The Subject Matter of Ownership:

The main subject-matter of ownership consists of a material object, such as land and chattels. But ownership is by no means limited to things of this category. A man’s wealth1 may consist not only of his land and goods but of such things as interests in the land of other people, debts due to him by his debtors, shares in companies, patents, copyrights, and his interests in trust funds. None of these are materials or physical things. They are in fact nothing other than right i.e. right to recover the debt from the debtor, the rights of a shareholder under company law, the right of exclusive exploitation of the patent or copyright, and the right to be paid out of the trust fund.
According to Salmond besides material objects, the right may also be the subject-matter of ownership through a man. From this point of view, many rights cannot be considered as the subject-matter of ownership. For example, one has a right of speech or right of reputation but it is never said that he owns these rights, nor can he alienate them. It must also be stated that though material objects from the subject-matter of ownership but there are certain exceptions to this general observation. For instance, wild animals living in forests cannot be owned. Likewise, since slavery has now been abolished, living persons cannot form the subject matter of ownership. Again, the air, the sea, the sun, the moon, the star, corpses, etc. cannot be owned.
From the above discussion, we can conclude that a man’s wealth consists of lands and goods; these are material objects of ownership. But his wealth also consists of interests in other people’s lands, debts due to him, shares in companies, patents, copyrights, etc. These are not material objects or physical things. They are rights. We shall see the subject-matter of ownership as “owning of things ’’ in the sense of both owning of material objects and also rights. Precisely what things in the wise sense can form the subject-matter of ownership will depend upon the rules of a given system of law. Whether ownership, in the sense of individual ownership, is at all ethically justified and whether state or corporate ownership gives rise to a managerial cadre possessing very much the same powers as owners and having the same defects are not the subject-matter of study in jurisprudence. But the trend seems to be to restrict or burden ownership in social interest.

Modes of Acquiring Ownership:

There are various modes of acquiring ownership over a thing. The ancient Roman and Hindu jurists have given the following modes of acquisition of ownership.

• Inheritance
• Gain
• Purchase
• Conquest
• Application of wealth
• Employment, and
• Acceptance of gift form proper persons.

Many of these modes of acquisition of ownership have been well recognized and some of them exist in a modified form even today. We shall study those methods applicable in modern days. According to Salmond, basically a person is said to acquire ownership in two ways:

• By operation of law, or
• By reason of some act or event.

In modem times the chief modes of acquisition of ownership may be either original or derivative

Original Acquisition:

This mode of acquisition of ownership is said to have taken place when ownership is acquired by reason of some act on part of the acquirer or event. It is of three types, viz.

• Absolute
• Accessory, and
• Extinctive

Absolute Acquisition:

When things are acquired which have not or have never had an owner “ers nullius”. Romans termed them as cases of absolute original acquisition. Manu has termed this mode of acquisition as Pratigraha. The type of absolute ownership is acquired in two ways: occupatio and specificatio.

Occupatio:

“Occupatio” in Roman means taking possession. If a thing is without owner, anyone is at liberty to take and keep it; he makes it his own by the very act of taking possession. Manu, a celebrated jurist in ancient India, has also given a similar view. He said that the first strike of an arrow to prey becomes the owner of it. The person taking possession must be able to show by some such act or fact that the previous owner really intended to divest himself at his ownership. Occupatio was considered as the original mode of acquiring all ownership.

A thing might be without owner because that thing was never possessed by anybody or because somebody who before owned it

• had voluntarily relinquished or abandoned it,
• had thrown it away or had given up exercising the rights of an owner.

