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Jurisprudence One Liner Notes
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JURISPRUDENCE | |
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DEFINITION AND HISTORY | |
From which Latin word is the term jurisprudence derived? | Jurisprudentia. |
What does the Latin word jurisprudentia mean in its widest sense? | Knowledge of law. |
What does the Latin word “juris” mean? | Law. |
What does the Latin word “prudentia” mean? | Skill or knowledge. |
What does jurisprudence signify? | Knowledge of law and its application. |
What does jurisprudence cover in its sense? | The whole body of legal principle in the world. |
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DEFINITIONS | |
According to Ulpian, what is jurisprudence? | The observation of things human and divine, the knowledge of just and the unjust. |
According to Professor Grey, what is jurisprudence? | The science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in such rules. |
According to Professor Grey, what does jurisprudence regulate? | External human conduct in society. |
According to Professor Grey, what does jurisprudence not concern itself with? | The inner beliefs of man. |
According to Salmond, what is jurisprudence? | The science of the first principles of civil law. |
According to John Austin, what is jurisprudence? | The philosophy of positive law. |
According to John Austin, what is meant by positive law? | Law laid down by a political superior for commanding obedience from his subjects. |
According to Sir Holland, what is jurisprudence? | The formal science of positive law. |
Why is jurisprudence called a formal science according to Sir Holland? | Because it deals not with concrete details but only with the fundamental principles underlying them. |
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HISTORY OF JURISPRUDENCE | |
Into how many phases is the development of jurisprudence divided? | Three phases. |
What are the three phases of development of jurisprudence? | Pre-Roman period, Roman period, and post-Roman period. |
What is the first phase in the development of jurisprudence? | Pre-Roman period. |
What is the status of jurisprudence in the pre-Roman period? | It is not recognized as a separate subject of study and is treated as part of philosophy. |
What was developed by Greeks in the pre-Roman period? | Jus naturale. |
What does jus naturale represent? | Law of morality, ethics, etc. |
What does jus naturale indicate about religion and law? | There is no difference between religion and law. |
What principle originated from the Greek concept of jus naturale? | Principle of equity. |
What is the second stage in the development of jurisprudence? | Roman period. |
In which period was the term jurisprudence first used? | Roman period. |
Who first used the term jurisprudence? | Romans. |
What did the Romans provide to jurisprudence? | Separate existence. |
According to Cicero, what should be the study of law should be separated from what? | Philosophy. |
What did the Cicero said about jurisprudence in the roman period? | The Jurisprudence is the philosophical aspect of knowledge of law. |
What is the third stage in the development of jurisprudence? | Post-Roman period. |
Who re-established jurisprudence as a branch of religious philosophy in the medieval ages? | Saint Thomas Aquinas. |
What was the status of jurisprudence in the medieval ages? | It was re-established as a branch of religious philosophy. |
What development took place in the 16th century regarding law and religion? | Scholars attempted to remove law from religion. |
What was rejected by scholars in the 16th century? | Orthodox rules of Pope and churches as absolute. |
What was the result of rejecting orthodox religious rules? | Rulers or kings got the power to make laws. |
Who emphasized the importance of international law in the 17th century? | Grotius. |
Which book was written by Thomas Hobbes? | Leviathan. |
What did Thomas Hobbes state regarding law? | Order of state is a law and it is the duty of citizens to obey it. |
Who was inspired by Thomas Hobbes? | Austin. |
In which century did the natural law school flourish? | 18th century. |
According to Blackstone, what is natural law equivalent to? | Divine law. |
According to Blackstone, what is the status of natural law? | It is superior to all laws. |
Who criticized the view of Blackstone? | Bentham. |
What was the view of Bentham regarding law? | Law approved by the state is binding on citizens whether natural or otherwise. |
What was the effect of Bentham’s view on jurisprudence? | Science of law got freedom from the bonds of religious philosophy. |
According to Bentham, what is an important part of jurisprudence? | Legislation. |
What concept of law was established by Austin? | Positive law. |
What is positive law according to Austin? | Law is the command of the sovereign. |
Who propounded the pure theory of law? | Kelsen. |
What did Kelsen reject? | Command theory of Austin. |
What was the result of developments in the post-Roman period? | Different ideologies and schools flourished. |
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TYPES OF JURISPRUDENCE | |
On what basis has the classification of jurisprudence been approached by various jurists? | Their understanding of the nature, scope and purpose of law. |
Into how many types did John Austin divide jurisprudence? | Two types. |
What are the types of jurisprudence according to John Austin? | General jurisprudence and particular jurisprudence. |
What is general jurisprudence according to John Austin? | It is concerned with fundamental principles and notions of law common to all legal systems. |
What does general jurisprudence seek to analyse? | Abstract concepts such as rights, duties, sovereignty and sanctions. |
What is the nature of general jurisprudence? | Universal and not confined to any particular legal system. |
What is particular jurisprudence according to John Austin? | It is the study of the actual legal system of a specific state. |
What does particular jurisprudence deal with? | Concrete rules, doctrines and institutions operating within a specific legal system. |
Give examples of legal systems studied under particular jurisprudence. | Indian or English legal system. |
What is the nature of general jurisprudence in comparison to particular jurisprudence? | General jurisprudence is theoretical and comparative. |
What is the nature of particular jurisprudence? | Practical and system-specific. |
What is the main criticism of Austin’s classification of jurisprudence? | It is too rigid and overly positivist. |
Why is Austin’s classification considered overly positivist? | It tends to ignore the role of morality and social context in shaping law. |
Who provided a comprehensive classification of jurisprudence into three schools? | John Salmond. |
Into how many schools did Salmond classify jurisprudence? | Three schools. |
What are the schools of jurisprudence according to Salmond? | Analytical school, historical school and ethical school. |
What does the analytical school of jurisprudence examine? | Law as it exists. |
On what aspects does the analytical school focus? | Structure, concepts and formal sources of law. |
By whom is the analytical school largely influenced? | Austin. |
How does the analytical school regard law? | As a command of the sovereign backed by sanctions. |
What does the analytical school exclude from its scope? | Moral considerations. |
What is the main emphasis of the historical school of jurisprudence? | Law is the outcome of gradual social development. |
According to the historical school, is law a result of deliberate legislation? | No, it is not the result of arbitrary or deliberate legislation. |
In what is law rooted according to the historical school? | Customs, traditions and consciousness of the people. |
Who advocated the concept of Volksgeist? | Friedrich Carl von Savigny. |
What does the concept of Volksgeist signify? | Law is based on the spirit of the people. |
What is the alternative name of the ethical school? | Natural law school. |
What approach does the ethical school follow? | Normative approach. |
What does the ethical school assert regarding law? | Law must conform to principles of justice, morality and reason. |
Who argued that an unjust law cannot be considered true law? | Thomas Aquinas. |
What is the basis of legal validity according to the ethical school? | Moral legitimacy. |
What perspectives on law are reflected in Salmond’s classification? | Law as a command, as a social phenomenon, and as a moral ideal. |
What is the subject matter of Bentham’s classification of jurisprudence? | Division of jurisprudence into expository and censorial jurisprudence. |
From what standpoint did Jeremy Bentham approach jurisprudence? | Functional standpoint. |
Into how many types did Bentham divide jurisprudence? | Two types. |
What are the types of jurisprudence according to Bentham? | Expository (or expositorial) and censorial jurisprudence. |
What is expository jurisprudence? | Study and systematic arrangement of law as it actually exists in a given society. |
What is the objective of expository jurisprudence? | To describe, analyse and clarify existing legal rules without judging their merit or demerit. |
What is the nature of expository jurisprudence? | Descriptive in character. |
What is censorial jurisprudence? | Critical evaluation of law in the light of certain standards. |
On what principle is censorial jurisprudence based? | Principle of utility. |
Who propounded the principle of utility? | Jeremy Bentham. |
What does censorial jurisprudence seek to determine? | What the law ought to be. |
On what basis does censorial jurisprudence evaluate laws? | Whether laws promote the greatest happiness of the greatest number. |
What is the nature of censorial jurisprudence? | Normative and reform-oriented. |
What is the aim of censorial jurisprudence? | Improving the legal system. |
What does Austin’s classification of jurisprudence highlight? | Structural and scope-based aspects of legal study. |
What does Salmond’s classification of jurisprudence reflect? | Philosophical foundations and sources of law. |
What does Bentham’s classification of jurisprudence emphasis? | Descriptive and evaluative functions of jurisprudence. |
What overall understanding is provided by these classifications? | Law as a system of rules, a product of social evolution, and an instrument for achieving justice and social welfare. |
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SCHOOLS OF JURISPRUDENCE | |
ANALYTICAL SCHOOL | |
What is the status of the Analytical School in jurisprudence? | It is one of the most prominent schools of legal thought and occupies a central place in modern jurisprudence. |
By what other names is the Analytical School of Jurisprudence known? | Imperative School, Positive School and Austinian School. |
What is the fundamental object of the Analytical School? | To analyse law in its existing form and study it as it actually operates in society. |
With what are the jurists of the Analytical School not concerned? | Historical origin of law and speculative notions regarding what law ought to be. |
On what do the jurists of the Analytical School confine themselves? | Examination of law as it is. |
Why is the Analytical School called the Positive School of Law? | Because it deals with law laid down by a political superior as it actually exists, which is called as positus. |
What is the meaning of the term positus? | Laid down. |
Why is the Analytical School also termed the Austinian School? | Because John Austin gave a systematic and scientific exposition to this theory. |
Who is regarded as the father of analytical or positive thought? | John Austin. |
Who laid the true intellectual foundation of the Analytical School earlier than Austin? | Jeremy Bentham. |
What movement was initiated by Jeremy Bentham in England? | Rational and scientific study of law. |
What is one of the most significant features of the Analytical School? | Its close relationship with the State. |
From where does law derive its authority according to the Analytical School? | Sovereign power of the State. |
On what does the validity of law depend according to the Analytical School? | Recognition and enforcement by the political superior. |
On what does the validity of law not depend according to the Analytical School? | Morality, custom or religion. |
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FIRST PROPONENT OF ANALYTICAL SCHOOL- JEREMY BENTHAM (1748-1832) | |
Who is generally considered the founder of modern legal positivism? | Jeremy Bentham. |
Who is regarded as the earliest exponent of analytical jurisprudence? | Jeremy Bentham. |
During which years did Jeremy Bentham live? | 1748–1832. |
What was the condition of the English legal system during Bentham’s time? | Highly unsystematic, uncertain and lacking in definite guiding principles. |
According to Bentham, how had English law developed? | Out of occasions, emergencies and scattered judicial decisions. |
What was the result of the haphazard growth of English law according to Bentham? | Law became technical, obscure and inaccessible to common people. |
What did Bentham consider necessary for meaningful reform in substantive law? | Careful analysis of the entire legal structure. |
How should law be framed according to Bentham? | Consciously framed, arranged and codified in a rational manner. |
What distinction was made by Bentham in jurisprudence? | Expository jurisprudence and censorial jurisprudence. |
What does expository jurisprudence deal with according to Bentham? | Law as it actually exists. |
What does censorial jurisprudence deal with according to Bentham? | Critical examination of law to determine what law ought to be. |
What did Bentham emphasise through the distinction between expository and censorial jurisprudence? | Law must first be scientifically understood and then critically improved. |
Which economic doctrine was supported by Bentham? | Doctrine of laissez-faire. |
What does the doctrine of laissez-faire advocate? | Minimum interference of the State in the economic affairs of individuals. |
Why did Bentham oppose excessive governmental control? | Because it hampers individual liberty and economic efficiency. |
Which theory dominated Bentham’s broader legal philosophy? | Theory of Utilitarianism. |
What should be the ultimate aim of legislation and government according to Bentham? | Greatest happiness of the greatest number. |
On what touchstone must every law be tested according to Bentham? | Utility. |
What is meant by utility according to Bentham? | Whether law increases pleasure and reduces pain in society. |
Why is Bentham’s utilitarian doctrine also described as the Theory of Hedonism? | Because he judged all human conduct and legislation by pleasure and pain. |
What four principal objectives were laid down by Bentham for every sound legal system? | Subsistence, abundance, equality and security. |
What is meant by subsistence according to Bentham? | Minimum resources necessary for human survival. |
What is meant by abundance according to Bentham? | Material prosperity and economic plenty. |
What is meant by equality according to Bentham? | Fair treatment and balanced social relations. |
What is meant by security according to Bentham? | Protection of life, liberty and property. |
To which right did Bentham attach special significance? | Right to property. |
Why did Bentham attach special significance to property rights? | Because without property rights neither security nor social welfare can be maintained. |
Which theory was rejected by Bentham? | Natural Law theory. |
Why did Bentham reject Natural Law theory? | Because he did not accept that law derives validity from divine command, reason or abstract morality. |
On what basis must law be judged according to Bentham? | Practical usefulness. |
Why was Bentham critical of judge-made law? | Because it is uncertain, retrospective and dependent on the personal discretion of judges. |
What kind of law did Bentham advocate? | Codified legislation enacted by the sovereign in clear and precise terms. |
Why did Bentham advocate codified legislation? | So that law may become certain, uniform and easily accessible. |
In which famous work are Bentham’s analytical and positivist ideas comprehensively reflected? | The Limits of Jurisprudence Defined. |
What foundation was laid by Bentham through The Limits of Jurisprudence Defined? | Philosophical foundation of the Positive School. |
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CRITICISM OF JEREMY BENTHAM ANALYTICAL JURISPRUDENCE | |
What is the subject matter of the criticism of Jeremy Bentham? | Criticisms of Bentham’s analytical jurisprudence and legal positivism. |
Despite his contribution, to what has Jeremy Bentham been subjected? | Several criticisms. |
What is the foremost criticism against Bentham’s philosophy? | It creates an imbalance between materialism and idealism. |
On what basis did Bentham evaluate law? | Utility, pleasure and pain. |
What excessive importance did Bentham give in his theory? | Material welfare and physical satisfaction. |
What did Bentham overlook by emphasising utility and pleasure? | Higher moral, ethical and spiritual ideals. |
What values are also expected to be upheld by law apart from material happiness? | Dignity, conscience, justice and moral duty. |
Why is Bentham’s utilitarian approach criticised as materialistic? | Because it reduces jurisprudence to a purely materialistic calculation. |
What is another important criticism against Bentham? | He failed to maintain proper balance between individual interest and community interest. |
What principle was advocated by Bentham regarding welfare? | Greatest happiness of the greatest number. |
What does Bentham’s theory inadequately explain regarding minorities? | Protection of rights of minorities or individuals when they conflict with majority welfare. |
What may Bentham’s doctrine result in by giving primacy to collective utility? | Sacrifice of individual liberty and personal rights. |
What does modern constitutionalism recognise regarding individual dignity and freedoms? | They cannot always be subordinated to the convenience of the majority. |
What view of human nature is Bentham criticised for adopting? | Excessively mechanical view. |
What was Bentham’s assumption regarding human actions? | All human actions are governed solely by desire for pleasure and avoidance of pain. |
Why is Bentham’s assumption regarding human conduct considered narrow? | Because human conduct is also inspired by morality, affection, duty, honour and sacrifice. |
Why does the theory of pleasure and pain not furnish a complete basis for legal philosophy? | Because it cannot fully explain all motives of human conduct. |
Which theories of Bentham regarding sources of law have been questioned? | Rejection of Natural Law and criticism of judge-made law. |
What character did Bentham give to law by excluding morality? | Purely command-oriented character. |
From where do actual legal systems derive much of their legitimacy? | Ethical principles and judicial creativity. |
What fact was ignored by Bentham in distrusting judicial law-making? | Judges often fill gaps in legislation and adapt legal principles to changing social needs. |
What valuable services were rendered by Bentham to legal study? | Introduction of scientific analysis, codification and utility. |
What are the major defects in Bentham’s theory? | Overemphasis on material happiness and insufficient recognition of moral ideals and individual rights. |
How is Bentham ultimately regarded in jurisprudence? | A great reformer, but not a complete philosopher of justice. |
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SECOND PROPONENT OF ANALYTICAL SCHOOL - JOHN AUSTIN (1790-1859) | |
What is the subject matter of John Austin in Analytical School of Jurisprudence? | John Austin’s contribution and theory under Analytical Positivism. |
What position does John Austin occupy in modern jurisprudence? | A pre-eminent position. |
Who is widely regarded as the father of English Jurisprudence? | John Austin. |
Who gave the Analytical School a systematic, scientific and coherent form? | John Austin. |
By whose intellectual foundation was the Analytical School originally laid? | Jeremy Bentham. |
By what was Austin deeply impressed? | Scientific treatment and logical arrangement of Roman law. |
What method did Austin seek to introduce in English law? | Similar scientific method of legal exposition as Roman law. |
What was the condition of English law during Austin’s time? | Marked by uncertainty, technicality and lack of conceptual clarity. |
By what name did Austin’s school come to be known? | Analytical Positivism. |
Why was Austin’s school called Analytical Positivism? | Because of his insistence on precise legal analysis and emphasis on positive law. |
In which celebrated work are Austin’s jurisprudential ideas chiefly contained? | The Province of Jurisprudence Determined. |
Which work of Austin is considered a foundational text of legal positivism? | The Province of Jurisprudence Determined. |
Which other important work was authored by Austin? | A Plea for the Constitution. |
As a reply to whose essay was A Plea for the Constitution written? | Gray’s essay on parliamentary government. |
By whom was Austin profoundly influenced? | Thomas Hobbes. |
Regarding which notions was Austin influenced by Hobbes? | Sovereignty, political superiority and obedience. |
How did Austin view the State like Hobbes? | As the supreme authority from which all valid law emanates. |
With what should jurisprudence concern itself according to Austin? | Positive law only. |
What is meant by positive law according to Austin? | Law properly so called. |
What did Austin mean by law properly so called? | Rules laid down by a determinate political superior for political inferiors and backed by sanctions. |
Which laws alone possess legal force and binding authority according to Austin? | Positive laws. |
From what did Austin distinguish positive laws? | Morals, customs, conventions and other social rules. |
What did Austin call morals, customs, conventions and other social rules? | Laws improperly so called. |
Why are morals and customs called laws improperly so called? | Because they regulate conduct but do not derive authority from sovereign command. |
What distinction was drawn by Austin regarding law? | Sharp line between law in strict legal sense and other normative rules. |
How did Austin define law? | A rule laid down for the guidance of an intelligent being by an intelligent being having power over him. |
What conception of law is revealed by Austin’s definition? | Command-oriented conception. |
What is the first essential element of every law according to Austin? | Command issued by a sovereign. |
What is the second essential element of every law according to Austin? | Duty imposed upon the person addressed. |
What is the third essential element of every law according to Austin? | Sanction or evil consequence in case of non-compliance. |
What is law according to Austin apart from moral request or social expectation? | A binding command enforceable through coercive power of the State. |
What is one of Austin’s most significant contributions? | Complete separation of positive law from positive morality. |
What is included in positive morality according to Austin? | Customs, social usages, international obligations and ethical norms. |
Why did Austin refuse to treat positive morality as law? | Because it is not enacted by a sovereign political authority. |
What was Austin’s view regarding International Law? | It is merely positive morality. |
Why did Austin treat International Law as positive morality? | Because it is not imposed by a determinate sovereign and lacks effective sanction. |
On what is obedience to international norms based according to Austin? | Moral persuasion, mutual convenience or diplomatic pressure. |
What doctrine was firmly advocated by Austin regarding law and morality? | Separation of law and morality. |
On what does the validity of law depend according to Austin? | Issuance by sovereign authority and enforceability by sanction. |
On what does the validity of law not depend according to Austin? | Whether it is just, reasonable or moral. |
What distinction did Austin make regarding existence and morality of law? | Whether law exists is different from whether it deserves moral approval. |
What scientific character was given to analytical jurisprudence by Austin? | Confining legal study to ascertainable facts rather than ethical speculations. |
Into what did Austin transform jurisprudence? | Disciplined analysis of legal concepts. |
Which legal concepts became the focus of Austin’s jurisprudence? | Sovereignty, command, duty and sanction. |
From what to what did Austin shift the focus of legal study? | From historical customs and moral ideals to formal structure of State-made law. |
How is Austin regarded in the Analytical or Positive School? | Principal architect of the Analytical or Positive School. |
What influence did Austin exert on later jurists? | Profound influence on later legal positivists. |
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IMPERATIVE THEORY OF LAW | |
By what other names is Austin’s definition of law popularly known? | Imperative Theory of Law or Command Theory of Law. |
How did Austin conceive law? | As an expression of the will of the sovereign. |
According to Austin, what is the nature of every law? | It is in the nature of a command. |
What is Austin’s famous proposition regarding law? | Law is the command of the sovereign imposing a duty and enforced by sanction. |
Into how many indispensable elements did Austin reduce positive law? | Four elements. |
What are the four indispensable elements of Austin’s positive law? | Command, duty, sanction and sovereignty. |
What is the first element of Austin’s theory of law? | Command. |
What is a command according to Austin? | Expression of desire by a superior that an inferior shall do or abstain from doing a particular act. |
Is a command a mere request or advice according to Austin? | No, it is a binding direction backed by power to compel obedience. |
What is the second element of Austin’s theory of law? | Duty. |
What constitutes duty according to Austin? | Legal obligation to obey a command issued by a political superior. |
What is the relation between command and duty according to Austin? | Duty is the correlative of command. |
What is the third element of Austin’s theory of law? | Sanction. |
What is sanction according to Austin? | Evil consequence or punishment following disobedience. |
Why is sanction called the essence of enforceability? | Because it compels compliance and gives law its binding character. |
What is the fourth and most crucial element of Austin’s theory? | Sovereignty. |
Who is the sovereign according to Austin? | A determinate human superior habitually obeyed by the bulk of society and not habitually obeying any other earthly superior. |
From where does law derive its validity according to Austin? | Sovereign authority alone. |
What is law according to the combined effect of Austin’s four elements? | Command of the sovereign directed towards subjects, creating duty and supported by sanctions. |
What orientation was given to jurisprudence by Austin’s theory? | Strict analytical and positivist orientation. |
What did Austin’s theory exclude from the legal concept? | Morality, religion and social customs. |
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CRITICISM OF AUSTIN THEORY | |
What is the first criticism against Austin’s theory? | It is excessively rigid and mechanical. |
Why is Austin’s theory called rigid and mechanical? | Because it ignores the ethical content of law. |
Who pointed out that law cannot be understood merely as sovereign command? | John Salmond. |
According to Salmond, what must law also embody? | Justice, ethics and reasonableness. |
What did Lon L. Fuller observe regarding law against popular will? | Such law is bound to be short-lived. |
Why did Fuller consider social acceptance essential? | Because it is an essential ingredient of legal endurance. |
What is the second major criticism of Austin’s doctrine? | It paves the way for authoritarianism. |
Who argued that Austin’s theory may legitimise despotic regimes? | Gustav Radbruch. |
Why may Austin’s theory legitimise despotic commands? | Because it accepts sovereign command irrespective of justice. |
What constitutional idea is inconsistent with blind acceptance of sovereign command? | Rule of law. |
What serious defect regarding sources of law exists in Austin’s theory? | It overlooks the role of custom. |
Why is Austin’s theory defective regarding custom? | Because much law originates from long-established customs and social practices. |
Give examples of law arising from social acceptance rather than sovereign command. | Personal laws, mercantile customs and constitutional conventions. |
What judicial role is ignored by Austin’s theory? | Judge-made law. |
What do judges do apart from applying pre-existing commands? | Interpret, expand and sometimes create legal principles through precedents. |
Which jurists emphasised the creative role of judicial decisions? | John Salmond and John Chipman Gray. |
Why is Austin’s command theory too narrow regarding judicial function? | Because it is too legislative in outlook. |
Who compared Austin’s theory to the command of a gunman? | H.L.A. Hart. |
Why did Hart criticise Austin’s command plus sanction formula? | Because commands backed by threats alone do not amount to law. |
How did Hart describe law instead of mere coercive order? | A normative system accepted by society through institutional rules. |
How did Austin classify International Law? | As merely positive morality. |
Why did Austin deny International Law the status of law? | Because it is not issued by a determinate sovereign. |
Why is Austin’s view on International Law considered unrealistic? | Because international law is widely recognised and followed by nations. |
Through what means are many rules of international law enforced? | Treaties, conventions and international institutions. |
What did Austin overemphasise in his theory? | Element of command. |
What did Austin neglect by overemphasising command? | Other important sources and dimensions of law. |
Why can modern law not be fully described as commands? | Because it contains enabling statutes, constitutional limitations, welfare provisions and administrative regulations. |
What did Austin fail to establish regarding law and morality? | Meaningful interrelationship between law and morality. |
What is the modern view regarding law and morality? | They are distinct but not wholly disconnected. |
Why are law and morality not wholly disconnected in modern jurisprudence? | Because moral principles inspire legislation and guide judicial interpretation. |
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THIRD PROPONENT OF ANALYTICAL SCHOOL- HANS KELSEN (1881–1973) | |
What is the subject matter of Hans Kelsen under the Analytical School? | Hans Kelsen’s Pure Theory of Law and his contribution to modern legal positivism. |
What place does Hans Kelsen occupy among twentieth-century jurists? | A distinguished place. |
For what is Hans Kelsen credited in jurisprudence? | Reviving and refining original analytical legal thought through the Pure Theory of Law. |
What was Kelsen’s objective in contrast to earlier analytical jurists? | To free jurisprudence from all extra-legal influences and establish it as an autonomous science. |
How is Kelsen’s theory regarded in modern jurisprudence? | The most sophisticated and developed form of legal positivism. |
Of what considerations did Kelsen deliberately divest law? | Moral, ideal, political and sociological considerations. |
With what should jurisprudence concern itself according to Kelsen? | Law as law exclusively. |
With what should jurisprudence not be mixed according to Kelsen? | Ethics, religion, history, politics or social philosophy. |
Why did Kelsen oppose dependence of legal study on moral or sociological factors? | Because it loses scientific purity. |
What kind of science did Kelsen desire to create? | Pure science of law. |
What is meant by pure science of law according to Kelsen? | Science dealing only with the normative structure of legal rules. |
What was Kelsen’s objective regarding legal study? | To analyse legal validity and systematic arrangement. |
Was Kelsen concerned with whether law is just or unjust? | No, he was concerned only with legal validity. |
How did Kelsen regard law? | As a systematic arrangement of logical principles forming a hierarchy of norms. |
Is law merely an isolated command according to Kelsen? | No, it is an organised body of interrelated norms. |
From where does each lower norm derive its validity according to Kelsen? | From a higher norm. |
How does the legal system function according to Kelsen? | As a pyramid or graded structure. |
Upon what does the hierarchical arrangement of law ultimately rest? | A fundamental basic norm. |
What term was used by Kelsen for the fundamental basic norm? | Grundnorm or basic norm. |
Is the Grundnorm enacted by legislature? | No, it is not enacted by any legislature. |
What is the nature of Grundnorm? | Hypothetical foundational norm from which validity of the entire legal system flows. |
On what is Kelsen’s concept of positive law based? | Normative order. |
On what is Kelsen’s concept of positive law not based? | Sovereign command. |
Why is law positive according to Kelsen? | Because it concerns actual legal norms validly created within a legal system. |
What is the central question for jurisprudence according to Kelsen? | Whether a law has been created according to the procedure laid down by a superior legal norm. |
From what to what did Kelsen shift the positivist emphasis? | From command of sovereign to validity of norm within organised hierarchy. |
To which school of legal thought did Hans Kelsen belong? | Vienna School of Legal Thought. |
What did the Vienna School represent? | Advanced and refined branch of the Analytical School. |
What was the aim of the Vienna School? | To place jurisprudence on a strictly logical and scientific foundation by excluding all non-legal elements. |
What is Kelsen’s major contribution to analytical jurisprudence? | Transforming it from command theory into normative science. |
How is law viewed under Kelsen’s normative science? | As a coherent structure of valid legal norms. |
How did Kelsen modernise the Analytical School? | By preserving insistence on positive law while removing crude command-oriented notions. |
What character was given to jurisprudence by Kelsen’s Pure Theory of Law? | More technical, hierarchical and scientific character. |
How is Hans Kelsen regarded in twentieth-century legal theory? | One of the greatest legal theorists of the twentieth century. |
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CRITICISM OF PURE THEORY OF JURISPRUDENCE | |
Despite its brilliance, on what grounds has Kelsen’s Pure Theory been criticised? | On several grounds. |
What is the foremost criticism against Kelsen’s Pure Theory? | Complete separation of law from morality, sociology and politics is unrealistic. |
Why is Kelsen’s separation of law from social factors considered unrealistic? | Because law does not operate in isolation. |
By what is law deeply influenced in actual practice? | Social needs, ethical values and political institutions. |
Why is the study of law as a purely technical system considered narrow? | Because it is too artificial and detached from practical realities. |
Against which concept of Kelsen is another criticism directed? | Concept of Grundnorm. |
What is the Grundnorm according to Kelsen? | A hypothetical assumption. |
Why is Grundnorm criticised by jurists? | Because it is not an actual enacted rule. |
Why do critics say a legal system cannot rest on Grundnorm? | Because validity of law should have a concrete foundation. |
Why does Grundnorm appear fictional? | Because it is incapable of further proof. |
What importance did Kelsen excessively give in his theory? | Formal validity of law. |
What did Kelsen ignore by emphasising formal validity? | Justice and social utility. |
When is a norm law according to Kelsen? | When it is validly created in accordance with a higher norm. |
What defect arises from Kelsen’s formal validity theory? | It treats even unfair or oppressive law as valid law. |
Why is Kelsen’s theory called morally neutral? | Because it is incapable of judging unjust laws. |
What practical distinction did Kelsen deny? | Meaningful distinction between public law and private law. |
Why is Kelsen’s denial of distinction between public and private law considered impractical? | Because State authority relations differ substantially from private transactions. |
What does Kelsen’s assimilation of public and private law overlook? | Practical legal differences. |
What did Kelsen succeed in giving to jurisprudence? | Logical and scientific framework. |
For what major defects is Kelsen’s theory criticised? | Being too abstract, excessively formal and detached from social realities. |
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FOURTH PROPONENT OF ANALYTICAL SCHOOL- HLA HART (1907-1992) | |
What is the subject matter of H.L.A. Hart in modern analytical jurisprudence? | H.L.A. Hart’s contribution and theory of primary and secondary rules. |
Who was one of the most influential twentieth-century jurists in analytical jurisprudence? | H.L.A. Hart. |
At which Bar did H.L.A. Hart practise? | Chancery Bar. |
Where did H.L.A. Hart serve as Professor of Jurisprudence? | University of Oxford. |
For what is H.L.A. Hart chiefly remembered? | Reformulating legal positivism in a realistic and socially responsive manner. |
What did Hart accept from earlier analytical jurists? | Analytical method of studying law. |
What did Hart reject in Austin’s theory? | Rigid and mechanical version of analytical positivism. |
How did Hart differ from Austin regarding law? | He did not treat law merely as command of sovereign. |
On what relationship did Hart base his theory of law? | Law, society, coercion and morality. |
In which famous book are Hart’s celebrated views contained? | The Concept of Law. |
How is The Concept of Law regarded in jurisprudence? | One of the foundational texts of modern jurisprudence. |
How did Hart believe law should be understood? | As a social institution accepted by the community. |
How did Hart describe the legal system instead of commands backed by threats? | A union of rules recognised and followed by society. |
As what combination did Hart explain law? | Combination of Primary Rules and Secondary Rules. |
What are Primary Rules according to Hart? | Rules imposing duties and obligations upon individuals. |
What do Primary Rules prescribe? | Certain forms of conduct requiring acts to be done or abstained from. |
Give examples of Primary Rules. | Criminal law, law of torts and contractual duties. |
What defects would a society governed only by Primary Rules suffer from? | Uncertainty, rigidity and inefficiency. |
What are Secondary Rules according to Hart? | Power-conferring rules. |
Do Secondary Rules directly impose duties? | No. |
What do Secondary Rules provide? | Machinery for creating, modifying, interpreting and enforcing primary rules. |
Upon whom do Secondary Rules confer legal authority? | Legislatures, courts and other institutions. |
Into what categories did Hart divide Secondary Rules? | Rules of recognition, rules of change and rules of adjudication. |
Which is the most crucial among Hart’s Secondary Rules? | Rule of Recognition. |
What is the Rule of Recognition according to Hart? | Ultimate test for identifying and accepting validity of a legal rule. |
When does a law become legally binding according to Hart? | When it is recognised and accepted by officials and members of society as authoritative. |
On what do recognition and enforcement of law largely depend according to Hart? | Institutional and social acceptance. |
From what to what did Hart shift the emphasis in legal validity? | From mere obedience to accepted legitimacy. |
What was Hart’s view regarding law and morality? | They are distinct but not absolutely separate. |
Did Hart insist on absolute separation between law and morality? | No. |
What did Hart say law must contain for effective functioning? | Certain minimum elements of natural law. |
Which basic notions are indispensable for any legal order according to Hart? | Fairness, honesty, good faith and social coexistence. |
How are law and morality related according to Hart? | Not identical but complementary and supplementary. |
From where does obligatory force of legal rules arise according to Hart? | Social acceptance and internal recognition as well as coercion. |
How did Hart criticise Austin’s command theory? | People do not obey law merely as they obey the threat of a gunman. |
How do people accept law according to Hart? | As a standard of conduct. |
What distinction did Hart draw between obligation and command? | Legal obligation creates internal sense of duty, while command compels obedience through fear. |
Why does a legal obligation create internal duty according to Hart? | Because the rule is accepted as legitimate. |
Why did Hart say Austin’s theory fails? | Because it does not explain the normative and institutional character of law. |
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CRITICISM OF HLA HART THEORY | |
Despite his contribution, what has Hart’s theory faced? | Several criticisms. |
What is one criticism regarding Hart’s theory of law? | He gave no adequate place to legal principles. |
On what did Hart mainly concentrate in his theory? | Rules. |
By what are many judicial decisions guided apart from strict rules? | Broader principles of justice, fairness and policy. |
Who contended that Hart underestimated the inner morality of law? | Lon L. Fuller. |
What did Fuller argue law must possess? | Moral qualities such as consistency, clarity, publicity and fairness. |
Why did Fuller reject Hart’s socially accepted rule system approach? | Because law cannot be treated merely as a socially accepted rule system without moral qualities. |
What is another criticism regarding Hart’s relation between law and morality? | He did not fully resolve the tension between law and morality. |
How does morality adjust according to critics? | Naturally with changing values of society. |
What does law often require for enforcement according to critics? | External coercive force of the State. |
Why is Hart’s reconciliation between law and morality said to be incomplete? | Because morality changes internally while law depends on external coercion. |
What is Hart’s major contribution despite criticism? | Humanizing analytical positivism. |
