III Semester 3 year LL.B.,/VII Semester 5 Year B.A., LL.B.

Preparatory Examination, December 2015

JURISPRUDENCE

Duration: 3 Hours Max.marks:100

Instructions: 1. Answer Q. No. 9 and any five of the remaining questions.

2. Q, No. 9 carries 20 marks and the remaining questions carry

16 marks each.

1. Answers should be written either in English or Kannada completely.

Q. No. 1. Define Jurisprudence. Explain its nature and value. Marks : 16

Q. No. 2. Examine the “Austinian Concept of Law”. Marks :16

Q. No. 3. What do you understand by civil and criminal justice? Distinguish between the two.

Marks:16

Q. No. 4. Discuss the theories of punishment with their relative merits and demerits.

Marks: 16

Q. No. 5. Explain legislation as a source of law. Marks: 16

Q. No. 6. Evaluate Hohfeld’s analysis of legal rights. Marks:16

Q. No. 7. Explain the theory of strict liability. Refer to cases. Marks:16

Q. No. 8. How does Motive differ from intention? Marks:16

Q. No. 9. Write explanatory notes on any two of the following: Marks:2x10=20

a) Secondary functions of the Courts.

b) Theory of Legal Realism.

c) Comment on idea of “Volksgeist”.

d) Substantive law and Procedural law.

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Modal Answers

Q. No. 1. Define Jurisprudence. Explain its nature and value. Marks : 16

OR

Explain the meaning and Scope of Jurisprudence.

OR

Explain the importance and significance of legal theory.

OR

Explain the nature and value of Jurisprudence.

OR

Define the term Jurisprudence. State its purpose and value.

OR

Write a note on value of Jurisprudence.

Synopsis:- Introduction.

Meaning.

Definitions of Jurisprudence.

Subject-matter of Jurisprudence in law OR The purpose of legal theory.

Scope of Jurisprudence.

Significance and Utility or value of Jurisprudence.

Introduction:-

The study of jurisprudence started with the Romans.

Jurisprudence is the name given to a certain type of investigation into the law and investigation of an

abstract, general and theoretical nature which seeks to lay bare the essential principles of law and legal

systems.

Meaning:-

Literal meaning of the word ‘Jurisprudence’ taken from a Latin words ‘Juris’ means the ‘law’ and

‘prudentia’ means ‘science of law’ or ‘systematized knowledge’.

Meaning under Law, ‘Jurisprudentia’, which means either “knowledge of law” or “skill in law” or “study

of law”.

The word jurisprudence is not generally used in other languages expect in English.

In French, it refers to something like “case law”.

Therefore, the words of one language do not have synonyms in other languages conveying the same

meaning.

Jurisprudence, in its simplest and truest sense, means the “science of law”.

The etymologically also, jurisprudence means the science of law.

It has been said the “Jurisprudence” is the most hospitable word.

Sometimes, Jurisprudence is the name given to a certain type of investigation into law an investigation of

an abstract general and theoretical nature which seeks to lay bare the essential principles of law and legal

systems.

Definitions of Jurisprudence:-

Paulus, another Roman Jurist, maintained that “the law is not to be deducted from the rule, but rule from

the law.

Ulpian defines jurisprudence as “the knowledge of things divine and human, the science of just and

unjust”.

Beale defines it as, “the science of Justice.”

Subject-matter of Jurisprudence is law:-

OR

The Purpose of legal theory:-

The subject-matter of Jurisprudence is law and law-alone.

The hole and sole purpose of legal theory is an attempt to find answer to the question, “what is law?”.

Various writers have devoted much time and energy to define the term “law”.

Scope of Jurisprudence:-

The scope of jurisprudence has widened considerably over the years.

Its scope cannot be circumscribed. Broadly speaking, jurisprudence includes all concepts of human order

and human conduct in State and Society.

In other words, anything that concerns order in the State and Society will be within the domain of

Jurisprudence.

According to P. B. Mukherjee, “Jurisprudence is both an intellectual and idealistic abstraction as well as

behavioural study of man in the society.

It covers the study of man in relation to State and society.

Rad Cliffe also held a similar view and stated that jurisprudence is part of history, a part of economics

and sociology a part of ethics and a philosophy of life.

Jurisprudence amply clears the distinction between ‘law’ and ‘Jurisprudence’.

In law-> we look for a rule to relevant to the given situation.

In jurisprudence we ask, what is for a rule to be a legal rule? And the distinguishes law from morality,

etiquette and other related phenomenon.

Jurisprudence is as big as law.

It is part of history, economics and sociology, a part of ethics and a philosophy of life and other related

phenomenon.

Since it meets other social disciplines and hence it is studied in the background of law.

Significance and Utility or Value of Jurisprudence:-

It is said sometimes that it has no practical utility as it is an abstract and theoretical subject.ich differs in

kind from other subjects on the

1. It is a subject which differs in kind from other subjects on the legal syllabus, it is the typical legal

subject.

2. It does not constitute a set of rules.

3. It is not derived from any.

4. It is without practical application.

5. We merely focus on the nature of legal rules, on the underlying meaning of legal concepts and

also on the essential features of legal systems.

6. Jurisprudence we ask what it is for a rule to be a legal rule, further what distinguishes law from

morality, etiquette and other related phenomena.

7. Jurisprudence comprises philosophy of law its object is not to discover new rules but to refelect on

the rules already made.

8. General Jurisprudence is a subject without applicability.

Jurisprudence, thus differs a lot from ordinary legal subject where as its values are concerned

with its practical use, but value of jurisprudence is concerned in an abstract and theoretical subject

like as it follows.

Intrinsic interest:- (inherent/essential interest):- It is a subject of serious scholarship. The

writer on jurisprudence may be impelled his own intrinsic interest like any other subject of serious

scholarship. As speculation and theory have a natural appeal, whatever be the subject of study. If

one can speculate on the nature of light, why not on the nature of law.