Examples of Absolute Ownership by Occupatio:

• Undomesticated animals as long as they have their natural freedom are considered as without an owner.
• If the caged bird escapes from its confinement, the owner’s right ceases, until he can catch and confine it again. If anybody else catches it while free, he is entitled to keep it as his own. The previous owner cannot take it from him.
• The man who can catch a hare, may keep it and cook it. And this, even if he caught it in his neighobour’s land, where he had no right to go. In such a case he is liable to punishment for his poaching in neighbour’s land but was not required to restore the hare to the neighbor.
  game
• Treasures or valuable which had been concealed so long that none could tell whom they belonged, considered as being without an owner. If a man found such treasures, on his own land whether accidentally or by searching for them, was entitled to make them his own. It is to be noted that he is not allowed to search for them on his neighbour’s land. In such a situation that would be a gross violation of his neighbour’s rights. If he explored the lands of another for this purpose, he could lay claim to anything that he found. But if he was in anybody’s land for other purposes and chanced while there to come upon such a hidden treasure, he could keep half of it for himself and the other half going to the owner of the land.
• In England, hidden treasure belongs to the crown whereas under Roman law; it is equally divided between the finder and the owner of the place where it was found.

Specificatio:

Specificatio in Roman means making of new species or kind of product. For e.g. a man making cloth from another man’s wool, or bread from another man’s grain, a sculptor making statute out of clay collected from other person’s land, etc. In such acquisition of ownership, the material belonging to one person is given a new shape by another person. Thus the right of ownership was acquired in something which was previously without an owner. But there are cases in which a thing that had an owner passed without his consent into the ownership of another person. Now in such acquisitions, there are two rights involved: first the right of the owner of the material and the second the right of the manufacturer. There was a difference of opinion between two great schools of jurists. The Sabinian School maintained that the owner of the material was entitled for ownership, whereas the Proculian School maintains that the ownership belonged to the manufacturer. The main point, however, with regard to the principle of specifictatio is that it regards ownership of a thing as a result of individual labour.

Accessory:

When the ownership of property is acquired by way of accession to some existing property, then the acquisition of ownership is called accessory acquisition. Examples are the produce of lands or animals or fruits of trees. Manu has termed this mode of acquisition as Prayog. It was immaterial to see which party made the union; the previous owner of the principal thing, however, became the owner of the new whole, while the owner of the accession lost his right of property and could only claim compensation for his loss. Let us understand the case, by the following examples:

• X owned a piece of cloth. Y made embroidery on that cloth using his own blue thread. In this case, embroidery with blue thread is an accession to the principal thing the cloth. Now X, the owner of the cloth (principal thing) is the owner of the cloth after accession. While Y has lost is ownership of the thread.
• A man erected a building on another man’s land acting in good faith, believing the land to be his own i.e. he believed that the title was in his own name. In the judicial decision, it was proved that the title was defective. In this case, the land is the principal thing and the erected building is accession. Thus the man erecting building loses his ownership. The owner of the land is the owner of the building. This rule is applicable when the structure so erected is fixed and permanent and cannot be easily detached from the soil (res soli). If the structure is demolished, the materials of which the structure is composed, ceased to have any close connection with the soil, they were no longer “res soli” and could be claimed by the erector of the building.

Extinctive

When ownership is acquired by a person by some act on his part, which destroys the title of the previous owner, it is called extinctive acquisition. For instance, the acquisition of ownership by prescription is extinctive acquisition. There may be acquisitive prescription in which, after the expiration of the necessary period, the law gives to the adverse possessor a full legal title. In India, adverse possession by a person of the land of another for 12 years extinguishes the ownership of the previous owner and the person being such adverse possession becomes the owner.

Derivative Acquisition:

A person is said to acquire derivately when he accepts a conveyance of title from a previous owner. This type o mode may include the acquisition of ownership by inheritance – intestate and testamentary, and transfer inter-vivos-purchase, acceptance of gift, etc.

Acquisition of ownership by derivative method of different types of property can be deemed to be complete and effective only when the formalities laid down therein in concerned statute are complied with accordingly. In India, these formalities may be found in the Transfer of Property Act, 1882 “for the transfer of immovable property”, the Sale of Goods Act, 1930 “for the transfer of movable property”, the Partnership Act, 1932 “for the transfer of firm property”, the Companies Act, 1956 “for the transfer of company property”, the Registration Act, 1908, and many other acts.