By linking law with what did Hart humanize analytical positivism? | Social acceptance, institutional recognition and minimum moral content. |
What kind of explanation of legal systems was provided by Hart? | More flexible and realistic explanation than earlier positivists. |
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HISTORICAL SCHOOL | |
Against which schools did the Historical School emerge as a reaction? | Natural School and Analytical School. |
To what did Analytical jurists attach primary importance? | Command of the sovereign and relation of law to the State. |
How did Historical jurists differ from Analytical jurists regarding law? | They did not regard law as deliberate creation of political authority. |
To what did Historical jurists assign primacy? | Social institutions, customs and collective life of the people. |
How does law develop according to the Historical School? | Gradually within society. |
How is law viewed by the Historical School instead of arbitrary command? | As an organic product growing silently and unconsciously within society. |
What is the central thesis of the Historical School? | Law is a legacy of the past and a product of customs, traditions, usages, beliefs and social habits. |
In what does law have its roots according to Historical jurists? | Historical experience of the people. |
Why cannot law be properly understood without social reference? | Because it evolved within specific social conditions. |
With what is the growth of law compared by Historical jurists? | Language, manners and institutions. |
How does law grow according to the Historical School? | With the growth of society and changing needs of the people. |
What is meant by the statement “law is not made, but found”? | Law is discovered in community life rather than invented by legislators. |
What idea is rejected by the Historical School regarding law-making? | Law can be framed merely by abstract reason or imposed solely by sovereign will. |
What does every legal system bear according to the Historical School? | Imprint of history, culture and consciousness of the people. |
How is proper understanding of law possible according to Historical jurists? | By tracing its origin, gradual evolution and social acceptance. |
What may legislation do according to the Historical School? | Give formal shape to law. |
What is the true source of law according to the Historical School? | Long-standing customs and collective convictions of society. |
How may the Historical School be described? | Social and evolutionary approach to jurisprudence. |
How does the Historical School treat law? | As the natural growth of human civilisation. |
What continuity is emphasised by the Historical School? | Continuity between past and present. |
How is legal development considered by the Historical School? | A gradual historical process rather than sudden legislative creation. |
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MONTESQUIEU (1689–1755) | |
What is the subject matter of Montesquieu under the Historical School of Jurisprudence? | Montesquieu’s contribution to the historical method of legal study. |
Who is regarded as the earliest jurist to adopt the historical method in law? | Montesquieu. |
According to Sir Henry Maine, who was the first jurist of the Historical School? | Montesquieu. |
By whom was the Historical School systematically developed later? | Savigny. |
To whose writings can the initial philosophical foundation of the Historical School be traced? | Montesquieu. |
In which celebrated work did Montesquieu express his views on law? | The Spirit of Laws. |
How should law be studied according to Montesquieu? | In relation to social, geographical and cultural conditions of the people. |
What theory was propounded by Montesquieu regarding law? | Theory of the national character of law. |
By what should the laws of a nation be determined according to Montesquieu? | National characteristics, institutions, customs, manners and mode of life. |
What does every nation possess according to Montesquieu? | Its own peculiar historical identity. |
Can the legal system of one country be mechanically imposed upon another according to Montesquieu? | No. |
Why cannot one nation’s law be imposed on another according to Montesquieu? | Because each nation has its own historical identity. |
Is law universal in character according to Montesquieu? | No. |
To what must law correspond according to Montesquieu? | Temperament, habits and circumstances of the people. |
What distinctive feature marks Montesquieu’s thought regarding laws? | Laws must bear close relation to climate and local conditions. |
Which factors influence the conduct of people according to Montesquieu? | Geographical environment, climate, economic conditions, religion and local situations. |
What do these factors shape according to Montesquieu? | Form and content of laws. |
What conclusion did Montesquieu draw regarding laws and environment? | Laws are the creation of climate and local situations. |
According to Montesquieu, why must laws vary from nation to nation? | Because social and environmental conditions differ. |
What may not necessarily be appropriate according to Montesquieu? | Law suitable for one nation may not suit another. |
What basis was laid by Montesquieu through this approach? | Historical and comparative study of law. |
How did Montesquieu view legal institutions? | Products of national life and historical circumstances. |
What later development was made possible by Montesquieu’s theory? | Historical jurists treated law as an organic social growth. |
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EDMUND BURKE (1729-1797) | |
What is the subject matter of Edmund Burke under the Historical School of Jurisprudence? | Edmund Burke’s contribution to the historical understanding of law. |
Who is considered an important early thinker contributing to the Historical School? | Edmund Burke. |
What was Edmund Burke primarily known as? | Political philosopher. |
What aspects of Burke’s thought influenced the historical understanding of law? | His views on society, institutions and gradual development. |
What notion was opposed by Burke regarding legal institutions? | That legal and political institutions can be suddenly reconstructed on abstract reason or revolutionary ideals. |
How did Burke describe the evolution of law? | An organic process shaped slowly and naturally through accumulated wisdom of generations. |
According to Burke, is law a product of sudden legislation? | No. |
According to Burke, what is law? | Expression of beliefs, faith, customs and practices of the community. |
What does every society inherit according to Burke? | Certain institutions from its past. |
What do inherited institutions embody according to Burke? | Collective experience and practical wisdom of the people. |
What is likely to happen to a legal system ignoring historical continuity? | It is likely to fail. |
Why is radical legal transformation likely to fail according to Burke? | Because it disregards tradition. |
In which famous work is Burke’s historical and conservative outlook clearly reflected? | Reflections on the Revolution in France. |
Which revolution was criticised by Burke in his famous work? | French Revolution. |
Why did Burke criticise the French Revolution? | Because it attempted to uproot long-established institutions in the name of abstract liberty and equality. |
How can stable social order be maintained according to Burke? | By allowing legal and political institutions to develop gradually in harmony with traditions and sentiments of the people. |
How did Burke strengthen the historical approach to jurisprudence? | By emphasising law as a living social inheritance. |
In what does the true growth of law lie according to Burke? | Continuity, custom and collective experience rather than abrupt rational reconstruction. |
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FREDERICK KARL VON SAVIGNY (1779–1861) | |
What is the subject matter of Friedrich Carl von Savigny under the Historical School? | Savigny’s Volksgeist theory and contribution to Historical School. |
Who is regarded as the father of the Historical School of Jurisprudence? | Friedrich Carl von Savigny. |
What position does Savigny occupy in the Historical School? | Most distinguished exponent. |
What did Savigny give to the Historical School? | Systematic and philosophical foundation. |
What proposition was firmly established by Savigny? | Law is not made by arbitrary will of legislator but is a natural growth from the life of the people. |
By what phrase did Dr. Allen describe Savigny? | Darwinian before Darwin. |
Why did Dr. Allen call Savigny Darwinian before Darwin? | Because of his evolutionary conception of legal development. |
Why is Savigny called a sociologist before sociologists? | Because of his emphasis on society as the source of law. |
What is the cornerstone of Savigny’s jurisprudence? | Doctrine of Volksgeist. |
What is the literal meaning of Volksgeist? | Spirit of the people or popular consciousness of the nation. |
What does every nation possess according to Savigny? | A distinct inner consciousness. |
By what is this inner consciousness shaped according to Savigny? | History, culture, habits, beliefs, traditions and social institutions. |
In what does collective consciousness manifest itself according to Savigny? | Customs and usages of the community. |
From what does law gradually emerge according to Savigny? | Customs and usages. |
What is the true source of law according to Savigny? | Volksgeist. |
According to Savigny, law is the result of what? | General consciousness of the people. |
Does law originate in sovereign command according to Savigny? | No. |
Does law originate in abstract principles of reason according to Savigny? | No. |
In what does law originate according to Savigny? | Common convictions, practical necessities and long-standing traditions of society. |
With what did Savigny compare the development of law? | Development of language. |
How does language develop according to Savigny? | Unconsciously from speech habits of the people. |
How does law develop according to Savigny? | Spontaneously from social life of the people. |
Where does the origin of law lie according to Savigny? | Popular spirit of the people. |
What role does legislation play according to Savigny? | It gives formal recognition to what society has already accepted. |
How did Savigny describe law instead of an artificial device? | A living organism. |
How does law grow according to Savigny? | With the growth of society. |
From where does law derive nourishment according to Savigny? | Historical experiences of the community. |
Can law be abruptly imposed or transplanted according to Savigny? | No. |
Why cannot law be abruptly transplanted according to Savigny? | Because it must reflect social conditions. |
When does a legal system become effective according to Savigny? | When it reflects sentiments, needs and institutions of the people. |
What did Savigny strongly oppose regarding law-making? | Sudden codification or arbitrary legislation unsupported by social consciousness. |
Do legislators create law in the true sense according to Savigny? | No. |
What do legislators do according to Savigny? | Formulate and declare principles already matured in collective life. |
How is the development of law described by Savigny? | Gradual, evolutionary and historical. |
From what to what did Savigny shift the focus of jurisprudence? | From State sovereignty to social consciousness. |
What does Savigny’s contribution demonstrate about law? | Law is a cultural phenomenon rooted in the historical personality of the nation. |
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CONTRIBUTION OF SAVIGNY | |
What is the subject matter of the contribution of Friedrich Carl von Savigny? | Savigny’s contributions to the Historical School and legal development. |
What is the major contribution of Savigny regarding legal development? | Evolutionary explanation of legal development. |
How is the growth of law described by Savigny? | A continuous and unbreakable process. |
By what is the growth of law intimately bound according to Savigny? | Common cultural traditions, historical experiences and shared beliefs of the people. |
Does law arise in isolated fragments according to Savigny? | No. |
Is law the result of sudden legislative commands according to Savigny? | No. |
How does law unfold according to Savigny? | Gradually as society unfolds. |
What famous statement was made by Savigny regarding law and people? | Law grows with the growth of the people, strengthens with the strength of the people, and dies away as the nation loses its nationality. |
What does Savigny’s statement regarding growth of law reflect? | Law has no independent existence apart from social life and national character. |
To what did Savigny compare the development of law? | Development of language. |
How does language develop according to Savigny? | Spontaneously from the speech habits of the people. |
Is language consciously invented by grammarians according to Savigny? | No. |
How does law take shape at the initial stage according to Savigny? | In unconscious customs, usages and practical dealings of the community. |
What are language and law according to Savigny? | Natural expressions of the inner life of a nation. |
What did Savigny demonstrate through comparison of law with language? | Law is a living and evolving institution. |
What movement in Germany was strongly opposed by Savigny? | Codification of German laws on the model of French Civil Code. |
Why did Savigny oppose codification of German laws? | Because German law had not yet matured through natural historical development. |
What would premature codification do according to Savigny? | Arrest spontaneous growth of law and impose artificial rigidity. |
When should law not be reduced to a fixed legislative code according to Savigny? | Until it has fully evolved from customs and consciousness of the nation. |
How does law grow in the early stages of social development according to Savigny? | Spontaneously and unconsciously out of popular customs. |
Into whose hands does technical development of law pass in advanced society? | Trained jurists. |
What is the original source of law according to Savigny? | Volksgeist or popular consciousness. |
By whom is the later technical development of law carried forward? | Juristic scholarship. |
What partnership did Savigny recognise in legal development? | Partnership between social custom and juristic science. |
Name Savigny’s important work on Roman law in medieval times. | History of Roman Law in the Middle Ages. |
Name Savigny’s important work on modern Roman law. | System of Modern Roman Law. |
Name Savigny’s famous work on possession. | Law of Possession. |
What did Savigny enrich through his scholarly works? | Scientific study of Roman and continental legal traditions. |
What is Savigny’s lasting contribution to jurisprudence? | Presenting law as a living historical organism rooted in common spirit of the people and developed gradually through custom and juristic interpretation. |
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CRITICISM OF SAVIGNY | |
What is the subject matter of the criticism of Friedrich Carl von Savigny? | Criticisms of Savigny’s Historical School theory. |
Despite his influence, on what grounds has Savigny’s theory been criticised? | Several grounds. |
What is the first criticism against Savigny’s theory? | He gave undue importance to customs and popular consciousness. |
What role did Savigny underestimate according to critics? | Role of legislation. |
Why is Savigny’s underestimation of legislation criticised in modern societies? | Because many important laws are consciously enacted to meet social, economic and constitutional needs. |
Why can modern enacted laws not be explained merely as unconscious growth? | Because they are deliberate legislative creations. |
What is the second criticism against Savigny’s theory? | Concept of Volksgeist is vague and indefinite. |
Why is Volksgeist considered vague? | Because spirit of the people is an abstract notion incapable of precise identification or measurement. |
Why is one single popular consciousness difficult to assume in pluralistic societies? | Because diverse and conflicting social beliefs may exist. |
What is another criticism regarding Savigny’s approach to codification? | He opposed codification too strongly. |
What benefits of codification have been shown by history? | Certainty, uniformity and accessibility in law. |
How is Savigny’s resistance to codification of German law regarded? | Excessive and impractical. |
Whose role in legal development did Savigny overlook according to critics? | Judges, reformers and individual genius. |
Through what are many legal changes brought apart from custom? | Judicial interpretation, social reform movements and legislative innovation. |
What outlook does Savigny’s theory give to law? | Excessively conservative outlook. |
Why is Savigny’s theory called conservative? | Because it treats law as a product of past traditions. |
What may Savigny’s conservative theory discourage? | Urgent legal reforms needed to remove injustice and adapt law to modern conditions. |
What did Savigny successfully establish despite criticism? | Historical and social foundations of law. |
What major defects remain in Savigny’s theory? | Vagueness, conservatism and inadequate recognition of legislative creativity. |
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PUCHTA (1798–1856) | |
What is the subject matter of Georg Friedrich Puchta under the Historical School? | Puchta’s contribution and criticism under the Historical School of Jurisprudence. |
Who was Georg Friedrich Puchta in relation to Savigny? | Distinguished disciple of Friedrich Carl von Savigny. |
To which school did Puchta make an important contribution? | Historical School of Jurisprudence. |
What fundamental proposition of Savigny was accepted by Puchta? | Law originates in the historical life and social consciousness of the people. |
What did Puchta attempt to give to Savigny’s theory? | More systematic and practical dimension. |
What role did Puchta emphasise in legal development? | Role of the State in organising and enforcing law. |
According to Puchta, law is the result of what? | Continuous adjustment and conflict between individual will and general will. |
What does every individual possess according to Puchta? | Personal freedom and private interests. |
What would arise if every person acts entirely according to personal desires? | Social disorder and conflict. |
Why must there exist a regulating force according to Puchta? | To harmonise conflicting individual interests with collective interest of society. |
What is the regulating force according to Puchta? | The State. |
Through what instrument does the State act according to Puchta? | Law. |
What is the function of law according to Puchta? | To restrain the individual from exceeding proper limits of free will. |
What does law ensure regarding personal liberty according to Puchta? | Personal liberty does not become destructive of social order. |
What did Savigny stress in comparison to Puchta? | Unconscious growth of law from popular spirit. |
What conscious role did Puchta highlight? | State giving legal form and practical enforceability to social will. |
Why does the State regulate human conduct according to Puchta? | To implement the general will. |
What may be required for implementation of general will according to Puchta? | Sacrifice or limitation of individual interests. |
What does law become in Puchta’s theory? | Means through which collective welfare is maintained against private impulses. |
Does the State arbitrarily create law according to Puchta? | No. |
What is the State according to Puchta in relation to law? | Organised authority that expresses and secures the general social will. |
What is Puchta’s major contribution to jurisprudence? | Bridging gap between Savigny’s social theory and practical necessity of State regulation. |
What did Puchta recognise apart from historical origin of law? | Need for State organisation and legal enforcement. |
Why is State organisation necessary according to Puchta? | To maintain harmony between individual freedom and social welfare. |
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CRITICISM | |
What is the short criticism against Puchta’s theory? | He gave excessive importance to general will of the State. |
At whose cost did Puchta emphasise general will? | Individual autonomy. |
What may Puchta’s theory justify in the name of collective welfare? | State control and suppression of personal liberty. |
Toward what does Puchta move by subordinating individual interest to social will? | Political authoritarianism. |
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GUSTAV HUGO (1764–1844) | |
What is the subject matter of Gustav Hugo under the Historical School? | Gustav Hugo’s contribution and criticism under the Historical School of Jurisprudence. |
Who is regarded as one of the earliest German jurists laying the intellectual foundation of the Historical School? | Gustav Hugo. |
What assumption was opposed by Gustav Hugo? | Law is created solely by legislation or abstract reason. |
In what did Hugo insist law is deeply rooted? | Social life of the people. |
From what does law derive its force according to Hugo? | Long-established habits and historical continuity. |
According to Hugo, law is the result of what? | Habits, customs and traditions of the people voluntarily followed in society. |
What do human beings gradually develop by living together in a community? | Certain regular modes of conduct. |
Into what do accepted practices develop according to Hugo? | Customs. |
What do customs acquire with passage of time according to Hugo? | Binding force and recognition as law. |
From where does authority of law arise according to Hugo? | Habitual obedience and social acceptance given to traditions. |
Does authority of law arise merely from political command according to Hugo? | No. |
What notion regarding law was rejected by Hugo? | Law is an artificial or sudden creation. |
How does law grow according to Hugo? | Naturally and unconsciously out of practical necessities of social life. |
How did Hugo describe law? | A historical phenomenon shaped by conduct, habits and inherited wisdom of the community. |
Why does law emerge as a natural regulator of human relations according to Hugo? | Because people voluntarily observe customs as part of social discipline. |
What is the significance of Gustav Hugo in jurisprudence? | He first directed attention to historical origin and customary basis of law. |
What later doctrines were prepared by Hugo’s ideas? | Central doctrines of Savigny and other Historical jurists. |
How may Hugo be regarded in the Historical School? | Preliminary architect who prepared the ground for its development. |
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CRITICISM | |
What is the short criticism against Hugo? | He placed almost exclusive reliance on habits and traditions. |
To what did Hugo give insufficient importance according to critics? | Deliberate legislation and legal reform. |
Why can modern law not depend only on voluntary customs? | Because many new social problems require conscious statutory intervention. |
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HENRY MAINE (1822–1888) | |
What is the subject matter of Sir Henry Maine under the Historical School? | Sir Henry Maine’s contribution and Status to Contract theory. |
Who was one of the most eminent English jurists associated with the Historical School? | Sir Henry Maine. |
What substantial contribution was made by Sir Henry Maine? | Application of historical and comparative method to legal institutions. |
In what position did Sir Henry Maine serve in India? | Law Member of the Central Legislative Council in India. |
During which years did Maine serve as Law Member in India? | 1863 to 1869. |
What study did Maine make during his stay in India? | Comparative study of Indian legal institutions and laws of Western societies. |
By what description is Maine sometimes referred because of his evolutionary understanding? | Social Darwinist. |
What remained the distinct nature of Maine’s legal approach? | Historical and comparative. |
What did Maine believe about primitive legal institutions of societies? | They exhibit a broad similarity. |
What was the nature of early human societies according to Maine? | Patriarchal in nature. |
Who occupied the dominant position in patriarchal societies according to Maine? | Male head of the family. |
By what were rights, duties and legal relations determined in primitive societies? | Family membership rather than personal choice. |
From what did an individual derive legal identity in early societies? | Birth, kinship and social position. |
Did an individual derive legal identity from independent volition in primitive societies? | No. |
What famous proposition was propounded by Maine? | Movement of progressive societies has hitherto been a movement from Status to Contract. |
What is meant by status according to Maine? | Condition in which rights and obligations are fixed by birth, caste, family or social position. |
How much freedom does an individual have under status? | Little freedom to determine his own legal relations. |
What is meant by contract according to Maine? | Stage where individuals create rights and obligations by consent and agreement. |
What happens to family-based and birth-based relations as societies progress according to Maine? | They gradually weaken. |
On what do legal relations increasingly depend in progressive societies according to Maine? | Voluntary agreements. |
How is Maine’s Status to Contract theory viewed by modern jurists in welfare State? | There is partial movement again from contract towards status. |
Why is there movement from contract towards status in modern welfare State? | Because labour laws, consumer laws and welfare legislation impose statutory obligations irrespective of consent. |
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STAGES OF DEVELOPMENT OF LAW ACCORDING TO HENRY | |
What is the subject matter of the stages of development of law according to Sir Henry Maine? | Historical stages of evolution of law according to Maine. |
What did Sir Henry Maine explain regarding law? | Law passes through certain definite historical stages in its evolution. |
What is the first stage of development of law according to Maine? | Divine Law. |
How is law believed to be made in the earliest stage? | By ruler or tribal chief under divine inspiration. |
Why are commands of the ruler considered sacred in Divine Law stage? | Because they are supposed to derive authority from divine will. |
What is the second stage of development of law according to Maine? | Customary Law. |
How does Customary Law arise according to Maine? | Repeated social practices and usages acquire binding force. |
What do customs become in the second stage? | Accepted standards of conduct constituting customary law. |
What is the third stage of development of law according to Maine? | Knowledge of Law in the Hands of Priests. |
By whom does legal knowledge become monopolised in the third stage? | Priestly class. |
Why is the third stage regarded as a dark age in legal development? | Because law is not publicly known and masses depend on priests for legal knowledge. |
Upon whom do masses remain dependent in the third stage? | Privileged priestly class. |
What is the fourth stage of development of law according to Maine? | Codification. |
What happens in the stage of codification? | Legal rules are collected, arranged and expressed in written form. |
What does codification give to law? | Certainty, publicity and uniformity. |
What does codification mark according to Maine? | Significant advancement in legal civilisation. |
What are societies called that do not progress beyond codification? | Static societies. |
Why are such societies called static societies? | Because their law remains confined to inherited codes and customs. |
What are societies called that continue to develop law beyond codification? | Progressive societies. |
How do progressive societies continue legal development? | Through new techniques of adaptation. |
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METHODS OF LEGAL DEVELOPMENT IN PROGRESSIVE SOCIETIES. | |
What is the subject matter of the methods by which progressive societies develop law according to Sir Henry Maine? | Methods of legal development in progressive societies. |
By how many principal methods do progressive societies develop law according to Maine? | Three principal methods. |
What are the three methods by which progressive societies develop law? | Legal fiction, equity and legislation. |
What is the first method of legal development in progressive societies? | Legal Fiction. |
What is meant by legal fiction? | Device by which law is changed in substance without altering formal words of law. |
Why is legal fiction used according to Maine? | To adapt old legal rules to new circumstances while maintaining continuity. |
What is the second method of legal development in progressive societies? | Equity. |
What does equity consist of? | Principles of fairness, justice and conscience appealing to common consensus of mankind. |
Why were equitable principles invoked particularly in England? | To mitigate rigidity and defects of common law. |
What was secured through equity where strict law proved inadequate? | Substantial justice. |
What is the third method of legal development in progressive societies? | Legislation. |
How is legislation described by Maine? | Most direct, systematic and powerful method of legal reform. |
How does society develop law through legislation? | By consciously introducing new laws and modifying old ones. |
For what purpose are legislative enactments made? | To meet contemporary needs. |
What did Maine regard as the most effective instrument for deliberate legal development? | Legislation. |
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BOOKS WRITTEN BY SIR HENRY MAINE | |
What is the subject matter of the books of Sir Henry Maine? | Important works authored by Sir Henry Maine. |
Name the famous work of Sir Henry Maine on primitive legal evolution. | Ancient Law. |
Name the work of Sir Henry Maine dealing with rural social institutions. | Village Community. |
Name the work of Sir Henry Maine relating to institutional growth. | History of Institutions. |
Name the work of Sir Henry Maine on primitive legal usages and customs. | Dissertation on Early Law and Customs. |
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SIR FREDERICK POLLOCK (1845) | |
What is the subject matter of Sir Frederick Pollock under the Historical School? | Sir Frederick Pollock’s contribution to the Historical School of Jurisprudence. |
Who was Sir Frederick Pollock? | An eminent English jurist and legal historian. |
To which school did Pollock make a valuable contribution? | Historical School of Jurisprudence. |
Through what did Pollock contribute to the Historical School? | Study of the historical foundations of English law. |
During whose reigns did Pollock analyse the legal system of England? | King Henry II and King Henry III. |
What did Pollock demonstrate through examination of English law? | Large part of English law was deeply rooted in customs and traditions. |
Was English law the product of sudden legislative creation according to Pollock? | No. |
From what time had many customs and traditions been prevalent according to Pollock? | From time immemorial. |
From where did many legal institutions originate according to Pollock? | Long-established usages and practical habits of the English people. |
What role did courts and legislatures play according to Pollock? | They gave authoritative shape to what society had already accepted. |
What did Pollock emphasise as an important source of law? | Historical legal institutions and customary practices. |
Why can law not be fully understood according to Pollock? | Unless its historical background and customary evolution are studied. |
What proposition was reinforced by Pollock’s contribution? | Law is not merely a command of the State but an inheritance shaped by traditions and institutions. |
What did Pollock’s work on English legal history furnish? | Practical support to the broader doctrines of the Historical School. |
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SOCIOLOGICAL SCHOOL | |
What is the subject matter of the Sociological School of Jurisprudence? | Sociological School of Jurisprudence and its basic principles. |
What important stage does the Sociological School mark in legal thought? | Study of law as a social institution functioning within society. |
Against which schools did the Sociological School emerge as a reaction? | Analytical School and Historical School. |
Why did the Sociological School react against the Analytical School? | Because of its excessive formalism. |
Why did the Sociological School react against the Historical School? | Because of its excessive traditionalism. |
How do sociological jurists believe law should be understood? | Not in isolation from the society in which it operates. |
From what to what did sociological jurists shift the emphasis of jurisprudence? | From abstract analysis of legal concepts to practical study of law in action. |
What is the principal scope of the Sociological School? | To examine the effect of law on society and effect of society on law. |
What does the Sociological School seek to study in other words? | Mutual interaction between legal rules and social conditions. |
What does law influence according to the Sociological School? | Human conduct, social institutions and economic relations. |
What shapes the content and direction of law according to sociological jurists? | Social needs, public opinion, changing values and community interests. |
How are law and society regarded under the Sociological School? | Interdependent and inseparable. |
How do sociological jurists regard law in relation to social objectives? | Not an end in itself but a means to achieve social order, justice and welfare. |
How can a legal rule not be judged according to the Sociological School? | Solely by its formal validity. |
Where does the true worth of a legal rule lie according to sociological jurists? | In its social effectiveness and satisfaction of human needs. |
What practical realities must jurisprudence take into account according to the Sociological School? | Social conflicts, class interests, changing moral standards and living conditions. |
As what instrument does the Sociological School treat law? | Dynamic instrument of social engineering, social adjustment and collective welfare. |
Beyond what must the study of law move according to the Sociological School? | Beyond statutes and precedents. |
What must legal study investigate according to sociological jurists? | How legal principles actually work in society. |
Why is the Sociological School described as the bridge between law in books and law in action? | Because it connects legal rules with their practical social operation. |
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AUGUSTE COMTE (1786-1857) | |
What is the subject matter of Auguste Comte under the Sociological School of Jurisprudence? | Auguste Comte’s contribution as intellectual forerunner of the Sociological School. |
Who is generally regarded as the intellectual forerunner of the Sociological School? | Auguste Comte. |
Who first used the term Sociology? | Auguste Comte. |
Who is considered the founder of the science of sociology? | Auguste Comte. |
What did Comte seek to apply to the study of society? | Scientific method. |
How did Comte seek to study society? | In the same manner as natural sciences study physical phenomena. |
By what name is Comte’s philosophy often described? | Scientific Positivism. |
How did Comte regard society? | An organised social organism. |
Why society is called an organised social organism according to Comte? | Because its different parts function in mutual interdependence. |
With what did Comte compare the institutions of society? | Various organs of the human body. |
How do social institutions work according to Comte? | Collectively for social order and progress. |
When can society advance according to Comte? | When guided by rational, scientific and objective principles. |
What did Comte strongly maintain regarding man? | Man is essentially a social animal. |
Can man exist outside the framework of society according to Comte? | No. |
Why does individual conduct require regulation according to Comte? | Because every individual lives in constant relation with others. |
What performs the regulating function of human conduct according to Comte? | Law. |
How should law not be framed according to Comte? | Merely with reference to the isolated individual. |
With what should law be shaped according to Comte? | Broader needs of social life. |
What should be the focal point of law according to Comte? | Society and not the individual. |
To what did Comte attach greater importance? | Duties than rights. |
On what does stability of society depend according to Comte? | Faithful performance of obligations towards collective order. |
What is the only right which a man can truly claim according to Comte? | Right to always do his duty. |
How is social harmony achieved according to Comte? | Through disciplined fulfilment of social responsibilities. |
What groundwork was laid by Auguste Comte for the Sociological School? | Scientific study of society and emphasis that law must serve organisation, discipline and welfare of society. |
How is Auguste Comte generally regarded among sociological jurists? | An introductory jurist. |
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HERBBERT SPENCER (1820-1903) | |
What is the subject matter of Herbert Spencer under the Sociological School? | Herbert Spencer’s contribution through Organic Theory of Society. |
Who was Herbert Spencer in relation to sociological jurisprudence? | An important sociological thinker influencing the Sociological School. |
For what theory is Herbert Spencer chiefly known? | Organic Theory of Society. |
To what did Spencer compare society? | A living biological organism. |
How did Spencer compare society with the human body? | Both consist of different parts functioning in harmony for welfare of the whole. |
What does society consist of according to Spencer? | Different individuals and institutions functioning in mutual dependence. |
Can an individual exist in complete isolation according to Spencer? | No. |
With what is the well-being of each person connected according to Spencer? | Orderly functioning of the social whole. |
What exists among individuals in every society according to Spencer? | Numerous and often conflicting interests. |
What does each person seek according to Spencer? | His own desires, advantages and freedoms. |
What happens if competing interests are left unchecked according to Spencer? | Social disorder and friction become inevitable. |
Why is a regulating mechanism necessary according to Spencer? | To harmonise conflicting claims and preserve social equilibrium. |
What is the purpose of law according to Spencer? | To resolve conflicting interests of individuals and maintain adjustment between liberty and order. |
How does law act according to Spencer? | As a balancing instrument. |
What does law prevent according to Spencer? | One individual from encroaching upon the sphere of another. |
What does law secure according to Spencer? | Peaceful coexistence. |
How did Spencer regard law apart from command backed by sanctions? | A social necessity designed to coordinate human relations. |
Within what does law coordinate human relations according to Spencer? | Social organism. |
What is Spencer’s contribution to sociological jurisprudence? | Legal rules must be understood in relation to social structure and law must maintain social harmony. |
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RUDOLF IHERING (1818-1892) | |
What is the subject matter of Rudolf Ihering under the Sociological School? | Rudolf Ihering’s contribution and theory of social utilitarianism. |
Who is regarded as the founder of modern sociological jurisprudence according to Friedmann? | Rudolf Ihering. |
Which doctrine was opposed by Rudolf Ihering? | Doctrine of individualism. |
Which interest must gain priority according to Rudolf Ihering? | Social interest of society over individual interest. |
What should be the purpose of law according to Rudolf Ihering? | To protect the interest of society. |
By what other name is Ihering’s theory known? | Social utilitarianism. |
How did Rudolf Ihering regard law? | Means to achieve an end. |
What is the end to be achieved by law according to Ihering? | Social control. |
How did Ihering consider punishment? | A means to social ends. |
Name the work of Rudolf Ihering explaining functional purpose of law. | Law as Means to an End. |
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EUGEN EHRLICH (1862-1922) | |
What is the subject matter of Eugen Ehrlich’s jurisprudential contribution? | Eugen Ehrlich’s jurisprudential contribution relates to the social source and practical operation of law. |
For what theory is Eugen Ehrlich best known? | Eugen Ehrlich is best known for the Theory of Living Law. |
What narrow belief of positivism was challenged by Ehrlich? | Ehrlich challenged the belief that law is only that which is created by the State, declared by legislatures or enforced by courts. |
Where did Ehrlich locate the real source of law? | Ehrlich located the real source of law in the actual life of society. |
Is State creation necessary for effective law according to Ehrlich? | No, law need not necessarily be created by the State to be effective law. |
Is court application necessary for effective law according to Ehrlich? | No, law need not necessarily be applied by the courts to be effective law. |
Are coercive sanctions indispensable for effective law according to Ehrlich? | No, coercive sanctions are not indispensable for effective law. |
What exists in society apart from formally enacted law according to Ehrlich? | There exists a vast body of social norms, conventions, usages and accepted standards. |
What is regulated by social norms and conventions according to Ehrlich? | They regulate human conduct in everyday life. |
Do social norms require formal legal enforcement to regulate conduct? | No, they regulate conduct even without formal legal enforcement. |
From where do these social norms arise according to Ehrlich? | These social norms arise spontaneously from the functioning of social groups and associations. |
What did Ehrlich describe as Living Law? | The socially operative norm-system arising from social groups and associations is Living Law. |
Which institutions are governed in large measure by social norms according to Ehrlich? | Marriage, domestic life, inheritance, possession and contract. |