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Secondary functions of court:-

The primary function of the court of law is the administration of justice, the applications by the state of the sanction of the

physical force to the rules of justice. It is to administer justice that the tribunals of the state are established.

But there are five (5) secondary functions which the courts also perform. They are:-

1) Petition of right or Action against the State.

2) Declaration of right.

3) Administration.

4) Titles of right.

5) Supervision of lower courts.

1. Petition of right or Action against the State.

In England, Proceedings against the crown can be taken only by a petition of right in a court of law which determines the

right of the parties. This is not the administration of justice, strictly and properly so called, for the essential elements of

coercive (compelling, forcing, restraining by force) force is lacking.

In other word, the Crown Proceedings Act 1947 provides that where a person has a claim against the crown, that claim can

be enforced.

2. Declaration of rights of individuals:-

This is done where the rights of the parties are uncertain.

A person may seek the assistance of a court of justice by way of obtaining redress, but by way of having it declared that he

has or has not a certain Right. The court of justice after hearing the parties, neither makes nor refuses to make the

necessary declaratory order.

Ex:- of declaration of nullity of marriage, advice to trustees and executors regarding their leagal powers and duties,

authoritative interpretation of wills etc.

3. Administration:-

Courts of justice undertaken by the management and distribution of property of a deceased person and also minors whose

property is put under the court of wards.

Other examples of administrative functions are:-

a) The administration of trust,

b) Distributaion of an insolvent estate,

c) Liquidation of a company by the court etc.

Titles of right:-

These are all cases in which judicial decree employed as the means of creating, transferring or extinguishing

rights.

Examples:- a) a decree of divorce,

b) an adjudication of bankruptcy,

c) appointment or removal of trustees,

d) a grant of a probate of letters of administration etc.,

In such cases, the judgments of the courts operate not as the remedy of a wrong but as a title of right.

4. Supervision of the lower courts:-

Superior courts are often armed with the power of supervising the courts below them. Such a power is given to

the High Courts in India by Article 227 of the Constitution.

Examine the “Austinian Concept of Law”. Marks :16

OR

Explain briefly ‘law as the command of the sovereign, backed by sovereign’.

OR

Critically examine the Autin’s theory of law as a command of Sovereign.

OR

“Law is a command of the Sovereign”. Explain this statement of John Austin with criticisms.

OR

Discuss the theory of Law as command of the sovereign.

OR

Commands of the sovereign. Marks:- 6

OR

Jurisprudencde is ‘Science of Positive Law’. Explain this statement.

OR

Write a short note on Austinian School. Marks:-10

Synopsis

Meaning

Other names of this school

Introduction

“Austinian Concept of Law”

Austin’s three (3) main features of Law

Merits and demerits of Austin’s Theory

Conclusion

Meaning:-

Analytical (using a logical method of thinking about something in order to understand it expecially by

looking at all the parts separately).

Other names of this school:-

This school is regarded as ‘Pain and Pleasure Theory.’

It is also called as Austinian School.

It is also known as Imperative School.

It is also known as ‘Science of positive law’.

At the same time it is also called as Analytical School.

Introduction:-

Bentham and Austin are both considered as founder of analytical school, however, Austin (1748-1832) is

considered as father of this school.

According to Jeremy Bentham (1748-1832) the main function of law is to eradicate hurdles on the

freedom of human being.

Bentham was an individualist. His theory is described as “utilitarian individualishm”.

The state must not only nourish the individual freedom, but also take into consideration the concept of

utility, while enacting law.

The principles of utility subject everthing to two motives,

1. Pleasure. 2. Pain.

The ultimate purpose of the law is to “bring pleasure and to avoid pain and finally satisfaction.”

He was not the supporter of the judge made law. He rejected the natural law as well as and put more

emphasis on human advantages, pleasure and satisfaction. He pleaded for codification of law.

He seems supported the concept of “lassiez faire”, i.e., let the men free, to which we come across in

economics.

He was a utilitarian also.

He defined utility as property or tendency of a thing to prevent some evil or procure some good.

Followed he attached three conditions to his principle of utility:-

1. It should be clear and precise.

2. There should be single and sufficient amount of motivation.

3. It should be applicable by means of moral calculus.

We can’t deny that Bentham’s theory introduced an era of legal reform.

He pleaded for codification of law, making, legislation to become a main source of law. Codification

of law has become an important feature of various legal system. He was a lifelong reformer of law.

“ Austinian Concept of Law” (1790-1859):-

He is the father of English jurisprudence. It is because of his contribution in the development of this

school, it is also known as Austinian School.

On the basis of Austin’s concept that the law is a command of the Sovereign, the analytical school is also

known as imperative school.

Law is a rule laid down for the guidance of an intelligent being by an intelligent being having power over

him.

According to Austin jurisprudence is not a moral philosophy, but it is a scientific and systematic study of

the existing, actual and positive law as distinguished from material, ideal or moral law. Austin says that

the science of law is concerned with law as it is and it is not concerned with law as it ought to be. For

him law as it is i.e., positive law is the science of legislation. Hence the subject-matter of jurisprudence is

the positive law which according to Austin consists of commands set as general rules of conduct by a

sovereign to a member or members of the independent political society wherein the author of the law is

supreme.

Austin divides the law into two parts:-

Law properly so called.

Law improperly so called.

Law properly or properly so called are command laws.

Law improperly or improperly so called as laws which are not commands.

It is further divided into the following four kinds.

Properly so called:-

1. By god the divine laws or the laws of God. The laws which are set by God to his human

creatures.

2. Positive law:- laws set by political superior for political inferior or by private persons in

pursuance of legal right conferred by such superiors.