For example when a gift of an immovable property is made, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. In case of a gift of movable property, transfer may be effected either by a registered instrument signed as aforesaid or by delivery of possession.

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In Salmond’s view, ownership exhibits the following incidents:-

• An owner shall have a right to possess the thing which he owns. He may, however, not be necessarily in actual possession of it;
• He has normally the right to use and enjoy the thing owned;
• The owner has a right to consume, destroy or alienate the thing;
• Ownership has the characteristic of being indeterminate in duration;
• The owner has a residuary character.

Characteristics of Ownership:

The characteristics of ownership can be obtained from Salmond’s analysis:

Right of Possession:             

The owner has a right to possess the thing he owns. It is immaterial whether he is in possession of the thing. The thing might have been stolen, it might have been given temporarily on hire, it might have been pawned, mortgaged or leased, etc. But in all these cases the owner still has an interest in the thing and a right to repossession or termination of the impediment. In some cases, he can institute suits to protect damage to his reversionary right. For example, A’s car is stolen by B, then B has the actual possession of the car but ownership remains with A. X has mortgaged his land with Y. Now Y has the possession of the land but X has the ownership of the land. X can claim possession from Y by repaying the loan for which the mortgage is made in prescribed in the time period. If Y fails to give possession back to X, even after satisfying all the conditions of the mortgage, then X can sue Y in the Court of law.

Rights of Use and of Enjoyment:

Normally the owner has the right to use and enjoy the things as he likes. According to Salmond, these are liberties to use and enjoy the owned thing. He is under no duty not to use it but every other being is under a duty not to use it or interfere with it. But the owner can be restricted by agreements or by operation of law, such as:-

• The owner of a thing cannot be allowed to use the thing in a manner which is injurious to others. This is expressed by the maxim, “sic utere tuo, ut alie-num non laedas” which means “so use your property as not to injure your neighbours’’
• The ownership may be subject to encumbrance in favour of others in which case the power of the user of the owner is curtailed by the rights of the encumbrance.
• The state officials have a right to enter the owner’s premises in pursuance of a warrant issued by a court or for any lawful purpose.

Right of Disposition:

The right of disposition implies the right of consumption, exhaustion, alteration, destruction or alienation of property.  The owner has a right to consume and exhaust the thing when using it. Similarly, the owner has the right to alienate or destroy the thing over which he has ownership. Thus a man can effectively dispose of his property by a conveyance during his lifetime or by will after his death. A maxim nemo dat quod non habet meaning he who has not can give not applies here. Thus a person having possession but not ownership cannot transfer the right of ownership. However, there are well-recognized exceptions to this rule to be found in the Indian Contract act and in Sale of Goods Act.

The owner can be restricted by agreements or by operation of law, such as:-

• The owner of a thing cannot be allowed to dispose off the thing in a manner which is injurious to others. This is expressed by the maxim, “sic utere tuo, ut alie-num non laedas” which means “so use your property as not to injure your neighbours’’
• The ownership may be subject to encumbrance in favour of others in which case the power of the disposition of the owner is curtailed by the rights of the encumbrance.
• Legal restrictions may hamper the unrestricted disposition of the property.
• An owner of the property is not allowed to dispose of the same with a view to defect or delay his creditors.
• There are certain disabilities imposed on infants and lunatics with regard to the disposal of property.

Indeterminate Duration:

Ownership has the characteristic of being indeterminate in duration. All other non-owners in possession have interests which are determinable at a point of time “e.g. interest of a bailee or lessee comes to an end when the period of hire or lease comes to a close” owner’s interest is not determined even by his death, the property descending by either rule of inheritance of conditions of will. The right shall exist so long as the owner and the thing exists. It is a perpetual interest which shall devolve upon the heirs of the owner after his death, but the right shall not be extinguished.

