietary rights in rem, which are available against whole society, is property.

(d)         In narrowest sense corporeal property, means the right of ownership over material things is property.

12.  Law of Obligations deals with the proprietary rights in personam, available against certain person or persons.

13.  Law of States deals with personal rights.

14.  Corporeal Property is the right of ownership in a material, physical, or tangible things.

15.  Moveable Property means property, which can be moved from one place to another like fan, book, table etc.

16.  Immovable Property means property which is attached or fixed with earth and can not be moved from one place to another until it is detached from the earth.

17.  Incorporeal Property is non-physical, intangible, or immaterial thing.

18.  Encumbrances means any property upon which burden of liability has been created like tax etc.

Rights in re aliena are right of limited use of other’s property and right in re proparia is a dominant right over own property.

Incorporeal intellectuals’ property is a product or outcome of one’s intellect. It involves for 14 years so that no one other may reproduce such innovations.

Literacy copyrights is registration of books of prose and poetry. Artistic Patent rights are registered on tune of music and drama. Commercial goodwill is also incorporeal property attached with business. When business is sold, also rights of goodwill go with business. Trademark is insignia or monogram, which is recognition of particular product. Lease is a separation of ownership and possession. Possession goes in renting out of property for specific time period while ownership rests. Servitude is easement or limited use of other’s property in term of right of way, water flow, light, air, grazing of cattle, fishing, hunting etc. Real appurtenant is something attached with property like supporting wall. Realty is property and realtors are real estate agents or property agent. Sometime right of way is given to particular number of persons like family members and their servants. When property is sold out, right of way ends. Right of way, which is attached with property, transfers when property is sold. Positive right means to do something like right of way. Negative right means not to do something like do not construct wall so that air and light may reach to property. Servitude in gross means right of way for public at large. This way does not go at any particular property. Public servitude is right of way for public in general, while private servitude is right of way for determinant number of persons. Servitude is normally used in Pakistan for easement but there is slight difference in England. Servitude has two kinds, i.e., easement and profit apprendre, profit which comes from property like rent, fruit, fishing etc.

Security is assurance of repayment of debt. In pledge or lien, possession goes as security. Right of distress seizure is retention of cattle that come in property by trespassing, until their master pays compensation. Power of sale is right to sell cattle upon default of payment of compensation. Forfeiture is acquisition of property in commission of crimes. Charges is amount incurred in disposal of perishable items, is recoverable.

Modes of acquisition of property:

1.      Possession: Physical possession is acceptable claim of the acquisition of property. This possession may be right and wrong. Possession of a stolen thing is considered a property unless contrary is proved. Possession of first finder over the lost goods is good right of property against the whole world except the true owner.

2.      Prescription: Easement is a right acquired by the operation/lapse of time for twenty years. This is right of limited use of other’s property.

3.      Agreement: By way of agreement anything can be done. Property can be acquired and lost. Business may be started. Right and obligations may be created.

4.      Inheritance: By way of inheritance property can be acquired. In a will, limitation of time, amount, and purpose should be taken into consideration.

Obligation is defined as duty in general meaning. In legal meaning it means duty which corresponds to such a right. It is proprietary right in personam, i.e., for determinant number of persons and not in rem, i.e., against whole world.

1.      Several obligations: Each one is responsible for his act. A has taken loan from B, C has taken from D, and E has taken from F. If A commits breach, B can sue A and not C & E.

2.      Joint obligation: Where there is more than one joint party and each one is liable for other’s act. For example, there are four joint parties in a contract like A, B, C, & D. E can sue A to recover his loan and A is liable to pay back loan. After payment of loan, A can recover share of B, C, & D from them.

3.      Joint and several obligation: Some time law regard obligation, some of people as several and the rest as joint. It is provided in contract whether which obligation will be joint and several.

Sources of obligation: There are four sources of obligation given below:

1.      Contractual: This sort of obligation is created through agreement enforceable at law like sale, purchase, and lease agreements etc.