3. Law Improperly so called so far they deal with,

i. Laws by Analogy,

ii. Laws by metaphoric or figurative.

It is not neither set by men as political superior nor pursuance of legal right conferred by the political

superior.

Positive moral rules set by the mere opinion or sentiments held by a man for human conduct are laws

improperly so called.

They are law by analogy i.e., international law, law by fashion.

Laws by the metaphor i.e., law of gravitation. Laws by metaphor law of gravitation. Laws which implies

informalities of nature are laws improperly so called.

Commands can be divided into two classes.

(a) General command.

(b) Occasional or particular command.

General command here means which obliges a course of conduct.

Example:- if sovereign issues an order that his subject will wear green colour dress only. It is general command.

But if he issues a command to wear green colour dress on a specific occasion only his command is

occasional or particular command.

Austin theory considers law as the command of the sovereign and point out the following essential

features:-

1. Sovereign should be a determinate individual or body.

2. Sovereign should not be in the habit of obedience of a given society.

3. Sovereign should receive obedience from bulk of a given society.

Thus according to Austin, law has 3 main features:-

1. It is a command.

2. It is lay down by Sovereign authority.

3. It is has a Sanction behind it.

Take the example of the Indian Penal Code:-

1. IPC lays down rules (Command).

2. IPC was passed by the Parliament.(Sovereign Authority)

3. Violations of IPC are met with penalties. (Sanction)

Austin has propagated that law is a command which imposes a duty and the failure to fulfill the duty

attracts sanction. (Punishment).

It is also called the CDS model.

1. Command .

2. Duty.

3. Sanction.

Command:- law is a command. It is compulsory. It is to follow it. Commands are expressions of desire

given by superiors to inferiors.

Duty:- Citizens have no choice but to obey it. If there is a choice, then such a law is not a law according

Austin.

Sovereign:- to Austin a sovereign is any person or body of persons whom the bulk of a political society

habitually obeys. The obedience to the command of the Sovereign must be habitually obeys. The

obedience to the a command of the sovereign must be generally obeyed by the majority of the people.

The Sovereign may be person (King, Sultan, dictator or may be a body/group (e.g. legislature.)

OR Sanction:- According to the Imperative theory, people are oblige to obey the law whether or not

they like it, as the same is the command of the Sovereign backed by sanction/penalties. Saction means

an ‘evil’ or punishment attached to a command. Ex: fine, imprison. Sanction is therefore a coercive

factor. It is a strict by which you enforce the law.

Obedience should be habitual or permanent and Sanction:- According to the Imperative theory, people

are oblige to obey the law whether or not they like it, as the same is the command of the Sovereign

backed by sanction/penalties. Saction means an ‘evil’ or ‘punishment attached to a command’.

Ex: fine, imprison. Sanction is therefore a coercive factor. It is a strict by which you enforce the law.

Obedience should be habitual or permanent and not merely rare or transient.

Austin specifically mentions three categories of laws, which though not command in strict sense are still he

province of jurisprudence. They are:-

(a) Declaratory or explanatory laws:- they are not regarded as laws because they are passed only to explain

laws already in force.

(b) Laws to repeal (revoke) laws:- these laws restore back the position prevailing before passing of these

laws with no future consequence so far the repealed laws are concerned.

(c) Laws of imperfect obligation:- laws of imperfect obligation implies those laws which lack sanction e.g.,

religious or moral obligation.

It puts emphasis on legislation a source of law. The whole system is based on its concept of law.

Merits of Austin’s theory:-

1. Austin’s theory is influenced greatly due to its simplicity, consistency and clarity of exposition.

2. The greatest merit of Austin theory is that it is a very simple and clear proposition of law that law is

that which is made by the authority of the State.

3. By separating law from morality Austin avoided a lot of confusion.

4. Austin’s work also served as a base or a starting point for guiding other analytical jurists such as

Holland, Gray and Salmond.

5. Another advantage of this definition is that law is effective only when it is generally obeyed by the

society.

Demerits o f Austin’s Theory:-

1. The theory conflicts with ordinary usage of the term law. Customary Law, International law and

Constitutional Law will not be considered as law using the Austinian definition, because these are not

a command form a Sovereign.

2. All laws are not a command or a forbidance. Some laws are of a purely permissive character and

confer only privileges. These are “power-conferring’ rules and not commands. For examples:-1. Laws

that give citizens right to vote. 2. Laws that allow the making of wills. 3. Law of contract.

3. Confusion arises with the identity of sovereign under most legal system especially in democracy

there is no monolithic sovereign. Who is the commander and who are the commanded?

4. The idea of ‘command’ does not explain why a statute applies to its framers?

5. Laws cannot be understood as command given by a sovereign in existence of actual law giver.

6. It is argued that if law is a command of the sovereign then why and how commands of former

sovereign continues to be laws under his successors.

7. Austin’s theory fails to take account of judge made law.

CONCLUSION:- By separating law completely from morality Austin try to avoid confusion. His theory

of law consists an important element of universal and permanent truth the law is created and

enforced by the State.

Discuss the theories of punishment with their relative merits and demerits. Marks:-16

OR

Explain the various theories of Punishment. Marks:-10

OR

Discuss the theories of punishment with their relative merits and demerits. Marks:-16

OR

Analyse punishment as a means to an end. Marks :-16

Synopsis

Meaning

Introduction

Different theories of punishment

Meaning:-

Punishment:- According to the dictionary, involves the infliction of Pain or forfeiture ; it is infliction of a

Penalty. Chastisement or castigation by the judicial arm of the State. If the sole purpose behind punishment

is to cause physical pain to the wrong-doer it serves little purpose.

Introduction:-

Punishment involves physical suffering to the convicted offender. They are the ends of criminal

Justice. Therefore Jurists have evolved several theories for giving a convincing answer. These

theories may be divided broadly into three classes.