The abolition of Zamindari system India, the abolition of privy purses, nationalization of Bank etc. are some example of the fact that the ownership can be cut short by the state for a public purpose and its duration is not unlimited.

Residuary Nature:

Ownership has a residuary character in the sense that even after all the lesser rights, e.g. lease, easements, etc. have been given away the residuary rights vest in the owner. On determination or extinction of the lesser rights, they revive all original rights in the owner. For instance, if a land-owner gives a lease of his property to A, an easement to B and a right of profit to C, then his ownership shall consist of the residual rights.

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Roman Law:

In Roman law possession and ownership were recognized as two separate and distinct conceptions. In Roman law, a distinction was made between “dominium: domination” and “possession: possession.”  The term dominium denotes the absolute right to a thing while possessio indicated only a physical control over the thing which had as such no legal consequences in the early law. They gave more importance to ownership because in their opinion it is more important to have absolute right over a thing than to have physical control over it.

Hindu Law:

In ancient Hindu law also possession and ownership were two distinct conceptions. Ancient law-givers Manu and Yajnavalkya laid down that the possession of the immovable for 20 years and of movable for 10 years gives Title by prescription. Regarding law about ‘sale without ownership, Katyayana in Vivadratnakara said: “If a man lost this chattel and discovers it in the possession of someone else, then he should, first of all, prove by means of witnesses and other evidence, ownership of that chattel.” These arguments confirm that possession and ownership were two distinct and separate conceptions and a long possession “prescription” could ripen into ownership. The ancient law of ‘prescription’, ‘bailment’ and ‘sale without ownership’ was based upon this distinction.

English Law:

Under the feudal system, the land was held in return for service. The holding of land was known as ‘seisin’. The seisin was a right which was relied upon to get back the possession. If the person seised was dispossessed. It was a right to the possessor. The claimant succeeded only it he proved a better right to possess than the possessor. This shows that English law also had a clear distinction between the possession and ownership. The known use of the word ‘Owner’ was made in 1340 and of ‘Ownership’ in 1583.

Relationship of Person to an Object:

The relation of a person to an object can be of the following kinds.

Custody:

It is a relation of a person to an object in which he has no full control over the thing, in other words, he has no required animus to exclude others. For example, a customer examining a piece of cloth in a shop before the shopkeeper who has only custody of that cloth.

Detention:

It is a relationship where a person has in fact possession over a thing but law due to certain reasons do not recognize it as a possession. For example, a servant has the detention over things of his master with him.

Possession:

It is a relation of a person to an object which law recognizes as a possession.

Ownership:

It is a relation of a person to an object which is exclusive or absolute and ultimate. The person who stands in this relation is called the ‘owner’ and he has a right of complete control and enjoyment of the object.

The bundle of rights of a person over a thing confers him the ownership of the thing, and the control exercised by the person over the thing makes things a property of that person. Thus the idea behind the ownership and property are fundamentally the same and the ownership and property are the two aspects of the same relation

Defining Ownership:

Jurists have defined ownership in different ways. All of them accept the right of ownership as the complete or supreme right that can be exercised over anything.

According to Hibbert ownership includes four kinds of rights within itself.

• Right to use a thing;
• Right to exclude others from using the thing;
• Disposing of the thing;
• Right to destroy it.

Thus, Hibbert Suggests that no one can have absolute ownership in the land as and the land is not capable of being destroyed. One can merely have an estate in it. An estate being defined as the legal interest of a party in the land measured by duration and entitling the party to put the land to use of an indefinite nature. According to him in movables, one can have absolute ownership since one can destroy them.

According to Holland ownership is plenary control over an object. The meaning of the phrase “planetary control over an object” is a complete control unrestricted by any law or fact.  According to him, an owner has three rights on the subject owned.

• Possession
• Enjoyment
• Disposition

According to Holland the right of disposition implies the right of alteration, destruction or alienation of property.

