Skip to content Skip to left sidebar Skip to right sidebar Skip to footer
Choose language:

Schools of Jurisprudence

Sociological school of jurisprudence

The sociological school of jurisprudence is a perspective within legal theory that emphasizes the importance of societal context, social values, and the impact of social forces on the development and application of law. Unlike some other schools of jurisprudence that focus primarily on abstract legal principles or formal rules, the sociological school seeks to understand law as a product of social dynamics and as a tool for social engineering.

Definitions:

The sociological school of jurisprudence emerged in the late 19th and early 20th centuries, primarily in response to the limitations of formalistic and abstract approaches to law. While it doesn’t have a single founder in the traditional sense, several scholars contributed significantly to its development:

  1. Émile Durkheim: Durkheim, a French sociologist, is often considered one of the intellectual founders of the sociological perspective on law. His work focused on the study of social facts and the ways in which social forces shape individual behavior, including legal norms and institutions. Durkheim’s ideas laid the groundwork for understanding law as a social phenomenon.
  2. Max Weber: Weber, a German sociologist, also made important contributions to the sociological understanding of law. His concept of “legal rationalization” emphasized the role of bureaucracy and rational-legal authority in modern legal systems. Weber’s work helped to illuminate the connections between law and broader social structures and processes.
  3. Roscoe Pound: Pound, an American legal scholar, is often credited with popularizing the sociological approach to jurisprudence in the United States. He argued that the law should be studied as a social science, with a focus on its practical effects and its role in promoting social welfare. Pound’s writings helped to promote the idea that legal rules and institutions should be evaluated based on their social consequences.
  4. Karl Marx: While primarily known as a political theorist and economist, Marx’s ideas about the relationship between law and society have also influenced the sociological perspective on jurisprudence. Marx emphasized the role of economic factors and class struggle in shaping legal systems, viewing law as a tool of the ruling class to maintain its dominance.

These scholars, among others, contributed to the development of the sociological school of jurisprudence by emphasizing the importance of social context, empirical analysis, and the role of social forces in shaping legal norms and institutions. While they did not form a cohesive “school” in the traditional sense, their ideas collectively laid the foundation for the sociological approach to law.

Salient features of the sociological school of jurisprudence:

The sociological school of jurisprudence is characterized by several salient features that distinguish it from other approaches to the study of law. These features include:

  1. Emphasis on Social Context: The sociological school places a strong emphasis on understanding law within its social context. It views law as a product of social forces, shaped by factors such as culture, economics, politics, and societal values. Legal rules and institutions are analyzed in relation to the broader social structures and processes in which they are embedded.
  2. Empirical Analysis: Sociological jurists often employ empirical methods to study legal phenomena. This may involve collecting and analyzing data on legal norms, institutions, and practices, as well as studying the behavior of legal actors such as judges, lawyers, and litigants. Empirical research is used to identify patterns, trends, and correlations in legal systems and to understand how law operates in practice.
  3. Focus on Social Values: The sociological school recognizes the role of social values in shaping legal rules and decisions. Legal norms are seen as reflecting the values and interests of the society in which they arise, and changes in societal values may lead to changes in the law. Sociological jurists examine how social values influence legal development and how legal rules may promote or hinder social goals such as justice, equality, and social order.
  4. Legal Realism: There is often overlap between the sociological school and legal realism, another influential perspective in legal theory. Legal realists argue that legal decisions are influenced by factors such as judicial discretion, practical considerations, and the personal beliefs of judges. Sociological jurists may adopt a realist approach to studying law, focusing on how legal rules are applied and enforced in practice rather than on abstract legal principles.
  5. Instrumentalism: Sociological jurists may adopt an instrumentalist view of law, seeing it as a tool for achieving social goals. From this perspective, the effectiveness of legal rules should be evaluated based on their ability to promote broader social objectives such as justice, equality, and social order. Legal rules are seen as means to an end rather than as ends in themselves.

Overall, the sociological school of jurisprudence offers a perspective on law that emphasizes its dynamic and context-dependent nature, viewing it as a product of social forces and as a means of addressing social problems and achieving social goals.

Criticism:

Several scholars and schools of thought have offered criticisms of the sociological school of jurisprudence, pointing out perceived limitations or flaws in its approach. Here are some notable critics and criticisms:

  1. Legal Formalism: Legal formalists argue for a more traditional approach to law, emphasizing the importance of legal principles, rules, and doctrines. Scholars such as John Chipman Gray and Oliver Wendell Holmes Jr. criticized the sociological school for what they saw as an overemphasis on societal context at the expense of legal certainty and predictability. They argued that law should be based on objective legal principles rather than subjective social values.
  2. Natural Law Theorists: Natural law theorists critique the sociological school for its perceived relativism and lack of attention to moral and ethical considerations in law. Scholars like Lon L. Fuller and Ronald Dworkin argue that law should be grounded in objective moral principles rather than mere social facts. They contend that the sociological approach neglects the normative dimension of law and fails to provide a basis for distinguishing between just and unjust laws.
  3. Critical Legal Studies (CLS): The Critical Legal Studies movement emerged in the late 20th century as a critique of mainstream legal thought, including the sociological school. CLS scholars argue that sociological approaches to law often reinforce existing power structures and inequalities rather than challenging them. They criticize sociological jurisprudence for its alleged conservatism and its failure to address systemic injustices within legal systems.
  4. Law and Economics Scholars: Scholars in the law and economics tradition, such as Richard Posner and Gary Becker, criticize the sociological school for its neglect of economic factors in legal analysis. They argue that law should be understood as a product of rational decision-making, with legal rules designed to promote economic efficiency and maximize social welfare. Law and economics scholars often advocate for a more instrumentalist approach to law, focusing on the practical consequences of legal rules rather than their social or moral implications.
  5. Traditional Legal Positivists: Legal positivists such as H.L.A. Hart and Joseph Raz criticize the sociological school for blurring the distinction between law and morality. They argue that law should be understood as a separate and distinct social phenomenon, with its validity based on social acceptance rather than moral considerations. Legal positivists contend that the sociological approach risks conflating descriptive and normative claims about law, undermining the autonomy of legal systems.

