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    12 views33 pages

    Jurisprudence - 2022 MODEL QUESTION PAPER

    Uploaded by

    syed Md Ibeahim Ahmed
    jurisprudence

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 33
    AL-AMEEN COLLEGE OF LAW MODEL ANSWERS 2022 TI] SEM 3 YEARS LL.B./ V SEM 5 YEARS B.A. LL.B. SUBJECT: JURISPRUDENCE LONG ANSWEI Q.No.1. Critically examine “Law as a command of the sovereign”. ‘Synopsis: Introduction Austin is considered to be the ‘father of English Jurisprudence’, He confined his study only to the positive law and applied analytical method for this purpose. By Positive Law, Austin meant ‘Laws Properly So Called” as distinguished from morals and other laws which he described as “Laws Improperly So Called’ which lack force or sanction of the State, Au: described positive law as ‘the aggregate of rules set by man as politically superior to men as politically inferior subjects, He attributes (1) Command, (2) Sanction, (3) Duty, and (4) Sovereignty as the four essential attributes of positive law. It was Austin who for the first time treated jurisprudence as a science of law concerned with analysis of legal concepts- their exposition, examination and comparison in a scientific manner in order to determine their scope and extent in a given politically organised society. the ‘major thrust in Austinian positive law was therefore, on separation of law from morals. “Law as a Command of Sovereign Imperative Law” Austin's pos ive law has three characteristic features: (1) It is a type of Command (2) it is laid down by a Political Sovereign and, (3) Enforceable by a Sanction. A typical example is “the Road Traffic Law, which could be described as a command laid down by the sovereign under the Indian legal system i.e. the parliament, and enforceable by penalties for violation, ®@ Commands: Requests and wishes are expressions of desire, while commands are expressions of desire given by superiors to inferiors. Officers command their subordinates but not otherwise. The relationship of superior to inferior consists in the power, his ability to punish for disobedience. The power and purpose to inflict penalty for disobedience are the very essence of a command. The person liable to the penalty is under a duty to obey it, The penalties for disobedience are the essence of a command. Command Duty and Sanction are inseparably connected. So every law is a command, imposing a duty, enforee3d by a sanction. However all the commands are not law, it is © semved wth Ot Scanner only general command, which obliges to a course of conduct, is law. Austin however, accepted that there are three kinds of laws which are not commands. They are- Declaratory or Explanatory Laws:- These are not commands because they are already in existence and are passed only to explain the law which is already in force. Laws of Repeal:- Austin does not treat such laws as commands because they are in fact the revocation of a command. Laws of Imperfect Obligation:- They are not treated as command because there is no sanction attached to them. Austin holds that command to become law, must be accompanied by duty and sanction for its enforcement. © Sovereigns: To Austin a sovereign is any person or body of persons, whom the bulk of a political society habitually obeys, and who does not himself habitually obey some other person or persons. Definition of sovereignty is to stress the fact that law is only law if itis effective and this it can only be by being generally obeyed. © Sanction: A sovereign without the means of enforcing obedience to his commands would have little hope of continuing to rule, Law stands in need of sanctions. Law to the positi not, and this it cannot be without some method of coercion. Sanctions then are a logical st is something for the citizen to obey, not as he pleases but whether he likes it or part of the concept of law; they consist of the penalties inflicted on the orders of the sovereign for the violation of the law-i other words of institutionalized punishments, Summary of Austin Theory: To sum up, Austin’s approach emphasizes the following: 1. A legal system is to be takes as it is (positive law) and it is to be resolved into its fundamental conceptions; 2. Analysis of any legal system is to be done on the basis of logic not on the basis of ethical or historical element; 3. Laws are the product of a state and all laws are thus, the commands of a sovereign; 4. Positive law and ideal law must be kept distinct. Law cannot be defined by reference to any ideal or justice. The science of jurisprudence is concerned with the positive laws without regard to their goodness or badness; © semved wth Ot Scanner 5. International law, according to Austin is not a true law as there is no sanction behind by the sovereign, and 6. There are some common principles of law available in mature legal systems of the world, ‘Those principles are to be taken into consideration for analyzing law. Criticism against Austin’s Imperative Theory of Law: Austinian theory of law and analytical positivism has been criticized by jurist like Bryce, Olivercona and others. Bryce characteristics Austin’s work as full of errors which hardly has any ificance in juristic thought. Austin’s theory has been criticized on the following grounds: 1. Austin's view that ‘law is the command of sovereign is not supported by historical evolution of law when customs played a significant role in regulating human conduct. Further, customs still continue to be a potent source of law even after the coming into existence of the State. 