According to Austin, ownership is a right over a determinate thing, indefinite in point of the user, unrestricted in point of disposition, and unlimited in point of duration. Austin while defining ownership has focused on the three main attributes of ownership, namely, indefinite user, unrestricted disposition and unlimited duration.

• Indefinite User
• Unrestricted Disposition
• Unlimited Duration

According to Salmond, ownership denotes a relation between a person and an object forming the subject-matter of his ownership. It consists of complex of rights, all of which are rights in rem, being good against all the world, and not merely against some persons. Thus according to Salmond ownership vests in the complex of rights which he exercises to the exclusive of all others.

In Salmond’s view, ownership exhibits the following incidents:-

• An owner shall have a right to possess the thing which he owns. He may, however, not be necessarily in actual possession of it;
• He has normally the right to use and enjoy the thing owned;
• The owner has a right to consume, destroy or alienate the thing;
• Ownership has the characteristic of being indeterminate in duration;
• The owner has a residuary character.

A noteworthy jurist from Austria has analyzed the concept of ownership from his “Marxist” view. According to Renner, in medieval times ownership consisted of the relation between man and things. After industrial revolution “ownership” has become a relation between a man and complex aggregate of things termed “capital”

Analysis of Austin’s Definition:

According to Austin, ownership is a right over a determinate thing, indefinite in point of the user, unrestricted in point of disposition, and unlimited in point of duration. Austin while defining ownership has focused on the three main attributes of ownership, namely, indefinite user, unrestricted disposition and unlimited duration.

• Indefinite User
• Unrestricted Disposition
• Unlimited Duration

Indefinite Use:

It means that the owner of a thing is free to use or even misuse the thing in the manner he likes. The use of the word ‘‘indefinite” has some restrictions. The owner can be restricted by agreements or by operation of law, such as:-

• The owner of a thing cannot be allowed to use the thing in a manner which is injurious to others. This is expressed by the maxim, “sic utere tuo, ut alie-num non laedas” which means “so use your property as not to injure your neighbours’’
• The ownership may be subject to encumbrance in favour of others in which case the power of the user of the owner is curtailed by the rights of the encumbrance.
• The state officials have a right to enter the owner’s premises in pursuance of a warrant issued by a court or for any lawful purpose.

Unrestricted Disposition:

The right of disposition implies the right of alteration, destruction or alienation of property. According to Austin an owner of a tiling has unrestricted right to dispose it off in a way he likes. Thus, he regards the right of alienation as a necessary incident of ownership. Again the use of the word ‘‘indefinite” has some restrictions. The owner can be restricted by agreements or by operation of law, such as:-

• The owner of a thing cannot be allowed to dispose off thing in a manner which is injurious to others. This is expressed by the maxim, “sic utere tuo, ut alie-num non laedas” which means “so use your property as not to injure your neighbours’’
• The ownership may be subject to encumbrance in favour of others in which case the power of the disposition of the owner is curtailed by the rights of the encumbrance.
• Legal restrictions may hamper the unrestricted disposition of the property.
• An owner of the property is not allowed to dispose of the same with a view to defect or delay his creditors.
• There are certain disabilities imposed on infants and lunatics with regard to the disposal of property.

Mitakshara school of Hindu law does not allow alienation of ancestral immovable property without the consent of the coparceners except for legal necessity. In Germany, a division of small farms beyond a particular limit is not permissible.

Unlimited Duration:

According to Austin the time of ownership is unlimited in point of duration. The right shall exist so long as the owner and the thing exists. It is a perpetual interest which shall devolve upon the heirs of the owner after his death, but the right shall not be extinguished.

The abolition of Zamindari system India, the abolition of privy purses, nationalization of Bank, etc. are some examples of the fact that the ownership can be cut short by the state for a public purpose and its duration is not unlimited.

