Jurisprudence II: Rights and Duties, Legal Personality, Property, Ownership and Possession, Liability, Law, Poverty and Development, Global Justice, and Modernism and Post-Modernism

This chapter takes Unit I's items 4 to 10. The first four are the analytical concepts every lawyer uses without defining: a right and its correlative duty (Hohfeld's table is the most tested item in the unit), the legal person, ownership and possession, and liability. The last three turn outward: how law relates to poverty and development in India, what justice requires beyond the State, and how post-modern and critical theory unsettle the assumptions of the classical schools met in the previous chapter.

1. Rights and duties: Salmond and Hohfeld

Salmond defined a legal right as an interest recognised and protected by a rule of law, the violation of which is a legal wrong. He identified five elements: the person of inherence (the owner of the right), the person of incidence (who bears the duty), the content (the act or omission required), the object (the thing over which the right exists) and the title (the facts by which the right vested). Two theories explain what a right protects: the will (choice) theory, associated with Hart, says a right gives its holder control over another's duty; the interest (benefit) theory, from Bentham and Ihering and refined by Raz, says a right exists where an interest is sufficient to ground a duty.

Wesley Newcomb Hohfeld (Fundamental Legal Conceptions, 1919, collecting papers from 1913 and 1917) showed that "right" is used for four different relations. Each has a correlative (the position of the other party) and an opposite (its absence in the same party).

Hohfeld's jural correlatives and opposites
Jural relationCorrelative (other party)Opposite (same party)Example
Right (claim)DutyNo-rightA's claim that B not enter A's land; B's duty to keep off
Privilege (liberty)No-rightDutyA's liberty to walk on her own land; others have no right that she not
PowerLiabilityDisabilityAn owner's power to sell; the buyer-to-be's liability to have ownership shift
ImmunityDisabilityLiabilityA diplomat's immunity from local jurisdiction; the court's disability
🧠 Reading the Hohfeld square
Correlatives go across two people and always come in pairs: right–duty, privilege–no-right, power–liability, immunity–disability. Opposites stay with one person: right–no-right, privilege–duty, power–disability, immunity–liability. A common trap swaps the two: "the opposite of a power is a liability" is wrong; liability is its correlative.

2. Legal personality

A legal person is any entity the law treats as capable of rights and duties. Natural persons are human beings; juristic (artificial) persons include companies, corporations sole, the State, and in Indian law idols and certain religious texts. The theories of corporate personality disagree about what such a person is.

Theories of corporate personality
TheoryClaimAssociated with
Fiction theoryThe corporation is a fiction created by law; only humans are real personsSavigny, Salmond
Concession theoryPersonality is a concession granted by the StateAssociated with the fiction theory; favoured by strong-State thinkers
Realist (organic) theoryA group has a real will and personality of its own, which law recognises rather than createsGierke, Maitland
Bracket (symbolist) theoryThe corporation is a bracket around its members, a shorthand for their rightsIhering
Purpose theoryProperty dedicated to a purpose, without a human subjectBrinz
  • Salomon v A Salomon & Co Ltd (1897): a duly incorporated company is a person distinct from its members, even a one-man company.
  • Pramatha Nath Mullick v Pradyumna Kumar Mullick (1925, Privy Council): a Hindu idol is a juristic entity capable of holding property, its interests represented by the shebait.
  • Shiromani Gurdwara Parbandhak Committee v Som Nath Dass (2000): the Guru Granth Sahib is a juristic person.
  • M. Siddiq v Mahant Suresh Das (2019, the Ayodhya case): the deity Bhagwan Shri Ram Lalla Virajman is a juristic person, but the court declined to treat the disputed land itself as one.
  • The unborn: a child in the womb is treated as born for many purposes if later born alive, for example under Section 13 of the Transfer of Property Act 1882 (transfer for the benefit of an unborn person) and in succession.
⚠️ The rivers case is not settled law
In 2017 the Uttarakhand High Court declared the Ganga and Yamuna living legal persons, but the Supreme Court stayed that order the same year. An option stating that Indian rivers are legal persons under current law should be treated as wrong.

3. Property, ownership, possession and liability

Ownership is the most complete right a person can have over a thing. Austin described it as a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration; Salmond as the relation between a person and a right that is vested in him. Honoré ("Ownership", 1961) listed eleven incidents, among them the rights to possess, use, manage, receive income, the capital, security, transmissibility, absence of term, the duty to prevent harm, liability to execution and residuarity. Possession, by contrast, is a matter of fact that the law protects: Savigny required corpus (physical control) and animus domini (intention to hold as owner), while Ihering argued that possession is simply the outward visibility of ownership, and Salmond spoke of animus possidendi, an intention to exclude others.