These criticisms highlight some of the key debates and tensions within the field of legal theory, with scholars offering different perspectives on the nature, function, and legitimacy of law. While the sociological school of jurisprudence has faced its share of critiques, it continues to be a vibrant and influential approach to understanding law and its role in society. By engaging with these criticisms and addressing their concerns, sociological jurists can contribute to a more nuanced and interdisciplinary understanding of law.

constitutional influence on sociological school of jurisprudence

In the Indian context, several articles of the Constitution have been influenced by the sociological school of jurisprudence, particularly in the interpretation and application of provisions related to fundamental rights, social justice, and equality. Here are some examples of constitutional articles influenced by sociological jurisprudence, along with relevant case laws:

  1. Article 14 – Right to Equality: Article 14 of the Indian Constitution guarantees the right to equality before the law and equal protection of the laws. Sociological jurisprudence has influenced the interpretation of this provision to include protections against discrimination based on caste, religion, gender, and other characteristics.
  • Case Law Example: State of Kerala v. N.M. Thomas (1976) – In this case, the Supreme Court held that the principle of equality enshrined in Article 14 requires the state to take affirmative action to uplift marginalized and disadvantaged groups, such as Scheduled Castes and Scheduled Tribes. The Court’s decision was based on sociological evidence demonstrating historical injustices and social inequalities faced by these groups.
  1. Article 15 – Prohibition of Discrimination: Article 15 prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. Sociological jurisprudence has influenced the interpretation of this provision to include protections against intersectional discrimination and to promote substantive equality.
  • Case Law Example: Indra Sawhney v. Union of India (1992) – In this case, commonly known as the Mandal Commission case, the Supreme Court upheld the constitutionality of reservations in public employment for Other Backward Classes (OBCs). The Court’s decision was influenced by sociological evidence demonstrating the social and economic backwardness of OBCs and the need for affirmative action to promote their inclusion.
  1. Article 21 – Right to Life and Personal Liberty: Article 21 guarantees the right to life and personal liberty, interpreted expansively by sociological jurisprudence to include a range of socio-economic rights and protections.
  • Case Law Example: Olga Tellis v. Bombay Municipal Corporation (1985) – In this case, the Supreme Court held that the right to life under Article 21 includes the right to livelihood, and eviction of pavement dwellers without providing alternative housing violates this right. The Court’s decision was influenced by sociological evidence demonstrating the vulnerability of marginalized communities living in poverty.
  1. Article 46 – Promotion of Educational and Economic Interests of Scheduled Castes, Scheduled Tribes, and Other Weaker Sections: Article 46 directs the state to promote the educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections of society. Sociological jurisprudence has influenced the interpretation of this provision to prioritize the welfare and development of marginalized communities.
  • Case Law Example: M. Nagaraj v. Union of India (2006) – In this case, the Supreme Court upheld the constitutional validity of reservations in promotions for Scheduled Castes and Scheduled Tribes, subject to certain conditions. The Court’s decision was influenced by sociological evidence demonstrating the continued marginalization and underrepresentation of these communities in public employment.

These examples demonstrate how sociological jurisprudence has influenced the interpretation and application of constitutional provisions in the Indian context, leading to judicial decisions that prioritize social justice, equality, and the protection of marginalized communities. By considering social context and empirical evidence in constitutional analysis, Indian courts have adapted constitutional principles to address historical injustices and promote inclusive development.

Conclusion:

In conclusion, while the sociological school of jurisprudence has made significant contributions to our understanding of law and society, it is not without its critics. Critics raise concerns about the neglect of legal principles, determinism and reductionism, methodological limitations, and the overlooking of normative dimensions. While these criticisms highlight important challenges facing the sociological school, they also point to opportunities for enriching and refining sociological approaches to law. By addressing these criticisms and engaging in interdisciplinary dialogue, sociological jurists can continue to advance our understanding of law as a dynamic and multifaceted social phenomenon.

Nature and Scope of Jurisprudence

The term “jurisprudence” comes from the Latin word “juris-prudentia,” which translates to “knowledge of law” in its broadest sense. Specifically, “juris” means law, and “prudentia” means skill or knowledge. It, as defined by various jurists, reflects the multifaceted nature and scope of the field. Here are some definitions provided by prominent legal scholars:

Definitions

  1. John Austin: John Austin, a legal philosopher associated with legal positivism, defined jurisprudence as “the philosophy of positive law.” He focused on analyzing the essential characteristics of law, such as its command nature, sovereign authority, and the relationship between law and coercion.
  2. H.L.A. Hart: H.L.A. Hart, another influential legal philosopher, described jurisprudence as “the study of the concepts of law and the systems of law.” He emphasized the importance of understanding legal concepts, such as legal obligation, authority, and the rule of recognition, in the analysis of legal systems.
  3. Roscoe Pound: Roscoe Pound, a legal scholar known for his sociological approach to law, defined jurisprudence as “a science of law, or the philosophy of law, or a systematic knowledge of the nature, functions, and purposes of law.” He highlighted the interdisciplinary nature of jurisprudence and its focus on understanding the social, political, and cultural aspects of law.
  4. Lon L. Fuller: Lon L. Fuller, a legal theorist associated with legal naturalism, characterized jurisprudence as “the study of law in the concrete.” He emphasized the importance of considering the moral and ethical dimensions of law, as well as its practical implications for society.
  5. Joseph Raz: Joseph Raz, a contemporary legal philosopher, defined jurisprudence as “the conceptual and normative study of law.” He emphasized the dual nature of jurisprudence, which involves both conceptual analysis of legal concepts and normative evaluation of legal principles and institutions.

Nature of Jurisprudence

Jurisprudence, as a field of study, delves into the theory and understanding of law, playing a pivotal role in shaping our comprehension of legal systems. By exploring fundamental legal principles like rights, duties, possessions, property, and remedies, jurisprudence offers valuable insights into the role and function of law within society.

A primary focus of jurisprudence lies in scrutinizing the sources of law, which encompass statutory law, common law, and constitutional law. Through this examination, scholars and practitioners aim to develop a deeper understanding of how these sources interact and influence the evolution of legal systems over time.

Another significant aspect of jurisprudence is its role in elucidating the complex concept of law itself. While law is often perceived merely as a set of rules and regulations, jurisprudence reveals its dynamic and multifaceted nature, shaped by a myriad of social, cultural, and political factors.

It’s essential to recognize that jurisprudence isn’t confined to a single viewpoint; rather, it encompasses diverse perspectives. Some scholars, view it as a science, while others regard it as a social science influenced by historical, cultural, and political contexts. Despite these varied interpretations, jurisprudence undeniably serves as a cornerstone for understanding legal systems and guiding the development of legal theory and practice.