Criticism to Austin’s Definition:

• It is pointed out that ownership is not a right but a bundle of rights. It is the aggregate of the sum-total of the rights of user and enjoyment. Even if some of the rights are removed and given to another person, the person in whom vests the residue is still the owner. The owner of a piece of land may mortgage or leases the same to another person. Although he has transferred a right, he is still the owner.
• Ownership is not merely a right but also a relationship between the right owned and the person owning it.
• The idea of the right of the indefinite user is also attached with some restrictions as discussed above. Many limitations can be put upon that user.
• The idea of unlimited duration is also attached with some restrictions as discussed above. The ownership can be cut short by the state for a public purpose and thus duration is not unlimited.

Analysis of Salmond’s Definition:

According to Salmond, ownership denotes a relation between a person and an object forming the subject-matter of his ownership. It consists of complex of rights, all of which are rights in rem, being good against all the world, and not merely against some persons. Thus according to Salmond ownership vests in the complex of rights which he exercises to the exclusive of all others.

In Salmond’s view, ownership exhibits the following incidents:-

• An owner shall have a right to possess the thing which he owns. He may, however, not be necessarily in actual possession of it;
• He has normally the right to use and enjoy the thing owned;
• The owner has a right to consume, destroy or alienate the thing;
• Ownership has the characteristic of being indeterminate in duration;
• Owner has a residuary character.

Criticism to Salmond’s Definition:

• Diguit has criticized Salmond’s definition of ownership and asserted that what a person really owns is a “thing” and not a right. It is, however, submitted that Salmond comprehends ownership in corporeal and incorporeal rights. Thus a man may own the copyright or a right of way. In this sense, he owns a right and not merely the material objects.
• According to Kocourek, ownership is a relationship between the owner and a right to a thing, which can be economically enjoyed. The right of ownership is a matter of legal protection

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Types of Administration of Justice:

• The administration of justice is civil as well as criminal. The social equilibrium of society is maintained through the machinery of criminal justice (criminal prosecution) in form of capital punishment, imprisonment, and fine. While the administration of justice in civil litigation is done in the form of civil remedies (damages, injunctions, specific performances, restitution of conjugal rights, divorce, etc.)

Difference Between Civil Litigation and Criminal Prosecution:

• Before studying criminal law it is important to distinguish between civil litigation and criminal prosecution. Civil and criminal cases share the same courts, but they have very different goals, purposes, and results. Civil wrongs are private wrong while criminal wrong is a public wrong. Hence the criminal wrong is more harmful. Hence to prevent criminal wrongs and to create fear among the public against the commitment of such wrong, the State becomes the prosecutor in criminal wrongs.

Parties in Litigation:

• Civil Litigation: The injured party can be an individual, corporation, or other business entity. When the civil suit is filed by the injured party, then the injured party is called the plaintiff. The term plaintiff is associated with civil litigation only. The alleged wrongdoer can be an individual, corporation, or other business entity. When the civil suit is filed by the injured party, then the alleged wrongdoer is called the defendant. Note that the wrongdoer is called a defendant in both civil litigation and criminal prosecution.
• Criminal Prosecution: If the defendant commits a crime as defined in IPC, the Government pursues the criminal prosecution. Thethe n government is the prosecutor. While wrongdoer is called the accused or the defendant.

When Applicable:

• Civil Litigation: For the start of Civil litigation the plaintiff must be a bona fide victim and can prove the harm to him. If there is no evidence of harm, the plaintiff has no basis for the civil litigation matter. The harm may be physical as injuries suffered in an accident, monetary as in case of breach of contract, or violation of legal rights.
• A defendant may be liable without fault in two situations. First, the law that the defendant violated may not require fault. Usually, this is referred to as strict liability. Strict liability torts do not require fault because they do not include an intent component. Second, where the defendant may be liable without fault is if the defendant did not actually commit any act but is associated with the acting defendant through a special relationship. The policy of holding a separate entity or individual liable for the defendant’s action is called vicarious liability (respondent superior).
• Criminal Prosecution: A criminal prosecution takes place after a defendant violates a state criminal statute (performs the act defined as a crime in Indian Penal Code), or in some jurisdictions.