1. One class of the theories is those that hold the primary function of the criminal law is to

preserve and increase the welfare of the state.

Ows that severity2. Another class of theories says that the chief aim of the criminal justice must be

of puthe infliction of punishment as retribution to the offender for the harm done and,

3. Thirdly, those that hold that punishment to the offender should be inflicted in a way so to

reform him.

According to Salmond, the ends of criminal justice, are fivefold. They are.,

1. Deterrant.

2. Preventive. 3. Reformative. 4. Retributive. 5. Compensation.

1. Deterrent theory of punishment:- Deter-> discourage, hinder. Detterent ->serving to deter. It is said to be deterrent when it is inflicted, with the object of showing,

1. The futility(worthlessness) of crime, and for not to repeat in the future.

2. Setting a lesson unto others.

The chief end of law of crime is to punish the evel doers.

The supporters of this theory are Bentham, Plato, Locke, Sophits etc., According to them “inflicting of severe or

drastic punishment so that terror into the hearts of people who may be criminally disposed.

1. With the view to prevent the offender from committing the similar crime.

2. Execution of offenders should be openly done in the public, so that.

a. It will create the fear in the people, so that they will never risk to commit the similar offence/crime.

But the entire history of penal law shows that severity of punishment do not curtail the number of crimes.

And hence the theory of Deterrent has been subjected to critisicism, on the ground that,

a) It would not prevent,

b) Nor create any fear in the minds of the habitual offenders.

2. Retributive theory of punishment:- (punitive or to pay back or to make a return to)

According to this theory, “ it is right and proper that evil should be returned for evil”.

Retribution, in this sense, is based on the saying, “an eye for an eye, a tooth for tooth, a limb for

a limb and a life for a life.”

Thus this theory considers punishment as an end in itself.

“the fullfillement of the moral justice”, the punishment is based under this theory.

The bad act is bound to meet with suffering.

The supports of this theory are both ancient a modern philosophers like Plato and Kant.

It is based on the idea of taking revenge against the wrong doers.

This type of punishment was called “QISAS” or “KISA” in ancient Mohammedan Criminal Law.

Hegal opposed this theory as it is observed that it is the manifestation of revenge for an injury, or

In the sense of vengeance, in the sense of punishment.

3. Preventive theory of punishment:- It is also called as theory of disabusment.

This theory is based on “not to avenge crime but to prevent it”.

The aim of this theory is to disable the criminal, which prevent repetition of crimes.

Salmond and Holmes are the main supporters of this theory. Bentham supported this theory, because of its

humanizing influence on criminal law.

The preventive theory says the punishment is for the purpose of disabling or preventing the offender from

committing the offence again.

In order to prevent repetition of crimes, the offenders are punished with death, imprisonment of life

transportation(deport or exhail).

This theory is criticized on the ground that prevention of crime may be done by reforming the behavior of

criminals.

Kant, the main critic of the theory, says that this theory treats a man as a thing, not as a person, as a means not

as an end in itself.

The idea of prevention of crime is simply not possible detaining a criminal for a long time in jail as the wrong

doer in prison learn many bad things from other criminals.

4. Expiatory theory of punishment:- pay the penalty or make a amends for (sin)

This theory is linked with the retributive theory and sometimes considered to be a part of it.

Hegel and Kohler are the main supporters of this theory.

It is based on morals.

According to this theory, expiation or repentance (feel regret about something) by offender itself is a

punishment..

If the offender expiates or repents, he must be forgiven.

It was in existence or prevalent in ancient Indian criminal law.

Expiations were performed by way of penance, uttering mantras, fasting, self immolations were performed

by way of uttering mantras, fasting, self-immolation(sacrifice) of even burning oneself to death.

This theory is now obsolete (disused/discarded) as at present the organization of state, its functions, human

habits, attitudes have all developed to a great extent.

According to Paton this theory is based on moral doctrines and therefore, it is beyond the limits of

modern law and jurisprudence

5. Reformative theory of punishment:-

This theory is of recent origin. It owes its origin to the Italian school. This theory points out that a crime is

a disease, so proper care should be taken of those who have committed a crime instead of awarding a

severe punishment.

So, according to this theory the punishment should be curative, medicinal, clinical and educative rather

than inflicting of physical injury or pain upon the wrong doer.

This theory concentrates not on crime, but on the criminal, his personality and all other related factors

which led him to do wrong.

It general truth that nobody wants to be a criminal.

This theory the subject of punishment is to find out the cause, the reason which compelled an individual to

commit a crime and then try to eradicate the criminals tendency by providing education to him.

This theory makes a study of the psychology of the criminal and take punishments as a means to a social

end.

Reason for the commission of crime are:-

1. Offences are committed under the influence motive upon the character.

2. The defective mental condition of the criminal is also a reason for the commission of crime.

In other words, crime is the result of a disease and the personality of the offender and considers him to

be a patient who should be given a proper treatment.

It makes punishment not an end in itself but as a means to an end.

The purpose of the theory, the punishment should be to reform the criminal and to make him a good

citizen.

The main aim of this theory is to reform the criminals and not to award punishment.

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Discuss the kinds of rights. Marks16.

Kinds of Rights:-

Rights may be classified under the following heads:-

1. Perfect and Imperfect rights.

2. Positive and Negative rights.

3. Right in Rem and rights in Personam.

4. Right in Re Propria and Rights in Re Aliana.

5. Proprietary rights and Personal right.

6. Legal and Equitable right.

7. Vested and Contingent rights.

8. Public and Private rights, and

9. Principle and Accessory rights.

1. Perfect and Imperfect Rights:-

A perfect right is one which corresponds to a perfect duty; and a perfect duty is one which is not only recognized

by the law but also enforced by it. In the case of perfect right the courts of law not only recognize at particular right

but also enforce it, if necessary, with the aid of the physical force of the state.