Property, possession and liability: points examined
ConceptKey point
Adverse possessionOpen, continuous and hostile possession of immovable property for 12 years bars the owner's suit (Article 65, Limitation Act 1963); in Ravinder Kaur Grewal v Manjit Kaur (2019) the Supreme Court held the possessor may also sue on that title
Corporeal and incorporeal propertyRights over material things versus rights such as easements, patents and copyrights
Theories of propertyNatural right and labour (Locke), occupancy (Grotius), personality (Hegel), utility (Bentham), and the socialist critique (Marx, Proudhon: "property is theft")
LiabilitySalmond: the bond of necessity between the wrongdoer and the remedy. It may be civil or criminal, remedial or penal; fault-based, strict (defences allowed) or absolute (none), and vicarious (for another's wrong)
Negligence as a mental stateSubjective theory (Salmond: a state of careless indifference) versus objective theory (Pollock: failure to meet the standard of the reasonable person)
🎯 Why possession is protected even against the owner
The law protects settled possession because self-help breeds violence. Section 6 of the Specific Relief Act 1963 lets a person dispossessed without due process recover possession within six months without proving title, and the true owner must go to court rather than evict by force. Possession is thus "a root of title" in its own right.

4. Law, poverty and development; global justice

The Constitution treats access to justice as part of the answer to poverty. Article 39A, inserted by the Forty-second Amendment (1976), directs the State to provide free legal aid; the Legal Services Authorities Act 1987 created the National Legal Services Authority, the State and District authorities and statutory Lok Adalats. The courts read the same idea into Article 21: M.H. Hoskot v State of Maharashtra (1978) held free legal aid for an appeal to be part of fair procedure, and Hussainara Khatoon (1979) treated speedy trial and legal aid for undertrials as fundamental. Public interest litigation, which Upendra Baxi called "social action litigation", relaxed standing so that the poor could be heard through others. Olga Tellis v Bombay Municipal Corporation (1985) linked the right to livelihood with the right to life.

The "law and development" movement of the 1960s assumed that exporting Western legal institutions would modernise developing economies; Trubek and Galanter's "Scholars in Self-Estrangement" (1974) recorded its failure. Amartya Sen's Development as Freedom (1999) redefined development as the expansion of substantive freedoms (capabilities), which gives rights a constitutive, not merely instrumental, role.

Global justice: the main positions
ThinkerPosition on global justice
John RawlsA Theory of Justice (1971) applies the difference principle within a society; The Law of Peoples (1999) rejects a global difference principle and accepts only a duty of assistance to "burdened societies"
Charles Beitz and Thomas PoggeCosmopolitans: principles of distributive justice apply globally; Pogge (World Poverty and Human Rights, 2002) argues the global institutional order actively harms the poor
Peter Singer"Famine, Affluence, and Morality" (1972): if we can prevent something very bad without sacrificing anything of comparable moral importance, we ought to do it, whatever the distance
Amartya SenThe Idea of Justice (2009): comparative, realisation-focused justice (nyaya) over ideal institutions (niti)
Martha NussbaumA list of central human capabilities as a threshold every person, everywhere, is owed

5. Modernism and post-modernism

Modernist legal thought, from the Enlightenment through the classical schools, assumes that reason can discover or construct a coherent, neutral and universal body of law. Post-modernism rejects that confidence. Jean-François Lyotard defined the post-modern as "incredulity toward metanarratives" (The Postmodern Condition, 1979); Jacques Derrida's deconstruction shows that texts contain the seeds of their own contrary readings; Michel Foucault treats law as one technique of power that produces the knowledge it claims merely to record.

  • Critical Legal Studies (from the 1977 Conference on Critical Legal Studies; Duncan Kennedy, Roberto Unger): law is indeterminate and politics by other means.
  • Feminist jurisprudence (Catharine MacKinnon, Carol Gilligan's ethic of care): the apparently neutral "reasonable man" encodes a male standpoint.
  • Critical Race Theory (Derrick Bell; Kimberlé Crenshaw, who introduced "intersectionality" in 1989): formal equality can entrench racial hierarchy.
  • Law and economics (Richard Posner): a modernist counter-current that judges rules by their efficiency, which critical scholars in turn contest.
💡 A map and the territory
The modernist treats law like an accurate map drawn by a neutral surveyor. The post-modernist asks who commissioned the map, what it leaves out, and how carrying it changes where people are allowed to walk. The map is still useful; what is denied is its innocence.

Key takeaways

  • Hohfeld's correlatives: right–duty, privilege–no-right, power–liability, immunity–disability; opposites: right–no-right, privilege–duty, power–disability, immunity–liability.
  • Corporate personality theories: fiction (Savigny), concession, realist (Gierke), bracket (Ihering), purpose (Brinz); idols and the Guru Granth Sahib are juristic persons in Indian law.
  • Possession needs corpus and animus; adverse possession of immovable property ripens in 12 years under Article 65 of the Limitation Act 1963.
  • Article 39A (1976) and the Legal Services Authorities Act 1987 put legal aid at the centre of law and poverty; Hoskot and Hussainara read it into Article 21.
  • Rawls limits distributive justice to societies (The Law of Peoples, 1999); Pogge, Beitz and Singer argue for global duties; Lyotard, Derrida, Foucault and Critical Legal Studies challenge modernist neutrality.

Practice questions (10)

Attempt each one before opening the answer. Every explanation names the tempting wrong option as well as the right one, because that is where marks are lost.