Scope of Jurisprudence

The scope of jurisprudence extends across various disciplines, including psychology, politics, economics, sociology, and ethics. This interdisciplinary approach reflects the interconnectedness between law and society, as the law is intricately intertwined with the social, cultural, and political fabric of its environment.

Moreover, jurisprudence doesn’t solely focus on legal logic; it also delves into broader questions concerning the nature and origins of law. By studying the various legal systems and traditions and their evolution over time, jurisprudence provides invaluable insights into the complexities of law and its practical applications.

It’s important to distinguish between jurisprudence and legal theory. While jurisprudence encompasses a wide array of topics related to the study of law, legal theory specifically examines the philosophical content of the law. Legal theory aims to clarify fundamental legal concepts and discern the essence of law, whereas jurisprudence encompasses a broader spectrum of legal studies.

Conclusion

Jurisprudence is indispensable for comprehending legal systems and their societal implications. It offers a theoretical framework for understanding the law and its underlying principles, guiding legal practitioners, policymakers, and scholars in their pursuit of justice and equity within society. Overall, these definitions underscore the diverse perspectives and approaches within jurisprudence, ranging from analytical and positivist views to more interpretive and critical approaches. Jurisprudence serves as a foundational discipline for understanding the nature, principles, and functions of law, and it provides insights into the complex interplay between law and society.

law and its kinds

Introduction

The term  “Law’ denotes different kinds of rules and Principles. Law is an instrument which regulates human conduct/behavior. Law means Justice, Morality, Reason, Order, and Righteous from the view point of the society. Law means Statutes, Acts, Rules, Regulations, Orders, and Ordinances from point of view of legislature. Law means Rules of court, Decrees, Judgment, Orders of courts, and Injunctions from the point of view of Judges. Therefore, Law is a broader term which includes Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice, Morality, Reason, Righteous, Rules of court, Decrees, Judgment, Orders of courts, Injunctions, Tort, Jurisprudence, Legal theory, etc.

Meaning of Law

In old English “Lagu” i.e. law, ordinance, rule, regulation from old norse “lagu” law collective Plural of “Lag” is layer, measure, stroke ‘Literally’ something laid down of fixed. The term law has different meanings in different Places/societies at different times (as it is subject to amendments). In Hindu religion law implies “Dharma” in Muhammadean religion (Islam) it is “Hokum” in Roman its “Jus”, in French, its “Droit” in Arabic, Alqanoon, in Persian and Turkish, its Kunoon, in Latin its “Legam” in Philipino its “Batas” in Albanian language its “Ligj” in Czech its “Zakon” in Danish its “Lor” in Dutch its “Wet” in Italian its “Legge” and in Lithuanian its “Teise” and so on. It varies from place to place in the sense adultery is an offence in India (under section 497 of the Indian penal code, 1860) while it is no offence in America. Law differs from religion to religion in the sense personal laws viz. Hindu law, Muslim law etc. differ from one another.

For instance, A Muslim can have four wives living at a time, but, a Hindu can have only one wife living at a time (Monogamy). If a Hindu male marries again during the life time of first wife he is declared guilty of the offence of bigamy and is Punishable under sec. 494. The law is subject to change with the change in society and also change in the Government/legislative through the amendments/Acts.

Generally the term law is used to mean three things:

First it is used to mean “legal order”. It represents the regime of adjusting relations, and ordering conduct by the systematic application of the force of organized political society.

Secondly, law means the whole body of legal Percepts which exists in a politically organized society.

Thirdly, law is used to mean all official control in a politically organized society. This lead to actual administration of Justice as contrasted with the authoritive material for the Guidance of Judicial action. Law in its narrowest or strict sense is the civil law or the law of the land.

Definitions of law:-

It is very difficult to define the term law. Many Jurists attempted to define the term law. For the Purpose of clarity, some of the definitions given by Jurists in different Periods are categorized as follows.

 

Origin of law

A civil code that was possibly divided into twelve volumes existed in ancient Egyptian law as early as 3000 BC. By the 22nd century BC, an ancient Sumerian king named Ur-nammu created the first law code, which was composed of casuistic statements (if…then…) and was based on the concept of Ma’at, which was characterised by traditional rhetorical discourse, social equality, and impartiality. King Hammurabi codified and carved Babylonian law into stone in 1960 BC, furthering its development. Hammurabi distributed several copies of his legal code as Stelae around the Babylonian realm; this is how the codex came to be known. Hammurabi.

Ancient China and India each had unique schools of legal thought and practise and represent distinct legal traditions. When India joined the British Empire, common law replaced Islamic law and the influential Hindu treatises The Arthashastra and the Manusmriti, which date from 400 BC and 100 BCE respectively. Singapore, Hong Kong, Malaysia, Brunei, and Brunei have all embraced common law. Japan was the first nation to start updating its legal system in accordance with western norms by importing elements of the French Civil Code, but mostly the German Civil Code. Similar to how ancient Chinese law lost way to westernisation in the dynastic final years, six private law codes largely based on German law in Japan were adopted.

The development of Islamic law and jurisprudence was one of the main legal systems that took place during the Middle Ages. “Hawala” was an early informal transfer method during the classical era of Islamic law and jurisprudence. It is mentioned in texts of Islamic jurisprudence as early as the 8th century. Later, the Hawala itself had an impact on the creation of the “Aval” in French civil law and the Avallo in Italian law. Greek teachings had a significant influence on Roman law.

Nature of law

What is the nature of law? In the modern era, this subject has taken centre stage in legal theory and philosophy, and it is the main focus of modern analytic legal theory. The goal of this entry in the legal theory Lexicon is to provide a summary of the “what is law” controversy.

Historical way

In the past, there have been two opposing theories put forward as to what law is. Natural law theory, which is generally characterised as stating that there is an intrinsic connection between law, morality, and justice, offers the traditional response.

Modern way

The modern answer is provided by legal positivism, which as developed by John Austin, asserted that law is the command of the sovereign backed by the threat of punishment.

A revised set of positions are at the centre of current discussions about the essence of law. Analytical legal positivists like H.L.A Hart, Joseph Raza, and Jules Coleman are advocates of legal positivism. John Punis defines the natural law tradition, and the late Ronald Dworkin’s work exemplifies the new position of interpretivism..

