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JurisprudenceLong Questions & Answers1Q. Define Jurisprudence? And explain nature, scopeand importance?Ans. The term Jurisprudence is Latin term having meaning‘Knowledge of Law or Skill of Law’ (Juris=Law).(Prudence=Knowledge of Law).Jurisprudence study about the law.and it includes study of the...

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LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – I Jurisprudence

Jurisprudence Long Questions & Answers 1Q. Define Jurisprudence? And explain nature, scope and importance? Ans. The term Jurisprudence is Latin term having meaning ‘Knowledge of Law or Skill of Law’ (Juris=Law). (Prudence=Knowledge of Law).Jurisprudence study about the law. and it includes study of the term law, sources of law and legal terminologies, It has been defined by various authors as follows:1.

Salmond:- Jurisprudence is defined as Science of Law. In science there is systematic study of Nature. And in Jurisprudence there is systematic study of Law.

2.

Austin :- According to this author Jurisprudence is philosophy of Positive Law. And it governess all actions of human being which are illegal and unjustified.

3.

Gray :- According to this author Jurisprudence is study of legal Systems of all the countries.

4.

Duguit :- According to this author Jurisprudence is knowledge of just and unjust. And Human law and Divine Law or Natural law.

Nature of Jurisprudence 1.

It is Uncodified Law Law Students Federation – Jurisprudence Study Material (III Semester) – Dec, 2016.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – I Jurisprudence

2.

It is common law in all countries

3.

This law has been developed and not enacted by Legislatives.

4.

It is also called as legal theory, be those is actual study of the term law in Jurisprudence.

5.

There is no scope for amendment and it is developing out of legal knowledge of the people.

Scope of Jurisprudence: There is wide scope of Jurisprudence and it is related with so many other subjects which can be explained as follows: 1.

Jurisprudence and economics:Economics is the science of wealth. People commit may illegal activities for the sake of wealth and law tries to control illegal activities and to punish the criminals same law is studied in Jurisprudence and therefore Jurisprudence and economics are correlated.

2.

Jurisprudence and Politics:Laws are enacted by political parties. Who are elected by people called as Legislatures. Jurisprudence study law enacted by political parties who are in power and therefore Jurisprudence is also related with Political Science.

3.

Jurisprudence and Sociology :Sociology is also called as Science of Society. It study about development of Society. Law is requirement of Society. Which is studied in Jurisprudence and it is related with Sociology.

4.

Jurisprudence and Ethics:- (Ethics means Morality)

Law Students Federation – Jurisprudence Study Material (III Semester) – Dec, 2016.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – I Jurisprudence

Ethics or morality is base of Law. Many Laws have been enacted by considering morality. But it is not in all the laws. Therefore law and morality are ethics are also correlated. Importance of Jurisprudence:1.

It is compared with science which shows importance of Jurisprudence.

2.

It study legal systems of all the countries.

3.

It is called as foundation or base of the law and study of jurisprudence is much important.

4.

It is related with many other subjects which shows importance of jurisprudence.

5.

It makes study of term law and sources of law which is necessary.

6.

It is like tool in hands of legal expert which is helpful in interpretation of law.

7.

It is like engine and all subjects are like bhogis and jurisprudence is helpful to interoperate every law.

This subject makes study in details about legal Terminologies. By all above points it is clear that study of Jurisprudence is much significant. This details about definition, nature, scope and importance of Jurisprudence. 2Q. Critically examine all schools of Jurisprudence? Ans:- School means group of the people who believe and support theory relating to law. In every school different views have been expressed about the term law. All these theories are subjected to Criticism. These are seven kinds of schools specified in Jurisprudence which are as follows:Law Students Federation – Jurisprudence Study Material (III Semester) – Dec, 2016.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – I Jurisprudence

1.

Analytical School

2.

Historical School

3.

Sociological School

4.

Philosophical School

5.

Realist School

6.

Comparative School

7.

Natural Law School.

1.

Analytical School :

According to this theory law is command of Sovereign. It is also called as Austin’s Command theory or imperative theory. In other words it is stated that law is command of Political superior over political inferior supported by sanction. It is called as command because handful legislatures make law for all people of the country. Without there opinion. Political superior are elected by member of parliament or assembly. Political inferior are general public. Sanction means Punishment or penalty. Criticism: There are many laws having no command such as Contract Act, Constitutional Law, Marriage Law, International Law. 2. Historical School :- This School is supported by

savigny according to this author growth of Law is inconcious. Such as Height, Hairs, Manners, Languages. This school given much importance to customs and it says that law is found and it is not made. In every society there was Law.

Law Students Federation – Jurisprudence Study Material (III Semester) – Dec, 2016.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – I Jurisprudence

Criticism: Custom is not main source of Law But in modern period Legislation is main source of law. Many laws found are out dated and it cannot be effective source of law. 3.