Are these institutions governed merely by statutory texts according to Ehrlich? | No, they are governed also by social expectations, family practices, mercantile usages and community habits. |
How do people often regulate social relationships before State intervention? | People regulate such relationships through socially accepted norms. |
Where is the true life of law found according to Ehrlich? | The true life of law is found in society itself. |
What did Ehrlich mean by Living Law? | Living Law means those extra-legal controls which regulate the social relations of man. |
What are Living Law controls in practical terms? | They are the practical rules that actually guide day-to-day conduct in the community. |
Are Living Law controls always written in legal codes? | No, they may not always be written in legal codes. |
Why do Living Law controls possess binding force? | Because they are rooted in social acceptance. |
Between what two forms of law did Ehrlich distinguish? | Ehrlich distinguished between law in books and the living law actually observed by the people. |
What is the purpose of law according to Ehrlich? | The purpose of law is the attainment of social justice. |
When can a legal rule serve a useful purpose according to Ehrlich? | Only when it corresponds with living conditions, social requirements and practical habits of the community. |
What must be taken into consideration while making law according to Ehrlich? | The actual needs of the society in which the law is to operate must be carefully taken into consideration. |
What must be taken into consideration while administering law according to Ehrlich? | The actual social requirements and practical habits of the community must be carefully taken into consideration. |
When does law become an effective instrument of social regulation and justice? | When it corresponds with the actual needs and living conditions of society. |
From what did Ehrlich shift jurisprudence? | Ehrlich shifted jurisprudence from the formal commands of the State. |
To what did Ehrlich shift jurisprudence? | Ehrlich shifted jurisprudence to the living norms of society. |
Where does the vitality of law lie according to Ehrlich? | The vitality of law lies in its social acceptance and practical utility. |
Does mere statutory existence constitute true vitality of law according to Ehrlich? | No, mere statutory existence does not constitute true vitality of law. |
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CRITICISM | |
On what ground has Ehrlich been criticised regarding the meaning of law? | He has been criticised for giving too wide a meaning to law by including almost all social norms within its scope. |
What confusion is said to arise from Ehrlich’s wide concept of law? | The distinction between legal rules and ordinary moral or social customs becomes blurred. |
What indispensable role of the State is said to be underestimated by Ehrlich? | The role of the State in giving certainty, uniformity and enforceability to law. |
What indispensable role of courts is said to be underestimated by Ehrlich? | The role of courts in giving certainty, uniformity and enforceability to law. |
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LEON DUGUIT (1859-1928) | |
What is the subject matter of Léon Duguit under the Sociological School? | Léon Duguit’s Doctrine of Social Solidarity and its criticism. |
Who was one of the foremost exponents of the Sociological School of Jurisprudence? | Léon Duguit. |
With which doctrine is Duguit chiefly associated? | Doctrine of Social Solidarity. |
Through what did Duguit attempt to explain the basis of law, rights and State authority? | Social terms rather than sovereignty or individualism. |
By whose sociological theory was Duguit profoundly influenced? | Émile Durkheim. |
What had Durkheim emphasised regarding society? | Society is held together by mutual dependence among its members. |
What did Duguit develop on the basis of Durkheim’s insight? | True foundation of law lies in social interdependence. |
How does every man have his existence according to Duguit? | As a member of society. |
Is man an isolated self-sufficient individual according to Duguit? | No. |
Why are human beings mutually dependent according to Duguit? | For fulfilment of needs, interests and aspirations. |
What creates a bond of cooperation among individuals according to Duguit? | Reciprocal dependence. |
What did Duguit describe this bond as? | Social solidarity. |
Why do people follow law according to Duguit? | Because they have to live in society. |
Is law obeyed merely due to fear of sovereign sanction according to Duguit? | No. |
Why are legal rules indispensable according to Duguit? | For preserving social cohesion and enabling collective existence. |
What is the basis of law according to Duguit? | Social necessity and social cooperation. |
What does justice mean according to Duguit? | Fulfilment of social needs and social obligations. |
What is the object of law according to Duguit? | To ensure every individual performs functions and duties necessary for welfare of community. |
From what language to what language did Duguit shift jurisprudence? | From rights and sovereignty to social duty and functional responsibility. |
What State structure was favoured by Duguit? | Minimisation of State functions and decentralisation of State power. |
Did Duguit regard the State as supreme sovereign authority? | No. |
What traditional notion was rejected by Duguit? | State sovereignty. |
How did Duguit regard the State? | One social institution existing for service of society. |
When is authority of the State justified according to Duguit? | So long as it performs social functions conducive to collective welfare. |
Is the State master or servant of society according to Duguit? | Servant of society. |
What did Duguit deny regarding individuals? | Existence of inherent private rights. |
What are rights in reality according to Duguit? | Socially recognised functions. |
What freedom does an individual possess according to Duguit? | Only freedom enabling discharge of duties towards collective order. |
By whom was Duguit inspired in his duty-centred approach? | Auguste Comte. |
What statement of Comte inspired Duguit? | The only right of man is the right to do his duty. |
What did Duguit outwardly reject? | Natural Law and metaphysical theories. |
Why do critics say Duguit allowed Natural Law to come through the window? | Because he indirectly relied on ideal standard of social justice. |
Against what does Duguit’s theory represent a sociological reaction? | Sovereignty, individualism and abstract rights. |
How did Duguit view law? | Instrument for maintaining social solidarity and harmonious interdependence. |
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CRITICISM | |
What is the first short criticism against Duguit? | He gave excessive importance to social duties at expense of individual rights. |
What does modern constitutional jurisprudence recognise against Duguit’s view? | Individual liberties cannot be completely subordinated to collective welfare. |
Why is Duguit’s rejection of State sovereignty considered impractical? | Because State remains principal authority for law-making and enforcement. |
Why is Duguit’s concept of social solidarity considered idealistic? | Because society often contains conflicting interests and not merely harmonious cooperation. |
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EMILE DURKHEIM | |
What is the subject matter of Émile Durkheim under the Sociological School? | Émile Durkheim’s sociological influence on jurisprudence. |
Who was Émile Durkheim? | A celebrated French sociologist. |
On whom did Durkheim exercise deep influence in sociological jurisprudence? | Léon Duguit. |
What did Durkheim’s sociological philosophy seek to explain? | Maintenance of social cohesion and rise of norms of conduct. |
Which famous work of Durkheim laid the foundation for understanding social interdependence? | The Division of Labour in Society. |
As what did Durkheim explain society? | A network of mutual dependence among individuals. |
How many broad categories of needs did Durkheim point out in society? | Two broad categories. |
What is the first category of needs according to Durkheim? | Common needs of individuals. |
Give examples of common needs according to Durkheim. | Security, companionship and social stability. |
How are common needs satisfied according to Durkheim? | Through mutual assistance and collective cooperation. |
What is the second category of needs according to Durkheim? | Diverse and specialised needs of individuals. |
Why do diverse and specialised needs arise according to Durkheim? | Because different persons perform different functions in society. |
How are specialised needs fulfilled according to Durkheim? | Through dependence upon one another by exchange of services. |
What creates a strong bond of social interdependence according to Durkheim? | Increasing division of labour. |
Why can no person independently satisfy all requirements according to Durkheim? | Because of functional dependence created by division of labour. |
By what is society held together according to Durkheim? | Functional solidarity arising from mutual need and reciprocal service. |
What doctrine of Duguit was inspired by Durkheim’s idea? | Doctrine of Social Solidarity. |
What notable field apart from sociology did Durkheim contribute to? | Criminology and social pathology. |
Which principle is associated with Durkheim regarding social disorder? | Principle of Anomie. |
When do social disorder and deviant behaviour arise according to Durkheim? | When established norms become weak, uncertain or ineffective. |
What happens when social regulation breaks down according to Durkheim? | Individuals lose moral guidance and conflicts increase. |
What importance of law is indirectly reinforced by Durkheim’s theory? | Law as a stabilising institution for maintaining social discipline. |
What is Durkheim’s significance in sociological jurisprudence? | Law and social norms arise from social cooperation and regulation of interdependent human life. |
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OTTO VON GIERKE’S | |
What is the subject matter of Otto von Gierke’s jurisprudential contribution? | Otto von Gierke’s jurisprudential contribution relates to the sociological importance of social groups and associations in law. |
For what theory is Otto von Gierke mainly known? | Otto von Gierke is mainly known for the Theory of the Reality of Group Personality. |
What approach to law and society was challenged by Gierke? | Gierke challenged the purely individualistic approach to law and society. |
What is the central thesis of Gierke regarding a group? | A group possesses a real personality of its own. |
How did Gierke deny the nature of a group as viewed by individualists? | He denied that a group is merely a fictitious aggregation of separate individuals. |
According to Gierke, in what capacity do human beings primarily exist in society? | Human beings exist as members of various associations. |
Which associations were recognised by Gierke as examples of organised groups? | Family, guild, corporation, union, community and State were recognised as organised groups. |
What develops within organised groups according to Gierke? | Organised groups develop their own collective will, common interests and institutional identity. |
Why must associations be legally recognised according to Gierke? | Because they are real social entities having legal significance. |
What view of collective bodies was rejected by Gierke? | Gierke rejected the view that collective bodies are mere legal fictions created by the State. |
How do groups arise according to Gierke? | Groups arise naturally out of social life. |
Do associations depend upon legislative recognition for their existence according to Gierke? | No, associations possess an existence independent of legislative recognition. |
Why must law take account of associations according to Gierke? | Because associations actively shape human conduct and regulate relationships within society. |
What must law recognise in relation to associations according to Gierke? | Law must recognise their real personality and social function. |
To what field did Gierke devote detailed historical study? | Gierke devoted detailed historical study to the development of associations and organised groups. |
In what dual character did Gierke study associations? | He studied associations as both social and legal phenomena. |
What did Gierke demonstrate through legal history? | He demonstrated that many legal institutions have grown around collective bodies and corporate organisations. |
Did Gierke consider legal institutions to be based solely on individual rights? | No, he considered them to be based also on collective bodies. |
According to Gierke, by what is law deeply influenced? | Law is deeply influenced by the functioning of social groups. |
How did Gierke broaden sociological jurisprudence? | He broadened sociological jurisprudence beyond the individual. |
What did Gierke regard as the real units of social life? | Organised associations are the real units of social life. |
What must law regulate apart from individual interests according to Gierke? | Law must regulate the rights, duties and interactions of collective personalities. |
What is the principal significance of Gierke’s theory in jurisprudence? | It establishes the legal importance of collective personalities in social organisation. |
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CRITICISM OF GIERKE | |
On what ground has Gierke been criticised regarding group personality? | He has been criticised that independent real personality to every group may undermine the central legal authority of the State. |
What objection is raised regarding the collective will of associations? | It is argued that all associations do not possess a uniform collective will. |
Why is Gierke’s notion of real group personality said to be exaggerated by critics? | Because the assumption of a real and uniform personality in every group may not always exist. |
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ROSCUE POUND (1870-1964) | |
What is the subject matter of Roscoe Pound’s jurisprudential contribution? | Roscoe Pound’s jurisprudential contribution relates to the practical and functional role of law in society. |
What position does Roscoe Pound occupy in the Sociological School of Jurisprudence? | Roscoe Pound occupies the most prominent place in the Sociological School of Jurisprudence. |
How is Roscoe Pound regarded in American jurisprudence? | Roscoe Pound is regarded as the father of American Sociological Jurisprudence. |
From what did Pound shift the study of law? | Pound shifted the study of law from abstract theories and formal definitions. |
To what did Pound direct the study of law? | Pound directed the study of law to the practical and functional role performed by law in society. |
What did Pound say jurisprudence must not confine itself to? | Jurisprudence must not confine itself to law in books. |
What must jurisprudence examine according to Pound? | Jurisprudence must examine law in action. |
What must legal institutions be evaluated for according to Pound? | Legal institutions must be evaluated as to how far they satisfy human needs. |
On which aspect of law did Pound primarily concentrate? | Pound primarily concentrated on the functional aspect of law. |
How did Pound describe the functional aspect of law? | It is the process of fulfilling the maximum possible human wants with the minimum possible friction and waste. |
Of what is society composed according to Pound? | Society is composed of numerous competing claims, desires and expectations. |
Who constantly pursue conflicting interests in society according to Pound? | Individuals, groups and institutions constantly pursue different and often conflicting interests. |
What results if competing interests are left uncontrolled? | Social disorder and injustice result if competing interests are left uncontrolled. |
What is the central task of law according to Pound? | The central task of law is to harmonise competing claims and establish a workable balance among them. |
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THEORY OF SOCIAL ENGINEERING | |
What name did Pound give to the process of harmonising competing interests? | Pound described this process as Social Engineering. |
What is the most celebrated contribution of Roscoe Pound? | The most celebrated contribution of Roscoe Pound is the Theory of Social Engineering. |
What did Pound mean by Social Engineering? | Law should function like an engineer adjusting conflicting interests and securing maximum satisfaction of wants with least friction. |
With what did Pound compare the function of law under Social Engineering? | Pound compared the function of law with an engineer constructing and maintaining a stable bridge. |
What must law use to build a stable social order according to Pound? | Law must use legal principles and institutions to build a stable social order. |
What is the task of law under Pound’s Social Engineering theory? | The task of law is the balancing of competing interests in society. |
What is sought to be achieved by balancing interests? | Social harmony, justice and orderly progress are sought to be achieved. |
Is law merely a body of commands or precedents according to Pound? | No, law is a practical instrument for social control. |
What did Pound mean by saying law and life flow together? | Law must continuously adapt itself to the living needs, aspirations and pressures of social life. |
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CLASSIFICATION OF INTERESTS ACCORDING TO ROSCOE POUND | |
Why did Pound classify interests? | Pound classified interests to explain how law performs its engineering function. |
Into how many categories did Pound broadly classify interests? | Pound broadly classified interests into three categories. |
What are the three categories of interests classified by Pound? | The three categories are Private Interests, Public Interests and Social Interests. |
What are Private Interests according to Pound? | Private Interests are claims, demands or desires asserted by individuals in their personal capacity. |
Which matters are included in Private Interests? | Personality, reputation, domestic relations, property and contractual claims are included in Private Interests. |
Why must law protect Private Interests? | So that personal liberty and private security are maintained. |
What are Public Interests according to Pound? | Public Interests are interests asserted by the State as a juristic person and guardian of collective order. |
Which matters are included in Public Interests? | Governmental authority, revenue, public institutions and efficient functioning of State machinery are included in Public Interests. |
What are Social Interests according to Pound? | Social Interests are the broader interests of society as a whole. |
Which matters are included in Social Interests? | Social security, public peace, general morals, social welfare, protection of economic resources and preservation of social institutions. |
Which interests did Pound consider of the highest practical importance? | Pound considered Social Interests of the highest practical importance. |
Why did Pound give highest practical importance to Social Interests? | Because law ultimately exists for the orderly functioning of society. |
Where does the true skill of jurisprudence lie according to Pound? | The true skill of jurisprudence lies in striking a just balance among private, public and social interests. |
What should not be allowed while balancing interests? | No one interest should be allowed to destroy the others. |
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JURAL POSTULATES OF ROSCOE POUND | |
What did Pound formulate besides classification of interests? | Pound formulated certain basic assumptions called Jural Postulates. |
What are Jural Postulates according to Pound? | Jural Postulates are the minimum conditions which every civilized legal order must secure. |
Why must Jural Postulates be secured? | So that social life may proceed peacefully. |
What is the first Jural Postulate of Pound? | Every person may assume that others will commit no intentional aggression upon him. |
What legal protection is reflected in the first Jural Postulate? | Security of person and freedom from deliberate harm. |
What is the second Jural Postulate of Pound? | Every person may control for beneficial purposes what he has discovered, appropriated or created by his own labour. |
What does the second Jural Postulate reflect? | It reflects legal protection of property and fruits of individual effort. |
What is the third Jural Postulate of Pound? | Every person may assume that those with whom he deals will act in good faith. |
On what do social and commercial relations function according to the third Jural Postulate? | They function on legally recognised honesty and fidelity. |
What is the fourth Jural Postulate of Pound? | Every person may assume that those engaging in any course of conduct will act with due care and caution. |
What is the legal basis formed by the fourth Jural Postulate? | It forms the basis of legal liability for negligence. |
What is the fifth Jural Postulate of Pound? | Persons maintaining harmful things or agencies must restrain them within proper bounds. |
What does the fifth Jural Postulate ensure? | It ensures protection against dangerous instrumentalities and hazardous activities. |
What do Pound’s Jural Postulates represent? | They represent the minimum legal expectations necessary for orderly civilised existence. |
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IMPORTANT WORKS OF ROSCOE POUND | |
Which is Roscoe Pound’s notable work published in 1921? | The Spirit of the Common Law. |
Which is Roscoe Pound’s notable work published in 1922? | An Introduction to the Philosophy of Law. |
Which is Roscoe Pound’s notable work published in 1923? | Interpretation of Legal History. |
Which is Roscoe Pound’s notable work published in 1926? | Law and Morals. |
Which is Roscoe Pound’s notable work published in 1938? | The Formative Era of American Law. |
Which is Roscoe Pound’s notable work published in 1940? | Contemporary Juristic Theory. |
Which notable works of Roscoe Pound were published in 1942? | Administrative Law: Its Growth, Procedure and Significance and Social Control through Law. |
Which is Roscoe Pound’s notable work published in 1944? | The Task of Law. |
How did these writings establish Roscoe Pound? | These writings established him as the most practical and policy-oriented jurist of the Sociological School. |
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CRITICISM OF ROSCOE POUND | |
On what ground has Pound’s theory of balancing interests been criticised? | It does not provide any precise formula for determining which interest should prevail in a particular case. |
Why is the concept of social engineering criticised as uncertain? | Because it is often dependent on judicial discretion. |
What criticism is made regarding Pound’s classification of interests? | His classification is said to be too broad and overlapping. |
Why does Pound’s theory still remain highly influential? | Because it transformed law into a practical instrument of social justice and social adjustment. |
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ETHICAL OR PHILOSPHICAL SCHOOL | |
What is the subject matter of the Philosophical or Ethical School of Jurisprudence? | The Philosophical or Ethical School of Jurisprudence represents the normative and idealistic approach to the study of law. |
To what cannot jurisprudence be confined according to the Philosophical School? | Jurisprudence cannot be confined merely to the analysis of legal rules as they exist. |
To what else cannot jurisprudence be limited according to the Philosophical School? | Jurisprudence cannot be limited to tracing the historical origin or social operation of legal rules. |
On what must legal philosophy rest according to this school? | Legal philosophy must rest upon ethical values, moral ideals and principles of justice. |
Towards what should law guide human conduct according to the Philosophical School? | Law should guide human conduct towards righteous and upright living. |
What does this school insist law must not only regulate? | Law must not only regulate external behaviour. |
What higher standards must law embody according to the Ethical School? | Law must embody higher standards of fairness, morality and reason. |
What does the Ethical School expound? | The Ethical School expounds the first principles of law as it ought to be. |
With which aspect of law is the Ethical School not primarily concerned as compared to the Historical School? | It is not primarily concerned with the historical past of law. |
With which aspect of law is the Ethical School not primarily concerned as compared to the Analytical School? | It is not primarily concerned with the analytical present of law as it exists. |
Where does the chief concern of the Ethical School lie? | The chief concern lies with the future ideal of law. |
What form of law does the Ethical School seek? | It seeks the form which law should assume to secure justice, moral welfare and harmonious social life. |
What question does this school ask apart from validity of enactment? | It asks whether a rule is ethically justified. |
What further question does this school ask regarding law? | It asks whether law promotes the ultimate good of man and society. |
Is law an end in itself according to the Philosophical School? | No, law is not an end in itself. |
As what is law regarded according to the Philosophical School? | Law is regarded as a means by which the individual will is harmonised with the general will of the community. |
What do human beings possess according to the Philosophical School? | Human beings possess personal desires, ambitions and freedoms. |
What may unregulated individual will produce? | Unregulated individual will may produce conflict, selfishness and injustice. |
What must law serve as according to the Philosophical School? | Law must serve as the moral instrument through which private interests are adjusted with collective welfare. |
How is law regarded beyond a command backed by sanction in this school? | Law is regarded as a rational and ethical order designed to secure justice. |
What do the jurists of this school maintain as the true test of law? | The true test of law lies in its conformity with reason, morality and social good. |
How is a legally valid but morally unjust law viewed by this school? | A legally valid but morally unjust law is considered defective. |
Why is a morally unjust law considered defective? | Because legal authority cannot be wholly divorced from ethical legitimacy. |
What character does the Philosophical School give to jurisprudence? | The Philosophical School gives jurisprudence an evaluative and idealistic character. |
Into what does the Philosophical School seek to transform law? | The Philosophical School seeks to transform law into an instrument of moral civilisation. |
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HUGO GROTIOUS (1583-1645) | |
What is the subject matter of Hugo Grotius’s jurisprudential contribution? | Hugo Grotius’s jurisprudential contribution relates to the ethical and rational foundation of law. |
How is Hugo Grotius regarded in jurisprudence? | Hugo Grotius is regarded as the father of Philosophical Jurisprudence. |
Of which legal tradition is Hugo Grotius one of the foremost founders? | Hugo Grotius is one of the foremost founders of the modern Natural Law tradition. |
What orientation did Grotius give to jurisprudence? | Grotius gave jurisprudence an ethical and rational orientation. |
How did Grotius deny the mere political view of law? | He insisted that law cannot be understood merely as an external command of political authority. |
In what must law be rooted according to Grotius? | Law must be rooted in the moral and social nature of human beings. |
What did Grotius seek to discover in jurisprudence? | Grotius sought to discover universal principles of justice arising from human reason. |
What do Grotius’s universal principles of justice govern? | They govern the conduct of civilized communities. |
From what does law spring according to Grotius? | Law springs from the social nature of man. |
To what are human beings naturally inclined according to Grotius? | Human beings are naturally inclined to live together in society. |
What does social coexistence necessarily require according to Grotius? | Social coexistence necessarily requires rules of conduct founded upon reason, mutual respect and justice. |
How is man described by Grotius? | Man is a rational and social being. |
To what must the legal order correspond according to Grotius? | The legal order must correspond to the inherent qualities of human nature. |
What is not the sole basis of law according to Grotius? | Sovereign force is not the sole basis of law. |
What is the true basis of law according to Grotius? | The true basis of law is the rational necessity of maintaining just and orderly relations among men. |
On what notion are Natural Law and Positive Morality founded according to Grotius? | Natural Law and Positive Morality are founded upon the notion of righteousness. |
What is Natural Law according to Grotius? | Natural Law consists of universal principles of justice and right reason discoverable by human intellect. |
Are the principles of Natural Law dependent on legislative enactment? | No, they are binding irrespective of legislative enactment. |
May positive morality and positive laws vary according to Grotius? | Yes, positive morality and positive laws may vary from society to society. |
On what does the legitimacy of positive morality and positive laws depend? | Their legitimacy depends upon conformity with broader principles of righteousness. |
What did Grotius attempt to harmonise? | Grotius attempted to harmonise enacted law with moral law. |
What foundation did Grotius give to jurisprudence by harmonising law with morality? | He gave jurisprudence a strongly ethical foundation. |
What is the significance of Grotius in legal thought? | Grotius shifted legal thought from mere political obedience to rational justice and moral duty. |
By asserting law originates in what did Grotius influence jurisprudence? | By asserting that law originates in the social and rational character of man. |
What groundwork was laid by Grotius? | Grotius laid the groundwork for the later development of philosophical and ethical jurisprudence. |
Which is the celebrated work of Hugo Grotius? | The Law of War and Peace (De Jure Belli ac Pacis). |
Why is The Law of War and Peace significant? | It remains a classic contribution to legal philosophy and international legal thought. |
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IMMANUEL KANT (1724-1804) | |
What is the subject matter of Immanuel Kant’s jurisprudential contribution? | Immanuel Kant’s jurisprudential contribution relates to the rational and metaphysical foundation of justice. |
How is Immanuel Kant regarded in the Ethical School of Jurisprudence? | Immanuel Kant is regarded as one of the greatest philosophers of the Ethical School of Jurisprudence. |
What foundation did Kant seek to place law upon? | Kant sought to place law upon a rational and metaphysical foundation of justice. |
What method of justice was developed by Kant? | Kant developed the metaphysical method of justice. |
How is law examined under Kant’s metaphysical method of justice? | Law is examined as a rational principle necessary for the coexistence of free human beings. |
With what did Kant believe jurisprudence must be connected? | Kant believed jurisprudence must be connected with moral philosophy. |
What distinction did Kant carefully maintain despite connecting jurisprudence with moral philosophy? | Kant carefully distinguished the sphere of law from the sphere of ethics. |
Are ethics and law the same according to Kant? | No, ethics and law are not one and the same thing. |
With what are both ethics and law concerned according to Kant? | Both ethics and law are concerned with human conduct. |
In what domain does ethics operate according to Kant? | Ethics operates in the domain of spontaneous internal acts of man. |
What are spontaneous internal acts according to Kant? | They are actions springing from inner moral conviction, conscience and self-imposed duty. |
When is ethical behaviour valuable according to Kant? | Ethical behaviour is valuable only when it arises voluntarily from within the individual. |
In what domain does law operate according to Kant? | Law operates in the domain of acts to which a man can be externally compelled. |
With what is law not concerned according to Kant? | Law is not concerned with inward motives. |
With what is law concerned according to Kant? | Law is concerned with outward behaviour affecting the rights and freedoms of others. |
What does ethics deal with according to Kant? | Ethics deals with the inner life of the individual. |
What does law regulate according to Kant? | Law regulates the external conduct of the individual. |
What does morality judge according to Kant? | Morality judges the intention behind an act. |
What does law judge according to Kant? | Law judges the external conformity of the act to an objective rule. |
On what does morality depend according to Kant? | Morality depends upon internal self-discipline. |
On what does law depend according to Kant? | Law depends upon external enforceability. |
What is the central feature of Kant’s philosophy? | The central feature of Kant’s philosophy is the Theory of Categorical Imperative. |
What does the Theory of Categorical Imperative require? | A person should act only according to that principle which he can will to become a universal rule for all mankind. |
By what must every human action be guided under the Categorical Imperative? | Every human action must be guided by universal reason and moral duty. |
By what should human action not be guided under the Categorical Imperative? | Human action should not be guided by selfish inclination. |
How did the Categorical Imperative provide Kant an ethical basis of justice? | It required that law be framed so that the freedom of each individual coexists with the equal freedom of all others. |
What view did Kant adopt regarding the function of the State? | Kant adopted a limited but principled view regarding the function of the State. |
To what should the State primarily confine itself according to Kant? | The State should primarily confine itself to maintenance of law and order and administration of justice. |
What is the purpose of the State according to Kant? | The purpose of the State is to secure a juridical condition protecting external freedoms under universal laws. |
What freedom should citizens enjoy according to Kant? | Citizens should enjoy the freedom to criticise the government. |
Why did Kant support freedom to criticise the government? | Because rational criticism is essential for the moral progress of political institutions. |
In what does Kant’s contribution to ethical jurisprudence lie? | Kant’s contribution lies in harmonising legal obligation with rational freedom. |
How did Kant view law in relation to liberty? | Kant viewed law as an instrument for securing the external conditions of liberty. |
To what did Kant leave the inner moral perfection of man? | Kant left the inner moral perfection of man to ethics. |
Which is an important work of Kant on justice? | Metaphysical Elements of Justice. |
Which is an important philosophical work of Kant influencing jurisprudence? | Critique of Pure Reason. |
How did Kant’s works influence legal thought? | They profoundly influenced later legal and moral philosophy. |
How is Kant described among jurists? | Kant is one of the strong jurists. |
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HEGEL (1770- 1831) | |
What is the subject matter of G.W.F. Hegel’s jurisprudential contribution? | G.W.F. Hegel’s jurisprudential contribution relates to law as the rational expression of freedom and universal ethical life. |
How is G.W.F. Hegel regarded in the Ethical School of Jurisprudence? | G.W.F. Hegel is regarded as one of the leading philosophers of the Ethical School of Jurisprudence. |
How did Hegel conceive law? | Hegel conceived law as the rational expression of freedom and universal ethical life. |
Of whom is society composed according to Hegel? | Society is composed of numerous self-centred individuals. |
What do self-centred individuals pursue according to Hegel? | They pursue their own ego, desires and personal interests. |
What happens if conflicting egos remain unchecked? | Social harmony becomes impossible. |
What is the true purpose of law according to Hegel? | The true purpose of law is to reconcile conflicting egos and create an orderly ethical union among individuals. |
Through what is reconciliation of conflicting egos possible according to Hegel? | Reconciliation is possible through the merger of self-centred consciousness into universal consciousness. |
What is meant by merger into universal consciousness? | Individuals must rise above selfish impulses and recognise themselves as part of a larger ethical community. |
How does law perform the function of ethical reconciliation? | Law subjects private will to universal rational principles. |
Is legal order merely an external restraint according to Hegel? | No, legal order is a means of harmonising individual freedom with collective moral life. |
What is the dominant theme in Hegel’s philosophy? | The dominant theme in Hegel’s philosophy is freedom. |
By what has the mind of man been continuously dominated according to Hegel? | The mind of man has been continuously dominated by the quest for freedom. |
How did Hegel view human history? | Hegel viewed human history as a progressive unfolding of liberty. |
Why does law become the institutional expression of historical movement? | Because law gives concrete shape to freedom within an organised social order. |
To what must all laws conform according to Hegel? | All laws must conform to the dynamic changes in society. |
Why must laws conform to dynamic social changes according to Hegel? | Because law is the embodiment of the evolving moral consciousness of mankind. |
What expands as society progresses according to Hegel? | The content of freedom expands as society progresses. |
Why must legal institutions transform themselves according to Hegel? | To reflect higher stages of social justice and rationality. |
What dimension did Hegel give to jurisprudence? | Hegel gave jurisprudence a developmental and evolutionary dimension. |
What does the legal history of mankind embody according to Hegel? | The legal history of mankind embodies the march of freedom in civil societies. |
From what did man struggle to free himself in early periods according to Hegel? | Man struggled to free himself from oppressive domination of ecclesiastical institutions. |
What freedom was secured by this early struggle? | Temporal freedom from the Church was secured. |
From what did legal government gradually move thereafter? | Legal government gradually moved away from tyrannical rule of despotic monarchies. |
Towards what did legal government gradually move? | Legal government gradually moved towards constitutional and representative forms of governance. |
What happened in the economic sphere according to Hegel’s historical explanation? | Exploitation and enslavement under unregulated capitalism gave way to demands for economic justice and social freedom. |
How did law function during the British colonial period in India? | Law functioned as an instrument of political coercion designed to preserve imperial authority. |
What transformation occurred in the role of law after Indian independence? | Law became directed towards preservation of rights, socio-economic justice and democratic governance. |
What does the established rule of law in modern constitutional systems aim at ensuring? | It aims at ensuring justice, liberty, equality, fraternity and human dignity. |
What evolved along with the march of freedom in modern constitutional systems? | The concept of the welfare State evolved. |
What is expected from law under the welfare State concept? | Law is expected not merely to maintain order but to secure the material and moral well-being of the people. |
How did Hegel view law in relation to individual and universal freedom? | Hegel viewed law as the rational instrument through which individual freedom is elevated into universal freedom. |
Through what is ethical progress institutionally realised according to Hegel? | Ethical progress is institutionally realised through law. |
In what does Hegel’s contribution to jurisprudence lie? | Hegel’s contribution lies in presenting jurisprudence as a philosophy of evolving liberty and moral development. |
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KOHLER (1849-1919) | |
What is the subject matter of Josef Kohler’s jurisprudential contribution? | Josef Kohler’s jurisprudential contribution relates to law as an instrument of cultural and moral evolution of society. |
How is Josef Kohler regarded in jurisprudence? | Josef Kohler is regarded as an important jurist of the Philosophical or Ethical School. |
To what did Kohler seek to relate law? | Kohler sought to relate law to the cultural and moral evolution of society. |
What notion regarding universal law was rejected by Kohler? | Kohler rejected the notion that one uniform and universal law can equally suit all societies. |
Why did Kohler deny universality of one law for all societies? | Because societies differ in historical development, social values and civilizational conditions. |
Is law universal for all societies according to Kohler? | No, law is not universal for all societies. |
Why is law not universal according to Kohler? | Because each society possesses its own stage of cultural growth, moral consciousness and practical necessities. |
In accordance with what must the legal system of every community be shaped? | It must be shaped in accordance with its particular social and ethical environment. |
How did Kohler regard law? | Kohler regarded law as a standard of conduct. |
What urges men towards a reasonable form of life according to Kohler? | Law, in consequence of an inner impulse, urges men towards a reasonable form of life. |
What did Kohler deny regarding the nature of law? | Kohler denied that law is merely an external coercive command imposed by the State. |
What additional character does law possess according to Kohler? | Law possesses an inner ethical mission. |
Towards what should law guide human beings according to Kohler? | Law should guide human beings towards disciplined, rational and socially desirable conduct. |