In some ways, the title of this lexicon entry is misleading because of focus on the “what is law” question as it has been approached by contemporary legal philosophers.

There are other important perspectives on the nature of law that focus on law’s functions rather than the meaning of the concept for criteria of legal validity.

For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Lahumann. These issues are discussed by Brian Tamanaha in a very clear way.

This lexicon entry maps the territory of the “what is Law”? Controversy, and provides introductory sketches of the major positions as always, the lexicon is written for law students.

Functions of law

Laws provide the standards by which we should live if we wish to be a part of society. Humanity has had laws or other means of self-government ever since the dawn of civilisation. Law established guidelines and restrictions for society so that we might live in freedom, provided justice for those who had been harmed, and shielded us from our own government..

Most importantly the law also provides a mechanism to resolve disputes arising from those duties and rights and allows parties to enforce promises in a court of law (Corley and Reed 1986 P.A)

According to Corley and Reed (1986) law is a body of rules of action or conduct Prescribed by controlling authority, and having legal binding forces.

Laws are created because it helps prevent chaos from happening within the business environment and as well as society. In business law sets guide lines regarding employment regulatory, compliance, even inter office regulations.

Kinds of law

Law is used in different senses. The use of the term “law” is made in various senses. It denotes different kinds of rules and Principles.

Blackstone says “law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of action whether, animate, rational, irrational. Thus we say the law of motion of gravitation of optics or Mechanics, as well as the law of nature and nations” it is helpful in understanding the different senses in which “law” is used in various fields of knowledge.

Kinds of law by Sir Jhon Salmond

Sir John Salmond refers to eight kinds of law

1. Imperative law

2. Physical or scientific law

3. Natural or moral law

4. Conventional law

5. Customary law

6. Practical or technical law

7. International law, and

8. Civil law

1. Imperative law

Imperative law means a rule of action imposed upon by some authority which enforces  obedience to it. In other words it is a command enforced by some superior power either physically or in any other form of compulsion.

Kinds of Imperative law:-

There are two kinds of imperative law, Divine or human

1. Divine laws

2. Human laws

1. Divine laws are consists of the commands imposed by God upon men either by threats of Punishment or by hope of his blessings.

2. Human laws are the laws by analogy Sir Jhon Salmond classifies Human Laws into four sub classes

1. Imperative law imposed and enforced by State is called “Civil law”

2. Imperative law imposed and enforced by members of society is “Moral law”

3. Those imposed and enforced by different institutions or autonomous bodies like Universities, airline companies etc they are called “Autonomic law”

4. Those imposed upon States by the society of States are called “ International law”

2. Physical or scientific law

Physical laws are the expressions of the

1. Uniformities of nature and General Principles Expressing the

2. Regularity, and

3. Harmony observable in the activities and operations of the universe.

They are not the creation of men and cannot be changed by them. Human laws change from time to time and from country to country but physical laws are invariable forever. The uniform actions of human beings, such as law of psychology, also fall into this class they express not what man ought to do, but what they do.

3. Practical or Technical law:-

It consists of Principles and rules for the attainment of certain ends e.g. laws of health, laws of architecture. These rules guide us as to what we ought to do in order to attain certain ends.

4. Natural or Moral law:-

It has various other names such as, “the Moral law” “Divine law” “God Law” ‘universal or eternal law and “law of reason” etc. “by natural law is meant the principles of natural right and wrong (the Principles of natural Justice)”.

Natural laws have been called

Divine law:- commands of God imposed upon men.

Law of Reason i.e. being established by that reason by which the world is Governed.

Unwritten law:- (as being written not an brazen tables or a pillar of stone but by the finger of nature in the hearts of people. universal or common law (being of universal validity)

Eternal law (being uncreated and invariable)

Moral law (being the expression of the Principles of morality)

5. Conventional law:-

It is the body of rules agreed upon and followed by the concerned parties to regulate their mutual conduct. It is form of special law and law for the parties which can be made valid or enforced through an agreement.

A Good example of the conventional law is the International law, laws of cricket or any other game, rules of club. It has been father divided into two groups which are:-

1. Rules enforced by the parties themselves but not recognized by the State e.g. the rules of hokey

2. Rules which are recognized and enforced by the State, e.g. contract etc.

6. Customary law:-

Customary laws are those rules of custom that are habitually followed by the majority of the persons subject to them in the belief of binding nature.

According to Salmond, customary law means “any rules of action which is actually observed by men (any rule which is the expression of some actual uniformity of voluntary action) “when a custom is firmly established it is enforced by the authority of the State. Custom is not law by itself but an important source of law only those customs acquired the force of law, which are recognized by the courts.

7. International law:-

According to “Hughes” international law is the body of Principles and rules which civilized States consider as binding upon them in their mutual relations. “ it can be as the name for the body of customary and conventional rules, which are considered legally binding by civilized States in their intercourse with each other”. According to Salmond it is considered of these rules which the sovereign States have agreed to observe in their dealings with one another.

International agreements are of two types:

They are either expressed or implied.

Express agreements are contained in treaties and conventions, while implied agreements are to be found in the custom or practice of the States. International law is of two kinds:

I: Public International law: It prevails universally all over the world.

II: Private International Law: It is enforced only between some of States.

8. Civil Law

It is the law of the States regarding the land “Civil Law” according to the Salmond , is “the law of State of or the law of the land, the law of lawyers and the law of the courts”. Civil law is the positive law, or law of the land which means the law as it exists. It is backed by the force and might of the State for purposes of enforcement. Civil law differs from special law as the latter applies only in special circumstances the other term is used for the civil law is Municipal

Law and national law.

 CLASSIFICATION OF LAW

Etymological meaning of classification is “the process of putting something into category” or the basic cognative process of arranging into classes or categories. For a proper and logical understanding of law its classification becomes necessary. As it elucidates the way of systematic logical structure of the legal order. It explicates the inter relation of rules and their effect to each other. It analysis the law that intern is helpful in codification of laws it is an arrangement of rules in a concise and systematic way.

Original and Meaning of the Classification of Law

Notion of classification is very old. Classification was first made by Roman Jurists. The ancient Hindu Jurists also laid down eighteen titles or heads of “Vyavahara” civil law. The distinguished civil and criminal law and classified crime law under various heads.

There are two limitations in classification of law first; any classification will have only a relative value and no universal principle or rules can be laid down for it.