Perfect right is one which is recognized and enforceable by law.

Eg. ‘X’ lends ‘Y’ Rs, 20,000/- against a promissory note. If ‘X’ sues ‘Y’ before 3 years, law recognizes A’s right

and enforces it. (Fundamental rights are enforceable).

‘Imperfect rights’ is one, which is recognized, but not enforceable. In the above examples X’s right becomes

imperfect if he sues after 3 years i.e., beyond the period of limitation.

2. Positive and Negative rights:-

A positive right corresponds to a positive duty i.e., to do an act or thing. In other words, a positive right

Whereas, negative right corresponds to a negative duty i.e., ‘not to do a thing or an act’.

Eg. If a person owns lands, others are under a duty not to make any interference with the person’s use of the land.

This is a negative duty.

3. Right in Rem and Right in Personam:-

The right in rem means a right available against the whole world,

for example: a right to a land or a house, this is the right which is available against the whole or entire world.

It includes the right to personal safety and freedom right to possession and ownership.

Whereas right in personam is a right which is available against a definite or specified person,

as for example: a debt is a right in personam. It can be availed of only against the the debtor.

4. Right in re Propria and right in re Aliena(encumbrance):-

Right in re Propria means the right in one’s own things. It is nothing but proprietary right. It is nothing but

proprietary right. It is based on the maxim ‘he who produces belongs to himself’ the Right.

Aliena are the re aliena are the rights in the things of others. Rights in re aliena are called encumbrances also. The

rights in re aliena or encumbrances arise when a person’s right in his property becomes subject to another person’s

right in the same property. Such as the land of another. The right so subjected is known as servicent and the right

which limits it is known as ‘dominant’. The main classes of encumbrances, according to Salmond, are leases,

servitudes, securities and trusts. This old classification of encumbrances has become outdated in modern times due

to the developments of mercnatiale law and a new classification is necessary.

]

5. Proprietary and Personal rights:-

Proprietary rights are rights are those which are tranferable. This rights are rights in relation to one’s own

property which consists of things, assets in possession or ownership of a person. Proprietary rights are

inheritable and it survives its owner.

Personal rights are the rights relating to one’s person or body e.g., affecting one’s character, liberty and

status in the society. Personal right are not transferable. A personal right is uninheritable and it dies with him.

Proprietary rights have an economic significance. For e.g., contractual right, the rights of ownership of possession,

are proprietary.

6. Legal and equitable rights:-

This classification of right can be found in common law in England only and unknown in India.

Legal rights are those which were recognised by Courts of Common Law.

For example:- the right vested in a trustee is thus legal right.

Whereas equitable rights are those which were recognised solely in the Court of Chancery, which wa presided

over by the chancellor.

7. Vested and Contigent Rights:-

A vested right is a right in respect of which all events essential to vest the right in the owner have happened. A

vested right is not dependent upon the fulfilment of any condition and it creates an immediate proprietary right,

even though enjoyment may be postponed. A vested right is not defeated by the death of the transferee before he

obtains possession. Vested right is inheritable and transferable. A grant of land to X in fee simple will give X a

vested right of ownership.

A contigent right is one in respect of which only some of the events necessary to vest the right have happened

and the vesting can be complete only on the happening on non-happening of a specified uncertain event.

Acondition precedent or a condition subsequent. A right becomes contingent only on the fulfilment of any

condition. A contingent right is defeated by the death of the transferee if the condition has not been fulfilled. A

contingent right is uninheritable and non-transferable.

8. Public and private rights:-

Public rights are rights vested in the state. The state holds such rights as the representative of the public for the

benefit of the community. When the right is available of in affairs concerned the Government, it is termed as public

right. For ex., the right to vote in the election is a public right.

Private rights are rights which belong to individuals. When both of the persons with whom a right is connected

are private persons, the right is private. A right which an individual exercises for his own personal benefit is a

private right. For ex., when I own a house, I have a private right.

9. Primary (Principle) and Secondary (Sanctional) or (Accessory rights):-

Primary right is a right vested in a person by the law or by contract or in any other legal manner. They may be

explained as the bundle of rights which are the privileges enjoyed by any person. E.g., a person’s right to liberty,

safety and reputation. Thus a man’s right to reputation, to the enjoyment of his goods, to a debt, to a lease, is a

principal or primary right.

Secondary right or a sanctional right is a right that arises if the primary right is lost. It is called the sanctional right

because it is a mode of legal enforcement, by way of a solace, for the loss of primary right. They may be divided

into two kinds:

(1) Rights to exact and receive from the defendant a sum of money by way of pecuniary penalty for the wrong which

he has committed: and.

(2) Rights to exact and receive damages for the injury that may have been caused to the sufferer.

What do you understand by civil and criminal justice? Distinguish between the two.

OR

Justice and its kinds Civil and Criminal Administration of Justice.

OR

Discuss civil and criminal justice.

OR

Administration of Justice.

Synopsis

Introduction to Administration of Justice

Meaning

Definition

Kinds of Administration of Justice (1) Administration of Civil Justice.

(2) Administration of Criminal Justice.

Distinction between civil and criminal justice.

Introduction to Administration of Justice:- The main function of the State is to maintain law and order and to establish peace and social security.

The state of will be able to discharge these functions effectively with the help of law through the

administration of justice. The main function of the administration of justice is, protection of individuals’

rights, enforcement of laws and punishment of wrong-doers.

Meaning:-

Administration of justice in other words means, justice according to law. Justice generally means the

quality of being just i.e., the awarding of what is due. Justice consists of impartiality, integrity, rightness

etc.

The main object of the administration of justice is the enforcement of rights as defined by the law.

Administration of justice as such involves of the contemporary society forming a community by means

of the sanction on the state.