Sociological School :- This school is supported by Benthan. According to this school law is social phenomenon. Law and Society are related and there are two sides of same coin. Society give birth to law and law cannot give birth to society. Therefore need or requirement of society is law.

Criticism: There is no participation of bark of society in law making process. Opinion of general public is not considered in making the law. 4.

Philosophical School :- This school says that law is nothing but morality or ethics of the people. this school is supported by Gray. There is morality or ethical values among the people and because of that they have made rules to govern them self and it is law.

Criticism: There are many laws which are not based in morality. Such as Vicarious Liability, Security Laws. For Security of country and the people morality cannot be considered in all the laws. 5.

Realist School :- This is school is supported by Justice Holmes. According to this school judgements given by courts is actual Law. Any law made by Law Students Federation – Jurisprudence Study Material (III Semester) – Dec, 2016.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – I Jurisprudence

legislatives is raw material and finishing is given by judiciary. Therefore this school given importance to judgements of the courts.

Criticism: Judges cannot be called as law makers and they have to interpret and enforce the law Powers of judges are limited and they can give remedy if there is law.

6.

Comparative School :- This is school is supported by Henry Maine. According to this school law developed out of comparison between the countries. Every country adopted same rules from other country and made the law. Criticism : There cannot be comparison between over developed, under Developed and developing countries. Local conditions and circumstances prevailing in country are different and they cannot make law by comparison.

7.

Natural Law School :- This is school is supported by Aristotes and Plato. Who were Greek philosopher. According to this school God has give intelligence and wisdom only to human being and they have made the Law by using it.

Law Students Federation – Jurisprudence Study Material (III Semester) – Dec, 2016.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – I Jurisprudence

Criticism: There are many laws which are contrary to intelligence for purpose of Security. Requirement or necessity of society is considered in law making the process by neglecting intelligence.

These are the schools specified in Jurisprudence which explain about the term law. 3Q. Define Customs ? And explain essential requisites, Kinds, Merits and demerits of Customs ? Ans. There are three main sources of origin and development of law. And these are Custom, Precedent and Legislation. Custom is historical source of law. According to Salmond “Custom is body of rules followed by ancient people and adopted by future generations as a Legacy”. Society gives much importance to customs. Essential Requisites of Varied Customs: 1.

It should be immemorial (Very off)

2.

It should be certain or definite

3.

It should be followed by all the people or majority of the people

4.

It should be observed in continuity

5.

It should be enjoyed peacefully

6.

It should not be contrary to law

7.

It should not be social evil or prohibited under Law such as custom of Saty, Dowry is prohibited under Law. Law Students Federation – Jurisprudence Study Material (III Semester) – Dec, 2016.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – I Jurisprudence

Kinds of Customs: There are four kinds of customs 1.

General Custom

2.

Local Custom

3.

Legal Custom

4.

Conventional Custom.

1.

General Custom : General Customs are followed by all the people or majority of the people in the country. Eg: There are many festivals which comes under general customs, in Hindu marriage saptapadi and kanyadan is general custom, in Muslim marriage mehar is general custom.

2.

Local Custom: It is in particular area or region or community . And it is not common among all the people. Eg: There are some festivals which are in particular region and become local Custom, Muta marriage or contract marriage is local custom in Shia group of Muslims and it is not common all the people.

3.

Legal Custom: There are many customs recognised and adopted by law and it become Legal custom. Many general customs become legal customs. Eg: Mehar, Iddat period ,Saptapadi, Kanyadan, Adoption are legal customs.

Law Students Federation – Jurisprudence Study Material (III Semester) – Dec, 2016.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – I Jurisprudence

4.

Conventional Custom : There are many conventional customs which are unwritten and recognised by the people . Eg : Rules of games and sports, barter system, ceremonies in marriage. Merits or Advantages of Customs: 1.

There is force of society behind the custom

2.

There is wisdom or intelligence of ancient people in the custom and it is better

3.

Customs are helpful and maintain civilization and culture of the country

4.

Customs gives happy occasions in life of the people

5.

Customs brings unity and integrity among people.

Demerits of Disadvantages of Customs: 1.

There are some customs which are social evils such as Saty, Dowry.

2.

There are many customs having no interpretation or explanation and people follow it

3.

Customs waste much time and not convent for developing country

4.

Customs becomes more expensive and poor people face problems

5.

Customs create law and order problem.

This is detail about custom as a source of Law.

Law Students Federation – Jurisprudence Study Material (III Semester) – Dec, 2016.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – I Jurisprudence

4Q. What do you mean by Precedent ? Explain kinds of precedent and its merits and demerits as a source of law ? Ans. Precedent is source of law. Precedent means all the judgements given by Supreme court or High court which are recorded in case law reporters. These judgements have to be followed by all the courts in similar cases. Supreme court have power to over rule earlier judgement and declare new judgement which is followed in Subsequent cases. Supreme court judgement is binding on all the courts in India. And High court judgement is binding all the district courts and taluka courts. High court judgement is not binding on supreme court, but supreme court judgement is binding on all high courts. Therefore precedent is also called as Judgement Law. Judges are not law makers, but, there judgements have significance as a source of law . Advocates can produce judgements of superior courts at the time of arguments in support of there cases called as citation or case Laws. Kinds of Precedent : There are four kinds of precedent 1.