With the onward march of time, old rule changed their nature and the field of application and new rules based on different Principles come into existence.

Therefore, a new classification becomes necessary. Roman Jurist analyzed law in old times but that classification is Vague to present world.

Second, any classification made keeping in view the law of a Particular community or nation is not applicable to the law of any other Community or nation.

For Example; if one commits a breach of promise to marry, in English law, it falls under contract, but in French law it falls under delict. So, it’s not possible to discuss the classifications given by various Jurists, only a General Classification shall be given which has been adopted by most of Jurists of the modern times.

Classification of Law

(1) International Law, and

(2) Municipal or National law

International law:- The Present form of international law is of recent origin some earlier Jurist were of the view that the international law is not law as it lacked many elements which law should have. Austin and his supporters were of this view. Some says international law is law and it is superior to the municipal law Kelson supports this view.

What is International Law?

The legal Process that concerns legal relations among nations is called international law. Belief and experience some form international law dates from at least the days of the Roman Empire.

The united nation is are of the Primary mechanism that articulate and create international law.

The major sources of international law are multilateral Treaties, international custom and such General Principles as are recognized by civilized nations.

According to some Jurists international law may be divided into two classes.

(1) Public international law, and

(2) Private international law

(1) Public international law is that body of rules which govern the conduct and relations of States with other, really speaking; the term international law is  used for this class of law.

(2) Private international law means those rules and Principles according to  which the cases having foreign element are decided for example, if a contract is made between an Indian and Pakistani and it is to be performed the rule and Principles on which the rights and liabilities of the Parties would be determined would be called Private international law. This class of law is called “Conflict of laws” also. After knowing the field of application of this class of law, it is clear that the adjective “international” is wrongly given to it because it applies to individuals and not to States and these rules and Principles (called Private international law) vary from State to State and thus lacked uniformity. This class of law is enforced by municipal courts which administer municipal law and not international law, so, such a law does not process the characteristics of international law.

In modern times this class of law has gained much importance and every States has made rules for its administration. Therefore, it must be properly classified. It is submitted that it should be given the name “Conflict of Laws” and not private international law and should be treated as a branch of municipal Private law and should be classified as such.

4. The Municipal law, Law of land, Civil law, or law applied within a State is divided into two classes:-

(A) PUBLIC LAW

(B) PRIVATE LAW

A) PUBLIC LAW:- The State activities are largely regulated by Public law. It determines and regulates the organization and functioning of the State and determines the relation of the State with the subject. public law may be divided into three classes:-

(A) Constitutional law

(B) Administrative law and

(C) Criminal law

(A) Constitutional law: By constitutional law is meant that law which determines the nature of the State and the Structure of the Government. It is above and superior to the Ordinary law of the land. Constitutional law is the basic law or fundamental law of the State. The constitutional law may be written as in India or unwritten as in England. In modern times there is tendency to adopt written constitution.

(B) Administrative Law:- Administrative law deals with the structures powers and the functions of organs of the administration, the limits of their Powers, the methods and Procedures followed by them in exercising their powers and functions; the methods by which there power are controlled including the legal remedies available to a person against them when his rights are infringed by their operation.

(C) Criminal law:- Criminal law defines offences and prescribes punishment for them. Its aim is the prevention of and punishment for offences. Criminal law is necessary for the maintenance of order and peace within the State. In civilized societies crime is considered to be wrong not only against the individual (who has been wronged) but a wrong against the society. Therefore, the State initiates the proceedings against the offender, and thus it is always a party in criminal cases.

This is why the criminal law is considered as a branch of public law.

(D) Private Law: – This branch of law regulates and governs the relations of citizens with each other. The parties in such cases are private individuals and the State through its judicial organ adjudicates the matters in dispute between them. In these cases the State takes the position of only an arbiter. But it does not mean that the State regulates all the conducts and relations of the citizens but regulates only such of them as are of public importance and these relations (which State regulates) constitute the civil rights of the citizens. The major part of municipal law consists of this branch of law but in Totalitarian States the public law regulates the major part of the social life.

In the Classification of private law there is great difficulty. Different Jurists have given different classification, a very General classification is as follows:-

1. The law of Persons

2. The law of Property

3. The law of obligations

4. The conflict of laws

The law of obligations is divided into three classes.

(i) Contract

(ii)Quasi contract, and

(iii) Tort

The classification is only substantive law. The procedural law and Evidence are also the branches of the Private law.

A chart Presenting the above classification is as below:-

 Law

State law/national law international law

Public law private law

Constitutional law Administrative law criminal law

Law of Person law of Property law of obligations the conflict of laws

Contract Quasi-contract Tort

Above classification defective: –

The above classification of law has many defects. Many of the classes do not exist in many legal system at all some branches of law which has developed in recent years cannot be put under any one class exclusive.

Conclusion

Jurisprudence deals with the law as its subject. In its broadest meaning, law denotes a system of rules governing the cosmos, things, events, or behaviour. Any rule of action, or any norm or pattern to which acts are supposed to be confirmed, is a law in the broadest sense. It has been attempted by various jurists at various periods to define the term “law,” but it is quite challenging to come up with an exact definition. Old definitions placed a strong emphasis on religious components of life, which are no longer relevant today. Law is a notion that changes with time; its goals and functions have changed over time.

LAW

Introduction

The term “Law’ denotes different kinds of rules and Principles. Law is an tool which regulates human conduct/behavior. Law approach Justice, Morality, Reason, Order, and Righteous from the view factor of the society. Law approach Statutes, Acts, Rules, Regulations, Orders, and Ordinances from factor of view of legislature. Law approach Rules of court, Decrees, Judgment, Orders of courts, and Injunctions from the factor of view of Judges. Therefore, Law is a broader time period which incorporates Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice, Morality, Reason, Righteous, Rules of court, Decrees, Judgment, Orders of courts, Injunctions, Tort, Jurisprudence, Legal theory, etc.

 Generally the term law is used to mean three things:


First it’s far used to intend “legal order”. It represents the regime of fixing relations, and ordering behavior through the systematic software of the pressure of prepared political society. 

Secondly, regulation method the complete frame of legal Precepts which exists in a politically prepared society. 

Thirdly, regulation is used to intend all professional manipulate in a politically prepared society. This cause real management of Justice as contrasted with the authoritative fabric for the Guidance of Judicial action. Law in its narrowest or strict experience is the civil law or the law of the land.