2.      Tort: Tort is civil wrong remedy of which is damages and is obligation of tort-feasor.

3.      Quasi-contractual obligation: There are certain obligations, which are not contractual in the sense of agreements, but law treats them as if they were. They are implied contract.

4.      In-nominate: It includes trustees obligation toward their beneficiaries.

Law of procedure: It is rules and regulations governing the institutions and prosecution of civil and criminal proceedings.

Substantive Law	Procedural Law
1.      It talks about right and obligations.	1.      It deals with procedure as to how rights are enforces.
2.      It is a subject matter of law and litigation.	2.      It relates to procedure of litigation.
3.      It is law outside the Court.	3.      It is law inside of the Court.
4.      It is theoretically law written in the books.	4.      It is law in action in the courts. It is practical.
5.      It deals with ends, objects, and targets.	5.      It is instrument or mean or way or method to achieve ends or objectives or targets.

Elements of procedure are five in number:

1.      Pleadings: It includes plaint and written statement of the parties put before the Court containing subject matter of the case. Plaint includes material facts, date, time, subject matter, and put by plaintiff. Written statement is admission or denial of the plaint.

2.      Summons: This is attendance in the Court. Court issues writ to defendant to answer the claims or allegations imposed by plaintiff. This is notice according to the principles of natural justice.

3.      Proof: This is a process in which parties supply data to Court to arrive at conclusion on the matter of dispute in case. It may be oral or documentary.

4.      Judgement: It is the conclusion and decision of Court against the several points between the parties.

5.      Execution: It is enforcement of decision with the help of judicial force.

Kinds of evidence: Evidence is any fact, which possesses probative force.

1.      Judicial and extra-judicial evidence: Judicial evidence is that which is produced to Court containing personal knowledge or observation whereas extra-judicial evidence is which comes to Court by intermediaries.

2.      Real and personal evidence: Personal evidence is testimony. It is statement of witness. Real is oral or written statement.

3.      Primary and secondary evidence: Primary evidence is requirement and demand of Court in term of document or deed in original while secondary evidence is inferior evidence includes photocopy or certified true copy.

4.      Direct and circumstantial evidence: Eyewitnesses give direct evidence while circumstantial evidence is show of effects proved through circumstances.

Privilege communication: Evidence which hurts the public policy or communication, which has been made between the couples, or professionals like between doctor and patient; husband and wife; and lawyer and client.

Parties can not be pressurized or compelled to give evidence. There is no value of confession until it is made before competent judicial authority. Confession other than authorized officer like before police officer or any other person is not acceptable as evidence in Court. One cannot be compelled to give evidence against self.

Valuation of evidence: In order to streamline the value of evidence, it is necessary to measure the weight and kind of evidence. This is the rigid method applied to make the system uniform in the administration of justice. These rules are applied in every legal system. These are five in number.

1.      Conclusive proof: If one thing is proved in Court, the other thing will automatically be concluded from one proof. It is most authentic evidence in the administration of justice. If the marriage between an adult male and female is proved, will definitely prove the legitimacy of their children.

2.      Presumptive proof: In the absence of reliable source of information, law establishes some presumptions, in order to conclude dispute under litigation. For example, if a husband has not been heard for a period of seven years, by his wife, parents, friends, by any sort of information like phone, letter etc., he is presumed no more alive, and woman can acquire decree of dissolution of marriage. This is presumption of Islamic law.

3.      Insufficient evidence: Where law specifically prescribe the certain quantity of evidence, nothing short of that is regarded as adequate for proof. For example, in Hudood crimes, certain quantity of proof is required to constitute an offence, and short will not be enough proof, even short are credible enough.

4.      Exclusive evidence: Where law demands a particular type of evidence, non-other, however credible is admissible as evidence.

5.      No evidence: Where there is hearsay evidence on the base of notion are ruled out as unreliable by the law.