2. Austit s theory does not take notice of laws which are of a permissive character and confer privileges. 3. Judge- made Jaw has no place in Austinian conception of law although the creative function of judiciary as a law-making agency has been accepted in modem times all over the world, 4, Austin does not treat international law as ‘law’ because it lacks sanction. Instead, he regards international law as mere positive morality. This view of Austin if hardly tenable in the present time in view of the increasing role of inter: onal law in achieving world peace. 5. The Swedish jurist Olivercona has denounced Austin’s theory of law because of its over- emphasis on ‘command’ as an inevitable constituent of law. In modem progressive democracies law is nothing but an expression of the general will of the people. Therefore, command aspect of law has lost its significance in the present democratic set-up where people’s welfare is the ultimate goal of the state. 6. Pethaps the greatest shortcoming of the Austin’s theory is that it completely ignores the relationship between law and morality. Law can never be completely divorced from ethics or morality which provide strength to it. The legal concepts such as ‘right’, © semved wth Ot Scanner “wrong”, ‘duty’, ‘obligation’ ete. themselves suggest that there is some ethical or moral element present in them. 7. Austin’s view that itis sanction alone which induces a person to obey law, is not correct. There are many other considerations such as fear, deterrence, sympathy, reason ete, which may induce a person to obey law. The power of the state is only the last force to secure obedience of law. 8. While bringing out distinction between positive law and positive morality. Austin opined that the former was set by a political superior called the sovereign. But it was criticized that the sovereign could well be bound by a duty towards his subjects. Q.No.2. Explain the necessity of administration of Justice. Distinguish between Criminal ‘and Civil Administration of Justice. Meaning and Definitions: Salmond “the Administration of justice is the maintenance of right within a political community by means of the physical force of the state, It is the application by the State of the sanction of force to the rule of right”. Ace Black Stone :- Justice is a reservoir from where the concept of right, duty and equity evolves. Justice is expressed in terms of “Justice according to law” . Dicey called as “Rule of Jaw”, “No one is above law”. Necessity of Administration of Justice. It is true that unlimited and unrestrained liberty leads to a state of anarchy, therefore some kind of external coercive authority is needed to keep man within his limits and restrain his unfettered liberty. Herbeart Spencer, “every man is true to do what he desires provided he infringers not with the equal freedom of any other man”. Hobbes believed that a common power was necessary to keep people within controle in the community. Force is necessary to prevent the recalcitrant minority from gaining unfair advantage over law abiding people in general ‘Therefore, state force is inevitable for protection of rights of individuals in society. Distinction Between Criminal Justice & Civil Justice Gai T__All__criminal wrongs are i All__civil_wrongs are inal Justice Civil Justice © semved wth Ot Scanner administrated by criminal justice. ‘administrated by civil justice. 2. Eg. Theft, murder, rape, forgery etc. 2. Eg. Breach of contract, Irespass to landete.,. 3, All crimes are public wrongs, 3. All civil wrongs are private wrongs. 4. All criminal proceedings are instituted by the state 4. The aggrieved person institutes the civil proceedings 3. A Crime is treated a harmful Act to the entire Society, Eg. Murder, killing a person primarily affects the deceased, but it badly affects on his family and also ire society. 5, Civil wrongs are deemed only to infringe the rights of the individual. is to ‘punish’ the wrongdoer, ranging from death to fine, 6. The object of the civil Justice is. to provide ‘compensation’ to the aggrieved and sufferer by wrong ~ does. 7. Criminal Justice is administered according to the set of criminal procedures, 7. Givil justice is administered Ace to the set of Civil Procedures. 8. The doctrine of estoppel does not apply to criminal Justice. & The doctrine of estoppel applies only Civil Justice 9, “It is better that several guilty men should escape rather than one innocent should punished”. The guilt must be proved beyond the doubt. 9. This Principle does not apply to civil proceedings, 10. The rules of evidence cannot be relaxed by the consent of the parties. 10. Te rules of evidence may be relaxed by the consent of the parties. 11. The cases once instituted cant be compounded or withdrawn in the criminal Justice. There are very few exceptions. Il. The proceedings may be withdrawn by the parties with their own consent. 12. The burden of proof lies on the 12. The burden of proof dies on prosecution. both the Petitioner and the ‘The guilt must be proved beyond Defendant. the doubt. 