Definitions of law

It is very difficult to define the term law. Many Jurists attempted to define the term law. For the Purpose of clarity, some of the definitions given by Jurists in different Periods are categorized as follows

(I) Idealistic Definitions:-

Romans and other ancient Jurists defined law in its idealistic nature. Roman Justinian’s defined law in the light of its idealistic nature.

(a) Salmond: – According to salmond “the law may be defined as the body of principles recognized and applied by the state in the administration of Justice. Criticism of Salmond’s definition of law:- Salmond did not define the expression Justice. Keeton says what has been considered to be just at one time has frequently not been so considered at another. 

Criticism by Dean Roscoe Pound: – Dean Roscoe Pound has criticized the definition of Salmond as reducing law to a mass of isolated decisions and the law in that sense to be an organic whole. Further, it is criticized on the ground that Salmond’s definition applies only to lax law not to Statute. Despite criticism, Salmond’s definition is considered as the workable definition. 

(b) John chipman Gray’s Definition of Law:– According to Gray, “the Law of the State or of any organized body of men is composed of the rules which the courts, that is the judicial organ of the body lays down for the determination of legal rights and duties. Criticism of Gray’s definition of law:- Gray’s definition is criticized on the Ground that he is not concerned with the nature of law rather than its Purposes and Ends. Further it does not take into account the statute law.

(ii) Positivists definition:-

 (a) Austin’s definition of law” John Austin (1790-1859) An English Jurists expounded the concept of analytical positivism, making law as a command of sovereign backed by sanction. He developed logically, a structure of the legal system in which he gave no Place to values, morality, idealism and Justice. 

According to Austin, a law, in the strict sense, is a general command of the sovereign individual or the sovereign body. Issued to those in subjectivity and enforced by the physical power of the state. According to Austin “law is an aggregate of rules set by men politically superior or sovereign to men as politically subject.” Austin says, “A law is command which obliges a person or persons to a course of conduct.

 Criticism of Austin’s definition of law:- Austin’s definition of law is subjected to criticism on the ground that it completely ignores the moral and ethical aspects of law and unduly emphasizes the imperative character of law.

 (b) Holland’s definition of law

Thomas Erskine Holland, a reputed Jurist, who followed the Austin’s concept and nature of law attempted to define law as law is a General rule of external human action enforced by a political sovereign. Holland also measures or defines law with preference to sovereign devoid of moral, ethical or ideal elements which are foreign to law and Jurisprudence.

 (c) John Erskine definition of law Law is the command of a sovereign, containing a common rule of life for his subjects and obliging them to obedience.

 (c) Hans Kelsan’s definition of Law According to Kelsan legal order is the hierarchy of the norms, every norm derives its validity from the superior norm and finally there is the highest norm known as grundnorm. 

(d) H.L.A.Hart According to Hart Law is the combination of primary rules of obligations and secondary rules of recognition.

Conclusion

Jurisprudence deals with the law as its subject. In its broadest meaning, law denotes a system of rules governing the cosmos, things, events, or behaviour. Any rule of action, or any norm or pattern to which acts are supposed to be confirmed, is a law in the broadest sense. It has been attempted by various jurists at various periods to define the term “law,” but it is quite challenging to come up with an exact definition. Old definitions placed a strong emphasis on religious components of life, which are no longer relevant today. Law is a notion that changes with time; its goals and functions have changed over time.

Person

Law is primarily concerned with rights and duties. Exercise of right and performance of a duty presupposes capacity and personality. Persons are the substances of which rights and duties are the attributes. The term Person is derived from the Latin word ‘Persona’ it means those who are recognized by law as being capable of having legal rights and duties. In Greek, it was used for: a mask; the character behind the mask; a character in a play; and a representative in general. A representative of the church was called a person. In Roman law, the term was applied to any human being or to a human being with respect to the jural relations associated with him. A slave was not a person and those lacking reasons were treated as less than persons


Definition:


1) Salmond – “A person is any being whom the law regards as capable of rights and bound by legal duties.
2) Savigny defines the term person as the subject or bearer of a right.
3) According to Gray A person is an entity to which rights and duties may be attributed.
4) According to Austin the term ‘person’ includes physical or natural person including every
being which can be deemed human.
According to Section 11 of the Indian Penal Code, the word person includes any company or association, or body of Persons, whether Incorporated or not.

Kinds of Persons:

1. Natural Persons

A natural person is a human being capable of rights and duties. They are both persons in fact and in law.

The Legal Status of Animals, Slaves, Dead Men, and Unborn person

a. Animals and Inanimate Things

b. Slaves

c. Unborn Natural Persons.

d. Dead Persons or Dead Human Beings

1. Animals and Inanimate Things:

Modern Law does not recognize animals as bearers of rights and duties. Law is made for human beings and all things including animals are for men. No animal can be the owner of property, even through a human trustee. There can be no transfer of property from a person to an animal. Animals are merely the object of transfer and are a kind of property which are owned and possessed by persons. This duty or liability of the master arises due to public policy and public expediency. The liability of the master is strict and not a vicarious liability. The animal could be said to have a legal personality only if the liability of the master is considered vicarious.

Ancient Law – However, in ancient times animals were regarded as having legal rights and being bound by legal duties. Under the ancient Jewish Code ‘if an ox gore (wound with a horn) a man or woman resulting in his or her death, then the ox was to be stoned and its flesh was not to be eaten. There are many examples in ancient Hebrew Codes where cock, bulls, dogs and even the trunk of trees which had fallen on human beings and killed him were tried for homicide.’

There are similar instances in India as well. In number of cases found that, animals were sued in courts in ancient India. There is popular story about the Mughal Emperor Jehangir in which the bullock was presented before the Emperor. However these instances are merely of historical interest and have no relevance in modern law.

Similarly, a bequest for the maintenance of the testator’s favourite black mare a bequest of an annual sum for the maintenance of testator’s horses and hounds for a period of 50 years if nay those animals should so long live a trust for the benefit of a parrot during the life of two trustees and survivor of them have all been held valid

..