Goals of Litigation:

• Civil Litigation: The goal of civil litigation is not to punish the wrongdoer but to compensate the plaintiff for any injuries and to put the plaintiff back in the position that the person held before the injury occurred.
• Criminal Prosecution: The goal of a criminal prosecution is to punish the convict. Injury and a victim are not necessary components of a criminal prosecution because the punishment is the objective, and there is no plaintiff. Thus the behavior can be criminal even if it is essentially harmless. Society does not condone or pardon conduct simply because it fails to produce a tangible loss. We can understand this with the following example.
• ‘A’ is angry because his friend ‘B’ duped him of money. ‘A’ gets his unlicensed gun, which has a silencer on it, and puts it in the glove compartment of his car. He then begins driving to ‘B’s house. While ‘A’ is driving, he exceeds the speed limit on three different occasions. ‘A’ arrives at ‘B’s house and then he hides in the bushes and waits. After an hour, ‘B’ comes into the balcony looks at the gate and turns around. When ‘B’ begins walking back to the room, ‘A’ shoots at ‘B’ two different occasions but misses, and the bullets end up landing in the garden. Due to use of silencer ‘B’ does not notice the shots.
• In this example, A has committed several crimes: (1) Carrying an unlicensed gun (criminal act) (2) Using a silencer (criminal act) (3) exceeding the speed limit three times (civil wrong). (4) He has the intention to harm B (mens rea) (5) He has planned for assault (Criminal conspiracy) (6) He fired the gun at B and committed the crime of attempted murder or assault with a deadly weapon (Criminal act). In any of this crime, there is no harm to anybody. However, common sense dictates that A should be punished so he does not commit a similar criminal act in the future that may result in harm.

Matter Under Discussion:

• Civil Litigation: In this case, the court decides whether the legal rights of the plaintiff are violated or not. If rights are violated then what is the amount of compensation or granting specific relief or injunction, etc.
• Criminal Prosecution: In this case, the court decides whether the accused under trial is guilty or not. If the accused is guilty then the extent and type of punishment is decided by the court.

Payment to Lawyer:

• Civil Litigation: A plaintiff must hire and pay for a lawyer to represent himself or herself. Hiring a lawyer is one of the many costs of litigation. Before filing such litigation the plaintiff has to take care of this factor. In civil litigation, both the plaintiff and the defendant must hire and pay for their own private lawyers. A defendant in a civil litigation matter must hire and pay for a lawyer (Defence Attorney) even if that defendant did nothing wrong. The right to a free lawyer does not apply in civil litigation, so a defendant who cannot afford a lawyer must represent himself or herself.
• Criminal Prosecution: The lawyer by the State is called the Public Prosecutor (PP) in India and state prosecutor or a district attorney in the US. The defendant in a criminal prosecution can be represented by a private lawyer or free attorney paid for by the State if he or she is unable to afford lawyer’s fees. The lawyer provided by the government is called public defenders. The court appoints a free lawyer to represent the defendant in a criminal prosecution because the Constitution is in effect in any criminal proceeding. The Constitution says that every criminal defendant facing incarceration has the right to legal representation, regardless of wealth.

The Burden of Proof:

• Civil Litigation: In the civil court system, individuals or organizations can bring each other to court. In this case, the burden of proof lies mostly on the plaintiff.
• Criminal Prosecution: It is the government that brings a case against the accused individual, and it is the government’s burden of proof to show the jury its case and the evidence that supports it.

Constitutional Protection:

• Civil Litigation: In this case, constitutional protection is not available.
• Criminal Prosecution: In this case, constitutional protection is available.

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Administration of Criminal Justice:

• Administration of justice is the maintenance of right within a political community by means of the physical force of the State. Without the administration of justice, a person would be inclined to redress his wrongs by his own hands, which is certainly not desirable.