Original precedent

2.

Declaratory precedent

3.

Authoritative precedent

4.

Persuasive precedent

1.

Original precedent: in original precedent supreme court or high court deliver new judgement first time in a particular case . if earlier judgement is over ruled then also it is called as Original precedent. In legal term it is known as ‘Ratio Decidendi ’ . It is applicable in subsequent cases and not already decided cases. It is stated that ‘Judges are master of law and not Law Students Federation – Jurisprudence Study Material (III Semester) – Dec, 2016.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – I Jurisprudence

slave of law’. Therefore in interest of justice they can declare new precedents.

Eg : In Shah banu case supreme court held that Muslim women having no source of income is also entitled for maintenance from husband. It become new precedent or original precedent but parliament deleted it by making new amendment in Muslim personal law. Eg: Supreme court held that negligence of doctor comes under jurisdiction of consumer court. Patient is like a consumer who heir services of doctor by paying the fees. This is Original precedent.

2.

Declaratory Precedent :- In this precedent there is nothing new. But already existing precedent is taken by Subordinate judges in these judgements when more number of judges approve a precedent then it becomes strong precedent it is also called as ‘Stare decisis’ it means ‘ look back and decide’ Eg : When necessaries are supplied to a minor then it is a valid contract, binding on his father or guardian which is declaratory precedent.

Eg : Cruelty is a ground of divorce is declaratory precedent and it include physical and mental cruelty for a reasonable period such period may be decided by the court. 3.

Authoritative Precedent:- Authoritative means more powerful and binding precedent. Supreme court judgement is authoritative for high courts. If there is dissenting judgements of two high court, then respective high court judgement is authoritative for subordinate courts. Judgement of larger bench where there are more number of judges is authoritative on smaller bench where there are less number of judges.

Law Students Federation – Jurisprudence Study Material (III Semester) – Dec, 2016.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – I Jurisprudence

Eg: A.P high court held that Muslim minority is not entitled for 4% reservation in education and employment supreme court held that they are entitled for reservation and it became authoritative precedent.

4.

Persuasive Precedent :- In persuasive precedent superior court judges may write there opinion, observation, unwanted details in support of the case, recommendations, reference of foreign judgements which is not binding on any court. It is also called as ‘Obiter Dictum’ . Because of Obiter dictum there is growth of literature of law and it is material for legislatures to make the law. Eg: A Hindu performed second marriage after conversion in to Muslim. Supreme court held that it is conversion of convenience . And religion of first marriage will be considered in deciding the case. Supreme court also mentioned the state to make Uniform Civil code for all the citizens which Obiter dictum or persuasive precedent.

Merits of Advantages of Precedent: 1.

There is certainty in Judgements

2.

Precedent is declared after lengthy argument and it is better

3.

Precedent is declared by legal experts

4.

Impact on society will be examined and if it is not better then new precedent can be declared

5.

It bring check and control over discretionary powers subordinate court judges, because they have to oblige precedents.

Demerits of Disadvantages of Precedent:

Law Students Federation – Jurisprudence Study Material (III Semester) – Dec, 2016.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – I Jurisprudence

1.

If superior court commit any error in judgement then it is multipled is subordinate court

2.

There is occasional overtaking of precedent may cause inconvenience to client

3.

Ignorance of advocate on new precedent may cause injustice to client

4.

In order to find out precedent there is much wastage of time and it is like ‘Few grams of gold in one tonne of waste material’

5.

It can be stated that cases cannot be similar in circumstances and facts. And application of precedent is improper in deciding cases.

6.

Hands of subordinate judges are tied with rope of precedent and they get less scope to apply there wisdom.

This is detail about Precedent, Kinds , Merits and Demerits as a source of Law.

5Q. Define Legal Right ? and explain various kinds of legal rights ? how rights and duties are corelated? Ans. Legal right is enforceable in the court. It is stated that ‘Some rights are legal but not moral’ and ‘Some are moral but not legal’ . The term legal right has been defined as follows :1.

Salmond : Legal right is body of rules recognised by state and administered through courts.

2.

Austin : Legal right is the power vested in a person or persons to control others by virtue of law of the country. Eg: Husband divorced wife then it is her legal right to claim maintenance from husband because of law.

Law Students Federation – Jurisprudence Study Material (III Semester) – Dec, 2016.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – I Jurisprudence

Kinds of Legal Rights: There are 8 kinds of legal rights 1.

Corporeal rights and incorporeal rights

2.

Perfect right and imperfect right

3.

Legal right and equitable right

4.

Vested right and contingent right
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