Defination:- Salmond defines administration of justice as “ 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.

Kinds of Administration of Justice

The administration of justice is divided into two parts namely:

(i) Administration of Civil Justice.

(ii) Administration of Criminal Justice.

Wrongs are of two kinds viz., private wrongs and public wrongs.

(i) Civil Justice:- when a person commits a private wrong (Eg. Tort or breach of contract etc.) the

injuried party can get remedy by filling a suit (against the wrong doer) in a civil court. Thus the

main object of the administration of civil justice is to provide relief by way of compensation or

other relief to the injured party.

(ii) Criminal Justice:-It deals with the public wrongs. All offences included in Indian Penal Code

are public wrongs. Eg. Murder, rapes, theft etc., The main purpose and object of Criminal justice is

to punish the wrong doer (offender) and to maintain law and order in the society. The Criminal

Justice System is a systematized from, to render justice; it also represents the organized social

response to crime.

Distinction between civil and criminal justice.

Civil Justice Criminal Justice 1. Private Wrong.

2. Infringement of private rights belonging.

3. Individual is only the victim.

4. Breach of contract, trespass refusal to pay taxes.

5. Resulted to award of Exemplary or Private

damage.

6. No Punishment or non-punitive in nature.

7. Reliefs or judgement, damages, decline of

Specific performances, penalty, injunction, order

of mandamus, prohibition and certiorari etc.

1. Public wrong.

2. Breach and violation of Public rights and

duties.

3. It is harmful to the society as a whole.

4. Recovery of debts by state for example theft.

5. Resulted the accused to make restitution or

compensation.

6. Punishable or punitive in nature.

7. Punishments are ranging from hanging

bounded rules to keep peace, release upon

parole and punishments are simple and

rigorous imprisonment.

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Sources of law. Explain in brief the different Sources of law.

OR

Legislation as a Source of Law

OR

What is meant by legislation? What are its chief forms?

OR

What is Subordinate legislation? Explain the various forms of Subordinate legislation.

OR

Define ‘Precedent’. Explain its kinds.

OR

Explain the circumstances destroying or weaking the binding force of Precedent.

OR

Ratio decidendi and Obiter dicta. Short Notes 10: Marks

OR

Define custom and Explain the requirements of a valid custom.

Synopsis

Introduction to different Sources of law

Meaning

Legislation as a legal sources

Meaning

Definitation

Chief forms/Different kinds of Legislation

1. Supreme Legislation.

2. Subordinate Legislation.

(The various forms of Subordinate Legislation.)

Precedent as a legal sources

Chief forms/Different kinds of Legislation.

1. Authoritative Precedent.

2. Persuasive precedent.

Circumstances which destroy the Binding force of Judicial Precedents

Ratio decidendi and Obiter dicta.

There are two senses in which the words ‘Source of Law’ have been used. The words ‘Source of law’

may either signify the ultimate Power behind the law or it may tell us What is contained in law.

The two main sources of law are.

1. Formal Sources. and

2. Material Sources.

1. Formal Sources:- It is that sources which confers binding authority as a rule and converts the rule into law

2. Material Sources:- It is that source which gives/provides the material matter or content to a principle of

law. In other words, it is what is contained in law.

These material sources can be divided into two kinds,viz.,

I. Legal sources: it further sub-divided into four kinds . they are:-

1) Legislation-> sources of enacted laws.

2) Precedent.-> sources of case laws.

3) Custom-> sources of customary laws.

4) Agreement , Conventions and treaties. -> conventions and treaties.

II. Historical Sources.

1) Religious and morality.

2) Literary sources of law.

a) Commentaries

b) Doctrinal writings.

c) Academic writings and text books.

d) Legal Journals.

e) Dissertations.

f) Obiter Dictum.

Legislation:-

Meaning:-

The term legislation is derived from Latin words, Legis-> law. And latum-> to make or to set.

Definition:-

According to Austin, “Legislation includes activities which result into lawmaking or amending, transforming or

inserting new provisions in the existing law.”

Legislation consists:-

1. In the declaration of legal rules by a competent authority,

2. Conferring upon the such rules the force of law.

3. Such ‘competent authority’ is styled as the ‘Legislature’ of a country. And

4. Its members are called ‘legislators’.

Kinds of Legislation:-

1. Supreme Legislation.

2. Subordinate Legislation.

1. Supreme Legislation:- Supreme Legislation comes from or Enacted by the Supreme or Sovereign

Power in the State. It is enacted by the highest law-making authority in a state. The Sovereign

legislator who gives the supreme legislation has no rival in the State.

For example of Supreme Legislation:-

1. Parliament in India, USA or England.

2. The king or Sultan in Soudi Arabia or Brunei.

Sovereignty is a question of law since the existence of sovereign depends of the existence of rules

of law, which lay down.

Sovereignty is a question of law since the Existnce of sovereign depends of the Existance of rules of

law, which lay down.

• The identity and composition of the sovereign.

• The procedure according to the sovereign is to legislate.

• The area into sovereign competent to legislate.

However in USA or India Supreme one can be declared ultra virus or unconstitutional by a court of law.

3. Subordinate Legislation:-

Legislation is said to be Subordinate when such subordinate body derives its authority from the

Supreme or Sovereign body.

Subordinate legislation is dependent for its continued existence and validity on the Supreme

authority.

In any democratic state all forms of legislative activity recognized by law, other than the

parliament are Subordinate and subject to Parliamentary Control.

Kinds of Subordinate Legislation:-

1. Executive.

2. Judicial.

3. Colonial.

4. Municipal.

5. Autonomus.

1. Executive Legislation:- The chief function of executive is conduct the administrative departments of the State.

This administrative department of state are empower to make laws for their own functioning.