The Need for Administration of Criminal Justice:

• A man by nature is a fighting animal and is moved by his own interest and passions. So without a common power to keep him right on track in society, it is very difficult for individuals to live peacefully in society. State power is essential to attain civilization in society.
• There is a chance that powerful persons do whatever he likes according to the saying “Might is Right”. To control such a situation there must be the element of force, and this can be achieved through the instrument of law. Thus, it is mandatory to have the physical force for the maintenance of law and order.

Development of Administration of Criminal  Justice:

The First Stage of Administration of Criminal  Justice:

• In primitive times, might was the sole right. Every man was his own judge, a person would seek revenge by his own hand, supported by the hands of his friends and kinsmen, where necessary. In those days, every man was a constituted judge in his own cause and Might was the sole measure of Right. There was no guarantee, at this stage, that crime would certainly be punished, and if met with punishment, that the punishment would be in proportion to the crime.
• At that time a simple crime between two persons used to get converted into that between two families and ultimately between two tribes resulting in blood-feud.
• At some stage, when blood-feud proved to be disastrous, primitive society provided for payment of some money, or its equivalent, as a compensation to the victim of the crime, or to the relatives of the victim, as the case may be. This compensation was referred as the “blood money”, which varied according to the importance of the victim.

The Second Stage of Administration of Criminal  Justice:

• In due course, societies are formed and as a result, people got civilized. They started involving their elders and wise men of the society to settle disputes among them. There we see developments of minds, starts from natural society to developed and civilized society.
• The second stage in the history of administration of justice begins with the rise of the political State. However, these infant States were not powerful enough to regulate crime and to inflict punishment on the criminal. The function of the State was just to regulate private vengeance and violent self-help.
• At this stage, the State prescribed certain rules for the regulation of private vengeance. The State, at this stage, enforced the concept of “a tooth for a tooth”, “an eye for an eye” and “a life for a life”, What the State made sure was that life was not taken for a tooth, nor a life for an eye. This was definitely a stage in the advancement of criminal justice. I
• As royal justice (justice by the king or the chief of the State) grew in strength, the law began to speak for itself, and what followed was the modern theory of establishing an exclusive system to administer justice by the State.

The Third Stage of Administration of Criminal  Justice:

• As time passed, the administration of justice was started with the rise and growth of political states. Kings and emperors were given the power to give justice. But there was no uniformity in the decisions by the king or the chief of the society. Then kings started exercising their powers through the jurists they appointed for the purpose. In modern times the judicial power is operated by Magistrates and Judges.
• In the first and second stages, there was no difference between criminal justice and civil justice. With the growth of the State’s power, the State began to act as a judge, to assess liability and to impose a penalty. It was no longer a regulator of private vengeance; it substituted public enquiry and punishment for private vengeance. The civil law and administration of civil justice helped the wronged, and became a substitute for the system of violent self-help of the primitive days. Thus, it will be seen that the modern administration of justice is a natural corollary to the growth in power of the political State.

Advantages of Legal Justice:

• Uniformity and Certainty: As time passed, the administration of justice was started with the rise and growth of political states. Kings and emperors were given the power to give justice. But there was no uniformity in the decisions by the king or the chief of the society.  The advent of the Legal Justice made sure that there is no scope of arbitrary action and even the judges had to decide according to the declared law of the State. As law is certain, people could shape their conduct accordingly.
• Legal Justice also made sure that the law is not for the convenience of a particular special class. Judges must act according to the law. It is through this that impartiality has been secured in the Administration of Justice.

Disadvantages of Legal Justice:

• It is rigid. The rate of change in the society is always more rapid than the rate of change in the Legal Justice.
• Legal Justice is full of technicalities and formalities.
• Our society is complex, hence to meet the needs of society, we need complex laws and complex Legal Justice.
• Salmond said that‘law is without doubt a remedy for greater evils yet it brings with it evils of its own’.

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