Why should law guide human beings towards reasonable conduct? | So that individual life may be harmonised with the collective moral progress of society. |
What is the true purpose of law according to Kohler? | The true purpose of law is to advance civilisation. |
How does law advance civilisation according to Kohler? | By giving institutional expression to the ideals, values and aspirations of a given age. |
What evolves as society evolves according to Kohler? | The standards of reasonable life evolve as society evolves. |
What must law do as standards of reasonable life evolve? | Law must continuously adapt itself to higher ethical demands. |
In which noted work are Kohler’s jurisprudential views reflected? | Philosophy of Law. |
What function of legal institutions was emphasised by Kohler in his work? | Kohler emphasised the ethical and cultural function of legal institutions. |
How did Kohler contribute to the Ethical School? | Kohler asserted that law is a morally purposive standard of conduct. |
What determines the content of law according to Kohler? | The civilizational needs of different societies determine the content of law. |
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STAMMLER (1856-1938) | |
What is the subject matter of Rudolf Stammler’s jurisprudential contribution? | Rudolf Stammler’s jurisprudential contribution relates to law as an instrument for realising justice through social harmony. |
How is Rudolf Stammler regarded in the Philosophical or Ethical School? | Rudolf Stammler is regarded as one of the most prominent modern jurists of the Philosophical or Ethical School. |
Why is Stammler recognised as a Neo-Kantian thinker? | Because he sought to revive and modernise the ethical principles of Immanuel Kant in jurisprudence. |
What view regarding formal validity was accepted by Stammler? | Stammler accepted that law cannot be judged merely by its formal validity. |
On what does the true worth of law depend according to Stammler? | The true worth of law depends upon the extent to which it realises justice within society. |
When is law just according to Stammler? | Law is just if it furthers social ideas. |
What is meant by social ideas according to Stammler? | Social ideas mean harmonising individual interests with those of society. |
What do human beings possess according to Stammler? | Human beings possess personal claims, ambitions and freedoms. |
Why cannot individual interests operate unchecked according to Stammler? | Because they cannot be allowed to operate destructively against collective welfare. |
What is the function of law according to Stammler? | The function of law is to establish a rational adjustment between private rights and social good. |
Is a legal rule just merely because it is enacted by authority according to Stammler? | No, a legal rule is not just merely because it is enacted by authority. |
When is a legal rule truly just according to Stammler? | A legal rule is just only when it contributes to the harmonious organisation of social life. |
How did Stammler emphasise justice? | Stammler emphasised justice as a dynamic social ideal. |
Why must the legal system continuously strive according to Stammler? | Because society continuously changes. |
What must the legal system continuously strive to secure according to Stammler? | The legal system must continuously strive to secure a fair equilibrium between individual liberty and social necessity. |
What practical form did Stammler give to the Ethical School? | Stammler gave the Ethical School a more practical and socially oriented form. |
How did Stammler differ from earlier metaphysical thinkers? | He connected ethical justice with practical social adjustment. |
In which noted work is Stammler’s jurisprudential philosophy reflected? | The Theory of Law. |
How did Stammler treat law in his noted work? | Stammler treated law as a purposive instrument directed towards realization of a just social order. |
In what does Stammler’s contribution mainly lie? | Stammler’s contribution lies in combining Kantian ethical rationalism with practical social harmonisation of personal interests and community welfare. |
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REALIST SCHOOL | |
What is the subject matter of the Realist School of Jurisprudence? | The Realist School of Jurisprudence represents a modern pragmatic approach to legal thought. |
Where did the Realist School mainly emerge? | The Realist School mainly emerged in the United States. |
Against what did the Realist School emerge as a reaction? | It emerged as a reaction against excessive formalism and conceptual rigidity of earlier schools. |
With what traditional belief were the realists dissatisfied? | The realists were dissatisfied with the belief that law consists merely of abstract rules in statutes, precedents and legal texts. |
How is the true understanding of law possible according to realists? | The true understanding of law is possible only by examining how law actually works in the hands of judges and courts. |
On what did the realist movement in the United States primarily concentrate? | The realist movement primarily concentrated on the decisions of law courts. |
What is the central thesis of the Realist School? | The real content of law emanates from the manner in which judges interpret, apply and enforce legal words in concrete cases. |
Does real law emanate from legislative words alone according to realists? | No, real law does not emanate from legislative words alone. |
How did the realists define law in practical terms? | Law is what the courts do and not merely what the statutes say. |
What becomes the living source of law under Realism? | Judicial decisions become the living source of law. |
Who are the true lawmakers in practical terms according to realists? | Judges are the true lawmakers in practical terms. |
How is the Realist School described because of its practical emphasis? | The Realist School is described as the left wing of the Functional School. |
How does the Realist School carry forward the Functional School? | It carries forward the functional study of law to a more radical conclusion. |
On what must legal study focus according to realists? | Legal study must focus on actual judicial behaviour, psychological attitudes of judges and social factors influencing adjudication. |
What kind of study of law did the realists emphasise? | The realists emphasised a functional and realistic study of law. |
How did realists refuse to study law merely in enactments? | They studied law as interpreted and laid down by courts through judicial pronouncements. |
How may Realism be described in relation to Idealism? | Realism may be described as the antithesis of Idealism. |
What do idealist and philosophical jurists search for in law according to the passage? | They search for abstract justice, universal morality or rational perfection. |
What do realists reject in contrast to idealists? | Realists reject metaphysical assumptions. |
On what do realists insist instead of metaphysical assumptions? | Realists insist on observing the practical realities of legal administration. |
Do legal rules by themselves decide cases according to realists? | No, legal rules by themselves do not decide cases. |
On what does case decision depend according to realists? | It depends on judicial temperament, social policy, facts, experience and human discretion. |
What did the Realists strongly assert regarding certainty of law? | The Realists strongly asserted that the so-called certainty of law is a myth. |
Why is mathematical prediction of legal outcomes impossible according to realists? | Because judicial decisions are influenced by many extra-legal considerations. |
Is law a closed logical system according to the Realist School? | No, law is a dynamic and often uncertain process shaped by judicial action. |
From what did the Realist School shift jurisprudence? | The Realist School shifted jurisprudence from legal rules and theoretical certainty. |
To what did the Realist School shift jurisprudence? | The Realist School shifted jurisprudence to judicial behaviour and practical realism. |
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KARL LLEWELLYN’S (1893- 1962) | |
What is the subject matter of Karl Llewellyn’s jurisprudential contribution? | Karl Llewellyn’s jurisprudential contribution relates to the practical functioning of law through judicial behaviour. |
How is Karl Llewellyn regarded in the Realist School? | Karl Llewellyn is regarded as one of the leading exponents of American Realism. |
What major role did Llewellyn play in jurisprudence? | Llewellyn played a major role in developing the practical orientation of the Realist School. |
What did Llewellyn observe regarding the Realist School? | Llewellyn observed that there is no rigidly organised or formally distinct Realist School. |
How did Llewellyn describe realism instead of a fixed school? | Llewellyn described realism as a broad group of thinkers. |
What do realist thinkers carry forward according to Llewellyn? | They carry forward the sociological and functional study of law to its logical conclusion. |
What unites realist thinkers according to Llewellyn? | A common insistence on studying law as it actually functions in society unites them. |
What traditional tendency of lawyers was criticised by Llewellyn? | Llewellyn criticised the tendency to search for justice merely within statutes and law books. |
Can justice be truly discovered in legal texts alone according to Llewellyn? | No, justice cannot be truly discovered in legal texts alone. |
Where must justice be sought according to Llewellyn? | Justice must be sought in the actual behaviour, attitudes and practical reasoning of judges. |
When is the real meaning of a written legal rule revealed according to Llewellyn? | The real meaning is revealed only when it is interpreted and applied by courts in concrete factual situations. |
Upon what must legal study concentrate according to Llewellyn? | Legal study must concentrate upon judicial behaviour. |
What should legal study avoid concentrating upon according to Llewellyn? | Legal study should avoid concentrating merely upon abstract doctrinal formulations. |
By what are judges influenced apart from legal rules according to Llewellyn? | Judges are influenced by social needs, commercial practices, policy considerations, practical convenience and human experience. |
How is law in action compared with law in books according to Llewellyn? | Law in action is always wider and more flexible than law in books. |
What did Llewellyn deny regarding law? | Llewellyn denied the possibility of absolute legal certainty. |
Why can there never be complete certainty about law according to Llewellyn? | Because society changes much faster than legal rules. |
What continuously evolve faster than legal rules according to Llewellyn? | Social relations, economic patterns and human expectations continuously evolve. |
What often lag behind according to Llewellyn? | Statutes and precedents often lag behind. |
Why are judges constantly required to adapt old legal principles? | Because new social circumstances continuously arise. |
What does adaptation of old principles introduce into legal outcomes? | It introduces an unavoidable element of fluidity in legal outcomes. |
In what does Llewellyn’s contribution mainly lie? | Llewellyn’s contribution lies in showing that the real life of law is found in dynamic judicial interpretation. |
Where is the real life of law not found according to Llewellyn? | The real life of law is not found in rigid legal propositions. |
To what do judicial interpretations respond according to Llewellyn? | Judicial interpretations respond to changing social realities. |
What realist claim was strengthened by Llewellyn’s theory? | Llewellyn strengthened the claim that law is essentially a prediction of what courts will actually do. |
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JEROME FRANK (1889-1957) | |
What is the subject matter of Jerome Frank’s jurisprudential contribution? | Jerome Frank’s jurisprudential contribution relates to the psychological and human factors influencing judicial decisions. |
How is Jerome Frank regarded in the American Realist movement? | Jerome Frank is regarded as one of the most radical and psychologically oriented thinkers of American Realism. |
Beyond what did Frank carry the realist approach? | Frank carried the realist approach beyond the mere study of judicial decisions. |
Towards what did Frank direct attention in legal study? | Frank directed attention towards the human personality of the judge deciding the case. |
What did Frank believe regarding legal certainty? | Frank believed that legal certainty is far less than what traditional jurists assume. |
By what is the outcome of litigation significantly affected according to Frank? | The outcome of litigation is significantly affected by individual temperament and subjective factors in the judge’s mind. |
Did Frank say judges always consciously make law in a legislative sense? | No, Frank said judges do not always consciously make law in a legislative sense. |
What do judges often do while deciding disputes according to Frank? | Judges often discover law while deciding disputes. |
Is judicial discovery of law a purely mechanical or objective process according to Frank? | No, judicial discovery of law is not a purely mechanical or objective process. |
On what does the meaning extracted from precedents and statutes depend according to Frank? | It depends on the judge’s personal understanding, instinctive reactions and practical assessment of facts. |
Can judicial decision-making be reduced to a fixed logical formula according to Frank? | No, judicial decision-making can never be reduced to a fixed logical formula. |
What plays a dominant role in moulding the law according to Frank? | The personality of the judge and his past experiences play a dominant role. |
Which personal factors of a judge influence adjudication according to Frank? | Education, social background, prejudices, sympathies, habits of reasoning and psychological disposition influence adjudication. |
How do these personal factors affect adjudication according to Frank? | They influence perception of evidence, interpretation of legal principles and choice between competing arguments. |
Can two judges applying the same legal rule reach different conclusions according to Frank? | Yes, two judges may reach different conclusions because of the human element in adjudication. |
What inevitable element enters into adjudication according to Frank? | The human element inevitably enters into adjudication. |
What illusion did Frank attack through his analysis? | Frank attacked the illusion of complete certainty in law. |
What did Frank say lawyers often call certainty? | Lawyers often call certainty merely an intellectual comfort created by textbooks. |
On what does the result of a case depend in actual courts according to Frank? | The result depends upon numerous uncertain human variables. |
What must the true study of law include according to Frank? | The true study of law must include legal rules, judicial psychology and courtroom behaviour. |
Which is Jerome Frank’s celebrated work exposing mechanical jurisprudence? | Law and the Modern Mind. |
Which work of Jerome Frank reflects his realist views on human judicial factors? | If Men Were Angels. |
Which work of Jerome Frank analyses judicial functioning in courts? | Courts on Trial. |
What myth was exposed by Jerome Frank in his writings? | Jerome Frank exposed the myth of mechanical jurisprudence. |
In what does Jerome Frank’s contribution mainly lie? | Jerome Frank’s contribution lies in showing that law is shaped by personal and psychological dimensions of the judicial process. |
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OLIVER WENDELL HOLMENS (1841-1935) | |
What is the subject matter of Oliver Wendell Holmes Jr.’s jurisprudential contribution? | Oliver Wendell Holmes Jr.’s jurisprudential contribution relates to law as a practical prediction of judicial behaviour. |
How is Oliver Wendell Holmes Jr. regarded in American jurisprudence? | Oliver Wendell Holmes Jr. is regarded as the intellectual father of American Legal Realism. |
How did Holmes revolutionise legal thought? | Holmes shifted attention from abstract legal logic to the practical consequences of judicial decisions. |
How did Holmes deny the formal study of law? | Holmes believed law cannot be understood merely by studying formal legal definitions or ideal theories of justice. |
From what standpoint must law be examined according to Holmes? | Law must be examined from the standpoint of those actually affected by judicial action. |
Which famous theory was propounded by Holmes? | Holmes propounded the Bad Man Theory. |
From whose point of view should law be studied under the Bad Man Theory? | Law should be studied from the point of view of a bad man. |
Who is a bad man according to Holmes? | A bad man is an accused or self-interested person unconcerned with moral ideals or theoretical legality. |
With what is the bad man little concerned according to Holmes? | The bad man is little concerned with lofty principles proclaimed by law. |
What is the real concern of the bad man according to Holmes? | His real concern is to know what the court is likely to do in his particular case. |
What is law from the practical standpoint according to Holmes? | Law is a prediction of judicial behaviour. |
What conclusion did Holmes draw from the Bad Man Theory? | Holmes concluded that the life of law is not logic but experience. |
What gives law its real content according to Holmes? | The manner in which judges apply the written rule in actual disputes gives law its real content. |
In what is the practical lawyer less interested according to Holmes? | The practical lawyer is less interested in doctrinal statements. |
In what is the practical lawyer more interested according to Holmes? | The practical lawyer is more interested in forecasting the probable judicial response. |
What role of judges in legal development was recognised by Holmes? | Holmes recognised the creative role of judges in legal development. |
When do judges frequently use precedents according to Holmes? | Judges frequently use precedents when there is a gap or uncertainty in law. |
Are precedents applied mechanically according to Holmes? | No, precedents are not applied in a purely mechanical fashion. |
How are precedents dealt with by judges according to Holmes? | Precedents are selected, interpreted and adapted according to demands of justice and practical necessity. |
What must a judge do when the law is not clear according to Holmes? | The judge must decide in the best possible way to do justice. |
What does adjudication inevitably involve according to Holmes? | Adjudication inevitably involves policy, experience and social judgment. |
Can adjudication be reduced to automatic application of fixed legal rules according to Holmes? | No, adjudication cannot be reduced to automatic application of fixed legal rules. |
How did Holmes prepare the way for later realists? | Holmes showed that judicial discretion and practical reasoning are inseparable from administration of law. |
On what proposition does Holmes’s jurisprudential philosophy rest? | It rests on the proposition that law is essentially a prophecy of what courts will in fact do. |
In light of what must legal certainty be understood according to Holmes? | Legal certainty must be understood in the light of judicial experience rather than abstract theory. |
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SCANDINAVIAN REALISM | |
What is the subject matter of Scandinavian Realism? | Scandinavian Realism is an important branch of realist jurisprudence developed in Scandinavian countries. |
In which countries did Scandinavian Realism mainly develop? | Scandinavian Realism mainly developed in countries such as Sweden and Denmark. |
Apart from which movement did Scandinavian Realism emerge as another branch of realism? | Scandinavian Realism emerged apart from the American Realist movement. |
On what did American Realism mainly concentrate in contrast to Scandinavian Realism? | American Realism mainly concentrated on the behaviour of judges and uncertainty of judicial decisions. |
What was the character of Scandinavian Realism as compared to American Realism? | Scandinavian Realism was more philosophical in character. |
Against what did Scandinavian Realism direct its attack? | Scandinavian Realism directed its attack against metaphysical and abstract notions in law. |
How has Dr. Allen described Scandinavian Realism? | Dr. Allen described Scandinavian Realism as metaphysical scepticism. |
How has Dr. Allen described American Realism? | Dr. Allen described American Realism as rule scepticism. |
What is meant by American Realism being rule scepticism? | It means American Realists doubted the certainty and practical operation of legal rules. |
What is meant by Scandinavian Realism being metaphysical scepticism? | It means Scandinavian Realists doubted the philosophical assumptions on which traditional jurisprudence rested. |
Did Scandinavian Realists go further than American Realists in scepticism? | Yes, Scandinavian Realists went further by doubting the very philosophical foundations of law. |
Which concepts were rejected by Scandinavian Realists? | Scandinavian Realists rejected natural law, inherent rights, moral ideals and abstract justice. |
On what ground were these concepts rejected by Scandinavian Realists? | They were rejected on the ground that they are not observable legal realities but merely speculative ideas. |
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AXEL HAGERSTROM’S (1896-1939) | |
What is the subject matter of Axel Hägerström’s jurisprudential contribution? | Axel Hägerström’s jurisprudential contribution relates to the factual and anti-metaphysical study of law. |
How is Axel Hägerström regarded in Scandinavian Realism? | Axel Hägerström is regarded as the founding father of Realism in Sweden and the pioneer of Scandinavian Realist thought. |
Against what did Hägerström launch a vigorous attack? | Hägerström launched a vigorous attack on metaphysical legal philosophy. |
With what must jurisprudence concern itself according to Hägerström? | Jurisprudence must concern itself only with facts capable of practical verification. |
What did Hägerström say regarding justice, rights, duty and moral obligation? | Hägerström said these notions have no objective existence apart from human feelings and social attitudes. |
Why should justice, rights, duty and moral obligation not be treated as independent legal realities? | Because they have no objective existence apart from human feelings and social attitudes. |
As what must law be studied according to Hägerström? | Law must be studied as a phenomenon of social force and practical behaviour. |
As what should law not be studied according to Hägerström? | Law should not be studied as an embodiment of ethical or metaphysical truth. |
From what did Hägerström purify legal study? | Hägerström purified legal study from all transcendental and idealistic assumptions. |
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KARL OLIVECRONA’S (1897- 1908) | |
What is the subject matter of Karl Olivecrona’s jurisprudential contribution? | Karl Olivecrona’s jurisprudential contribution relates to the empirical and anti-metaphysical study of legal rules. |
How is Karl Olivecrona regarded in Scandinavian Realism? | Karl Olivecrona is regarded as another important Scandinavian Realist. |
Whose approach was carried forward by Olivecrona? | Olivecrona carried forward Hägerström’s anti-metaphysical approach. |
Of what should law be stripped according to Olivecrona? | Law should be stripped of all a priori notions of Natural Law, abstract conceptions and idealism. |
Why should law be stripped of a priori notions according to Olivecrona? | Because they are theoretical assumptions lacking practical utility. |
With what should legal science deal according to Olivecrona? | Legal science should deal only with social facts capable of empirical observation. |
How did Olivecrona view legal rules? | Olivecrona viewed legal rules as socially organised directives influencing human conduct. |
How did Olivecrona deny mystical authority of legal rules? | He denied that legal rules are commands possessing mystical authority. |
What is law according to Olivecrona? | Law is a practical instrument of social control. |
What is law not according to Olivecrona? | Law is not a moral or metaphysical ideal. |
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NATURAL SCHOOL | |
What is the subject matter of Natural Law Theory? | Natural Law Theory relates to the search for absolute justice, universal morality and ideal legal order. |
What place does Natural Law Theory occupy in jurisprudence? | Natural Law Theory occupies a place of great antiquity and enduring significance in the history of jurisprudence. |
What does Natural Law Theory represent? | Natural Law Theory represents mankind’s perpetual quest for absolute justice, universal morality and ideal legal order. |
On what does positive law depend in contrast to Natural Law? | Positive law depends upon legislative enactment and State authority. |
On what is Natural Law founded? | Natural Law is founded upon the belief in higher principles of right, reason and fairness inherent in human nature. |
What kind of principles are recognised by Natural Law Theory? | Natural Law Theory recognises certain higher principles of right, reason and fairness. |
Where are these higher principles located according to Natural Law Theory? | These higher principles are inherent in human nature. |
How do Natural Law principles stand in relation to man-made law? | They stand above man-made law. |
What function do superior principles of Natural Law perform? | They serve as the ultimate standard for judging the validity and justice of enacted laws. |
Is the practical importance of Natural Law merely theoretical? | No, the practical importance of Natural Law is both theoretical and historical. |
Behind what movements has Natural Law acted as a powerful intellectual force? | Natural Law has acted as a powerful intellectual force behind movements for liberty, equality and human rights. |
What did Natural Law generate in political thought? | Natural Law generated a strong wave of liberalism and individual freedom. |
What did Natural Law inspire people to challenge? | Natural Law inspired people to challenge arbitrary authority and oppressive governments. |
Against what rule did ideals of natural justice encourage resistance? | They encouraged resistance against totalitarian and despotic rule. |
In which political upheavals did Natural Law ideals play a decisive role? | Natural Law ideals played a decisive role in the political upheavals of France and Germany. |
In whose name did people revolt against unjust systems according to the passage? | People revolted in the name of higher justice and freedom. |
What observation has Wolfgang Friedmann made about Natural Law? | Wolfgang Friedmann observed that the history of Natural Law is a tale of mankind’s search for absolute justice and its failure. |
What does Friedmann’s observation indicate? | It indicates that no single fixed conception of perfect justice has remained permanent. |
Why has no fixed conception of Natural Law remained permanent? | Because social, political and economic conditions constantly change. |
What happens to Natural Law notions with changing conditions? | The notions and formulations of Natural Law undergo corresponding changes. |
Is Natural Law a static doctrine? | No, Natural Law is a continuously evolving ideal. |
What was believed regarding Natural Law in ancient societies? | Natural Law was believed to have a divine origin. |
By whom was Natural Law considered implanted in ancient societies? | It was considered implanted by gods or by cosmic order. |
To what was human law expected to conform in ancient societies? | Human law was expected to conform to the sacred standard of Natural Law. |
What basis did Natural Law acquire during the mediaeval period? | Natural Law acquired a strongly religious and supernatural basis. |
With what was Natural Law closely associated in the mediaeval period? | It was associated with divine will, Christian theology and moral commandments. |
What perspective did Natural Law assume in modern times? | Natural Law assumed a more political and rational perspective. |
With what was Natural Law linked in modern times? | Natural Law was linked with natural rights, individual liberty, social contract, constitutionalism and resistance to tyrannical State power. |
Through what has Natural Law Theory passed? | Natural Law Theory has passed through different historical phases. |
What has remained the central concern of Natural Law in every phase? | Its central concern has remained the discovery of a higher law of justice to measure imperfections of positive law. |
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THE MAIN CHARACTERISTICS OF NATURAL LAW | |
What is the subject matter of the main characteristics of Natural Law? | The main characteristics of Natural Law relate to its moral, universal, idealistic and justice-oriented nature. |
By what is Natural Law Theory distinguished? | Natural Law Theory is distinguished by certain fundamental characteristics setting it apart from analytical or empirical approaches. |
What is the first essential characteristic of Natural Law Theory? | Natural Law Theory is essentially an a priori method of legal reasoning. |
What is meant by Natural Law being an a priori method? | It proceeds from pre-existing principles of reason, justice and morality to deduce legal standards. |
From what does Natural Law attempt to deduce legal standards? | Natural Law attempts to deduce legal standards from higher ideals of reason, justice and morality. |
Does Natural Law begin with observation of enacted legal rules or social facts? | No, Natural Law does not begin with observation of enacted legal rules or social facts. |
With what does Natural Law begin? | Natural Law begins with assumptions about what is inherently right and just. |
Which method is contrasted with the Natural Law approach? | The empirical or a posteriori method is contrasted with the Natural Law approach. |
How does the empirical method seek to discover law? | The empirical method seeks to discover law by examining actual causes, historical development, social behaviour and practical reasons. |
With what is the empirical method concerned? | The empirical method is concerned with what law is and why it operates in a particular manner. |
With what is the Natural Law method primarily concerned? | The Natural Law method is primarily concerned with what law ought to be according to universal standards of justice. |
What is another important characteristic of Natural Law? | Natural Law places primary emphasis upon moral ideals having universal applicability. |
Which moral ideals are treated as universally valid under Natural Law? | Principles of fairness, good faith, reasonableness and human dignity are treated as universally valid. |
Are Natural Law moral ideals confined by time and place? | No, they are valid for all societies irrespective of time and place. |
What do these moral ideals constitute under Natural Law? | These moral ideals constitute the higher law. |
Against what is justice of positive legal systems tested? | Justice of positive legal systems is tested against the higher law of moral ideals. |
What character does Natural Law give to jurisprudence? | Natural Law gives jurisprudence a normative and evaluative character. |
Has Natural Law served identical political purposes in all ages? | No, Natural Law has served different political purposes in different ages. |
How did John Locke use Natural Law? | John Locke used Natural Law as an instrument of change. |
Which inherent rights were asserted by John Locke under Natural Law? | John Locke asserted inherent rights to life, liberty and property. |
What right against government was recognised by Locke? | People may resist governments which violate natural rights. |
For what did Locke employ Natural Law philosophically? | Locke employed Natural Law for political reform, constitutionalism and individual freedom. |
How did Thomas Hobbes use Natural Law? | Thomas Hobbes used Natural Law as an instrument for maintaining status quo and social order. |
What did Hobbes emphasise under Natural Law? | Hobbes emphasised the necessity of strong sovereign authority to prevent chaos. |
What did Natural Law become in Hobbes’s hands? | Natural Law became a means of justifying obedience and political stability. |
Which modern constitutional concepts are deeply rooted in Natural Law philosophy? | Rule of Law and Due Process of Law are deeply rooted in Natural Law philosophy. |
Why are Rule of Law and Due Process rooted in Natural Law? | Because they insist that State power must operate according to fairness, reasonableness and justice rather than arbitrary will. |
What conviction of Natural Law is reflected in Rule of Law and Due Process? | They reflect the conviction that a higher standard of right exists above mere legislative command. |
What do the main characteristics of Natural Law reveal it to be? | Natural Law is revealed as a moral, universal, idealistic and justice-oriented theory constantly evaluating positive law by higher human values. |
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HISTORICAL DEVELOPMENT OF NATURAL LAW | |
What is the subject matter of the historical development of Natural Law? | The historical development of Natural Law relates to the changing forms of mankind’s search for higher justice. |
Has the doctrine of Natural Law remained uniform throughout history? | No, the doctrine of Natural Law has not remained uniform or static throughout history. |
Why has the content of Natural Law changed from age to age? | Because prevailing social, political and religious conditions have changed from age to age. |
With what is Natural Law essentially concerned? | Natural Law is essentially concerned with mankind’s search for higher justice. |
Into how many major periods is the development of Natural Law generally divided? | The development of Natural Law is generally divided into four major periods. |
What does each major period of Natural Law reflect? | Each major period reflects a distinct understanding of the source and function of higher law. |
Which is the first stage in the development of Natural Law? | The first stage is the Ancient Period. |
With what was Natural Law associated during the Ancient Period? | Natural Law was associated with divine order, reason and inherent harmony of the universe. |
How did ancient Greek and Roman thinkers regard natural justice? | They regarded natural justice as rooted in cosmic reason and the rational nature of man. |
Which is the second stage in the development of Natural Law? | The second stage is the Mediaeval Period. |
What complexion did Natural Law acquire during the Mediaeval Period? | Natural Law acquired a predominantly religious and theological complexion. |
How was law viewed during the Mediaeval Period? | Law was viewed as an expression of divine will. |
With what were principles of justice connected during the Mediaeval Period? | Principles of justice were connected with Christian morality and ecclesiastical authority. |
Which is the third stage in the development of Natural Law? | The third stage is the Period of Renaissance. |
Under what influences did Natural Law transform during the Renaissance? | Natural Law transformed under the influence of humanism, rationalism and decline of ecclesiastical domination. |
What did jurists begin to emphasise during the Renaissance? | Jurists began to emphasise reason and individual rights rather than purely religious authority. |
For what did Natural Law become a basis during the Renaissance? | Natural Law became a basis for political liberty and social contract theories. |
Which is the fourth stage in the development of Natural Law? | The fourth stage is the Modern Period. |
In what refined form did Natural Law reappear in the Modern Period? | Natural Law reappeared as a philosophy of human rights, constitutionalism, rule of law and due process. |
What did Natural Law become in the Modern Period? | Natural Law became a powerful instrument for resisting arbitrary State action and asserting universal standards of justice. |
What has always remained the essential objective of Natural Law despite changing forms? | The essential objective has remained the search for a higher law of justice superior to positive enactments. |
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NATURAL LAW IN THE ANCIENT PERIOD | |
What is the subject matter of Natural Law in the Ancient Period? | Natural Law in the Ancient Period relates to the discovery of a universal higher law rooted in nature, reason and cosmic harmony. |
Where are the earliest traces of Natural Law found? | The earliest traces of Natural Law are found in the philosophical speculations of ancient Greek thinkers. |
What did ancient Greek thinkers attempt to discover? | Ancient Greek thinkers attempted to discover a universal order governing nature and human conduct. |
What did ancient thinkers believe existed beyond changing laws made by men? | They believed there exists a higher law inherent in the structure of the universe. |
Was this higher law dependent upon political authority? | No, this higher law was not dependent upon political authority. |
In what was the higher law rooted according to ancient thinkers? | The higher law was rooted in eternal principles of nature, reason and cosmic harmony. |
Who was among the earliest philosophers contributing to the idea of Natural Law? | Heraclitus was among the earliest philosophers contributing to the idea of Natural Law. |
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HERACLITUS- (530-470 BC) | |
What is the subject matter of Heraclitus’s jurisprudential contribution? | Heraclitus’s jurisprudential contribution relates to the primitive foundation of Natural Law thought. |
How is Heraclitus regarded in Natural Law thought? | Heraclitus is regarded as one of the earliest Greek philosophers laying the primitive foundation of Natural Law. |
What did Heraclitus believe governs the universe? | Heraclitus believed the universe is governed by an underlying rational order. |
To what must human life conform according to Heraclitus? | Human life must conform to universal harmony. |
How many principal characteristics of the law of nature were recognised by Heraclitus? | Heraclitus recognised three principal characteristics of the law of nature. |
What are the three principal characteristics of the law of nature according to Heraclitus? | The three principal characteristics are destiny, order and reason. |
What is the first characteristic of the law of nature according to Heraclitus? | The first characteristic is destiny. |
What is meant by destiny according to Heraclitus? | Destiny means an inevitable and universal force guiding the course of events in the world. |
Are human institutions entirely arbitrary according to Heraclitus? | No, human institutions are subject to a larger natural necessity. |
What is the second characteristic of the law of nature according to Heraclitus? | The second characteristic is order. |
How did Heraclitus describe the governance of the universe under order? | The universe is governed by a systematic and harmonious arrangement, not by chaos. |
To what did Heraclitus compare human conduct and social life? | He compared them with the regular pattern followed by the physical world. |
By what must human conduct and social life be regulated according to Heraclitus? | Human conduct and social life must be regulated by an orderly principle. |
What earliest basis was supplied by Heraclitus’s idea of order? | It supplied the earliest basis for the belief that law should reflect the natural order of things. |
What is the third and most significant characteristic of the law of nature according to Heraclitus? | The third and most significant characteristic is reason. |
How did Heraclitus treat reason in Natural Law? | Heraclitus treated reason as one of the essential elements of Natural Law. |
Why are human beings capable of understanding universal order according to Heraclitus? | Because human beings are rational creatures. |
On what does validity of law lie according to Heraclitus? | The validity of law lies in its conformity with rational principles. |
Does validity of law lie merely in force or command according to Heraclitus? | No, validity of law does not lie merely in force or command. |
What does reason enable man to distinguish according to Heraclitus? | Reason enables man to distinguish justice from injustice. |
What does reason enable man to discover according to Heraclitus? | Reason enables man to discover universal norms which ought to govern society. |
What earliest germ of Natural Law doctrine is found in Heraclitus? | There exists a rational and orderly law of nature superior to fluctuating commands of rulers. |
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SOCRATES’S (470- 399 BC) | |
What is the subject matter of Socrates’s jurisprudential contribution? | Socrates’s jurisprudential contribution relates to the ethical and rational development of Natural Law. |
What significant shift did Socrates bring in legal philosophy? | Socrates shifted legal philosophy from the external order of nature to the moral insight of man. |
What inherent faculty do human beings possess according to Socrates? | Human beings possess an inherent faculty of rational understanding or human insight. |
What can human beings distinguish through rational understanding according to Socrates? | Human beings can distinguish between good and bad, just and unjust. |
What does rational conscience enable man to discover according to Socrates? | Rational conscience enables man to discover principles of right conduct higher than political commands. |
What important distinction was made by Socrates? | Socrates made a distinction between Legal Justice and Natural Justice. |
What is Legal Justice according to Socrates? | Legal Justice consists of rules enacted by the State. |
Can Legal Justice vary from one country to another? | Yes, Legal Justice may vary according to the statutory law prevailing in each place. |
On what does Legal Justice depend according to Socrates? | Legal Justice depends upon positive legislation. |
What is the nature of Legal Justice because of its dependence on legislation? | Legal Justice remains changeable and relative. |
What is Natural Justice according to Socrates? | Natural Justice is founded upon universal reason and moral truth. |
Is Natural Justice created by legislature according to Socrates? | No, Natural Justice is not created by any legislature. |
To whom is Natural Justice uniformly applicable? | Natural Justice is uniformly applicable to all mankind irrespective of time, place or political system. |