Examples of Executive departments whose rules constitute subordinate legislation are: Company Law,

Boards Rules in Jail Manual, Water work department, Customs/Excise Department.etc.,

2. Judicial Legislation:- Superior Courts have the power of making rules for the regulation of their own

Procedure. For example: The Karnataka High Court rules governed the administration of the Karnataka High

Court and the Subordinate Courts in the State.

3. Colonia Legislation:- the power of self government entrusted to the colony and other dependences of the

crown are called Subordinate Legislation because they are subject to control of the imperial rule. Between

the imperial rule and freedom there is a kinds of transition period where the colony . Enjoys self government

power-home rule-during this period the colony makes laws for its own administration is called Subordinate

Legislation.

4. Municipal Legislation:- Local bodies entrusted with the limited and Subordinate law for the district, under

their control. These laws are normally called bye-laws. This category of Subordinate Legislation is made by

Municipal Corporations, Municipal Boards, Zilla Parishads etc.,

5. Autonomous Legislation:- there are certain Autonomous body which makes laws for their own functioning,

the Supreme Law gives to certain groups of Private individuals limited legislative authority touching matter

which concern themselves. For example:- Companies, University, Club etc.

Conclusion:- Legislation is a superior form of law making where compare to precedent and hence legislation

is considered today to be a standard form of law making in any democratic country.

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How does Motive differ from intention? Marks:16

OR

Distinguish between Intention and Motive. Marks:16

Synopsis

Introduction

Meaning

Difference between the Motive and Intention

INTRODUCTION:-

Motive and intention are both aspects in the field of law and justice. They are also associated with a suspect with

the particular purposes of proving or disproving a particular case or crime.

If you are financially, physically or mentally hurt by the action or words of another person, you hold a grudge

against that person and have enough purpose or motive to hold intention to harm that person in one or the other

way. People see your intent but not the motive behind your behavior. However, in criminal cases, judges are more

concerned with motive though intent becomes prima facie evidence against a person in a court of law. Many

people, especially laymen, are very confused with these two principles called motive and intent. This article

attempts to make the concepts of motive and intent clear for all the readers.

MEANING

Intention:-

“Intent,” on the other hand, is the supposed action or purpose of the crime. It is the result of the motive and has a

higher level of culpability since a harmful action was committed. Intent is characterized as a deliberate action and

conscious effort to break the law and commit the offence. Intent resides in the field of law where it is defined as the

planning and longing to perform an act. It is present in both criminal law and tort law.

To be specific, a scenario of intent in criminal law often involves the prosecutor in a court of law filing a charge of

a crime against a suspect with veritable motive and intent. Since the intent is the final goal of the motive, it needs to

be proven in order to prove that the suspect did to commit the crime. Intent has more legal standing and weight

compared to motive in a court of law and is a requirement to make a case along with the means and opportunity.

Motive:-

“Motive” refers to the reason or the “why” the crime was committed. It is often the background of the suspect in

committing the alleged crime. As a background, motive comes before intent. Unlike intent, motive can be

determined, but its existence doesn’t exactly prove guilt. It can be refuted by evidence or an alibi on a suspected

person’s part (often referred to as “a person of interest” in criminal jargon). A motive is often based on the

probability that the person has reason to commit the crime but no supporting evidence that the motive was carried

out in the action. Motive is an initial factor but not a conclusive action to link a person to the crime.

Motive is also based in the realm of psychology. Motive, as a psychological term, is also known as the drive and is

often classified into two main types – the physiological motives and the psychological or social motives.

As for criminal intent, there are four levels as described in the Moral Penal Code:

(1) Purposely – At this level, the suspect expresses his purpose to commit a specific crime against a particular

person.

(2) Knowingly – The suspect has knowledge and consciousness that his actions will be considered a crime in the

eyes of the law. However, the suspect can inflict a crime on a person who is not his intended victim.

(3) Recklessly – The suspect knows the risks involved in his actions and the situation but disregards the risk and

continues to perform the crime regardless.

(4) Negligently – The suspect does not take into account various possible scenarios that will happen during the

action of the crime which often leads to losing control of the situation and probably causing more casualties.

Summary:

1.Motive and intent are very closely related to each other. Motive precedes intent in terms of action.

2.Motive is mainly in the field of psychology whereas intent is nestled in the field of law.

3.Motive is the reason behind the intent while intent is the background of the committed crime.

4.Both motive and intent should be proven beyond a reasonable doubt, but intent has a weightier standing and

bearing in a court of law compared to motive.

5.Intent is part of the three aspects to prove the crime (with means and opportunity) while motive can stand for

itself.

6.Motive applies to all persons of interest which can include the suspect. However, intent can be solely focused

on the suspect.

7.Motive is very arbitrary. It cannot prove or justify guilt or the actions pertaining to the crime. A person with a

motive can be eliminated or solidified with the help of the evidence or alibi. In the case of intent, the evidence or

alibi solidified the case against the suspect.

DIFFERENCE BETWEEN INTENTION AND MOTIVE

INTENTION MOTIVE

1. Intent is seen by witnesses and becomes the

evidence for a suspect being produced in a court of law

as having committed the crime.

2. Intention is the immediate act.

3. Ex:- A robber robs a person to purchase liquor for

himself.

“Robbing “ is the Immediate act and hence it is

called “Intention”.

4. Intention is always bad and evil in criminal law.

5. Intention is more relevant in determining the

criminal liability because the act is reult of intention.

6. In intention the point will judge a man by what he

does an act.

7. Intention is relevant in criminal and civil liability.

8. The Court did not consider their motive to protect

the cows from Slaughter. It considered that the Hindus

were guilty of offence, as their “immediate act” i.e.,

remove of cows from the possession of the owner was

bad in law according to sec. 146 IPC.