  1. In Hohfeld's scheme, the jural correlative of a "power" is:

    1. Disability
    2. Immunity
    3. Duty
    4. Liability
    Show answer

    Answer: D — Liability

    A power in one person corresponds to a liability in another (the other's legal position can be changed). Disability is the opposite of a power, duty is the correlative of a right, and immunity is the opposite of liability.
  2. Which theory of corporate personality holds that a group has a real will of its own, which the law recognises rather than creates?

    1. Bracket theory of Ihering
    2. Realist theory of Gierke
    3. Purpose theory of Brinz
    4. Fiction theory of Savigny
    Show answer

    Answer: B — Realist theory of Gierke

    Gierke's realist or organic theory treats the group person as a real social entity. Savigny's fiction theory says the reverse, Ihering's bracket theory reduces the corporation to its members, and Brinz sees property tied to a purpose.
  3. Which case of the Privy Council held that a Hindu idol is a juristic entity capable of holding property?

    1. Pramatha Nath Mullick v Pradyumna Kumar Mullick (1925)
    2. Salomon v A Salomon & Co Ltd (1897)
    3. Tulk v Moxhay (1848)
    4. Mohori Bibee v Dharmodas Ghose (1903)
    Show answer

    Answer: A — Pramatha Nath Mullick v Pradyumna Kumar Mullick (1925)

    Pramatha Nath Mullick (1925) recognised the idol as a juristic entity whose interests the shebait protects. Salomon is on company personality, Mohori Bibee on a minor's contract, and Tulk v Moxhay on restrictive covenants.
  4. Assertion (A): Savigny held that possession requires both corpus and animus domini. Reason (R): Ihering agreed with Savigny that the intention to hold as owner is the decisive element of possession. Choose the correct option.

    1. Both A and R are true, and R is the correct explanation of A
    2. Both A and R are true, but R is not the correct explanation of A
    3. A is true, but R is false
    4. A is false, but R is true
    Show answer

    Answer: C — A is true, but R is false

    A is true. R is false: Ihering criticised Savigny's emphasis on animus domini and argued that possession is the outward visibility of ownership, so that the intention requirement is largely presumed from control.
  5. Under Article 65 of the Limitation Act 1963, the period for a suit for possession of immovable property based on title, which adverse possession defeats, is:

    1. 3 years
    2. 12 years
    3. 6 years
    4. 30 years
    Show answer

    Answer: B — 12 years

    Article 65 sets 12 years from when the defendant's possession becomes adverse to the plaintiff. Thirty years applies to suits by the government under Article 112, and three years is the common period for many money claims.
  6. Which of the following pairs are Hohfeldian correlatives? Select all that apply.

    1. Right and duty
    2. Power and disability
    3. Immunity and disability
    4. Privilege and no-right
    Show answer

    Answer: A — Right and duty; C — Immunity and disability; D — Privilege and no-right

    Right–duty, immunity–disability and privilege–no-right are correlatives. Power and disability are opposites (the presence and absence of the same capacity in one person); the correlative of power is liability.
  7. Which thinker defined the post-modern condition as "incredulity toward metanarratives"?

    1. Michel Foucault
    2. Roberto Unger
    3. Jean-François Lyotard
    4. Jacques Derrida
    Show answer

    Answer: C — Jean-François Lyotard

    The phrase is from Lyotard's The Postmodern Condition (1979). Derrida is associated with deconstruction, Foucault with power and knowledge, and Unger with Critical Legal Studies.
  8. Assertion (A): In The Law of Peoples (1999), Rawls rejected a global difference principle. Reason (R): Rawls accepted a duty of assistance owed by well-ordered peoples to burdened societies. Choose the correct option.

    1. Both A and R are true, and R is the correct explanation of A
    2. Both A and R are true, but R is not the correct explanation of A
    3. A is true, but R is false
    4. A is false, but R is true
    Show answer

    Answer: B — Both A and R are true, but R is not the correct explanation of A

    Both are true, but R does not explain A. The duty of assistance is what Rawls offered in place of global redistribution; the reason he rejected a global difference principle lies in his view that peoples, not individuals, are the parties at the international level.
  9. Which of the following are part of the Indian legal response to poverty? Select all that apply.

    1. Relaxed standing in public interest litigation
    2. Article 39A on free legal aid
    3. The Legal Services Authorities Act 1987 and Lok Adalats
    4. Abolition of court fees for all civil suits by Article 32
    Show answer

    Answer: A — Relaxed standing in public interest litigation; B — Article 39A on free legal aid; C — The Legal Services Authorities Act 1987 and Lok Adalats

    Article 39A, the 1987 Act and relaxed locus standi in PIL are all part of the response. Article 32 is the right to move the Supreme Court for enforcement of fundamental rights; it abolishes no court fees.
  10. Honoré's classic essay "Ownership" (1961) lists how many incidents of ownership? Type the number.

    Numerical answer — type the value.

    Show answer

    Answer: 11

    Honoré listed eleven incidents, from the right to possess and use to the prohibition of harmful use, liability to execution and residuarity. No single incident is necessary; ownership is the fullest combination of them.