2. legal status of a Dead Person:


Dead persons have no legal personality and hence, cannot sue and be sued. Dead men are no longer persons in the eye of the law. The legal personality of a person dies with his person. They do not remain the owners of their property until their successors enter upon their inheritance. When a person dies leaving Will, his property is distributed according to the Will. Law
recognizes and takes account after the death of the person of his desires and interest when alive. There are three things in respect of which the anxieties of living men extend even after their death. Those are his body, his reputation, and his property.
1) His Body:
A living person is interested in the treatment to be given to his own body. A person is interested in a decent funeral and good burial. Criminal law secures a decent burial for all dead persons and the violation of a grave is a criminal offense. It is because to respect the feelings of the relatives of a dead person, not the protection of the dead person is right.
2) His reputation:
Everyone is interested in maintaining a reputation even after death. The reputation of a dead person receives some degree of protection from criminal law. A defamation suit can be filed for the loss of reputation of a dead person. If the publication is an attack on the internet of living persons, as a matter of fact, this right is in reality not that of the dead person but of his living
descendants.
3) His Property/ Estate:
A man is dead but his hand may continue to regulate and determine the enjoyment of the property he owned while he was alive. He can dispose of his property by WILL.

Indian Position – Under section 13 of the Transfer of Property Act, property can be transferred for the benefit of an unborn person by way of trust. Similarly section 114 of the Indian Succession Act, 1925 provides for the creation of prior interest before the unborn person may be made the owner of property – corporeal or incorporeal, but no property will be deemed to be vested in the unborn person unless and until he is born alive. In Hindu Law also a child in the womb of the mother is deemed to be in existence for certain purposes. Under Mitakshara law, such a child has interest in coparcenary property.

Under section 315 of the Indian Penal Code, the infliction of pre natal injury on a child, which is capable of being born alive and which prevents it from being so could amount to an offence of child destruction. Section 416 of Criminal Procedure Code provides that if a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed, and may if it thinks fit, commute the sentence to imprisonment for life. It has been held that in a Canadian case that a child could succeed in tort after it was born on account of a deformity which was held to have been caused by a negligent pre natal injury to mother

.

3.Legal Status of Unborn Person


Generally, an unborn person has no legal standing in the eyes of law. However, it has to be distinguished from the one who is living but not yet born, i.e., a child in the womb of its mother-in Utero and an unborn child in the sense of future generations.

Indian Position – As far as a dead man’s body is concerned criminal law secures a decent burial to all dead men. Section 297 of Indian Penal Code also provides punishment for committing crime which amounts to indignity to any human corpse.Under section 13 of the Transfer of Property Act, property can be transferred for the benefit of an unborn person by way of trust. Similarly section 114 of the Indian Succession Act, 1925 provides for the creation of prior interest before the unborn person may be made the owner of property – corporeal or incorporeal, but no property will be deemed to be vested in the unborn person unless and until he is born alive. In Hindu Law also a child in the womb of the mother is deemed to be in existence for certain purposes. Under Mitakshara law, such a child has interest in coparcenary property


A child in the uterus is regarded as a person in law in accordance with the maxim
“Nascitures Pro Ham Nato Habetur i.e. One who is to be born is deemed to have been born”.
Contingent rights: The rights of an unborn person, whether personal or proprietary, are all contingent on his birth as a living human being.
Damages: damages can be claimed for injury to the fetus of a woman if the woman was known to be pregnant.
A posthumous child can claim compensation for the death of his father in a fatal accident.
In Hindu law unborn son acquires an interest in the joint family property from the time of its conception.
In English law a posthumous child inherits and if born alive though it may die moments later it affects the course of succession.
Women convicted cannot be executed if she is pregnant.

2. Legal or Artificial Persons

A legal person is a subject matter, other than a human being, to which the law attributes personality. As distinguished from a legal person, a human being is called a “natural person.” The law assigns legal personality when certain basic conditions have been met. These conditions are:

a. The law requires that there must be some corpus (a body) of the person so created.

b. Legal personality is not attained unless the law recognizes legal personality for the corpus.

c. The law does not assign legal personality separated from the body of persons or a person who administers the legal person.

d. There must be a mind administering the affairs of the legal person.

According to Salmond, ‘legal persons are being, real or imaginary, who for the purpose of legal reasoning is treated in greater or less degree in the same way as human beings.’ They are the person in law, not in fact. Legal persons are termed fictitious, juristic, artificial, or moral. Legal persons may be divided into three types, with reference to different kinds of things, which the law selects for personification.

a) Corporations

b) Institutions

c) Funds or Estate

Corporations: A corporation is a group or series of persons that by legal fiction, is regarded and treated as persons. The individuals who form the corpus of the legal person are termed its members.

Institution: In this class, the object selected for personification is not a group or series of persons, but an institution, for example, a church or university. The law may attribute personality, not to any group of persons connected with the institution, but to the institution itself.

Funds or Estate: in the third class, the corpus is some fund or estate devoted to special use, for example, a charitable fund or a trust estate, or the property of a dead man or of a bankrupt.

Kinds of Corporations: Corporations are of two kinds:

a) Corporation Aggregate

A corporation aggregate is an incorporated group of co-existing persons. A corporation aggregate is a group that has been granted legal personality by the law and it has several members at a time. The first corporations aggregated were companies.

b) Corporation Sole

A corporation sole is an incorporated series of successive persons. A corporation sole is a single person at a time. Corporations sole are founded only when successive holders of some public office are incorporated to constitute a single, permanent and legal person. The corporation sole is created to meet the following needs:

a. Continuity of office

b. Acts to bind successors

c. Ownership of official property distinct from personal property

In the case of corporation sole, the same name is borne by the natural person (for the time being the sole member), and also by the office. This is misleading, as each of them is distinct from the other; under each name are two different persons. One is a human being administering for the time being the duties and affairs of the office.

He is visible to the eye of a layman. The other is a mythical being known to the law, he never dies or retires. The person in flesh and blood is his agent or representative. Agents, Beneficiaries, and Members of Corporation: A corporation being a legal entity only, neither possessing soul nor body, must necessarily act through some agency, some representative in the world of real men. The representatives of a corporation may also be beneficiaries in the case of a corporation established for charitable purposes. The representatives and beneficiaries must not be confounded by its members. Members of the individuals who form the group or series personified by the law, and who so constitute the corpus or body of the legal person thus created.

Difference between a Firm and a corporation

A firm is not a person in the eye of the law, it is nothing else than the sum of its individual members. A corporation is a legal person in the eye of the law; it is separate from its shareholders. The property and the debts of the firm are nothing else than those of its partners. There can be no firm with one member; a company may consist of one member only.