9. An Intention is nestled in the field of law.

10. While intent is means that you actually tried to.

11. Intention is the foreknowlege of an act coupled

with the desire of it.

1. Motive comes from motivation and knowing

about the purpose behind intent, a jury finds it

easier to announce the sentence. 2. The ulterior object is called motive.

3. Ex:- A robber robs a person to purchase liquor fo

himself.

“to purchase wine” is the ulterior object and hence it is

called “Motive”.

4. Motive may be good or bad.

5. Man’s motive is irrelevant in determining the

criminal liability.

6. In Motive will judge a man by the reasons for which

he does an act.

7. Motive is relevant in exceptional cases, in civil

liability e.g., cheque dishonor, malicious prosecution

etc.

8. Case Law: Emperor vs. Raghunatha Rai 1892: some

Hindus forcibly removed two cows from a

Mohammedan to save them from slaughter, in view of

their religion.

9. A motive is mainly in the field of psychology.

10. Motive means that you could have done it.

11. Motive is that which moves a person to a course of

action.

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1. Evaluate Hohfeld’s analysis of legal rights. Marks:16

OR

2. Discuss the rights in Wider sense of the term

Synopsis

Introduction

Meaning of Legal Rights

It is also called as the Honfeld’s Analysis. Honfeld’s analysis is of legal rights: - Privilage, Liberty, Licence.

Privilege freedom,

Right Licence, Liberty Immunity Power

Duty No Right Disability Liability

Vertical Line

OR

Straight Line Jural Co-relatives

Horizontal Lines

OR

Cross Lies Jural Opposites/Jural Contradictories.

Introduction:-

Professor Hohfeld is an American jurist who classify the term right and differentiated it see from such related

ideas/ concepts like Liberty, Power and Immunity.

Meaning of Legal Rights:-

Legal Right in the Strict Sense constitutes a co-relative of the Legal Duty. In the wider sense a legal right defined as

any advantages or benefits conferred on a Person by law and can take the name of Liberty, Power and Immunity

are all advantage of benefits upon the holder.

1. Liberty: A person has liberty when there is absence of any legal duty imposed upon himself.

Liberty is a things a person may do without being prevent by the law.

A person’s liberty is his ability to do a thing without being liable for it in law.

L liberty is an exemption from the right of others.

Liberty is also called as Privileges, Freedom or Licence.

For example:

a) One has the liberty to express his opinion on Public affairs but no right to defame others.

b) One has the liberty to defend himself against violence, but has no right to take revenge upon another.

2. No-right: The correlative of liberty is no-right. This term was coined by the American jurist Honfeld. No

right means an absence of right.

for example: the maxim Damnum Sine Injuria i.e., damage suffered by a person without violation of his

right illustrates no right.

3. Power: Power is the ability of a person to alter the rights, duties of another or himself, which is

conferred by law on him. Power towards others is the authority and to oneself is the capacity.

For example:

a) One’s right to make a will is his power.

b) The judge has the ‘Power’ to pass a sentence upon a convicted criminal.

c) Power to create contractual obligations.

Powers are of two types:

i) Public power.

ii) Private power.

i. Public power: are those vested in a person as an agent of the State. Normally Public is

power over other person.

For examples:

a) Police power to arrest.

b) Power of legislature to make law.

c) President’s power to grant mercy.

Public power is also called authority.

ii. Private power: are those which are vested in a person and are to be exercised by him for

his own purpose. Private power is power over oneself.

For examples:

a) Power to make a will.

b) Power to make a gift

Private Power is also called Capacity.

4. Liability:- it is the presence of liberty or power vested in someone else. Liability may be beneficial or

detrimental.

For example:-

a) Liability of a tenant to have his tenancy redetermined by the owner.

b) Liability of a mortgagee to have his property sold by the mortgager.

5. Immunity:- an immunity is an exemption or freedom from legal power or freedom from legal power of

other person.

For example:-

a) Private Companies enjoy several immunities such as freedom from filing certain documents with the

Registrar.

b) Foreign Sovereigns have immunity, from jurisdiction of our courts.

6. Disability:- It is an absence of Power (in-ability or no power).

For example:-

a) A minor’s disability to enter into a contract or make a will.

********************

Comment on idea of “Volksgeist”.

HISTORICAL SCHOOL OF LAW.

OR

GENETIC JURISPRUDENCE

OR

SAVIGNY’S SCHOOL OF LAW.

Volksgeist as the Source of Law:-

The origin of law, “lies in the popular spirit of the people”., which Savigny termed it as Volksgeist.

According to Savigny , the basis of law is to be found in Volksgeist which means people’s consciousness, or will,

which consists of traditions, customs, habits, practices and beliefs of the people.

Law is not universal like language, it varies with people, time and needs of the community.

Since law should always conform to popular consciousness i.e., Volksgeist, custom not only precedes legislation

but is superior to it.

With the be growing complexity of law, the popular consciousness is represented by lawyers who are nothing but

the mouthpiece of the popular consciousness. It is for this reason that lawyers and jurists are more important

than legislator. In the process of development of legal system.

According to Savigny, a law is a product of the general consciousness of the people and a manifestation(

declaration of the intentions/opinions of the sovereign or a leader of a party) of their spirit. Therefore codification

of German law was desirable for its smooth development at that time.

According to Savigny, a law made without taking into consideration the past historical culture and tradition of

community is likely to create more confusion than solving the problems because ‘law’ is not an artificial lifeless

mechanical device’.

Savigny maintained that legislation was subordinate to custom.

Draw back of Volksgeist , discouraged the active and creative roles of Judges and Jurist. The Judges and Jurist

were just spokes person of Volksgeist. Actually the Historical theory hindered the legal reforms and

modernization of law in the name of Volksgeist. Seavigny was against the codification of law which is one of the

most accepted forms of modern progressive legislation.

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