What does Natural Justice represent according to Socrates? | Natural Justice represents eternal principles of fairness and righteousness recognised by human reason. |
Can a legally enacted positive law still be unjust according to Socrates? | Yes, a legally enacted positive law may still be unjust if it conflicts with Natural Justice. |
What ethical dimension did Socrates give to Natural Law? | Socrates gave Natural Law a distinctly ethical dimension by linking law with moral reason. |
How did Socrates say law must be judged? | Law must be judged by its conformity with universal standards of moral reason. |
Should law be judged merely by formal existence according to Socrates? | No, law should not be judged merely by its formal existence. |
What groundwork was laid by Socrates for later Greek philosophers? | Socrates laid the groundwork for developing Natural Law into a fuller theory of justice. |
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PLATO (427-347 BC) | |
What is the subject matter of Plato’s jurisprudential contribution? | Plato’s jurisprudential contribution relates to law as an instrument of ideal justice and rational governance. |
How did Plato contribute to the Natural Law tradition? | Plato connected law with the idea of ideal justice and rational governance. |
What is the true purpose of law according to Plato? | The true purpose of law is to create a just social arrangement in harmony with the common good. |
Is the purpose of law merely to maintain external order according to Plato? | No, the purpose of law is not merely to maintain external order. |
How should every individual function in Plato’s just social arrangement? | Every individual should perform his proper function in harmony with the common good. |
By what must law be guided according to Plato? | Law must be guided by wisdom, morality and pursuit of the ideal. |
Which famous concept was developed by Plato? | Plato developed the concept of the Ideal State. |
In which celebrated work did Plato describe the Ideal State? | The Republic. |
Why would justice prevail in Plato’s Ideal State? | Because society would be organised according to reason and each class would discharge duties according to natural capacity. |
According to what would each class discharge its duties in Plato’s Ideal State? | Each class would discharge its duties in accordance with its natural capacity. |
What did Plato consider as the supreme virtue of political life? | Plato considered justice as the supreme virtue of political life. |
How did Plato view law in relation to justice? | Plato viewed law as the means through which just order could be maintained. |
What central contention did Plato make regarding rulers? | Plato contended that only intelligent and worthy persons should govern as kings. |
Why did Plato distrust ordinary rulers? | Because ordinary rulers driven by selfish ambition cannot secure justice for society. |
Who should rule the State according to Plato? | The State should be ruled by philosopher-kings. |
Who are philosopher-kings according to Plato? | Philosopher-kings are persons possessing wisdom, rational understanding and moral excellence. |
Why would laws framed by philosopher-kings conform to higher justice? | Because they would govern according to reason rather than passion. |
In what does Plato’s contribution to Natural Law mainly lie? | Plato insisted that law must reflect an ideal moral order. |
What did Plato say regarding political authority? | Political authority must be entrusted to wisdom and virtue rather than mere force. |
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ARISTOTLE (384-322 BC) | |
What is the subject matter of Aristotle’s jurisprudential contribution? | Aristotle’s jurisprudential contribution relates to the practical and rational foundation of Natural Law. |
How did Aristotle carry forward the Natural Law doctrine? | Aristotle carried forward Natural Law by giving it a more practical and rational foundation. |
How did Aristotle differ from Plato in approach? | Aristotle explained law in relation to the nature of man and functioning of society rather than pure idealism. |
In how many distinct ways is man a part of nature according to Aristotle? | Man is a part of nature in two distinct ways. |
What is the first way in which man is part of nature according to Aristotle? | Man is a creation of the divine natural order. |
What is the second way in which man is part of nature according to Aristotle? | Man is endowed with insight and reason distinguishing him from other living beings. |
Why is man capable of understanding natural justice according to Aristotle? | Because man possesses rational faculty. |
What can man understand through rational faculty according to Aristotle? | Man can understand what is naturally just and what is contrary to nature. |
How did Aristotle define Natural Law? | Aristotle defined Natural Law as reason unaffected by desires. |
What is meant by Natural Law being reason unaffected by desires? | It consists of principles of justice discovered by pure rational judgment free from selfish passions and inclinations. |
By what are human desires often characterised according to Aristotle? | Human desires are often partial and unstable. |
What does reason enable man to perceive according to Aristotle? | Reason enables man to perceive universal norms which are fair, balanced and naturally right. |
On what does authority of Natural Law rest according to Aristotle? | Authority of Natural Law rests upon rational objectivity. |
From where do ideas of Natural Law emanate according to Aristotle? | Ideas of Natural Law emanate from the human conscience. |
Do ideas of Natural Law emanate merely from the human mind according to Aristotle? | No, they do not emanate merely from the human mind. |
With what is Natural Law connected apart from intellectual reasoning according to Aristotle? | Natural Law is connected with the inner moral sense of justice. |
Towards what does inner moral sense guide man according to Aristotle? | It guides man towards fairness and right conduct. |
What dual dimension did Aristotle give to Natural Law? | Aristotle gave Natural Law both a rational and an ethical dimension. |
What limitation existed in Aristotle’s theory? | Aristotle attempted to justify slavery as a part of nature. |
How did Aristotle attempt to justify slavery? | He argued that some persons are naturally fitted to command while others are naturally fitted to obey. |
Why has Aristotle’s justification of slavery been criticised? | Because it is inconsistent with later Natural Law ideals of equality and universal human dignity. |
What is Aristotle’s enduring contribution to Natural Law? | Aristotle insisted that a higher law of rational justice exists above enacted rules. |
By what must law be guided according to Aristotle? | Law must be guided by reason purified from selfish desires. |
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NATURAL SCHOOL IN THE MEDIAEVAL PERIOD | |
What is the subject matter of Natural Law in the Mediaeval Period? | Natural Law in the Mediaeval Period relates to its religious and theological foundation. |
Which phase does the Mediaeval Period mark in development of Natural Law? | The Mediaeval Period marks the second important phase in the development of Natural Law. |
On what did ancient Greek thinkers primarily base Natural Law? | Ancient Greek thinkers primarily based Natural Law on reason and the rational nature of man. |
On what did mediaeval jurists place Natural Law? | Mediaeval jurists placed Natural Law upon a distinctly religious and theological foundation. |
By whom was the Mediaeval Period largely dominated? | The Mediaeval Period was largely dominated by the Christian Fathers. |
In the light of what did Christian Fathers interpret law, justice and political authority? | They interpreted law, justice and political authority in the light of divine will and Christian morality. |
With what view did Christian philosophers propagate their doctrines? | They propagated their doctrines to establish the superiority of the Church over the State. |
Why did Christian philosophers subordinate temporal power to the Church? | Because they maintained that all authority ultimately flows from God. |
To what must temporal power of kings and rulers remain subordinate? | Temporal power must remain subordinate to the higher spiritual authority represented by the Church. |
How was law regarded during the Mediaeval Period? | Law was regarded as a manifestation of divine justice intended to govern rulers and subjects. |
Was law regarded merely as a product of human reason in the Mediaeval Period? | No, law was not regarded merely as a product of human reason. |
What was Natural Law according to mediaeval thinkers? | Natural Law was that part of eternal divine law understood by human beings through reason and religious conscience. |
With what did the concept of justice become inseparably connected during this period? | The concept of justice became inseparably connected with obedience to God’s moral order. |
How was a man-made law contradicting divine principles viewed? | A man-made law contradicting divine principles was considered deficient and lacking true legitimacy. |
Into what did the Mediaeval Period transform Natural Law? | The Mediaeval Period transformed Natural Law into a theological doctrine. |
On what did validity of positive law depend during the Mediaeval Period? | Validity of positive law depended upon conformity with Christian ethics, religious duty and divine law of God. |
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SAINT THOMAS AQUINAS (1225- 1274) | |
What is the subject matter of Thomas Aquinas’s jurisprudential contribution? | Thomas Aquinas’s jurisprudential contribution relates to the systematic theological formulation of Natural Law. |
How is Thomas Aquinas regarded in the Mediaeval Period of Natural Law? | Thomas Aquinas is regarded as the greatest exponent of Natural Law during the Mediaeval Period. |
What form did Aquinas give to Natural Law theory? | Aquinas gave Natural Law theory its most systematic theological form. |
What did Aquinas seek to harmonise? | Aquinas sought to harmonise Christian theology with Aristotelian philosophy. |
From what does all law derive ultimately according to Aquinas? | All law derives ultimately from the divine wisdom of God. |
By what is the universe governed according to Aquinas? | The universe is governed by a rational moral order established by the Creator. |
When can human law claim legitimacy according to Aquinas? | Human law can claim legitimacy only when it conforms to the superior divine order. |
Into how many categories did Aquinas divide laws? | Aquinas divided laws into four categories. |
What are the four categories of laws according to Aquinas? | The four categories are Eternal Law, Natural Law, Divine Law and Human Law. |
What is the first category of law according to Aquinas? | The first category is the Law of God or Eternal Law. |
What is Eternal Law according to Aquinas? | Eternal Law is the supreme rational plan by which God governs the entire universe. |
What is the ultimate source of all order, justice and morality according to Aquinas? | Eternal Law is the ultimate source of all order, justice and morality. |
How are other forms of law related to Eternal Law? | All other forms of law are subordinate manifestations of divine wisdom. |
What is the second category of law according to Aquinas? | The second category is Natural Law. |
How did Aquinas describe Natural Law? | Natural Law is that part of Eternal Law revealed to human beings through reason. |
Why are human beings capable of understanding Natural Law according to Aquinas? | Because man possesses rational faculty. |
What does Natural Law enable human beings to do according to Aquinas? | Natural Law enables human beings to participate in the eternal moral order of God. |
What is the third category of law according to Aquinas? | The third category is Divine Law. |
What does Divine Law consist of according to Aquinas? | Divine Law consists of the law revealed in sacred scriptures. |
Why did Aquinas consider Divine Law necessary in addition to Natural Law? | Because human reason is not always sufficient to grasp the fullness of divine will. |
What does Divine Law provide according to Aquinas? | Divine Law provides spiritual guidance and supplements Natural Law. |
What is the fourth category of law according to Aquinas? | The fourth category is Human Law or Positive Law. |
What is Human Law according to Aquinas? | Human Law consists of actual laws framed by human authorities for regulating social life. |
When are positive laws valid according to Aquinas? | Positive laws are valid only when they derive support from Natural Law and Eternal Law. |
Who possesses authority to interpret Divine Law according to Aquinas? | The Church possesses authority to interpret Divine Law. |
Why does the Church possess authority to interpret Divine Law according to Aquinas? | Because the Church is the spiritual guardian of Christian morality and divine commandments. |
What did this belief strengthen during the mediaeval age? | It strengthened the supremacy of ecclesiastical authority. |
To what extent should Positive Law be obeyed according to Aquinas? | Positive Law should be obeyed only to the extent that it is compatible with Natural Law or Eternal Law. |
When does a human law cease to be a true law according to Aquinas? | A human law ceases to be a true law when it is contrary to reason, morality or divine justice. |
What does a human law lose when contrary to divine justice according to Aquinas? | It loses its moral legitimacy. |
To what did Aquinas firmly subordinate man-made law? | Aquinas firmly subordinated man-made law to higher principles of divine and natural justice. |
What did Aquinas establish through his classification of laws? | Aquinas established that law derives authority from conformity with reason and divine morality rather than mere political power. |
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NATURAL LAW IN THE PERIOD OF RENAISSANCE | |
What is the subject matter of Natural Law in the Period of Renaissance? | Natural Law in the Period of Renaissance relates to its transformation from theological doctrine to secular rational philosophy. |
Which phase does the Period of Renaissance mark in development of Natural Law? | The Period of Renaissance marks the third major phase in the development of Natural Law. |
From what does the Renaissance Period represent a departure? | It represents a departure from the theological dominance of the mediaeval age. |
By what was the Renaissance Period characterised? | The Renaissance Period was characterised by growth of rationalism, humanism and new intellectual ideas. |
On what did men begin to place increasing reliance during the Renaissance? | Men began to place increasing reliance on human reason. |
Upon what did men rely less during the Renaissance? | Men relied less solely upon ecclesiastical authority. |
Towards what did legal philosophy start moving during the Renaissance? | Legal philosophy started moving towards secular and political theories. |
Away from what did legal philosophy move during the Renaissance? | Legal philosophy moved away from purely religious explanations. |
What major factor was responsible for transformation of Natural Law during the Renaissance? | The tremendous growth of trade and commerce in European countries. |
What did the expansion of mercantile activity give rise to? | The expansion of mercantile activity gave rise to new social and economic classes. |
Which particular class emerged strongly due to mercantile growth? | The commercial middle class emerged strongly. |
What legal protections were required by the new commercial classes? | They required greater legal protection of property, contracts and personal liberty. |
Why were new classes dissatisfied with theological control of the Church? | Because they demanded a legal order based on reason, individual rights and political security. |
What political wave did Europe witness during the Renaissance? | Europe witnessed a powerful wave of nationalism. |
What did emerging nation-states seek during this period? | Emerging nation-states sought political consolidation. |
What recognition did emerging nation-states demand? | They demanded recognition of the absolute sovereignty of the State. |
What strong tendency arose with emergence of nationalism? | A tendency arose to assert supremacy of secular political authority and positive law. |
Over what was secular political authority asserted? | It was asserted over the earlier ecclesiastical domination of the Church. |
What monopoly did the Church gradually lose? | The Church gradually lost its monopoly over interpretation of justice and law. |
As what did legal thinkers begin to treat the State? | Legal thinkers began to treat the State as the principal organiser of civil order. |
What did jurists of the Renaissance increasingly deny? | Jurists of the Renaissance increasingly denied the overriding authority of the Church. |
On what did Renaissance jurists lay greater emphasis? | Renaissance jurists laid greater emphasis on sovereignty, reason and rights of man. |
Was Natural Law abandoned during the Renaissance? | No, Natural Law was not abandoned. |
What new form was given to Natural Law during the Renaissance? | Natural Law was given a more rational and political form. |
As what was Natural Law invoked during the Renaissance apart from divine morality? | It was invoked as a standard of human reason supporting social contract, State authority, civil liberty and political organisation. |
Into what did the Renaissance transform Natural Law? | The Renaissance transformed Natural Law into a secular philosophy of rational governance and political legitimacy. |
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HUGO GROTIUS 1583-1645 | |
What is the subject matter of Hugo Grotius’s contribution in the Renaissance Period? | Hugo Grotius’s contribution in the Renaissance Period relates to the secular, rational and political transformation of Natural Law. |
How is Hugo Grotius regarded in the Renaissance Period of Natural Law? | Hugo Grotius is regarded as one of the most distinguished jurists of the Renaissance Period. |
As what is Hugo Grotius often regarded in legal history? | Hugo Grotius is often regarded as the founder of modern Natural Law and the father of International Law. |
What orientation did Grotius give to Natural Law? | Grotius gave Natural Law a more secular, rational and political orientation. |
From what did Grotius free Natural Law? | Grotius freed Natural Law from the exclusively theological framework of mediaeval jurists. |
In what age did Grotius formulate his theory? | Grotius formulated his theory in an age marked by wars, political instability and emergence of sovereign nation-states. |
What did Grotius seek to formulate in this disturbed age? | Grotius sought to formulate universal principles of justice regulating individuals and relations among States. |
What was one of Grotius’s most important contributions? | He propounded the principles of International Law equally applicable to all States. |
How did Grotius compare individuals and nations under law? | Just as individuals are governed by right and wrong, nations too are bound by universal norms of conduct. |
On what are universal norms of conduct among States founded according to Grotius? | They are founded upon reason, justice and mutual respect. |
How did Grotius extend Natural Law? | Grotius extended Natural Law beyond municipal law. |
Into what did Grotius transform Natural Law by extending it? | He transformed Natural Law into a universal standard for international peace and civilized intercourse. |
From whose conception did Grotius depart significantly? | Grotius departed significantly from the mediaeval conception of Thomas Aquinas. |
How had Aquinas treated Natural Law? | Aquinas treated Natural Law as participation in Eternal Divine Law through reason. |
What independent character did Grotius give to Natural Law? | Grotius gave Natural Law an independent rational character. |
On what did Grotius found Natural Law? | Grotius founded Natural Law on right reason. |
What is meant by right reason according to Grotius? | Right reason means sound and morally directed rational judgment discerning what is just, fair and necessary for peaceful coexistence. |
How did right reason make Natural Law different from mediaeval theology? | It made Natural Law less dependent on ecclesiastical theology and more accessible to secular political philosophy. |
What conservative position did Grotius adopt regarding political obedience? | Grotius believed that however bad a ruler may be, subjects must obey him. |
What was Grotius’s principal concern regarding government? | Grotius’s principal concern was preservation of political stability and orderly government. |
Why did Grotius consider sovereign authority essential? | Because Europe was suffering from civil disturbances, dynastic conflicts and international wars. |
For preventing what was sovereign authority considered essential by Grotius? | Sovereign authority was considered essential for preventing chaos. |
As what did Natural Law serve in Grotius’s theory apart from a standard of justice? | Natural Law served as a means for ensuring stability of political order and maintenance of international peace. |
What urgent necessities of Grotius’s age did his Natural Law seek to secure? | It sought to secure political stability and international peace. |
Why does Grotius occupy a pivotal position in the history of Natural Law? | Because he transformed Natural Law from a theological doctrine into a rational and secular philosophy supporting State sovereignty and international legal order. |
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THOMAS HOBBES 1588-1679 | |
What is the subject matter of Thomas Hobbes’s jurisprudential contribution? | Thomas Hobbes’s jurisprudential contribution relates to the political and security-oriented use of Natural Law for sovereign authority. |
How is Thomas Hobbes regarded in the Renaissance and early modern period? | Thomas Hobbes is regarded as one of the most influential political philosophers of the Renaissance and early modern period. |
For what did Hobbes employ Natural Law? | Hobbes employed Natural Law as a basis for explaining origin of the State and necessity of sovereign authority. |
What interpretation did Hobbes give to Natural Law? | Hobbes gave Natural Law a strongly political and security-oriented interpretation. |
For what did Hobbes primarily use Natural Law? | Hobbes primarily used Natural Law to justify the absolute authority of the ruler. |
Why did Hobbes justify absolute authority of the ruler? | To endow the ruler with sufficient power to protect his subjects. |
Which famous theory was propounded by Hobbes regarding evolution of the State? | Hobbes propounded the Theory of Social Contract. |
In what condition did mankind exist before organised political society according to Hobbes? | Mankind existed in the state of nature. |
What was the state of nature according to Hobbes? | It was a primitive condition where every man was free to pursue his desires without common controlling authority. |
Did unlimited freedom in the state of nature produce happiness according to Hobbes? | No, unlimited freedom produced chaos, insecurity and constant fear. |
What resulted from unlimited freedom in the state of nature? | It resulted in mutual suspicion, insecurity and perpetual conflict. |
How was life in the state of nature marked according to Hobbes? | Life in the state of nature was marked by misery, violence and uncertainty. |
Why did men voluntarily enter into a social contract according to Hobbes? | To secure self-protection and avoid pain, misery and perpetual conflict. |
What did men agree to do under the social contract according to Hobbes? | Men agreed to surrender their individual freedom and transfer their powers to a single mightiest authority. |
For what purpose was power transferred to a single authority? | To maintain peace and protect life and property. |
What did this supreme authority become? | This supreme authority became the Sovereign. |
What did Hobbes support once sovereign authority was established? | Hobbes strongly supported its absolute power and undivided authority. |
Did subjects retain enforceable rights against the sovereign according to Hobbes? | No, subjects retained no enforceable rights against the sovereign. |
Why did Hobbes deny limitation on sovereign power? | Because limitation would expose society again to disorder and civil war. |
What became the price of security according to Hobbes? | Obedience to the ruler became the price of security. |
What is reflected in Hobbes’s statement that governments without sword are but words? | It reflects that law and political order require effective coercive power behind them. |
Why are force and authority indispensable according to Hobbes? | Force and authority are indispensable for protection of civil society. |
Which celebrated work systematically expounds Hobbes’s doctrine? | Leviathan. |
Which later jurisprudential theory was influenced by Hobbes? | John Austin’s Imperative Theory of Law was influenced by Hobbes. |
How is Austin’s Imperative Theory connected with Hobbes? | It is an outgrowth of Hobbes’s doctrine regarding absolutism of sovereign power. |
How did Hobbes use Natural Law in political philosophy? | Hobbes used Natural Law as a philosophical justification for political order, security and obedience to an all-powerful sovereign. |
Was Natural Law used by Hobbes as an instrument of revolution? | No, Hobbes did not use Natural Law as an instrument of revolution. |
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JEAN LOCKE 1632-1704 | |
What is the subject matter of John Locke’s jurisprudential contribution? | John Locke’s jurisprudential contribution relates to the liberal interpretation of Natural Law through individual liberty and limited government. |
Whose authoritarian conclusions were rejected by John Locke? | John Locke rejected the authoritarian conclusions of Thomas Hobbes. |
What new interpretation did Locke give to social contract theory? | Locke gave a liberal interpretation to the theory of social contract. |
How did Locke differ from Hobbes in using Natural Law? | Locke used Natural Law as the philosophical basis of individual liberty, natural rights and constitutionally limited government. |
Did Locke accept Hobbes’s description of the state of nature? | No, Locke did not accept Hobbes’s description of the state of nature as unending fear and brutality. |
How did Locke describe life in the state of nature? | Life in the state of nature was reasonably peaceful and enjoyable. |
Why was the state of nature peaceful according to Locke? | Because human beings were governed by natural reason and awareness of mutual rights. |
How could men live together in Locke’s state of nature? | Men could live together with a fair degree of freedom and equality. |
What serious defect did Locke admit in the state of nature? | The insecurity of property and absence of an impartial authority to protect rights. |
Why could disputes arise in Locke’s state of nature? | Because each person was left to defend his own claims without organised machinery. |
Why did men enter into a social contract according to Locke? | Men entered into a social contract to secure proper protection of property. |
Did Locke say men surrendered all freedoms under social contract? | No, Locke said men surrendered only a limited portion of their liberty. |
Why was only limited liberty surrendered according to Locke? | To establish a civil government capable of impartially protecting rights. |
Which essential natural rights continued with individuals after formation of the State according to Locke? | The rights to life, liberty and property continued with individuals. |
For what was government created according to Locke? | Government was created to preserve natural rights more effectively. |
Are natural rights prior to the State according to Locke? | Yes, natural rights are prior to the State. |
Can a ruler lawfully violate natural rights according to Locke? | No, a ruler cannot lawfully violate natural rights. |
What kind of government was strongly pleaded for by Locke? | Locke strongly pleaded for a constitutionally limited government. |
How did Locke view political authority? | Political authority is only a trustee of the people. |
Within what must political authority remain confined according to Locke? | Political authority must remain confined within legal and constitutional limits. |
When are people justified in resisting government according to Locke? | When government becomes tyrannical and invades natural rights of citizens. |
Into what did Locke transform Natural Law? | Locke transformed Natural Law into a doctrine of constitutionalism, individual freedom and restrained political authority. |
What did Locke’s theory become in modern political thought? | Locke’s theory became a chief philosophical foundation of liberal democracy and modern human rights. |
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JEAN JACQUES 1712-1778 | |
What is the subject matter of Jean-Jacques Rousseau’s jurisprudential contribution? | Jean-Jacques Rousseau’s jurisprudential contribution relates to Natural Law as a doctrine of popular sovereignty and democratic legitimacy. |
What fresh interpretation did Rousseau give? | Rousseau gave a fresh and highly influential interpretation to the doctrines of Social Contract and Natural Law. |
How had Hobbes and Locke treated the social contract according to Rousseau? | They treated the social contract as a basis for explaining the historical origin of political authority. |
How did Rousseau describe the social contract? | Rousseau described the social contract as a hypothetical philosophical conception. |
For what was the social contract devised according to Rousseau? | It was devised to explain the legitimate foundation of civil society. |
What did men originally possess according to Rousseau? | Men originally possessed natural freedom and equality. |
Why did men agree to unite together according to Rousseau? | To preserve natural freedom and equality more effectively within organised society. |
Did Rousseau believe people surrendered rights to a single absolute ruler? | No, Rousseau did not believe people surrendered rights to a single absolute ruler. |
Did Rousseau merely emphasise limited constitutional trusteeship like Locke? | No, Rousseau did not merely emphasise limited constitutional trusteeship. |
To whom did individuals surrender their rights according to Rousseau? | Individuals surrendered their rights to the community as a whole. |
What term did Rousseau give to this collective moral personality? | Rousseau termed it the General Will. |
Where does sovereignty reside according to Rousseau? | Sovereignty resides in the General Will of the people. |
Does sovereignty reside in any monarch according to Rousseau? | No, sovereignty does not reside in any monarch or separate governing authority. |
Why is surrender of natural rights not a loss according to Rousseau? | Because every individual becomes a part of the collective will and receives organised civil advantages. |
What does man give up under Rousseau’s social contract? | Man gives up unrestricted natural liberty. |
What does man receive in return under Rousseau’s theory? | Man receives security and advantages of organised civil life. |
What civil liberties does the individual receive back according to Rousseau? | The individual receives regulated freedom, civic equality and participation in collective self-government. |
Which modern freedoms are included in Rousseau’s civil liberties? | Freedom of speech, civic dignity and legal equality under lawful social order. |
To what do the State and laws remain subject according to Rousseau? | The State and laws remain subject to the General Will. |
When does political authority have legitimacy according to Rousseau? | Political authority has legitimacy only so long as it reflects common will and common good. |
When may governmental institutions be rejected by the people according to Rousseau? | When government becomes tyrannical or laws cease to conform to the General Will. |
What significance did Rousseau’s ideas have politically? | Rousseau’s ideas had immense revolutionary significance. |
What did Rousseau’s doctrine generate in Europe and the United States? | It generated nationalism, democratic consciousness and popular sovereignty. |
To whom did Rousseau’s doctrine supply philosophical inspiration? | It supplied philosophical inspiration to people revolting against oppression. |
To which revolutions did Rousseau’s principles substantially contribute? | They contributed to the French Revolution and the American Revolutionary War. |
Into what did Rousseau transform Natural Law? | Rousseau transformed Natural Law into a doctrine of popular sovereignty, collective freedom and democratic legitimacy. |
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NATURAL LAW IN THE MODERN PERIOD | |
What is the subject matter of Natural Law in the Modern Period? | Natural Law in the Modern Period relates to the revival of value-oriented jurisprudence against rigid positivism. |
What setback did Natural Law Theory suffer in the nineteenth century? | Natural Law Theory suffered a considerable setback due to rise of the Analytical School. |
Who led the Analytical School that challenged Natural Law? | Jeremy Bentham and Austinled the Analytical School. |
On what ground did positivist jurists reject Natural Law? | They rejected Natural Law as vague, ambiguous and misleading. |
With what should jurisprudence concern itself according to positivists? | Jurisprudence should concern itself only with positive law laid down by the sovereign. |
With what should jurisprudence not be burdened according to positivists? | Jurisprudence should not be burdened with speculative notions of morality, abstract justice or higher reason. |
What connection did analytical jurists attempt to sever? | Analytical jurists attempted to sever the intimate connection between law and ethics. |
What did the doctrines of Austin and Bentham completely divorce? | They completely divorced morality from law. |
How did law come to be studied under positivism? | Law came to be studied as a command backed by sanction or as a body of enacted rules. |
What question was ignored under positivist study of law? | Whether legal rules were just, fair or morally defensible was ignored. |
Why did the positivist method dominate for some time? | Because it offered certainty, clarity and scientific precision. |
Why did excessive positivism gradually fail to satisfy mankind? | Because a purely mechanical conception of law was inadequate for moral, social and humanitarian problems. |
What could mere legal validity not answer in modern society? | Mere legal validity could not answer the growing demand for justice, fairness and protection of human dignity. |
What social effects were produced by increasing materialism and industrialism? | Materialism and industrialism produced economic inequalities, exploitation and social unrest. |
Into what did rapid industrial growth and political centralisation often reduce law? | They reduced law to a technical instrument of power rather than a means of human welfare. |
What did this materialistic situation compel scholars to search for? | It compelled scholars to search for a value-oriented legal ideology restoring ethical content to jurisprudence. |
What happened as a result of this search? | Natural Law began to re-emerge in a modernised form. |
Was revived modern Natural Law based solely on divine commandments? | No, revived modern Natural Law was not based solely on divine commandments. |
With what was revived Natural Law linked in the modern age? | Revived Natural Law was linked with human rights, constitutional morality, social justice and protection of fundamental freedoms. |
What did jurists increasingly realise in the modern age? | Jurists realised that law cannot remain wholly indifferent to moral values. |
Against what must positive enactments be judged according to revived Natural Law? | Positive enactments must be judged against broader standards of justice and reasonableness. |
What paved the way for modern revival of Natural Law? | Inadequacy of rigid positivism and moral crisis of materialistic civilisation paved the way for its revival. |
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RUDOLF STAMMLER 1856-1938 | |
What is the subject matter of Rudolf Stammler’s contribution to modern Natural Law? | Rudolf Stammler’s contribution relates to the modern revival of Natural Law through the theory of Natural Law with Variable Content. |
How is Rudolf Stammler regarded in the modern revival of Natural Law? | Rudolf Stammler is regarded as one of the foremost jurists responsible for the modern revival of Natural Law. |
Why could the old Natural Law doctrine not be accepted according to Stammler? | Because the old Natural Law doctrine was rigid while social conditions continuously change. |
What defect of positivist jurisprudence was recognised by Stammler? | A purely positivist jurisprudence devoid of moral values is incapable of satisfying human demand for justice. |
What did Stammler seek to reconcile? | Stammler sought to reconcile changing social conditions with the need for moral justice in law. |
Which famous theory was propounded by Stammler? | Stammler propounded the theory of Natural Law with Variable Content. |
What remains constant according to Stammler? | The idea of justice remains constant. |
What may vary according to Stammler? | The concrete content through which justice is realised may vary from age to age and society to society. |
What is the ultimate aim of law according to Stammler? | The ultimate aim of law is the establishment of a just social order. |
Does the ultimate aim of law remain permanent according to Stammler? | Yes, the ultimate aim of law remains permanent. |
Why cannot actual legal rules remain fixed according to Stammler? | Because human needs, economic conditions and social institutions are always changing. |
What older belief regarding Natural Law was rejected by Stammler? | Stammler rejected the belief that Natural Law consists of one immutable set of universal legal commands. |
Why did Stammler reject one immutable set of universal legal commands? | Because what is natural and just in one social situation may not be sufficient in another. |
How must Natural Law be understood according to Stammler? | Natural Law must be understood as a permanent ideal of justice with changing practical applications. |
Towards what should law always strive according to Stammler? | Law should always strive to harmonise individual interests with social welfare. |
By what is justice of law judged according to Stammler? | Justice of law is judged by the extent to which it secures a fair and orderly social life. |
Is positive law beyond criticism according to Stammler? | No, positive law is not beyond criticism. |
In the light of what must positive law be continuously evaluated? | Positive law must be continuously evaluated in the light of the higher ideal of justness. |
What did Stammler achieve through this doctrine? | Stammler gave Natural Law a modern and flexible form. |
What did Stammler preserve while modernising Natural Law? | Stammler preserved its ethical objective. |
From what criticism did Stammler free Natural Law? | Stammler freed Natural Law from the criticism of inflexibility. |
What did Stammler’s theory become for twentieth century jurisprudence? | Stammler’s theory became one of the strongest foundations for the revival of value-oriented jurisprudence. |
Which celebrated work of Stammler is a landmark in modern Natural Law? | Natural Law with Variable Content. |
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FULLER 1902-1978 | |
What is the subject matter of Lon L. Fuller’s jurisprudential contribution? | Lon L. Fuller’s jurisprudential contribution relates to the modern revival of Natural Law through the necessary relation between law and morality. |
How is Lon L. Fuller regarded in modern jurisprudence? | Lon L. Fuller is regarded as one of the most influential twentieth century jurists associated with the modern revival of Natural Law. |
What school did Fuller strongly criticise? | Fuller strongly criticised strict legal positivism. |
Which analytical thesis was particularly challenged by Fuller? | Fuller challenged the thesis that law and morality are completely separable. |
How did Fuller relate law and morality? | Fuller maintained that law and morality are necessarily correlated. |
When does a legal system lose its claim to genuine legality according to Fuller? | When it wholly disregards moral requirements. |
What did Fuller analyse in detail? | Fuller analysed the concept of morality and its relationship with law. |
Did Fuller treat morality as a single undivided notion? | No, Fuller treated morality as having different dimensions. |
Between what two dimensions of morality did Fuller distinguish? | Fuller distinguished between morality as it is and morality as it ought to be. |
What is meant by morality as it is according to Fuller? | Morality as it is means existing moral habits, accepted social standards and practical ethical expectations of a community. |
What does morality as it is represent? | It represents the morality actually observed by people in day-to-day conduct. |
What is meant by morality as it ought to be according to Fuller? | Morality as it ought to be means higher ideal standards of fairness, justice and good legal order. |
What dual dimension did Fuller give to morality? | Fuller gave morality both a factual and an aspirational dimension. |
What did Fuller argue regarding law and sanctions? | Fuller argued that law cannot function merely as a set of commands backed by sanctions. |
What must law satisfy to be meaningful according to Fuller? | Law must satisfy minimum principles of fairness, consistency and rationality. |
In which celebrated work did Fuller explain internal morality of law? | The Morality of Law. |
What is meant by internal morality of law according to Fuller? | It means certain principles of legality built into the very idea of law itself. |
What is the first principle of legality stated by Fuller? | Laws should be general. |
What is the second principle of legality stated by Fuller? | Laws should be publicly promulgated. |
What is the third principle of legality stated by Fuller? | Laws should be prospective. |
What is the fourth principle of legality stated by Fuller? | Laws should be clear. |
What is the fifth principle of legality stated by Fuller? | Laws should be non-contradictory. |
What is the sixth principle of legality stated by Fuller? | Laws should be possible to obey. |