Theories of Juristic Personality

1. Fiction Theory – This theory was put forward by Von Savigny, Salmond, Coke, Blackstone, and Holland etc. According to this theory, the personality of a corporation is different from that of its members. Savigny regarded corporation as an exclusive creation of law having no existence apart from its individual members who form the corporate group and whose acts are attributed to the corporate entity. As a result of this, any change in the membership does not affect the existence of the corporation. It is essential to recognize clearly the element of legal fiction involved in this process. A company is in law something different from its shareholders or members. The property of the company is not in law the property of the shareholders. The company may become insolvent, while its members remain rich. Gray supported this theory by saying that it is only human beings that are capable of thinking, therefore it is by way of fiction that we attribute ‘will’ to non-human beings through human beings who are capable of thinking and assign them legal personality. Wolf said that there are three advantages of this theory. It is analytical, more elastic and it makes easier to disregard juristic personality where it is desirable

2. Concession Theory – This theory is concerned with the Sovereignty of a State. It pre-supposes that corporation as a legal person has great importance because it is recognized by the State or the law. According to this theory, a juristic person is merely a concession or creation of the state. Concession Theory is often regarded an offspring of the Fiction Theory as both the theories assert that the corporation within the state have no legal personality except as is conceded by the State. Exponents of the fiction theory, for example, Savigny, Dicey and Salmond are found to support this theory.

Nonetheless, it is obvious that while the fiction theory is ultimately a philosophical theory that a corporation is merely a name and a thing of the intellect, the concession theory is indifferent to the question of the reality of a corporation in as much as it focuses only on the source (State) from which the legal power of the corporation is derived.

3. Group Personality Theory or Realist Sociological Theory – This theory was propounded by Johannes Althusius and carried forward by Otto Van Gierke. This group of theorists believed that every collective group has a real mind, a real will and a real power of action. A corporation therefore, has a real existence, irrespective of the fact whether it is recognized by the State or not. Gierke believed that the existence of a corporation is real and not based on any fiction. It is a psychological reality and not a physical reality. He further said that law has no power to create an entity but merely has the right to recognize or not to recognize an entity

A corporation from the realist perspective is a social organism while a human is regarded as a physical organism. This theory was favored more by the sociologists rather than by the lawyers. While discussing the realism of the corporate personality, most of the realist jurists claimed that the fiction theory failed to identify the relationship of law with the society in general. The main defect of the fiction theory according to the realist jurists was the ignorance of sociological facts that evolved around the law making process.

Horace Gray, however, denied the existence of collective will.He called it a figment. He said that to get rid of the fiction of an attributed by saying that corporation has a real general will, is to derive out one fiction by another.

4. The Bracket Theory or the Symbolist Theory – This theory was propounded by Rudolph Ritter von Jhering (also Ihering). According to Ihering, the conception of corporate personality is essential and is merely an economic device by which we can simplify the task of coordinating legal relations. Hence, when necessary, it is emphasized that the law should look behind the entity to discover the real state of affairs. This is also similar to the concept of lifting of the corporate veil. This group believed that the juristic personality is only a symbol to facilitate the working of the corporate bodies. Only the members of the corporation are ‘persons’ in real sense of the term and a bracket is put around them to indicate that they are to be treated as one single unit when they form themselves into a corporation.

5. Purpose Theory or the theory of Zweck Vermogen – The advocates of this theory are Ernst Immanuel Bekker and Alois von Brinz. This theory is also quite similar to the fiction theory. It declared that only human beings can be a person and have rights. This theory also said that a juristic person is no person at all but merely a “subjectless” property destined for a particular purpose. There is ownership but no owner. Thus a juristic person is not constructed round agroup of persons but based on an object and purpose. The assumption that only living persons can be the subject-matter of rights and duties would havedeprived imposition of rights and duties on corporations which are non-living entities. It therefore, became necessary to attribute ‘personality’ to corporations for the purpose of being capable of having rights and duties.

6. Hohfeld’s Theory– He said that juristic persons are creations of arbitrary rules of procedure. According to him, human beings alone are capable of having rights and duties and any group towhich the law ascribes juristic personality is merely a procedure for working out the legal rights and jural relations and making them as human beings.

7. Kelsen’s Theory of Legal Personality – He said that there is no difference between legal personality of a company and that of an individual. Personality

Conclusion

The foregoing analysis makes it abundantly clear that incorporation had great importance because it attributes legal personality to non living entities such as companies, institutions etc. which help in determining their rights and duties. Clothed with legal personality, these non living personalities can own, use and dispose of property in their own names. Unincorporated institutions are denied this advantage because their existence is not different from the members.

Ordinarily, only an incorporated body can sue or be sued and an unincorporated body cannot sue or be sued in its own name. This rule was very useful for trade union organizations which were usually not incorporated associations. persons and legal persons for the purposes of law. In law personality implies conferment of rights and duties. Therefore, for the convenient attribution of rights and duties, the conception of juristic personality should be used in its procedural form. There are a number of theories of corporate personality but none could interpret the phenomenon fo juristic personality adequately.

Custom as a source of law

Custom refers to the code of conduct that has the express approval of the community that observes it. In primitive societies, there were no institutions that acted as authority over the people. This led to people organizing themselves to form cohesive groups in order to maintain fairness, equality, and liberty. They started developing rules with coordinated efforts to make decisions. They eventually started recognising the traditions and rituals practiced by the community routinely and formed a systematized form of social regulation. In India, laws relating to marriage and divorce are mostly developed from customs followed by different religious communities. Additionally, several communities belonging to the Scheduled Tribes category have their own customs related to marriage. As a result of that Section 2(2) of the Hindu Marriage Act, 1955 has exempted Scheduled Tribes from the application of this Act. 

Requisites of a valid custom

  1. Reasonability: The custom must be reasonable or practical and must conform with the basic morality prevailing in the modern-day society. 
  2. Antiquity: It must have been practiced for time immemorial. 
  3. Certainty: The custom must be clear and unambiguous on how it should be practiced.  
  4. Conformity with statutes: No custom must go against the law of the land. 
  5. Continuity in practice: Not only the custom must be practiced for time immemorial, but it should also be practiced without interruption. 
  6. Must not be in opposition to public policy: The custom must adhere to the public policy of the state. 
  7. Must be general or universal: There must be unanimity in the opinion of the community or place in which it is practiced. Hence, it should be universal or general in its application.