13. In the criminal cases, the TS. In the Civil, itis the duty of the obligation lies on the Court to bring parties to place their case as they © semved wth Ot Scanner all relevant evidence on the record so that justice is done. think best 14, “Benefit of doubt” is given to the Accused in criminal Justice. 14, “Benefit of doubt” principle does not arises in civil justice. 15. The criminal justice deals with remedial and breaches of duties. It is a corrective Justice 15. It deals with the distribution of wealth and honour. It is distributive Justice, 16. Criminal Courts administer the criminal jus 16. Civil Courts administer the Civil Justice. Q.No.3. Discuss the Precedents. ‘umstances destroying or weakening the binding force of Judicial precedent is another important source of law. It has a binding force on Judicial ‘Tribunals for deciding similar cases in future. Acc to Salmond, the doctrine of Precedent has 2 meanings. 1, Ina loose sense precedent includes merely reported case law which may be cited and followed by the Courts, 2. Ima strict sense, it means that case ~ law which not only has a great binding authority but must also be followed, *A statement of law made by a Judge in a Case can become binding on later Judges and other subordinate courts and in this way may becomes the law for every one to follow. Precedent become binding depends on 2 main factors 1) Itmust have been pronounced by a court which is sufficiently senior. 2) Ibis only the ratio decidendi, ic., reasoning behind the decision which is binding Authority of precedent in India * ‘The privy Council's Made Authoritative influence by its decisions on Indian judicial legal system. ‘The principles of equity, justice and good conscience in India a were the result of privy council's various decisions. Still it’s decisions are binding force in all the courts in India, After independence, the supreme court occupied the place of the privy council. © semved wth Ot Scanner A precedent may be defined as a statement of law found in the decision of a superior court, which has to be followed by that court and by courts inferior to it. Meant to be followed a judicial decision of a High Court or superior court by the same court as also by subordinate courts, Black stone has pointed out that it is an established rule to abide by the former precedents where the same points came again in litigation, The process of Judicial decision making may be either deductive pr inductive. Deductive method is associated with codified system of law. It assumes that the legal rule applicable to any particular case is fixed and certain and the Judge us required to apply this rule as justice ace to the law without any reference to his personal view. Inductive Method starts with the same primary object of finding the general principles applicable to the particular case, but it does not conceive the rule as being applicable to the particular case, but it does not conceive the rule as being applicable directly by simple method of deduction. It rather moves from particular to Kinds of precedents 1. Declaratory and original precedents 2. Persuasive precedents 3. Absolutely Authorit ive precedents, 4. Conditionally Authorities precedents. Circumstances which destroy the binding force of Judicial Precedents: J) Ignore of statute: It is not binding if it be rendered in ignorance of any statute or any other rule having the force of stature. 2) Inconsistency between earlier decision of higher Court: It loses its binding force completely, if it is inconsistent with the decision of a higher Court. 3) Inconsistency between earlier decision of the Court of the same Rank: A Court is not bound by its own earlier decisions which are conflicting with each other. ‘The conflict may raise due to inadvertence, ignorance in earlier decisions before the Court 4) Precedent sub silentio: A decision is said to be sub silentio when the point of law involved in it is not fully argued or not perceived by the Court. 5) Decision of equally divided Court: © semved wth Ot Scanner ‘There may be cases where the Judges of the Appellate court are equally divided. In such a case practice is to dismiss the appeal and hold that the decision appealed against is correctly decided. 6) Erroneous decisions: The decisions which are founded on misconceived principles or in conflict with the fundamental principles of law lose their binding force totally. 7) Abrogated decisions: A decision ceases to be binding if statute inconsistent with it is subsequently enacted, So also, it ceases to be binding if it is reserved, overrules or abrogated. 8) Affirmation or reversal on a different ground: When a higher Court either affirms or reverses the judgment of the Lower Court on a ground different from that on which the judgment rests, the original Judgment is not deprived of all the authority, but the subsequent Court may take a view that a particular point which the higher Court did not touch, is rightly decided, Q.No4, What is Legal Right? Describe Hohfeld’s concept of right in its widest sense. Introductio Right and duties are the very important element of law. The term * Right’ has various meanings such as correct, opposite of left, opposite of wrong, fair, just and such like other expression etc. But in legal sense a right is a legally permissible and protected action and interest of aman group or state, ‘Meaning and Definition of Legal Right: According to Austin:- “Right is a standard of permitted action within a certain sphere. He further define right is a party has a right when others are bounds to obligesed by law to do or not todo any act.” Austin conceives this distinct mn to be the essence of a right that it should be vested in some determinate person and be enforceable by some form of legal process instituted by him. Austin thus starts from the assumption that a right cannot vest in an indeterminate, or a vague entity like the society or the people. The second assumption with which Austin starts is that sovereign creates rights and can impose or change these rights at its will. Consequently, the sovereign cannot be the holder of such rights. According to Salmond; “It is an interest recognized and protected by the rule of justice law According to Gra of an interest in secure. “Right is not an interest itself but it is the means by which the enjoyment According to Prof, Allen:- “ The essence of right not a legal guarantee in itself but a legally guaranteed power to realized an interest.” Characteristics of Legal Right © semved wth Ot Scanner According to Salmond, there are five important characteristics of a Legal Rights. 1. It is vested in a person who may be distinguished as the owner of the right, the subject of it, the person entitled, or the person of inherence. 2. It avails against a person, upon whom lies the correlative duty. He may be distinguished as the person bound, or as the subject of duty, or as the person of incidence. 3. It obliges the person bound to an act or omission in favour of the person entitled. This may be termed the content of the right. 4, The act or omission relates to something (in the widest sense of that word), which may be termed the object or subject matter of the right. 5, Every legal right has a title, that is to say, certain facts or events by reason of which the right has become vested in its owner. Some jurists hold that a right may not necessarily have a correlative duty. They say that legal rights are legal concepts and these legal concepts have their correlatives which may not necessarily be a duty. Roscoe Pound also gave an analysis of such legal conceptions. He believed that legal rights are essentially interests recognized and administered by law and belong to the ‘science of law’ instead of ‘law’. He proposed that such Rights are conceptions by which interests are given form in order to secure a legal order. Hohfeld’s System of Fundamental Legal Concepts or Jural Relations 1 2 3 4 Right Privilege Power Immunity Jural Opposites - - - - No Right Duty Disability Liability Jural Correlatives Right Privilege Power Immunity Duty No Right Liability Disability Jural Correlatives represent the presence of in another. Thus, right is the presence of duty in another and liability is the presence of power in another. Jural Opposites represent the absence of in oneself. Thus, no right is the absence of right in oneself and disability is the absence of power in oneself. © semved wth Ot Scanner Conclusion derived from Hohfeld’s System. a. As a person’s right is an expression of a wish that the other person against whom the right or claim is expressed has a duty to obey his right or claim, b. A person’s freedom is an expression of a right that he may do something against other person to change his legal position. c. A person's power is an expression of a right that he can alter other person’ legal position, 4. A person’s disabili legal position. san expression of a wish that another person must not alter the person's ‘Q.No.S. Discuss Negligence and Different theories of Negligence. Jurists have defined “negligence” in different ways. SALMOND observed thatnegligence is capable carelessness. To quote him: "negligence is the state of mind ofundue indifference towards one's conduct and its consequences". It is carelessness in thematter in which carefulness is obligatory under the law. Carelessness excludes wrongfulintention. Negligence - Intentional act is one that was foreseen and desired by the doer.Forbearance is an intentional negative act. An unintentional negative act is referred to asan omission, An omission is the non-doing a given act without adverting to the act notdone. - AUSTIN said, “an omission is not the consequence of an act oj the will but of that state of the mind which is styled negligence and implies the absence of will and intention. According to HOLLAND, negligence includes all those shades of inadvertence whichresult in injury to others but there is total absence of consciousness on the part of thedoer.. WILLES J. holds that "negligence is the absence of such case as it was the duty of the defendant to use "!. According to SALMOND negligence is “the state of mind of undue indifference towards ‘one’s conduct and its consequences”. Negligence essentially consists in the mental attitude of undue indifference with respect to one’s conduct and its consequences.Negligence is nothing short of extreme carelessness. Carelessness excludes wrongfulintention. A thing which is intended cannot be attributed as carelessness. Carelessness ornegligence does not necessarily consist in thoughtlessness or inadvertence. © semved wth Ot Scanner Negligence as a tort is the breach of a legal duty to make care which results in

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