What is the seventh principle of legality stated by Fuller? | Laws should be relatively stable. |
What is the eighth principle of legality stated by Fuller? | Laws should be administered consistently with their declared meaning. |
What remains if these minimum standards are absent according to Fuller? | Naked coercion may remain, but it cannot properly be called law. |
What positivist proposition was rejected by Fuller? | Fuller rejected the proposition that legality is wholly independent of morality. |
What procedural element did Fuller say every legal system carries? | Every legal system carries a procedural morality of fairness and order. |
By what cannot validity of law be judged according to Fuller? | Validity of law cannot be judged by command alone. |
What did Fuller restore to modern jurisprudence? | Fuller restored ethical content to modern jurisprudence. |
How is Fuller regarded in contemporary legal philosophy? | Fuller is regarded as one of the foremost defenders of value-oriented legal philosophy. |
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SOURCES OF LAW | |
What is the subject matter of Sources of Law? | Sources of Law relate to the origins from which legal rules derive authority, content and binding force. |
To what does the expression Sources of Law refer? | The expression Sources of Law refers to the origins from which legal rules derive authority, content and binding force. |
What are we dealing with when we ask from where law comes? | We are dealing with the sources of law. |
What are we dealing with when we ask through what agencies law develops? | We are dealing with the sources of law. |
What are we dealing with when we ask what gives validity to legal principles? | We are dealing with the sources of law. |
With what is the study of sources of law concerned? | The study of sources of law is concerned with the foundation of legal authority and channels of creation of legal norms. |
In how many distinct senses has the expression Sources of Law been used in the Indian context? | The expression Sources of Law has been used in two distinct senses. |
What is the first sense of Sources of Law in the Indian context? | The first sense is the traditional sense based on Dharma as the fountain-head of law. |
According to ancient Hindu scriptures, what is regarded as the fountain-head of all law? | Duty or Dharma is regarded as the fountain-head of all law. |
Did Hindu jurists sharply separate law from religion and morality? | No, Hindu jurists did not sharply separate law from religion and morality. |
From what did Hindu jurists believe legal obligations originate? | Hindu jurists believed legal obligations originate from Dharma. |
What does Dharma signify in the traditional Indian conception? | Dharma signifies righteous duty, moral order and ethical obligations of man in society. |
What was the source of law in traditional Indian conception? | The source of law was the broader spiritual notion of duty rather than mere political command. |
What is the second sense of Sources of Law in the Indian context? | The second sense is the modern juristic sense of sovereign authority from which law emanates. |
How does modern jurisprudence treat law under analytical influence? | Modern jurisprudence treats law as a body of rules formally laid down or recognised by the State. |
Which authorities are considered immediate modern sources of law? | Sovereign legislature, courts and other law-creating agencies are considered immediate modern sources. |
What do these modern law-creating agencies produce? | They produce binding legal rules. |
What may the expression Sources of Law denote generally? | It may denote the philosophical foundation of legal obligation or practical legal institutions generating law. |
What does Sources of Law include in its broader jurisprudential sense? | It includes all agencies, materials and authorities from which legal principles are derived and recognised as binding. |
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SOURCES OF LAW IN INDIAN PERSPECTIVE | |
How was the legal system in India prior to British rule? | The legal system was not based upon a unified sovereign legislation in the modern sense. |
By what were people principally governed prior to British rule in India? | People were principally governed by their personal laws. |
From what did personal laws derive their authority in pre-British India? | Personal laws derived their authority from religious texts, customs and spiritual doctrines. |
What were the principal sources of Hindu law? | The principal sources of Hindu law were Shruti, Smriti, the conduct of the virtuous and one’s own conscience. |
How were Shruti and Smriti treated in Hindu law? | Shruti and Smriti were treated as sacred textual authorities. |
What was accepted as supplementary guides in Hindu law where textual certainty was absent? | The conduct of righteous persons and the dictates of conscience were accepted as supplementary guides. |
What were the principal sources of Muslim law? | The principal sources of Muslim law were Quran, Sunnat, Ijma and Qiyas. |
What is Sunnat in Muslim law? | Sunnat means traditions of the Prophet. |
What is Ijma in Muslim law? | Ijma means consensus of opinion. |
What is Qiyas in Muslim law? | Qiyas means analogical deduction. |
What did these Muslim sources collectively form? | These Muslim sources collectively formed the basis of Islamic jurisprudence. |
What did Islamic jurisprudential sources regulate? | They regulated the personal as well as social life of Muslims. |
What was the important common feature of Hindu and Muslim law before British rule? | Both Hindu and Muslim law claimed a transcendental or divine origin. |
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JOHN SALMOND VIEW REGARDING SOURCES OF LAW | |
What is the subject matter of John Salmond’s view regarding Sources of Law? | John Salmond’s view relates to the classification of Sources of Law. |
Who made one of the most widely accepted classifications of Sources of Law? | John Salmond made one of the most widely accepted classifications of Sources of Law. |
Into how many classes did Salmond broadly divide the sources of law? | Salmond broadly divided the sources of law into two classes. |
What are the two classes of sources of law according to Salmond? | The two classes are Material Sources and Formal Sources. |
Why is Salmond’s distinction important? | Because Salmond separates the question of substance of law from the question of legal validity of law. |
What are Formal Sources of Law according to Salmond? | Formal Sources of Law are those sources from which a rule of law derives its legal force and binding validity. |
What do Formal Sources confer upon legal rules? | Formal Sources confer obligatory character upon legal rules and make them enforceable as law. |
Can a principle existing in society become law in strict sense without State recognition? | No, it becomes law in the strict sense only when it receives recognition from the formal authority of the State. |
What constitutes the formal source of law according to Salmond? | The will of the State manifested through statutes, judicial decisions and recognised legal institutions constitutes the formal source of law. |
How does a statute acquire binding force as law? | A statute acquires binding force when enacted by the legislature. |
How does a legal principle acquire binding force as law? | A legal principle acquires binding force when authoritatively recognised and enforced by courts. |
With what is the formal source concerned? | The formal source is concerned with the authority which gives law its validity. |
With what is the formal source not concerned? | The formal source is not concerned with the content of the law. |
What is the subject matter of Material Sources of Law according to Salmond? | Material Sources of Law relate to the sources from which law derives its matter, substance or content. |
What are Material Sources of Law according to Salmond? | Material Sources of Law are those sources from which law derives its matter, substance or content though not necessarily its validity. |
What do Material Sources consist of? | Material Sources consist of actual materials, facts, practices and intellectual influences from which legal rules are fashioned. |
Which sources supply the raw material of legal principles according to Salmond? | Legislation, customs, agreements, usages, juristic writings and professional opinions supply the raw material. |
Do Material Sources by themselves become binding law? | No, they become binding law only when clothed with formal authority. |
What do Material Sources provide to law? | Material Sources provide the content of law. |
What do Formal Sources provide to law? | Formal Sources provide the binding force of law. |
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SUB- CLASSIFICATION OF MATERIAL SOURCES | |
What is the subject matter of the sub-classification of Material Sources? | The sub-classification of Material Sources relates to their division into Legal Sources and Historical Sources. |
Into how many categories did Salmond further subdivide Material Sources? | Salmond further subdivided Material Sources into two categories. |
What are the two categories of Material Sources according to Salmond? | The two categories are Legal Sources and Historical Sources. |
What are Legal Sources according to Salmond? | Legal Sources are those material sources which are authoritative and legally recognised by the State. |
How does the legal system treat Legal Sources? | The legal system accepts them as immediate and binding grounds for creation of legal rights and obligations. |
Which examples may directly operate as Legal Sources? | A law passed by legislature, a recognised custom and a judicial precedent may directly operate as Legal Sources. |
Why do these examples operate as Legal Sources? | Because courts are bound to apply them. |
How may Legal Sources be described generally? | Legal Sources are authoritative material sources. |
What are Historical Sources according to Salmond? | Historical Sources are those materials which influence growth of law but are not legally binding or authoritative. |
How do Historical Sources affect law? | Historical Sources guide, inspire or persuade courts and lawmakers. |
Do Historical Sources possess compulsory force? | No, Historical Sources do not possess compulsory force. |
Which examples are Historical Sources? | Opinions of eminent jurists, ancient commentaries, foreign legal writings and historical legal documents are Historical Sources. |
How do Historical Sources assist in legal development? | They help in understanding or developing law. |
Are courts bound to follow Historical Sources as such? | No, courts are not bound to follow Historical Sources as such. |
How may Historical Sources be described generally? | Historical Sources are unauthoritative material sources. |
Why is a law passed by the legislature a legal material source? | Because it has binding force. |
Why is the opinion of eminent jurists a historical material source? | Because it has merely persuasive value. |
What kind of source is Custom? | Custom is a Legal Material Source of Law. (imp for exam pint of view) |
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GEORGE W. KEETON’S VIEW REGARDING SOURCES OF LAW | |
Into how many broad categories did George W. Keeton divide the sources of law? | George W. Keeton divided the sources of law into two broad categories. |
What are the two broad categories of sources of law according to George W. Keeton? | The two broad categories are Binding Sources of Law and Persuasive Sources of Law. |
On what is Keeton’s classification primarily based? | Keeton’s classification is primarily based upon the degree of authority exercised upon courts and legal institutions. |
What are Binding Sources of Law according to Keeton? | Binding Sources are those sources which the courts are under a legal obligation to follow. |
Can judges ordinarily ignore Binding Sources while deciding cases? | No, judges cannot ordinarily ignore Binding Sources. |
What force do Binding Sources possess? | Binding Sources possess authoritative force. |
What do Binding Sources directly create? | Binding Sources directly create enforceable rights and duties. |
What do Binding Sources constitute in judicial decisions? | Binding Sources constitute mandatory grounds of judicial decision. |
Which sources generally fall within Binding Sources? | Statutes enacted by competent legislatures, binding judicial precedents and legally recognised customs. |
Why do these sources fall within Binding Sources? | Because they command obedience from courts. |
How may a Binding Source be described generally? | A Binding Source is one which has compulsory legal authority. |
What are Persuasive Sources of Law according to Keeton? | Persuasive Sources are those sources which are not absolutely binding upon courts but may influence judicial reasoning. |
For what may courts consult Persuasive Sources? | Courts may consult Persuasive Sources for guidance, assistance or intellectual support. |
Are courts legally compelled to adopt Persuasive Sources? | No, courts are not legally compelled to adopt Persuasive Sources. |
Which materials are often treated as Persuasive Sources? | Writings of eminent jurists, foreign judgments, commentaries, principles of morality, equity and comparative legal materials. |
How do Persuasive Sources help in legal development? | They help in interpretation, expansion or refinement of law where binding authority is absent or inadequate. |
What value do Persuasive Sources possess? | Persuasive Sources possess advisory or influential value rather than mandatory force. |
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BINDING SOURCE CLASSIFICATION | |
Into how many classes can Binding Sources be further classified? | Binding Sources can be further classified into three classes. |
What are the three further classifications of Binding Sources? | The three further classifications are Legislation, Judicial Precedent and Customary Law. |
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CUSTOMS AS A SOURCE OF LAW | |
What is the subject matter of Custom as a Source of Law? | Custom as a Source of Law relates to long-established social practices acquiring binding legal force. |
How is custom regarded among sources of law? | Custom is regarded as one of the oldest and most primitive sources of law-making. |
How did human communities regulate conduct before organised States and legislatures? | Human communities regulated conduct through established usages, habitual practices and socially accepted modes of behaviour. |
How did repeated social practices acquire force of law? | By being followed continuously over a long period and accepted as obligatory by the community. |
What does custom represent in legal evolution? | Custom represents the earliest stage in the evolution of legal regulation. |
What has John Salmond observed regarding custom? | John Salmond observed that custom is to society what law is to the State. |
What is meant by Salmond’s statement that custom is to society what law is to the State? | It means custom regulates conduct in society just as law regulates conduct in a politically organised State. |
How is the influence of custom on social life described? | The influence of custom on social life is analogous to that of law within the political sphere. |
What does custom govern in society? | Custom governs relationships, determines acceptable conduct and creates expectations of obedience. |
From what does custom primarily derive its authority? | Custom derives its authority from long usage, social acceptance and habitual observance. |
Why do people obey custom? | Because it has become a recognised norm of collective behaviour. |
When does a particular practice acquire normative force? | When it is continuously followed with the belief that it ought to be followed. |
Is morality essential for existence of custom? | No, morality is not essential for existence of custom. |
Is codification essential for existence of custom? | No, codification is not essential for existence of custom. |
Can a custom exist without being embodied in a written code? | Yes, a custom may exist even though it is not embodied in a written code. |
Can a custom become legally recognised without originating in a moral theory? | Yes, a custom may become legally recognised even without originating in a consciously moral theory. |
What is essential for legal existence of custom? | Continuous observance coupled with acceptance by the community as binding is essential. |
Will a grossly immoral or public policy opposed custom be recognised by modern courts? | No, a grossly immoral or public policy opposed custom may not be recognised by modern courts. |
Does legal character of custom depend upon prior codification? | No, legal character of custom does not depend upon prior codification. |
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DEFINITIONS | |
How may custom be defined? | Custom is a long-established usage or practice which by continuous observance and general acceptance acquires binding force as a rule of conduct and is eventually recognised by law. |
How has Dr. Allen defined custom? | Custom is the uniformity of habits or conduct of people under like circumstances. |
How has Herbert Spencer defined custom? | Custom is a tradition passing on from one generation to another that originally governs human conduct. |
How has Salmond defined custom? | Custom embodies those principles as are acknowledged and approved by public opinion of the society at large. |
How has Austin defined custom? | Custom is a rule of conduct which the governed observe spontaneously and not in pursuance of law settled by the political superior. |
Is custom itself a law according to Austin? | No, custom is a source of law and not itself a law. |
When does a custom become positive law according to Austin? | A custom becomes positive law only when declared as such by Court or sovereign. |
How was custom explained in Hari Prasad v. Shiv Dayal, 1876 Privy Council? | Custom is a rule which has obtained force of law in a particular family or region due to long usage. |
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HISTORICAL VIEW REGARDING THE CUSTOM | |
How is the significance of custom recognised by eminent jurists? | It is recognised as an important source of law. |
How does the Historical School regard custom in comparison to statute? | The Historical School often regards custom as superior to statute. |
Why is custom regarded as superior to statute by the Historical School? | Because custom arises from actual life, habits and traditions of the people. |
What is statute according to the Historical School comparison? | Statute is a formal legislative enactment. |
What did John Chipman Gray observe regarding custom? | Custom is not law unless it is approved by judges. |
What does Gray emphasise through this observation? | Gray emphasises the role of judicial recognition in giving legal force to custom. |
What did Sir Frederick Pollock state regarding Common Law? | Sir Frederick Pollock stated that the Common Law is largely customary law. |
Why did Pollock call Common Law largely customary law? | Because many principles of English law originated from ancient social usages. |
What importance did Savigny give to custom? | Savigny maintained that customary law may completely modify or repeal statute. |
Why did Savigny give such importance to custom? | Because custom reflects the Volksgeist or popular spirit of the people. |
How did Manu regard custom in ancient India? | Manu regarded custom as a transcendent law. |
What is unanimously emphasised by these jurists regarding custom? | That custom is one of the most authoritative and living sources of legal development. |
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KINDS OF CUSTOMS | |
What is the subject matter of Kinds of Custom? | Kinds of Custom relate to the classification of customs on the basis of source of their binding force. |
Into how many main kinds are customs generally classified? | Customs are generally classified into two main kinds. |
What are the two main kinds of customs? | The two main kinds are Conventional Custom and Legal Custom. |
On what is the classification of customs based? | The classification is based on the source from which the binding force of the custom is derived. |
What is the subject matter of Conventional Custom? | Conventional Custom relates to a usage binding through incorporation in contract. |
By what other name is Conventional Custom known? | Conventional Custom is also called usage. |
Why is a Conventional Custom legally binding? | Because it has been expressly or impliedly incorporated in a contract between the parties concerned. |
Is Conventional Custom binding because of independent legal authority? | No, it is not binding because of independent legal authority. |
How old should a Conventional Custom be? | It should be old enough to be in the knowledge of the people in general. |
Is any specific period prescribed for a custom to be treated as old enough? | No, no specific period is prescribed. |
What did the Privy Council hold in Subhani v. Nawab (1941) regarding Conventional Custom? | Even a relatively new conventional custom may get legal recognition if well established in the community. |
When shall a Conventional Custom be recognised as law? | So long as it is not contrary to the general law of the country. |
What additional condition must a Conventional Custom satisfy? | It should be reasonable. |
How do Legal Customs operate? | Legal Customs operate as binding rules of law. |
Why do Legal Customs become binding rules of law? | Because they have been recognised by Court and become part of the law of the land. |
Into what further classes may Legal Custom be divided? | Legal Custom may be divided into Local Custom and General Custom. |
What is Local Custom? | Local Custom is that custom which prevails in some defined locality. |
What is General Custom? | General Custom is that custom which is operative throughout the realm. |
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ESSENTIALS OF A VALID CUSTOM | |
What is the first essential of a valid custom? | A valid custom must be reasonable and not opposed to justice, equity and good conscience. |
Can an arbitrary or unjust practice be accepted as valid custom? | No, an arbitrary or unjust practice cannot be accepted as law. |
What is the second essential of a valid custom? | A valid custom must be consistent with statute law and not conflict with legislative enactment. |
Can a custom conflicting with an Act of Parliament be valid? | No, a custom conflicting with statute law cannot be valid. |
What is the third essential of a valid custom? | A valid custom must be followed as a matter of compulsory observance. |
Can a practice left to individual choice acquire force of customary law? | No, a practice left to individual choice cannot acquire force of customary law. |
What further quality must a valid custom possess regarding duration? | A valid custom must possess continuity and immemorial antiquity. |
What is meant by immemorial antiquity of custom? | It means the custom should exist from such long time that memory of man runs not to the contrary. |
What was the English law test of antiquity of custom? | Under English law, a custom was required to exist before coronation of King Richard in 1189 A.D. |
What is the last essential of a valid custom? | The custom must have been enjoyed peacefully and continuously without substantial interruption. |
What kinds of customs are recognised by courts as valid customs? | Only ancient, certain and obligatory customs are recognised by courts as valid customs. |
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CONCLUSION | |
What is the concluding position of custom as a source of law? | Custom occupies an important place as one of the oldest and most authoritative sources of law. |
Which customs alone can acquire binding force? | Only those customs which are ancient, reasonable, certain and legally recognized can acquire binding force. |
What does a valid custom reflect? | A valid custom reflects the long-standing social acceptance of a rule as law. |
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LEGISLATION AS SOURCE OF LAW | |
What is the subject matter of Legislation as a Source of Law? | Legislation as a Source of Law relates to deliberate law-making by a competent legislative authority. |
How is legislation regarded in the modern legal system? | Legislation is regarded as one of the most effective and important sources of law. |
With growth of what institutions has law-making come under direct control of legislature? | With growth of organised States, parliamentary institutions and written constitutions. |
How does legislation differ from custom as a source of law? | Legislation consists of deliberate formulation of legal rules, whereas custom grows gradually through social usage. |
What does legislation involve in its strict legal sense? | Legislation involves laying down legal rules by the legislature which the State recognises and enforces as law. |
Why do legislative rules possess direct force and authority? | Because they emanate from the sovereign law-making body. |
Why is legislation considered the most authoritative expression of positive law? | Because it carries the direct force and authority of the State. |
From which Latin words is the word legislation derived? | Legislation is derived from Legis and Latum. |
What is the meaning of Legis? | Legis means law. |
What is the meaning of Latum? | Latum means to make or set. |
What is the literal meaning of legislation? | Legislation literally means the making of law. |
What is the distinctive feature of legislation? | Legislation is a conscious, systematic and formal method of law-making. |
What can the State do through legislation? | The State can enact new rules, modify old principles, remove legal defects and introduce social reforms. |
According to what needs does legislation introduce reforms? | According to contemporary needs. |
What has legislation become in modern democratic societies? | Legislation has become the principal instrument for deliberate legal development. |
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JURISTIC VIEW REGARDING LEGISLATION | |
What is the subject matter of Juristic View regarding Legislation? | Juristic View regarding Legislation relates to the differing importance assigned to legislation by various schools of jurisprudence. |
Do different schools of jurisprudence assign the same importance to legislation? | No, different schools assign varying degrees of importance to legislation. |
How does the Analytical School regard legislation? | The Analytical School regards legislation as the most authentic and effective method of law-making. |
Why are analytical jurists strong supporters of legislation? | Because they believe law derives binding force from sovereign authority of the State. |
Why do analytical jurists treat legislation as the only proper formal way to promulgate law? | Because legislative enactments directly express the will of the sovereign. |
What importance do analytical jurists attach to legislation? | They attach the highest importance to legislation. |
How does the Historical School regard legislation? | The Historical School attaches comparatively less importance to legislation. |
How does law grow according to the Historical School? | Law grows spontaneously from customs, traditions and consciousness of the people. |
What is the principal function of legislation according to the Historical School? | The principal function of legislation is to collect, consolidate and give better form to existing customs. |
Is legislation creator of law according to the Historical School? | No, legislation is not the creator but only the recorder and organiser of living law. |
What does legislation include according to John Austin? | Legislation includes all activities resulting in law-making, amendment, transformation or insertion of new provisions. |
How does Austin treat legislation? | Austin treats legislation as the formal process through which the sovereign creates or modifies legal rules. |
For what purpose does the sovereign create or modify legal rules through legislation according to Austin? | To regulate society. |
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TYPES OF LEGISLATION | |
Into how many kinds is legislation generally classified? | Legislation is generally classified into two kinds. |
What are the two kinds of legislation? | The two kinds are Supreme Legislation and Subordinate or Delegated Legislation. |
On what is the classification of legislation based? | The classification is based upon the authority from which the legislative power proceeds. |
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SUPREME LEGISLATION | |
When is legislation said to be supreme? | Legislation is said to be supreme when it proceeds from the sovereign law-making power and is not subject to repeal or control by any other legislative authority. |
What is regarded as the supreme legislative body in India within its constitutional sphere? | Parliament is regarded as the supreme legislative body. |
What validity do laws enacted by sovereign legislative authority possess? | They possess the highest formal validity. |
Whom do laws enacted by supreme legislative authority bind? | They bind all persons and institutions unless struck down on constitutional grounds. |
How may Supreme Legislation be described generally? | Supreme Legislation is the direct and original exercise of sovereign legislative power. |
What is the subject matter of Subordinate or Delegated Legislation? | Subordinate or Delegated Legislation relates to derivative law-making by delegated subordinate authorities. |
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SUBORDINATE LEGISLATION | |
When does Subordinate Legislation arise? | Subordinate Legislation arises when supreme legislative authority delegates part of its law-making power to subordinate authority. |
To whom is law-making power generally delegated under Subordinate Legislation? | It is generally delegated to executive or administrative bodies. |
Which instruments made by delegated authorities constitute Subordinate Legislation? | Rules, regulations, notifications, bye-laws and orders constitute Subordinate Legislation. |
Under what powers are these delegated instruments made? | They are made under powers conferred by statute. |
Why is it termed Subordinate Legislation? | Because it derives authority from the parent statute and remains subject to control of the supreme legislature. |
How may Subordinate Legislation be described generally? | Subordinate Legislation is an indirect or derivative exercise of legislative power under supervision of sovereign authority. |
Into how many kinds is Subordinate Legislation classified? | Subordinate Legislation is classified into five kinds. |
What are the kinds of Subordinate Legislation? | The kinds are Colonial Legislation, Executive Legislation, Judicial Legislation, Municipal Legislation and Autonomous Legislation. |
What does Colonial Legislation refer to? | Colonial Legislation refers to laws made by legislature of a colony or dependent territory under superior sovereign authority. |
Why is Colonial Legislation subordinate? | Because the colonial legislature does not possess independent sovereign power and remains subject to superior legislative control. |
What is the historical example of Colonial Legislation? | Laws made by colonial governments under the British Empire. |
What does Executive Legislation consist of? | Executive Legislation consists of rules, regulations, orders, notifications and bye-laws made by executive authorities. |
Under what powers is Executive Legislation made? | It is made under powers delegated by the legislature. |
Why do modern legislatures entrust power to administrative agencies? | Because they cannot themselves deal with every minute detail. |
For what purpose do administrative agencies frame detailed provisions? | For implementing statutes. |
What is law-making by the executive called? | Law-making by the executive is called Executive Legislation. |
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JUDICIAL LEGISLATION | |
When does Judicial Legislation arise? | Judicial Legislation arises when legislative rule-making power is delegated to the judiciary. |
Which courts are authorised to frame rules under Judicial Legislation? | The Supreme Court and the High Courts are authorised to frame rules. |
For what purpose do superior courts frame rules under Judicial Legislation? | They frame rules for regulation of their own procedure. |
What is such rule-making by courts called? | Such rule-making by courts is called Judicial Legislation. |
Should Judicial Legislation be confused with Judicial Precedent? | No, Judicial Legislation should not be confused with Judicial Precedent. |
How are Judicial Precedents created? | Judicial Precedents are created when courts formulate or declare legal principles while deciding disputes. |
How does Judicial Legislation differ from Judicial Precedent? | Judicial Legislation consists of formal procedural rules framed by courts under delegated authority. |
Under which Article is the Supreme Court empowered to make procedural rules? | Under Article 145. |
What does Article 145 empower the Supreme Court to do? | It empowers the Supreme Court to make rules regulating its practice and procedure. |
Under which Article are High Courts vested with supervisory and procedural rule-making authority? | Under Article 227. |
Over whom do High Courts exercise this supervisory procedural authority? | Over courts subordinate to them. |
Can Judicial Legislation lay down norms for practising lawyers? | Yes, Judicial Legislation may lay down norms for practising lawyers. |
Can Judicial Legislation prescribe procedure and limitation for appeals? | Yes, it may prescribe procedure and limitation for appeals. |
Can Judicial Legislation regulate proceedings for enforcement of Fundamental Rights? | Yes, it may regulate proceedings for enforcement of Fundamental Rights. |
Can Judicial Legislation provide for transfer of cases? | Yes, it may provide for transfer of cases. |
Can Judicial Legislation regulate disposal of criminal appeals? | Yes, it may regulate disposal of criminal appeals. |
Can Judicial Legislation prescribe conditions for review petitions? | Yes, it may prescribe conditions for review petitions. |
Can Judicial Legislation make rules regarding costs and court fees? | Yes, it may make rules regarding costs and court fees. |
Can Judicial Legislation regulate grant of bail, bonds and security? | Yes, it may regulate grant of bail, bonds and security. |
Can Judicial Legislation pass orders relating to stay of proceedings? | Yes, it may provide rules regarding stay of proceedings. |
What function do courts perform through Judicial Legislation? | Courts perform a limited but significant law-making function for efficient administration of justice. |
What does Municipal Legislation mean? | Municipal Legislation means bye-laws, regulations and local rules made by municipal bodies, local boards, corporations and other local self-governing institutions. |
Under what powers is Municipal Legislation made? | Municipal Legislation is made under powers conferred by statute. |
To what sphere are municipal laws confined? | Municipal laws are confined to local administration. |
What matters are regulated by Municipal Legislation? | Municipal Legislation regulates sanitation, roads, markets, construction, public health and civic order. |
Within what area does Municipal Legislation operate? | Municipal Legislation operates within the local area. |
What is the subject matter of Autonomous Legislation? | Autonomous Legislation relates to internal rules framed by autonomous or semi-autonomous bodies under statutory power. |
What does Autonomous Legislation refer to? | Autonomous Legislation refers to rules and regulations framed by universities, professional associations, statutory corporations and other self-regulating institutions. |
Whom do these autonomous bodies govern through their regulations? | They govern their members, employees or affiliated institutions. |
Why is Autonomous Legislation treated as subordinate legislation? | Because its law-making power is derived from the parent statute. |
What is Delegated Legislation? | Delegated Legislation is legislation made by any authority other than the Legislature. |
What does Delegated Legislation denote? | Delegated Legislation denotes rules, orders, notifications, bye-laws or directions made by executive authorities under law passed by Parliament. |
What is law made by executive known as? | Law made by executive is known as Delegated Legislation. |
When is legislation called Delegated Legislation? | When the function of legislation is entrusted to organs other than the legislature itself. |
By what other name is Delegated Legislation also known? | Delegated Legislation is also known as Henry VIII clause. |
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CONCLUSION | |
Why has Delegated Legislation become important in modern times? | Because of want of time to legislature, welfare State needs, technicality, emergency, flexibility, local matters, unforeseen contingencies and confidentiality. |
How does want of time make Delegated Legislation necessary? | Legislature lacks sufficient time to deal with every minute legislative detail. |
How has the concept of welfare State increased need of Delegated Legislation? | Welfare State requires a huge bulk of legislation for regulating numerous social activities. |
Why does technicality of matter necessitate Delegated Legislation? | Because certain fields require technical skills to make law. |
How do emergencies justify Delegated Legislation? | Delegated Legislation is necessary to meet emergencies arising out of war, floods, economic depression and epidemic. |
Why is flexibility a reason for Delegated Legislation? | Because delegated authorities can make quick changes according to practical needs. |
Why are local matters a reason for Delegated Legislation? | Because local issues require localised detailed regulation by competent authorities. |
Why is Delegated Legislation needed for unforeseen contingencies? | Because sudden situations may arise which cannot be immediately handled by full legislature. |
Why is confidentiality a reason for Delegated Legislation? | Because some matters require discreet or confidential rule-making not suitable for open legislative debate. |
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JUDICIAL PRECEDENT | |
What is the subject matter of Judicial Precedent? | Judicial Precedent relates to law developed through judicial decisions. |
How is Judicial Precedent regarded as a source of law? | Judicial Precedent is regarded as another important source of law. |
Why is Judicial Precedent especially important in English law? | Because most of the Common Law is unwritten and owes its origin to Judicial Precedent. |
Does Judicial Precedent have binding force? | Yes, Judicial Precedent has binding force. |
Why is Judicial Precedent an important source of English law? | Because it possesses binding force and forms much of the Common Law. |
What does Judicial Precedent lead to? | Judicial Precedent leads to certainty of law. |
How did Jeremy Bentham describe precedent? | Jeremy Bentham described precedent as judge-made law. |
How did Austin describe precedent? | Austin described precedent as judiciary’s law. |
How many systems exist in the world regarding adoption of precedent as law? | There are two systems in the world regarding adoption of precedent as law. |
How is precedent treated in some countries? | In some countries precedent is accepted as law. |
How is precedent treated in other countries? | In other countries precedent is not accepted as law. |
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TWO METHODS REGARDING ACCEPTANCE OF JUDICIAL PRECEDENT | |
What is the subject matter of Inductive and Deductive Methods regarding precedent? | Inductive and Deductive Methods relate to two judicial approaches in deciding cases. |
What is Inductive Method? | Inductive Method is when judge deduces general rules from particular cases and applies them to decide subsequent cases. |
On what are decisions based in the Inductive Method? | Decisions are based on previous judgments. |
In which country is the Inductive Method generally practised? | The Inductive Method is generally practised in England. |
What is Deductive Method? | Deductive Method is when judge decides cases according to law laid down by authority without looking to similar decided cases. |
On what are decisions based in the Deductive Method? | Decisions are based on law and not on previous judgments. |
In which countries is the Deductive Method generally practised? | The Deductive Method is generally practised in European countries. |
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KINDS OF JUDICIAL PRECEDENT | |
Into how many kinds may Judicial Precedents broadly be divided? | Judicial Precedents may broadly be divided into two kinds. |
What are the two kinds of Judicial Precedents? | The two kinds are Authoritative Precedent and Persuasive Precedent. |
On what is the classification of Judicial Precedents based? | The classification is based upon the degree of binding force exercised upon the court. |
What are Authoritative Precedents? | Authoritative Precedents are judicial decisions which have binding legal force. |
By which courts are Authoritative Precedents delivered? | Authoritative Precedents are delivered by superior courts of justice. |
Who is under legal obligation to follow Authoritative Precedents? | Subordinate courts are under legal obligation to follow them in similar cases. |
Are Authoritative Precedents merely advisory? | No, Authoritative Precedents are not merely advisory. |
What do Authoritative Precedents constitute? | Authoritative Precedents constitute mandatory rules of decision. |
Can lower courts disregard an Authoritative Precedent while it remains valid and applicable? | No, lower courts cannot disregard it. |
What does Authoritative Precedent ensure in administration of justice? | Authoritative Precedent ensures uniformity, certainty and hierarchical discipline. |
What is Persuasive Precedent? | Persuasive Precedent is a precedent which judges are under no legal obligation to follow. |
Why may judges consider Persuasive Precedent? | Because of its persuasive reasoning or intellectual value. |
Which decisions may include Persuasive Precedents? | Decisions of coordinate courts, foreign courts, obiter dicta and judgments not strictly binding. |
When do Persuasive Precedents provide useful guidance? | In absence of direct authoritative precedent. |
Do Persuasive Precedents possess compulsory authority? | No, Persuasive Precedents do not possess compulsory authority. |
What do Persuasive Precedents do to judicial thinking? | Persuasive Precedents influence judicial thinking. |
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CONSTITUTIONAL BASIS OF AUTHORITATIVE PRECEDENT IN INDIA ARTICLE 141 | |
Through which Article has the doctrine of Authoritative Precedent received constitutional recognition in India? | Through Article 141 of the Constitution of India. |
What does Article 141 provide? | Article 141 provides that the law declared by the Supreme Court of India shall be binding on all courts within the territory of India. |
What do the decisions of the Supreme Court constitute under Article 141? | The decisions of the Supreme Court constitute Authoritative Precedents. |
Upon whom are Supreme Court decisions binding under Article 141? | They are binding upon all subordinate courts and tribunals in the country. |
What duty is imposed upon the lower judiciary under Article 141? | The lower judiciary is under a legal duty to follow legal principles laid down by the Supreme Court in similar questions of law. |
What constitutional status does Article 141 give to the doctrine of precedent? | Article 141 gives clear constitutional status to the doctrine of precedent in India. |
What does Article 141 ensure in administration of justice? | Article 141 ensures certainty, consistency and uniformity in administration of justice. |
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LEADING CASES ON PRECEDENTS | |
What is the subject matter of Supreme Court not absolutely bound by its own decisions? | It relates to the Supreme Court’s power to depart from or overrule its previous precedents. |
Is the Supreme Court absolutely and rigidly bound by its own previous decisions? | No, the Supreme Court is not absolutely and rigidly bound by its own previous decisions. |
Why may the Supreme Court depart from its earlier precedent? | To correct error or to meet the demands of justice. |
In which case was this principle first recognised? | This principle was first recognised in Bengal Immunity Co. Ltd. v. State of Bihar. |
What did the Supreme Court hold in Bengal Immunity Co. Ltd. v. State of Bihar? | The Court held that it is not inexorably bound by its previous judgments if adherence would perpetuate error. |
From which case did the concept of overruling of precedent by the Supreme Court start? | From Bengal Immunity Co. Ltd. v. State of Bihar. |
In which case was the doctrine of prospective overruling propounded? | In I.C. Golaknath v. State of Punjab. |
What is the doctrine of prospective overruling? | It means the Court may overrule a previous legal position but apply the new interpretation prospectively. |
Why is prospective overruling applied? | So that past transactions concluded under the old law are not disturbed. |
What does the Indian doctrine of precedent combine? | The Indian doctrine of precedent combines binding authority with judicial flexibility. |
How is judicial flexibility achieved in Indian precedent law? | By allowing the Supreme Court in exceptional circumstances to revise its own earlier views. |
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CONCEPTS OF JUDICIAL PRECEDENT: RATIO DECIDENDI, ORBITER DICTA, STARE DECISIS | |
What is the literal meaning of Ratio Decidendi? | Ratio Decidendi literally means the reason for the decision. |
What is Ratio Decidendi? | Ratio Decidendi is the general principle of law deduced by the court in deciding a particular case. |
On what is Ratio Decidendi founded? | Ratio Decidendi is founded on the rule of law upon which the judicial decision is based. |
Which part of judgment possesses binding authority as precedent? | Ratio Decidendi possesses binding authority as precedent. |
Through which case can the doctrine of Ratio Decidendi be understood? | Through Bridges v. Hawkesworth. |
What were the facts in Bridges v. Hawkesworth? | A customer found some money lying on the floor of a shop. |
To whom was possession awarded in Bridges v. Hawkesworth? | Possession was awarded to the finder rather than the shopkeeper. |
Why was possession awarded to the finder in Bridges v. Hawkesworth? | Because the shop was a public place and the money was found by the customer. |
What general principle was deduced from Bridges v. Hawkesworth? | The rule of finders keepers regarding lost property found in a public place. |
What constituted the Ratio Decidendi in Bridges v. Hawkesworth? | The principle of finders keepers in relation to lost property found in a public place. |
Which another classic case explains Ratio Decidendi? | Donoghue v. Stevenson. |
What were the facts in Donoghue v. Stevenson? | A decomposed snail was found inside an opaque bottle of ginger beer. |
What principle was laid down in Donoghue v. Stevenson? | Manufacturer is liable to consumer for negligence in manufacturing harmful goods. |
What modern doctrine was founded through Donoghue v. Stevenson? | The doctrine of privity relaxation and negligence liability. |
What constitutes the Ratio Decidendi of a case generally? | The legal principle emerging from the case constitutes its Ratio Decidendi. |
What is the position of Ratio Decidendi in precedent? | Ratio Decidendi is the binding element of a precedent. |
What is the literal meaning of Obiter Dicta? | Obiter Dicta literally means something said by the judge by the way. |
What are Obiter Dicta? | Obiter Dicta are observations, remarks or illustrations made by judge not necessary for actual decision. |
Do Obiter Dicta form the essential basis of final decision? | No, Obiter Dicta do not form the essential basis of final decision. |
Do Obiter Dicta possess binding authority as precedent? | No, Obiter Dicta do not possess binding authority as precedent. |
Why do Obiter Dicta carry persuasive value? | Because they emanate from judicial wisdom. |
How may courts use Obiter Dicta in later cases? | Courts may take Obiter Dicta into consideration for persuasive guidance. |
What is the authority of Obiter Dicta? | Obiter Dicta have persuasive authority but are not legally binding. |
As a result of what did the Doctrine of Stare Decisis develop? | It developed as a result of progress in law reporting and establishment of judicial hierarchy. |
What is the literal meaning of Stare Decisis? | Stare Decisis means to let the decision stand in its right place or to abide by decided cases. |
What happens when a judicial decision lays down a new principle of law under this doctrine? | That principle becomes binding upon subordinate courts in future similar cases. |
What authority does such principle have for courts of equivalent jurisdiction? | It has persuasive authority for courts of equivalent jurisdiction. |
On what principle is the Doctrine of Stare Decisis founded? | It is founded on the principle that each court is bound by decisions of the court above it in judicial hierarchy. |
Why are higher courts also guided by their own previous decisions to some extent? | To maintain certainty and uniformity. |
Is the Supreme Court of India absolutely bound by its earlier decisions? | No, the Supreme Court of India may overrule its earlier decisions in appropriate cases. |
Is one High Court’s decision binding on another High Court? | No, one High Court’s decision is not binding on another High Court. |
What value does one High Court’s decision have for another High Court? | It has persuasive value. |
By whose decision is a Single Bench Judge bound within the same High Court? | A Single Bench Judge is bound by the decision of a Division Bench. |
What does the Doctrine of Stare Decisis ensure? | The Doctrine of Stare Decisis ensures consistency, predictability and orderly development of law. |
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DUTIES AND RIGHTS | |
What is the subject matter of Legal Rights and Legal Duties? | Legal Rights and Legal Duties relate to mutual legal claims and obligations arising in organised society. |
What do people necessarily acquire when they come into contact in organised society? | They necessarily acquire certain legal rights and corresponding legal duties. |
Why is social life impossible without regulation of conduct? | Because human conduct must be regulated by recognised standards of claims and obligations. |
What do recognised standards determine in society? | They determine what one person may claim and what another is bound to do or refrain from doing. |
By what are these mutual claims and obligations given legal shape? | They are given legal shape by the law prevailing in society. |
What is the principal purpose of law? | The principal purpose of law is to protect human interests by regulating conduct of individuals. |
How does law maintain social order? | Law maintains social order by securing enjoyment of legitimate claims and imposing obligations necessary for peaceful coexistence. |
What happens when legal system recognises an interest as worthy of protection? | It confers a right upon one person and imposes a corresponding duty upon another. |
How are legal rights and legal duties related? | Legal rights and legal duties are inseparable concepts. |
What do legal rights and legal duties form? | They form the very foundation of juridical relations. |
What does a legal right indicate? | A legal right indicates a legally protected claim. |
What does a legal duty signify? | A legal duty signifies the legal obligation to respect or fulfill that claim. |
What do legal rights and duties together constitute? | They constitute the basic mechanism through which law balances individual interests and social discipline. |
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CLASSIFICATION OF LEGAL DUTIES | |
Into how many main classifications are Legal Duties divided here? | Legal Duties are divided into three main classifications into Positive and Negative, Primary and Secondary, and Absolute and Relative Duties. |
What is a Positive Duty? | Positive Duty is when law obliges a person to do an act. |
What is a Negative Duty? | Negative Duty is when law obliges a person to refrain from doing an act. |
What is a Primary Duty? | Primary Duty is one which exists per se and is independent of any other duty. |
Give an example of Primary Duty. | To forbear from causing personal injury to another. |
What is a Secondary Duty? | Secondary Duty is one which has no independent existence and exists only for enforcement of other duties. |
Give an example of Secondary Duty. | Duty to pay damages for injury done to a person. |
Who classified duties into Absolute and Relative Duties? | Hibbert classified duties into Absolute and Relative Duties. |
What are Absolute Duties according to Hibbert? | Absolute Duties are duties owed only to the State. |
What is breach of Absolute Duty generally called? | Breach of Absolute Duty is generally called a crime. |
What is the remedy for breach of Absolute Duty? | The remedy is punishment. |
What are Relative Duties according to Hibbert? | Relative Duties are duties owed to any person other than the one imposing them. |
What is breach of Relative Duty called? | Breach of Relative Duty is called a civil injury. |
How is breach of Relative Duty redressed? | It is redressed by compensation or restitution to the injured party. |
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LEGAL RIGHTS | |
What is the subject matter of Legal Rights? | Legal Rights relate to interests recognised and protected by law as enforceable claims. |
How does John Salmond define a right? | A right is an interest recognised and protected by a rule of justice. |
Do all interests of a person receive legal recognition? | No, all interests of a person do not receive legal recognition. |
What is meant by interests existing merely de facto and not de jure? | They exist in fact but receive no legal recognition or protection. |
Does violation of de facto interests amount to legal wrong? | No, violation of such interests is no legal wrong. |
Is respect for de facto interests a legal duty? | No, respect for such interests is no legal duty. |
What are interests generally? | Interests are things advantageous to man such as liberty, reputation, property or freedom. |
When does an interest become a right? | An interest becomes a right when recognised and protected by an authoritative rule. |
Into what two kinds may rights be divided? | Rights may be divided into Moral Rights and Legal Rights. |
What is a Moral or Natural Right? | A Moral or Natural Right is an interest recognised by a rule of morality. |
What is the effect of violation of Moral Right? | Violation of Moral Right constitutes a moral wrong. |
What is a Legal Right? | A Legal Right is an interest recognised and protected by a rule of law. |
What is the effect of violation of Legal Right? | Violation of Legal Right amounts to a legal wrong. |
How may a Legal Right be finally understood? | A Legal Right is a legally protected interest enforceable through authority of the State. |
How did John Austin define a right? | A party has a right when another or others are bound or obliged by law to do or forbear towards or in regard to him. |
When does a right exist according to Austin? | A right exists wherever law imposes a corresponding duty upon another person. |
Which element is primarily emphasised in Austin’s definition? | Austin primarily emphasises legal obligation and correlation between right and duty. |
On what ground is Austin’s definition criticised? | It overlooks the essential element of interest involved in a right. |
Why is duty in another person alone not sufficient to constitute a right? | Because a right must also involve a legally protected benefit or advantage. |
Who illustrated the inadequacy of Austin’s definition? | John Stuart Mill illustrated the inadequacy of Austin’s definition. |
What example was given by John Stuart Mill against Austin’s definition? | A jailer is legally bound to execute a prisoner sentenced to death. |
What absurd conclusion follows if Austin’s definition is strictly applied? | It would mean that the convict has a right to be hanged. |
What does Mill’s example show? | Mere existence of duty in another is not sufficient unless some protected interest is present. |
Who gave a more balanced definition of right? | Rudolf von Jhering gave a more balanced definition. |
How did Jhering define rights? | Rights are legally protected interests. |
What is the essence of a right according to Jhering? | The essence of a right lies in protection of some human interest by force of law. |
Which two elements are combined by Jhering in legal right? | Interest and legal protection. |
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THEORIES OF LEGAL RIGHTS | |
WILL THEORY OF LEGAL RIGHT | |
Which jurists supported the Will Theory of Legal Right? | Hegel, Kant and Hume supported the Will Theory of Legal Right. |
What is a right according to the Will Theory? | A right is an inherent attribute of human will. |
From what is the subject matter of right derived according to the Will Theory? | The subject matter of right is derived from human will. |
How does a man express his will according to the Will Theory? | A man expresses his will over an object through a right. |
Which jurist opposed the Will Theory of Legal Right? | Duguit opposed the Will Theory of Legal Right. |
On what basis did Duguit oppose the Will Theory? | Duguit argued that all laws originate from social solidarity. |
What conclusion did Duguit draw from social solidarity? | He concluded that there is no existence of a right as such. |
Why did Duguit believe human will is opposed to social good? | Because human will leads to conflict of interest between individuals. |
What does law demand according to Duguit? | Law as expression of social solidarity demands that everyone should abide by his duties. |
What was Duguit’s view regarding claiming rights? | He held that man has no right to claim rights. |
Why did Duguit reject the concept of right? | He rejected it as immoral and against the interest of society. |
Who rejected Duguit’s view about legal rights? | Dr Edward Jenks rejected Duguit’s view. |
What did Dr Edward Jenks state regarding duty and rights? | Though State enforces duties, those duties are enforced for protecting the interests of the people. |
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INTEREST THEORY OF LEGAL RIGHTS | |
What is the subject matter of Interest Theory of Legal Right? | Interest Theory of Legal Right relates to the conception of right as a legally protected interest. |
Which jurist mainly propounded the Interest Theory of Legal Right? | The German jurist Ihering mainly propounded the Interest Theory of Legal Right. |
What is a legal right according to the Interest Theory? | A legal right is a legally protected interest. |
Does Ihering emphasise the element of will in legal right? | No, Ihering does not emphasise the element of will in legal right. |
Who criticised Ihering’s Interest Theory? | Salmond criticised Ihering’s Interest Theory. |
On what ground did Salmond criticise Ihering’s theory? | Because it is incomplete as it overlooks the element of recognition by the State. |
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ELEMENTS OF LEGAL RIGHT | |
What is the subject matter of Elements of Legal Right? | Elements of Legal Right relate to the essential juridical constituents of every legal right according to Salmond. |
According to whom are the elements of Legal Right explained? | According to John Salmond. |
Why are these elements important according to Salmond? | Because without them a legal right cannot be fully understood. |
How many principal elements of a Legal Right are stated by Salmond? | Five principal elements are stated by Salmond. |
What is the first element of a Legal Right? | The first element is Subject. |
What does Subject mean in a Legal Right? | Subject means the person in whom the right is vested or the holder of the right. |
What is the Subject entitled to claim? | The Subject is entitled to claim the benefit of legal protection. |
What does Salmond call the Subject? | Salmond calls him the Person of Inherence. |
Who is the Subject in the right to property? | The owner of the property. |
What is the second element of a Legal Right? | The second element is the Act or Forbearance. |
What does every right relate to under this element? | Every right relates to some act or forbearance. |
What does the Act or Forbearance element oblige another person to do? | It obliges another person to do a certain act or abstain from doing something. |
With what is every right connected under this element? | Every right is connected with corresponding conduct expected from another. |
What is the third element of a Legal Right? | The third element is Object of Right. |
What does Object of Right mean? | It means the thing, interest or subject matter in respect of which the right exists. |
What kind of benefit is secured through Object of Right? | Material or immaterial benefit. |
What is the Object in ownership? | The property itself. |
What is the fourth element of a Legal Right? | The fourth element is Person Bound. |
Who is the Person Bound? | The person upon whom the co-relative duty falls. |
Against whom is the right enforceable? | Against the Person Bound. |
What is the Person Bound legally obliged to do? | He is legally obliged to perform the corresponding act or forbearance. |
What does Salmond call the Person Bound? | Salmond calls him the Person of Incidence. |
What is the fifth element of a Legal Right? | The fifth element is Title. |
What does Title mean according to Salmond? | Title means the lawful source or ground from which the right is derived. |
From what may Title arise? | Title may arise from ownership, contract, inheritance, statute, prescription or other recognised mode. |
What is Title in relation to right? | Title is the legal basis of the existence of the right. |
What are the necessary elements involved in every Legal Right? | Subject, Act or Forbearance, Object, Person Bound and valid Title. |
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RELATIONSHIP BETWEEN RIGHT AND DUTY | |
What is the general principle regarding right and duty? | Right is always co-relative to duty. |
Do all jurists agree that every duty has a co-relative right? | No, some jurists do not agree with this view. |
What do such jurists say regarding duties? | They say that there can be some duties without co-relative rights. |
What are duties without co-relative rights called? | They are called Absolute Duties. |
What did John Austin point out regarding rights and duties? | He pointed out that certain absolute duties do not have corresponding legal rights. |
When do such absolute duties arise according to Austin? | They arise when law imposes obligation though no individual can specifically claim a correlative right. |
How many kinds of absolute duties are mentioned by Austin? | Austin mentions four kinds of absolute duties. |
What is the first kind of absolute duty according to Austin? | The first kind is Self-regarding Duties. |
What are Self-regarding Duties? | Self-regarding Duties are duties which a person owes to himself. |
Give examples of Self-regarding Duties. | Duty not to commit suicide or not to inflict grievous self-harm. |
Why does law impose Self-regarding Duties though there is no separate right-holder? | In the interest of social order. |
What is the second kind of absolute duty according to Austin? | Duties towards Indeterminate Persons or the Public at Large. |
To whom are duties towards Indeterminate Persons owed? | They are owed to the community generally and not to any definite individual. |
Give an example of duty towards the Public at Large. | Duty not to commit a public nuisance. |
What is the third kind of absolute duty according to Austin? | Duties towards Non-human Beings. |
Towards whom may such duties be owed? | Towards God, animals or birds. |
Why are these duties absolute? | Because no legal right in strict human sense exists in a determinate person. |
What is the fourth kind of absolute duty according to Austin? | Duties towards the Sovereign or the State. |
Give examples of duties towards the State. | Duties of allegiance, obedience and maintenance of public order. |
What does breach of duties towards the State constitute? | It constitutes an offence against authority of the State. |
What did Austin finally conclude regarding rights and duties? | Though generally correlative, certain absolute duties may exist without clearly identifiable corresponding right. |
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CLASSIFICATION OF LEGAL RIGHT | |
What is the subject matter of Classification of Legal Rights? | Classification of Legal Rights relates to the division of legal rights into different juridical categories. |
Into how many kinds are Legal Rights classified here? | Legal Rights are classified into five kinds. |
What are the five kinds of Legal Rights? | Perfect and Imperfect Rights, Positive and Negative Rights, Real and Personal Rights, Rights in Re Propria and Rights in Re Aliena, and Legal and Equitable Rights. |
What is a Perfect Right? | A Perfect Right is one which corresponds to a perfect duty. |
Is a Perfect Right enforceable by law? | Yes, it is fully enforceable through legal remedies. |
What does law provide when holder of Perfect Right is deprived of enjoyment? | Law provides definite machinery for its enforcement. |
What is an Imperfect Right? | An Imperfect Right is one which though recognised in limited sense is not enforceable by law. |
What may a person possess in case of Imperfect Right? | He may possess a moral or nominal claim. |
Do courts provide effective legal remedy for Imperfect Right? | No, courts do not provide effective legal remedy. |
What is a Positive Right? | A Positive Right entitles its holder to require another person to do some positive act in his favour. |
What is duty under Positive Right? | Duty under Positive Right is bound to perform something. |
What is a Negative Right? | A Negative Right requires others to abstain from doing something prejudicial to the right-holder. |
What kind of duty is imposed under Negative Right? | A duty of restraint. |
What do Positive Rights demand? | Positive Rights demand action. |
What do Negative Rights demand? | Negative Rights demand forbearance. |
By what other names are Real and Personal Rights known? | Right in Rem and Right in Personam. |
What is a Real Right or Right in Rem? | A Real Right corresponds to duty imposed upon persons in general. |
Against whom is a Real Right enforceable? | It is enforceable against the whole world. |
Give an example of Real Right. | Right of ownership over property. |
What is a Personal Right or Right in Personam? | A Personal Right corresponds to duty imposed upon a determinate individual or specific persons only. |
From what does Personal Right generally arise? | It generally arises out of contract, trust or obligation. |
Against whom is Personal Right enforceable? | It is enforceable only against a particular person. |
What is Right in Re Propria? | Right in Re Propria means a right over one’s own property. |
What does Right in Re Propria indicate? | It indicates complete ownership or proprietary interest vested in the person. |
What is Right in Re Aliena? | Right in Re Aliena means a right over the property of another person. |
What is the nature of Right in Re Aliena? | It is limited in nature and exists as subordinate interest. |
Give examples of Right in Re Aliena. | Easement, mortgage or lease. |
What were Legal Rights in England? | Rights recognised and enforced by Common Law Courts. |
What were Equitable Rights in England? | Rights recognised and protected by Courts of Equity. |
What are Legal Rights generally? | Legal Rights are strict rights available under ordinary law. |
On what principles are Equitable Rights granted? | On principles of fairness, justice and conscience. |
According to what factors may Legal Rights differ? | According to enforceability, nature of obligation, persons bound, proprietary relation and source of recognition. |
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CLASSIFICATION OF LEGAL RIGHTS | |
Into how many kinds are Legal Rights classified here? | Legal Rights are classified into five kinds. |
What are the five kinds of Legal Rights? | Perfect and Imperfect Rights, Positive and Negative Rights, Real and Personal Rights, Rights in Re Propria and Rights in Re Aliena, and Legal and Equitable Rights. |
What is a Perfect Right? | A Perfect Right is one which corresponds to a perfect duty. |
Is a Perfect Right enforceable by law? | Yes, it is fully enforceable through legal remedies. |
What does law provide when holder of Perfect Right is deprived of enjoyment? | Law provides definite machinery for its enforcement. |
What is an Imperfect Right? | An Imperfect Right is one which though recognised in limited sense is not enforceable by law. |
What may a person possess in case of Imperfect Right? | He may possess a moral or nominal claim. |
Do courts provide effective legal remedy for Imperfect Right? | No, courts do not provide effective legal remedy. |
What is a Positive Right? | A Positive Right entitles its holder to require another person to do some positive act in his favour. |
What is duty under Positive Right? | Duty under Positive Right is bound to perform something. |
What is a Negative Right? | A Negative Right requires others to abstain from doing something prejudicial to the right-holder. |
What kind of duty is imposed under Negative Right? | A duty of restraint. |
What do Positive Rights demand? | Positive Rights demand action. |
What do Negative Rights demand? | Negative Rights demand forbearance. |
By what other names are Real and Personal Rights known? | Right in Rem and Right in Personam. |
What is a Real Right or Right in Rem? | A Real Right corresponds to duty imposed upon persons in general. |
Against whom is a Real Right enforceable? | It is enforceable against the whole world. |
Give an example of Real Right. | Right of ownership over property. |
What is a Personal Right or Right in Personam? | A Personal Right corresponds to duty imposed upon a determinate individual or specific persons only. |
From what does Personal Right generally arise? | It generally arises out of contract, trust or obligation. |
Against whom is Personal Right enforceable? | It is enforceable only against a particular person. |
What is Right in Re Propria? | Right in Re Propria means a right over one’s own property. |
What does Right in Re Propria indicate? | It indicates complete ownership or proprietary interest vested in the person. |
What is Right in Re Aliena? | Right in Re Aliena means a right over the property of another person. |
What is the nature of Right in Re Aliena? | It is limited in nature and exists as subordinate interest. |
Give examples of Right in Re Aliena. | Easement, mortgage or lease. |
What were Legal Rights in England? | Rights recognised and enforced by Common Law Courts. |
What were Equitable Rights in England? | Rights recognised and protected by Courts of Equity. |
What are Legal Rights generally? | Legal Rights are strict rights available under ordinary law. |
On what principles are Equitable Rights granted? | On principles of fairness, justice and conscience. |
According to what factors may Legal Rights differ? | According to enforceability, nature of obligation, persons bound, proprietary relation and source of recognition. |
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OWNERSHIP | |
What is the subject matter of Ownership? | Ownership relates to the highest and most comprehensive proprietary right over a thing. |
Where does the concept of Ownership originate from? | The concept of Ownership originates from ancient Roman Law. |
How is Ownership regarded among proprietary rights? | Ownership is regarded as the most important and comprehensive proprietary right. |
Why is Ownership considered the most comprehensive right? | Because it confers the fullest legal control over a thing subject to law. |
Was distinction between Ownership and Possession clearly recognised in early legal development? | No, the distinction was not clearly recognised. |
How was mere physical control treated in early law? | Mere physical control was often treated as equivalent to ownership. |
What led jurists to distinguish Ownership from Possession? | Advancement of civilisation and refinement of legal thought. |
What does Possession primarily relate to? | Possession primarily relates to physical control or detention. |
What does Ownership denote? | Ownership denotes the ultimate legal right or title over the thing. |
Can Possession and Ownership coexist in same person? | Yes, Possession and Ownership may coexist in same person. |
Are Possession and Ownership conceptually identical? | No, they are conceptually distinct. |
What is meant by the right of Ownership? | The right of Ownership refers to ownership over a corporeal or material object. |
Give examples of right of Ownership over corporeal objects. | Land, goods or movable property. |
What is corporeal Ownership? | Corporeal Ownership is ownership concerning tangible things. |
What is meant by ownership of a right? | Ownership of a right means ownership over an incorporeal or intangible legal interest. |
Give examples of incorporeal Ownership. | Debt, copyright, easement or contractual claim. |
Why is it called incorporeal Ownership? | Because what is owned is not a physical object but a legal right itself. |
How may Ownership be broadly understood? | Ownership is the highest legal relation between a person and a thing whether corporeal or incorporeal. |
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DEFINITION | |
What do different jurists emphasise while explaining Ownership? | They emphasise the fullness of control exercised by the owner over a thing. |
How does William N. Hibbert describe Ownership generally? | Ownership consists in certain essential rights over a thing. |
What is the first right included in Ownership according to Hibbert? | The right to use a thing. |
What is the second right included in Ownership according to Hibbert? | The right to exclude others from the use of that thing. |
What is the third right included in Ownership according to Hibbert? | The right to dispose of the thing. |
What is the fourth right included in Ownership according to Hibbert? | The right even to destroy the thing. |
How does Hibbert treat Ownership? | Hibbert treats Ownership as the bundle of fullest possible powers exercisable over property. |
What may the owner do under Hibbert’s concept of Ownership? | He may enjoy, prevent interference, transfer, alienate or destroy the thing subject to legal restrictions. |
How does John Austin define Ownership? | Ownership is a right over a determinate thing, indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration. |
What does Austin mean by determinate thing? | Ownership relates to a specific thing. |
What does Austin mean by indefinite in point of user? | Owner may use the thing in any lawful manner. |
What does Austin mean by unrestricted in point of disposition? | Owner may freely dispose of the thing according to his will. |
What does Austin mean by unlimited in point of duration? | Owner’s right ordinarily continues for unlimited duration unless law provides otherwise. |
What kind of right is Ownership according to Austin? | Ownership is a right in rem. |
Against whom is Ownership enforceable as a right in rem? | It is enforceable against the world at large. |
What duty lies upon every other person regarding owner’s enjoyment? | Every other person is under general duty not to interfere. |
In reference to what things is Ownership generally used? | Ownership is generally used in reference to corporeal things. |
Can Ownership extend to incorporeal rights also? | Yes, in wider sense Ownership may extend to incorporeal rights. |
How does Thomas Erskine Holland define Ownership? | Ownership is a plenary control over an object. |
What does the term plenary signify in Holland’s definition? | Plenary signifies full, complete and comprehensive control. |
What is Ownership according to Holland in effect? | Ownership is the most extensive dominion exercisable over a thing subject to law. |
How does George W. Keeton define Ownership? | Ownership is the ultimate right to the enjoyment of a thing. |
What does the word ultimate indicate in Keeton’s definition? | It indicates that Ownership is the highest and residuary legal claim in respect of property. |
Can subordinate interests exist according to Keeton? | Yes, subordinate interests may exist temporarily. |
With whom does ultimate legal enjoyment remain according to Keeton? | It remains with the owner. |
How does John Salmond define Ownership? | Ownership denotes the relationship between a person and a right vested in him. |
What is the nature of Salmond’s definition of Ownership? | Salmond’s definition is abstract and juristic in nature. |
What does Salmond emphasise in Ownership? | He emphasises that Ownership is a legal relation between owner and aggregate of rights vested in him. |
Does Salmond treat Ownership as merely physical relation with thing? | No, he treats it as legal entitlement rather than mere physical relation. |
What conception does Salmond shift Ownership towards? | He shifts Ownership from material object to legal entitlement. |
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ATTRIBUTES OF OWNERSHIP | |
What are the three attributes of Ownership? | Indefinite User, Unrestricted Disposition and Unlimited Duration. |
What is meant by Indefinite User? | Indefinite User means the owner is free to use or even misuse the thing in any manner subject to legal restrictions. |
Is the owner’s freedom of user absolute under Indefinite User? | No, it is subject to certain restrictions of law. |
What is meant by Unrestricted Disposition? | Unrestricted Disposition means the owner has unrestricted right to dispose of the thing in any manner he likes. |
What necessary incident of Ownership is reflected by Unrestricted Disposition? | The right of alienation. |
What is meant by Unlimited Duration? | Unlimited Duration means the right of ownership is unlimited in point of duration. |
How long does the right of Ownership exist under Unlimited Duration? | It exists so long as the owner and the thing exist. |
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TYPES OF OWNERHSIP | |
What is the subject matter of Kinds of Ownership? | Kinds of Ownership relate to the various juridical classifications of ownership. |
Into how many kinds is Ownership classified here? | Ownership is classified into six kinds. |
What are the six kinds of Ownership? | Corporeal and Incorporeal, Sole and Co-ownership, Trust and Beneficial, Legal and Equitable, Vested and Contingent, Absolute and Limited Ownership. |
What is Corporeal Ownership? | Ownership of a material or physical object is called Corporeal Ownership. |
What is Incorporeal Ownership? | Ownership of a right or intangible interest is called Incorporeal Ownership. |
Give examples of Corporeal Ownership. | Ownership of house, land, table or machine. |
Give examples of Incorporeal Ownership. | Ownership of copyright, patent, trademark or easement. |
Why are corporeal things called corporeal? | Because they are tangible and capable of being seen and touched. |
Why are incorporeal things called incorporeal? | Because they are intangible legal rights not perceived by senses. |
What is Sole Ownership? | Sole Ownership is when ownership is vested in one single person. |
What is Co-ownership? | Co-ownership is when ownership is vested in two or more persons simultaneously. |
Give an example of Co-ownership. | Members of a partnership firm are co-owners of partnership property. |
Into what kinds may Co-ownership be further divided? | Ownership in Common and Joint Ownership. |
What is Ownership in Common? | Ownership in Common is where share of each owner is inheritable. |
What happens on death of co-owner in Ownership in Common? | His interest passes to his legal successor. |
What is Joint Ownership? | Joint Ownership is where right of survivorship operates among joint owners. |
What happens on death of joint owner in Joint Ownership? | His ownership extinguishes and surviving owner becomes sole owner. |
What is Trust Ownership? | Trust Ownership is ownership of trustee who holds property under obligation for benefit of another. |
Who is the person holding property in Trust Ownership called? | Trustee. |
What is Beneficial Ownership? | Beneficial Ownership is ownership of beneficiary for whose benefit property is held. |
Who enjoys beneficial ownership? | The Beneficiary. |
What is the relation between Trust and Beneficial Ownership? | Legal control remains with trustee while beneficial enjoyment belongs to beneficiary. |
What is Legal Ownership? | Legal Ownership is ownership recognised by strict rules of common law and ordinary legal courts. |
What is Equitable Ownership? | Equitable Ownership is ownership recognised on principles of fairness, justice and conscience. |
Can legal title and equitable claim vest in different persons? | Yes, one may have legal title while another has equitable claim. |
What is Vested Ownership? | Vested Ownership is ownership where title is already complete and perfect. |
Is Vested Ownership dependent on future condition? | No, it is not dependent on any future condition. |
What is Contingent Ownership? | Contingent Ownership is ownership capable of becoming perfect on fulfillment of specified condition. |
How may Vested and Contingent Ownership be contrasted? | Vested Ownership is complete while Contingent Ownership is conditional or incomplete. |
What is Absolute Ownership? | Absolute Ownership is when all rights of possession, enjoyment, use and disposal vest without restriction. |
What is Limited Ownership? | Limited Ownership is ownership subject to restrictions regarding user, duration or disposal. |
How may Absolute and Limited Ownership be contrasted? | Absolute Ownership confers fullest dominion whereas Limited Ownership confers restricted dominion. |
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GANDHIAN CONCEPT OF OWNERSHIP | |
Through which theory did Mahatma Gandhi give social and ethical dimension to Ownership? | Through the theory of Trusteeship. |
How did Gandhi view ownership in relation to individual benefit? | Ownership does not exist merely for individual benefit or selfish enjoyment. |
How should a person owning property regard himself according to Gandhi? | He should regard himself only as a trustee holding property for benefit of society. |
For whose benefit should property be held under Gandhian theory? | For the benefit of society as a whole. |
How is ownership vested in a person according to Gandhi? | It is vested not for unrestricted personal exploitation but for use conducive to public good and social welfare. |
Which conception of property did Gandhi reject? | Gandhi rejected the purely individualistic and absolute conception of property. |
What did Gandhi substitute in place of absolute property concept? | A socially responsible concept of ownership. |
Does Gandhian philosophy find reflection in present Indian legal system? | Yes, Gandhian philosophy finds reflection in present Indian legal system. |
Can any person claim completely absolute ownership over property under modern Indian law? | No, proprietary rights are subject to numerous statutory restrictions. |
Why are proprietary rights restricted under Indian law? | In the larger public interest. |
Which laws substantially limit owner’s unrestricted dominion? | Ceiling laws, rent control laws, company regulations, land reform enactments and other welfare legislations. |
What is the modern trend regarding Ownership in India? | Ownership is treated not merely as private right but as a social institution burdened with obligations towards community. |
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POSSESION | |
How is Possession regarded in jurisprudence and property law? | Possession is regarded as one of the most fundamental concepts. |
What does Possession denote? | Possession denotes the factual control or physical relation of a person with a thing. |
Why is Possession regarded as the most basic relation between man and material objects? | Because use, enjoyment and consumption of things become possible only through possession. |
What legal value does law attach to Possession? | Law attaches strong evidentiary value to Possession. |
What is Possession prima facie evidence of? | Possession is prima facie evidence of Ownership. |
Under which section of the Bhartiya Sakshya Adhiniyam, 2023 linked with presumption of ownership? | Under Section 113 of the Bhartiya Sakshya Adhiniyam, 2023. |
On whom lies burden of proving non-ownership when a person is in possession? | It lies on the person who disputes his ownership. |
What is the ordinary presumption of law regarding possessor? | The possessor of a thing is presumed to be its owner unless better title is proved. |
Is Possession merely a physical fact? | No, Possession is also a legally significant condition. |
Why would organised society be impossible without Possession? | Because human life depends on possession and use of material things. |
Which necessities become socially meaningful only through Possession? | Food, shelter, clothing, land and tools. |
How does jurisprudence treat Possession in proprietary relations? | As the earliest and most practical basis of proprietary relations. |
How may Possession be finally understood? | Possession is the immediate physical control or occupation of a thing recognised by law with legal consequences. |
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KINDS OF POSSESSION | |
Into how many kinds may Possession broadly be divided? | Possession may broadly be divided into two kinds. |
What are the two kinds of Possession? | Possession in Fact and Possession in Law. |
What is Possession in Fact also called? | De Facto Possession. |
What is Possession in Law also called? | De Jure Possession. |
What does Possession in Fact indicate? | Possession in Fact indicates physical control of a person over a thing. |
What does Possession in Fact refer to? | It refers to the actual factual relation between a person and the object possessed. |
When is a person said to have De Facto Possession? | When he has physical dominion over a thing and can deal with it as his own. |
Can all things become objects of Possession? | No, things over which physical control is impossible cannot ordinarily become objects of possession. |
Give examples of things which cannot ordinarily become objects of Possession. | Sun, moon or stars. |
Must physical control always be continuous and uninterrupted for Possession? | No, physical control need not always be continuous and uninterrupted. |
Can Possession continue despite temporary relinquishment of manual control? | Yes, if the person remains in position to resume control in normal course. |
Does a person lose possession of coat by removing it temporarily? | No, he does not lose possession of it. |
What additional practical capacity should possessor ordinarily have? | He should have practical capacity to exclude others from interference. |
What does Possession in Law mean? | Possession in Law means possession recognised and protected by law. |
What does legal system confer in Possession in Law? | It confers certain rights upon the possessor. |
Against what does law safeguard Possession in Law? | Against unlawful interference. |
How does law protect possession against wrongful disturbance? | By penalising wrongdoers or compelling payment of damages or restoration of possession. |
What is the distinction between Possession in Fact and Possession in Law? | Possession in Fact is physical dominion, whereas Possession in Law is physical dominion with legal protection. |
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SAVIGNY THEORY OF POSSESION | |
What is the subject matter of Savigny’s Theory of Possession? | Savigny’s Theory of Possession relates to the classical concept that possession consists of Corpus and Animus. |
Who propounded the classical theory of possession? | Friedrich Carl von Savigny propounded the classical theory of possession. |
How many essential elements of possession were stated by Savigny? | Two essential elements were stated by Savigny. |
What are the two essential elements of possession according to Savigny? | Corpus Possessionis and Animus Possessionis. |
What must coexist according to Savigny before a person can have legal possession? | Both physical and mental elements must coexist. |
What is Corpus Possessionis? | Corpus Possessionis means effective physical control over the thing. |
What does Corpus Possessionis signify in other words? | Exclusive use of the object together with capacity to eliminate interference of others. |
What are the two implications of Corpus according to Savigny? | Physical relation to object and ability to exclude others from disturbing control. |
What is the first implication of Corpus? | The possessor’s actual dominion or control over the object. |
What is the second implication of Corpus? | The possessor’s relation to rest of world through ability to exclude others. |
What kind of element is Corpus in possession? | Corpus is the external and material element of possession. |
What is Animus Possessionis? | Animus Possessionis means intention to hold the thing as owner. |
What is Animus Possessionis technically known as? | Animus Possidendi. |
What kind of element is Animus in possession? | Animus is the mental or subjective element in possession. |
Is mere physical custody enough to constitute possession according to Savigny? | No, mere physical custody is not enough. |
What additional requirement is necessary besides physical custody? | Intention to exercise control over the thing on one’s own behalf. |
Why does a servant or agent not have legal possession according to Savigny? | Because though having physical custody he lacks animus possidendi. |
What is true possession according to Savigny? | True possession is combination of Corpus and Animus. |
How may Savigny’s true possession be finally stated? | Effective physical control coupled with possessory intention. |
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HENRY MAINE VIEW ON POSSESSION | |
What is the subject matter of Henry Maine’s View on Possession? | Henry Maine’s View on Possession relates to the development of possession from mere physical contact to physical control plus intention. |
What did Henry Maine point out regarding early stages of law? | In early stages of development of law, physical contact was deemed necessary to constitute legal possession. |
How was a person considered possessor in primitive society? | A person was considered possessor because he had direct physical hold over the object. |
What was realised with advancement of legal thought regarding possession? | Possession does not mean mere physical control alone. |
What additional element was realised to be necessary in possession? | The intention to possess the thing to the exclusion of others. |
What does possession include according to Henry Maine? | Possession includes factual element of control and mental element of possessory intention. |
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IHERING THEORY OF POSSESSION | |
What is the subject matter of Ihering’s Theory of Possession? | Ihering’s Theory of Possession relates to the practical concept that possession is mainly based on visible physical control. |
Who propounded Ihering’s Theory of Possession? | Rudolf von Ihering propounded Ihering’s Theory of Possession. |
What did Ihering state regarding a person appearing like an owner? | Whenever a person appears like an owner in relation to a thing, he has possession unless denied by rules of law. |
On what may possession be denied according to Ihering? | Possession may be denied by rules of law based on practical convenience. |
How was Ihering’s approach different from Savigny? | Ihering adopted a more practical approach and did not insist on animus as indispensable element. |
Did Ihering insist upon animus as an indispensable element of possession? | No, Ihering did not insist upon animus as indispensable. |
Why did Ihering attach greater importance to visible control? | Because in majority of cases person holding property would normally be its owner. |
Why did Ihering avoid difficult inquiry into mental intention? | Because law should rely on practical visible facts rather than difficult mental investigation. |
From what standpoint did Ihering consider possession? | From the standpoint of social convenience and legal protection. |
How is possession established according to Ihering? | Possession is established substantially by physical control. |
What does law presume from physical control according to Ihering? | Law presumes possessory intention from such control unless circumstances show otherwise. |
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CLASSIFICATION OF POSSESSION | |
What is the subject matter of Kinds of Possession? | Kinds of Possession relate to the juridical classifications of possession into different forms. |
Into how many kinds is Possession classified here? | Possession is classified into three kinds. |
What are the three kinds of Possession mentioned here? | Corporeal and Incorporeal Possession, Mediate and Immediate Possession, and Adverse Possession. |
What is Corporeal Possession? | Corporeal Possession means possession in relation to material or tangible things. |
Give examples of Corporeal Possession. | Land, house, building, furniture, watch, book etc. |
Is actual continuous use always necessary for retaining Corporeal Possession? | No, actual continuous use is not always necessary. |
Can a person retain possession of watch kept locked for years? | Yes, he is still deemed to be in possession of it. |
What is Incorporeal Possession? | Incorporeal Possession means possession of immaterial or intangible things. |
Give examples of Incorporeal Possession. | Right of way, copyright or other legal rights. |
What is generally essential for maintaining Incorporeal Possession? | Actual continuous use and enjoyment are generally essential. |
What is Mediate Possession? | Mediate Possession is possession retained through some mediator, agent, servant or manager. |
Does owner physically hold thing in Mediate Possession? | No, owner does not physically hold the thing himself. |
Give example of Mediate Possession. | Book purchased through agent or servant remains in owner’s mediate possession. |
How many persons may be connected with same object in Mediate Possession? | Two persons may be connected with same object at same time. |
What is Immediate Possession? | Immediate Possession means possession directly held by the person himself. |
What is another name of Immediate Possession? | Direct Possession. |
Give example of Immediate Possession. | When a person purchases and holds a book himself. |
What is Adverse Possession? | Adverse Possession means hostile possession by a person against the true owner. |
How does Adverse Possession generally begin? | A person initially holds land on behalf of another and later sets up his own hostile claim. |
What happens if Adverse Possession continues for statutory period? | Title of true owner is extinguished and possessor acquires ownership. |
What are the essential elements of Adverse Possession? | Continuity of possession, adequate publicity or openness, and peaceful uninterrupted possession for prescribed period. |
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MODES OF ACQUISATION OF POSSESION | |
In how many ways may Possession be acquired here? | Possession may be acquired in three ways. |
What are the three Modes of Acquisition of Possession? | By Taking, By Delivery and By Operation of Law. |
What is meant by acquisition of possession by Taking? | Taking means acquisition of possession without consent of previous owner or possessor. |
Can taking be rightful or wrongful? | Yes, taking may be rightful or wrongful depending on circumstances. |
Is it necessary that thing taken must already be in possession of previous owner? | No, it is not necessary. |
Can possession be acquired by taking an ownerless thing? | Yes, possession may be acquired by taking an ownerless thing. |
What is a thing belonging to nobody called? | Res Nullius. |
What does Res Nullius mean? | A thing belonging to none. |
How may possession be acquired under Taking finally? | By simply taking control of ownerless object or without consent. |
What is acquisition of possession by Delivery? | It is acquisition of possession with consent or cooperation of previous owner or possessor. |
How does possession pass in Delivery? | Possession passes voluntarily from one person to another. |
What are the two forms of Delivery? | Actual delivery and Constructive delivery. |
What is Actual Delivery? | Physical handing over of the object. |
What is Constructive Delivery? | Transfer of control without physical handing over. |
What is Delivery finally? | Delivery is a consensual transfer of possession. |
What is acquisition of possession by Operation of Law? | It is possession obtained through legal rules. |
Is physical taking necessary in acquisition by Operation of Law? | No, physical taking is not necessary. |
Is voluntary delivery necessary in acquisition by Operation of Law? | No, voluntary delivery is not necessary. |
Give examples of acquisition by Operation of Law. | Inheritance, court orders, statutory provisions or legal presumptions. |
How may law confer possession in this mode? | Law itself places a person in possession irrespective of direct physical transfer. |
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DIFFERENCE BETWEEN OWNERSHIP AND POSSESSION | |
What is the subject matter of Difference Between Ownership and Possession? | Difference Between Ownership and Possession relates to the distinction between legal title and factual control. |
Are Ownership and Possession identical concepts? | No, Ownership and Possession are closely related but not identical. |
How did Henry Maine distinguish Possession and Ownership? | Possession is de facto exercise of a claim whereas Ownership is de jure. |
What does de facto indicate in Possession? | It indicates actual factual control. |
What does de jure indicate in Ownership? | It indicates legal title. |
How did Rudolf von Ihering distinguish Possession and Ownership? | Possession is a fact but Ownership is a right. |
What does Possession denote according to Ihering? | Physical dominion over a thing. |
What does Ownership denote according to Ihering? | Legal authority over a thing. |
How is Possession generally regarded in relation to Ownership? | Possession is regarded as external evidence of Ownership. |
What is legal presumption regarding possessor of property? | Possessor is generally presumed to be owner unless better title is proved. |
Can long possession mature into Ownership? | Yes, long continuous possession may mature into ownership through adverse possession. |
How did John Salmond distinguish Ownership from Possession? | Claim recognised and protected by law is Ownership, while Possession is exercised without such complete recognition. |
How did Dr. Sethna describe relationship between Ownership and Possession? | Relationship is same as that of body and soul. |
What does Possession give to Ownership according to Dr. Sethna? | Possession gives visible form to Ownership. |
What does Ownership give to Possession according to Dr. Sethna? | Ownership gives legal substance to Possession. |
Can there be Ownership without Possession? | Yes, where owner has legal title but another physically holds the thing. |
Can there be Possession without Ownership? | Yes, where tenant, bailee or finder has possession but not ownership. |
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LANDMARK CASES ON POSSESSION | |
What is the subject matter of Important Cases on Possession? | Important Cases on Possession relate to leading judicial decisions explaining principles of possession. |
Which case established possessory rights of finder of lost goods in public place? | Bridges v. Hawkesworth. |
What were the facts in Bridges v. Hawkesworth? | A customer found parcel of bank notes on floor of a shop and handed them to shopkeeper. |
Between whom did dispute arise in Bridges v. Hawkesworth? | Between the finder and the shopkeeper. |
Who was held entitled to possession in Bridges v. Hawkesworth? | The finder was entitled to possession against all except true owner. |
Why was finder preferred in Bridges v. Hawkesworth? | Because shop was public place and notes were not in custody of shopkeeper. |
What principle was established in Bridges v. Hawkesworth? | Finder of lost goods in public place acquires possessory rights. |
Which case illustrates requirement of effective control in possession? | R v. Riley. |
What were the facts in R v. Riley? | A person marked another’s lamb with his own mark intending to assert possession. |
What did court hold in R v. Riley? | Possession depends on effective control with intention and not mere physical touching. |
Was mere temporary handling sufficient in R v. Riley? | No, mere temporary handling was not sufficient. |
Which case shows that actual manual control is not always necessary? | R v. Harding. |
What were the facts in R v. Harding? | The accused took fish from a net belonging to another. |
What did court hold in R v. Harding? | Owner retained possession because he had sufficient control through the net. |
What principle was established in R v. Harding? | Actual hand-to-hand custody is unnecessary if effective dominion exists. |
Which case highlights importance of animus or possessory intention? | R v. Ashwell. |
What were the facts in R v. Ashwell? | Money was handed over by mistake and later dishonestly appropriated. |
What did court hold in R v. Ashwell? | Wrongful possession arose when dishonest intention was formed after receiving money. |
Which case established that possession may not extend to unknown concealed articles? | Merry v. Green. |
What were the facts in Merry v. Green? | A person purchased bureau and later discovered hidden money inside it. |
What did court hold in Merry v. Green? | Possession of bureau did not automatically mean possession of hidden contents. |
Why was possession denied over hidden money in Merry v. Green? | Because buyer had no knowledge of concealed articles. |
Which case supports that physical contact is not indispensable for possession? | R v. Moore. |
What were the facts in R v. Moore? | Coal was loaded into wagons and issue arose regarding owner’s possession. |
What did court hold in R v. Moore? | Possession may continue without direct manual contact so long as effective control exists. |
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LEGAL PERSONALITY | |
What is the subject matter of Legal Personality? | Legal Personality relates to recognition of entities as persons capable of legal rights and duties. |
How many types of persons does law generally recognise? | Law generally recognises two types of persons. |
What are the two types of persons recognised by law? | Natural Persons and Artificial Persons. |
Who are Natural Persons? | Natural Persons are human beings capable of having legal rights and duties. |
Why are Natural Persons capable of rights and duties? | By virtue of their existence as members of society. |
Who are Artificial Persons? | Artificial Persons are beings other than human beings recognised by law as capable of rights and duties. |
Are Artificial Persons natural human entities? | No, they are not natural human entities. |
Why does law treat Artificial Persons as persons? | For certain legal purposes. |
What is one of the most commonly recognised Artificial Persons? | A corporation. |
What legal capacities may a corporation possess? | It may sue and be sued, own property and enter into legal relations in its own name. |
What is legal or juristic personality? | It is the wider concept including human beings as well as non-human entities recognised by law. |
Which non-human entities may be included in legal personality? | Corporations, idols, deities, institutions and in some cases gods or angels. |
When does law attribute legal rights and obligations to such non-human entities? | Whenever law finds it convenient to do so. |
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DEFINITION | |
What is the subject matter of Definition of Legal Person? | Definition of Legal Person relates to the juristic meaning of person as subject of rights and duties. |
How does John Chipman Gray define a person? | A person is an entity to which rights and duties may be attributed. |
Who is a person in the eye of law according to Gray? | Any being capable of holding a right or bearing a duty. |
Is a legal person necessarily a human being according to Gray? | No, it may be human or non-human. |
How does G. W. Paton explain legal personality? | Legal personality is a medium through which units are created in whom rights vest and duties are imposed. |
What does Paton treat legal personality as? | A legal device by which law recognises entities as subjects of legal relations. |
Is a juristic person necessarily a human being? | No, a juristic person is not necessarily a human being. |
What may a juristic person be apart from human being? | It may be a thing, a mass of property or a group of human beings. |
Why does law attribute personality to such entities? | For conferring legal rights and obligations. |
What is a legal person finally? | Any entity recognised by law as capable of being subject of rights and duties. |
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LEGAL STATUS OF UNBORN PERSON | |
What is the subject matter of Legal Status of Unborn Person? | Legal Status of Unborn Person relates to the limited legal personality granted to a child in mother’s womb. |
Does law recognise an unborn child as legal person? | Yes, by legal fiction law attributes limited legal personality to an unborn child. |
When is a child in mother’s womb treated as already born? | For certain beneficial purposes and protection of his interests. |
Can gift or property be made in favour of unborn child? | Yes, gift or property may validly be made in favour of child in mother’s womb. |
Are rights of unborn child absolute from beginning? | No, such rights are contingent in nature. |
On what do the rights of unborn child depend? | They depend upon the child taking birth alive. |
What happens if the child is not born alive? | His share devolves upon the surviving heirs. |
Does Indian criminal law protect unborn child? | Yes, Indian criminal law protects interests of unborn child. |
Under which sections are acts causing miscarriage or injury to unborn child punishable? | Under Sections 88, 89 and 92 of BNS. |
When do contingent rights of unborn child become fully vested? | Upon live birth. |
Which case recognised legal protection of unborn child injured in womb? | Montreal Tramways Co. v. Leveille (1933). |
What was recognised in Montreal Tramways Co. v. Leveille? | Legal recognition was extended for protecting rights of child who was in womb at time of injury. |
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LEGAL STATUS OF DEAD PERSON | |
What is the subject matter of Legal Status of Dead Man? | Legal Status of Dead Man relates to the limited recognition given by law to the dignity of a deceased person. |
What is John Salmond’s view regarding dead men? | Dead men are no longer persons in the eyes of law. |
Do dead men continue to have rights according to Salmond? | No, they cease to have rights because they cease to have interests. |
Do dead men have duties according to Salmond? | No, they do not have duties. |
Is a dead man’s corpse property in the eyes of law according to Salmond? | No, a dead man’s corpse is not property in the eyes of law. |
What did the Supreme Court hold in Ashray Adhikar Abhiyan v. Union of India? | Even a homeless person found dead on the road has a right to decent burial or cremation according to his religious faith. |
What constitutional value was recognised in Ashray Adhikar Abhiyan case? | The dignity and fair treatment of the dead body was recognised under law. |
What conclusion emerges regarding legal status of dead man? | Though a dead man ceases to be a full legal person, law still protects the dignity and decent disposal of his mortal remains. |
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LEGAL STATUS OF IDOL, MATH AND MOSQUE | |
What is the subject matter of Legal Status of Idol, Math and Mosque? | It relates to the juristic personality recognised by law in respect of certain religious institutions. |
Is an Idol recognised as a juristic person? | Yes, an Idol is judicially recognised as a juristic person. |
Can an Idol hold property in its own name? | Yes, an Idol can hold property in its own name. |
To whom is legal position of Idol similar? | It is similar to that of a minor. |
Who acts as guardian of Idol? | The priest or pujari acts as guardian. |
Which case held that an Idol is a juristic person? | Pramatha Nath Mullick v. Pradyumna Kumar Mullick. |
What did Supreme Court hold in Deoki Nandan v. Murlidhar? | Property of Hindu temple or idol vests in the idol itself while management vests in shebait. |
What did Supreme Court hold in Krishna Singh v. Mathura regarding Math? | A Math is a religious institution sui generis. |
What is the presiding element of a Temple? | The deity. |
What is the presiding element of a Math? | The Mahant. |
To what is property of Math attached? | Property of Math is attached to office of the Mahant. |
How does property of Math pass? | It passes by succession to person lawfully fulfilling office of Mahant. |
Did Lahore High Court recognise Mosque as juristic person? | Yes, in Maula Bux v. Hafizuddin (1925) mosque was held capable of being sued. |
What contrary view was taken in Masjid Shahid Ganj Case (1940)? | Privy Council held that mosque is not an artificial person in eyes of law. |
Can suit ordinarily be brought by or against mosque according to Privy Council? | No, no suit can ordinarily be brought by or against it. |
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LEGAL STATUS OF GURU GRANT SAHIB | |
Which case recognised Guru Granth Sahib as a legal person? | Shiromani Gurudwara Prabandhak Committee v. Somnath Das. |
What did the Supreme Court rule in Shiromani Gurudwara Prabandhak Committee v. Somnath Das? | Guru Granth Sahib is a legal person. |
Did the Court treat Gurudwara and Guru Granth Sahib as separate legal entities? | No, the Court held they are not two separate legal entities. |
Why are Gurudwara and Guru Granth Sahib not separate legal entities? | Because existence of Gurudwara is due to installation of Guru Granth Sahib as its nucleus. |
What constitutes the spiritual center of every Gurudwara? | Guru Granth Sahib. |
Did Supreme Court place Guru Granth Sahib on same footing as Quran, Bible, Ramayan or Bhagavad Gita? | No, it held Guru Granth Sahib stands on altogether different footing. |
Are Holy Quran, Bible, Ramayan or Bhagavad Gita treated as juristic persons? | No, those scriptures are not treated as juristic persons in law. |
Why was Guru Granth Sahib treated as a legal person? | Because it is worshipped and revered as the Guru by Sikh community. |
How did the Court describe Guru Granth Sahib in relation to Gurudwara? | It is the soul and heart of every Gurudwara. |
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DOUBLE CAPACITY DISTINGUISHED FROM DOUBLE PERSONALITY | |
Can a man possess two or more legal capacities? | Yes, a man may possess two or more legal capacities. |
Does possession of two legal capacities mean two separate legal personalities? | No, it does not mean two separate legal personalities. |
How is Double Capacity different from Double Personality? | Double Capacity means acting in different legal roles, while legal personality remains one. |
Does a person’s legal personality divide because he acts in different roles? | No, his legal personality remains one and indivisible. |
Give an example of Double Capacity. | A director of a company may simultaneously be a trustee of a trust. |
Does such a director-trustee have double personality? | No, he only functions in two distinct legal capacities. |
Does English law recognise concept of Double Personality in such cases? | No, English law does not recognise double personality. |
Can a person ordinarily enter into legal transaction with himself? | No, a person cannot ordinarily enter into legal transaction with himself. |
Can a person sue himself or contract with himself merely due to different capacities? | No, he cannot sue or contract with himself merely because he occupies two capacities. |
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KINDS OF LEGAL PERSONS | |
What is the subject matter of Kinds of Legal Persons? | Kinds of Legal Persons relate to the two categories of persons recognised by law. |
How many kinds of persons does law recognise? | Law recognises two kinds of persons. |
What are the two kinds of persons recognised by law? | Natural Persons and Legal Persons. |
Who is a Natural Person? | A Natural Person is a living human being ordinarily capable of holding rights and duties. |
Do all living human beings enjoy same extent of legal personality? | No, all living human beings do not enjoy same extent of legal personality. |
What was the historical position of slaves regarding legal personality? | Slaves were denied independent rights and duties. |
What kind of legal personality do lunatics and infants possess? | They possess only restricted legal personality. |
Why do lunatics and infants possess restricted legal personality? | Because they are limited in exercise of civil rights like voting, contracting or managing property. |
Who are Legal Persons? | Legal Persons are artificial creations of law. |
What is meant by Legal Person? | Any subject matter to which law attributes legal personality and imposes rights and duties. |
On what basis can legal personality be conferred on non-human entities? | Since legal personality is creation of law, it is conferred whenever legally convenient. |
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CORPORATE PERSONALTY AND ITS NATURE | |
What is the subject matter of Corporate Personality and its Nature? | Corporate Personality relates to the separate legal existence of a corporation as an artificial person. |
Is Corporate Personality a creation of law? | Yes, Corporate Personality is a creation of law. |
Is legal personality of corporation recognised in English and Indian law? | Yes, it is recognised in both English and Indian law. |
What is a Corporation in legal sense? | A Corporation is an artificial person capable of having rights, duties and property in its own name. |
What are the individuals forming the corpus of corporation called? | They are called its members. |
Is the corporation legally identical with its members? | No, the corporation is legally distinct from its members. |
What does corporation possess independent of members? | It possesses a legal personality of its own. |
Can a corporation sue and be sued in its own name? | Yes, a corporation can sue and be sued in its own name. |
Is corporation dependent on shareholders for its legal existence? | No, it is independent of shareholders or members. |
Does corporation end with death or retirement of members? | No, corporation does not end with death, insolvency or retirement of members. |
What principle allows corporation to continue despite change in members? | Perpetual succession or perpetual existence. |
Why does law provide special procedure for winding up corporation? | Because corporation is treated as a separate legal entity. |
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KINDS OF CORPORATIONS | |
What are the two kinds of Corporations generally recognised? | Corporation Aggregate and Corporation Sole. |
What is a Corporation Aggregate? | A Corporation Aggregate is an association of human beings united for forwarding common interests and recognised as one legal entity. |
What is the best example of Corporation Aggregate? | A limited company. |
Does a company have independent legal existence? | Yes, a company has legal existence distinct from its members or shareholders. |
Does death or insolvency of members end the company? | No, death, insolvency or retirement of members does not bring corporation to an end. |
Why does company continue despite change in members? | Because corporate body continues to exist in eyes of law. |
Is a partnership firm regarded as corporation in strict legal sense? | No, partnership firm is not regarded as corporation in strict legal sense. |
Why is partnership firm not a strict corporation? | Because property and liabilities of firm are actually those of existing partners. |
Can there be a one man firm? | No, there cannot be a one man firm. |
Can there be a one man company? | Yes, there can be a one man company. |
Which leading case established principle of corporate personality? | Salomon v. Salomon & co. (1897) |
What was held in Salomon v. Salomon & Co.? | Shareholder cannot be personally held liable because company is separate legal person. |
Does holding almost entire share capital destroy separate personality of company? | No, company remains distinct from its members even then. |
What is a Corporation Sole? | A Corporation Sole is an incorporated series of successive persons. |
How many persons does Corporation Sole consist of at a time? | It consists of a single person at a time. |
Is legal personality attached to natural individual in Corporation Sole? | No, legal personality is attached to the public office held by him. |
Why is legal personality attached to office and not person? | So that office may continue to have perpetual legal existence despite death or replacement. |
What kind of offices generally constitute Corporation Sole? | Holders of public offices recognised by law as corporations. |
Give examples of Corporation Sole. | Postmaster General, Public Trustee, Comptroller and Auditor General of India, President of India and the Crown in England. |
What continuity is ensured by Corporation Sole? | Continuity of rights, duties and property attached to office irrespective of changing natural holders. |
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LIFTING OF CORPORATE VEIL | |
What is the subject matter of Lifting of Corporate Veil? | Lifting of Corporate Veil relates to disregarding separate corporate personality to discover real persons behind company. |
When is the doctrine of Lifting of Corporate Veil applied? | When legal entity of company is used for fraudulent, dishonest or improper purposes. |
Why are individuals not allowed to take shelter behind company in such cases? | Because court will not permit misuse of separate corporate personality. |
What does the court do by lifting the corporate veil? | The court breaks through corporate shell and disregards artificial legal personality. |
Why does court disregard artificial legal personality? | To ascertain true character, controlling persons and economic realities behind company. |
What is the first circumstance for lifting corporate veil? | Fraudulent or improper conduct by using corporate personality. |
Which case illustrates lifting veil for fraudulent conduct? | Jones v. Lipman. |
What is the second circumstance for lifting corporate veil? | When company is merely an agency or instrumentality. |
Which Supreme Court case examined company as instrumentality of State? | Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly. |
What is the third circumstance for lifting corporate veil? | When company engages in activities against public policy. |
Which case illustrates lifting veil for public policy? | Connors Brothers v. Connors. |
What is the fourth circumstance for lifting corporate veil? | To determine real character, nationality or status of company. |
Which case illustrates lifting veil to determine nationality? | Daimler Co. Ltd. v. Continental Tyre and Rubber Co. |
What is the fifth circumstance for lifting corporate veil? | Evasion of taxes or duties. |
Which case illustrates lifting veil for tax evasion? | In re Sir Dinshaw Manakjee Petit. |
What is the sixth circumstance for lifting corporate veil? | Formation of company merely to avoid or reduce payment of bonus to workers. |
Which case illustrates lifting veil in labour bonus evasion? | Workmen of Associated Rubber Industries Ltd., Bhavnagar v. Associated Rubber Industries, Bhavnagar. |
What is the seventh circumstance for lifting corporate veil? | In quasi-criminal cases relating to companies. |
Which case illustrates lifting veil in quasi-criminal matters? | Delhi Development Authority v. Skipper Construction Company Pvt. Ltd. |
What is the purpose of doctrine of Lifting of Corporate Veil? | It serves as judicial safeguard to prevent misuse of corporate personality. |
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THEORIES OF CORPORATE PERSONALITY | |
What is the subject matter of Theories of Corporate Personality? | Theories of Corporate Personality relate to juristic explanations of how corporations acquire legal personality. |
How many major theories of Corporate Personality are mentioned here? | Five major theories are mentioned here. |
What are the five theories of Corporate Personality? | Fiction Theory, Realist Theory, Bracket Theory, Concession Theory and Purpose Theory. |
What is the first theory of Corporate Personality? | Fiction Theory. |
Who mainly expounded the Fiction Theory? | Friedrich Carl von Savigny, John Salmond, Edward Coke, William Blackstone and Thomas Erskine Holland. |
What does Fiction Theory say about corporate personality? | Corporation has no real natural personality but is clothed with legal personality by law. |
Is corporate personality artificial under Fiction Theory? | Yes, it is artificial and distinct from members. |
Does change in membership affect corporation under Fiction Theory? | No, change in membership does not affect continuity or unity. |
What is the second theory of Corporate Personality? | Realist Theory. |
Who founded the Realist Theory? | Otto von Gierke. |
What does Realist Theory say about corporation? | Corporation has a real mind, real will and real power of action. |
Is corporation a mere fiction under Realist Theory? | No, it has real existence as social organism. |
Does corporation exist irrespective of State recognition under Realist Theory? | Yes, it exists irrespective of State recognition. |
What is the third theory of Corporate Personality? | Bracket Theory. |
Who is associated with Bracket Theory? | Rudolf von Ihering. |
What does Bracket Theory state? | Only members are real persons but for convenience they are bracketed as one legal unit. |
Does corporation have independent soul or will under Bracket Theory? | No, corporation has no independent soul or will apart from members. |
What is the fourth theory of Corporate Personality? | Concession Theory. |
What does Concession Theory state? | Juristic personality is a concession or privilege granted by the State. |
On whom does recognition of legal person depend under Concession Theory? | It depends entirely on discretion of the State. |
Which theory closely resembles Concession Theory? | Fiction Theory. |
What is the fifth theory of Corporate Personality? | Purpose Theory. |
What is the basis of Purpose Theory? | Corporations are treated as persons for certain specific legal purposes. |
Why was it necessary to attribute personality to corporations under Purpose Theory? | So that they may hold rights, bear duties and own property. |
How is corporate personality viewed under Purpose Theory? | As a legal device adopted to fulfill practical purposes. |
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PRINCIPLES OF LIABLITY | |
What is the subject matter of Principles of Liability? | Principles of Liability relate to legal responsibility arising from breach of legal duty. |
Why is law necessary in every organised society? | Because law regulates conduct of individuals and maintains social order. |
What does law confer and impose upon persons? | Law confers rights and imposes corresponding duties. |
When is a legal wrong committed? | When legal rights or legal duties are violated. |
What happens to person committing wrongful act or omission? | He becomes answerable in the eye of law. |
What is this legal answerability called? | Liability. |
How may Liability be simply defined? | Liability is the consequence which follows from breach of legal duty. |
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DEFINITION | |
How does John Salmond define Liability? | Liability is a bond of necessity between wrongdoer and remedy of the wrong. |
What does Salmond’s definition indicate? | Once wrong is committed law binds wrongdoer with legal consequence. |
How does John Austin define Liability? | Liability consists in those things which wrongdoer must do or suffer. |
What does Austin emphasise regarding Liability? | It is compulsory burden imposed by sovereign authority. |
What is Liability finally? | Liability means legal obligation to suffer punishment, pay compensation or perform act due to breach of duty. |
Into how many principal kinds may Liability be divided? | Liability may be divided into two principal kinds. |
What are the two principal kinds of Liability? | Civil Liability and Criminal Liability. |
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CIVIL LIABLITY | |
What is Civil Liability? | Civil Liability means enforcement of private rights through civil proceedings. |
When does Civil Liability arise? | When wrong is committed against private person. |
What is object of Civil Liability? | Compensation, restitution or enforcement of civil claim. |
What are examples of Civil Liability? | Unpaid debt, wrongful withholding of property, breach of contract or private damage. |
What remedies generally result from Civil Liability? | Damages, compensation, injunction or restoration of property. |
By which court is Civil Liability determined? | By Civil Court. |
Is malicious intention always necessary in Civil Liability? | No, infringement of right itself may incur liability. |
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CRIMINAL LIABLITY | |
What is Criminal Liability? | Criminal Liability is liability to be punished in criminal proceedings. |
When does Criminal Liability arise? | When wrongful act is offence against society and public order. |
Give examples of Criminal Liability offences. | Assault, theft, defamation, cheating, hurt and murder. |
What is object of Criminal Liability? | Punishment of offender to maintain peace, discipline and security. |
By whom are criminal proceedings instituted? | By the State. |
What mental element is generally important in Criminal Liability? | Men’s rea or guilty mind. |
What is the main basis of Civil Liability? | Violation of private rights. |
What is the main basis of Criminal Liability? | Violation of public rights and social order. |
What is result of Civil Liability? | Mainly damages or compensation. |
What is result of Criminal Liability? | Punishment. |
Who initiates Civil proceedings? | Aggrieved individual. |
Who institutes Criminal proceedings? | State. |
What is primary importance in Civil Liability? | Wrongful act and resulting injury. |
What occupies central place in Criminal Liability? | Mens rea. |
Which further doctrines are connected with Principles of Liability? | Penal Liability, Injuria Sine Damnum, Damnum Sine Injuria, Vicarious Liability, Strict Liability, Absolute Liability and Stages of Crime. |
What is maxim governing Penal Liability? | Actus non facit reum nisi mens sit rea. |
What does this maxim mean? | Act alone does not make man guilty unless mind is also guilty. |
What is the concluding importance of Liability? | Liability forms backbone of legal responsibility by attaching consequences to breach of rights and duties. |
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