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LL.B.

VI Term
Paper - LB 602 Jurisprudence II (Concepts)
The significance of the study of Jurisprudence lies in the opportunity for lawyers to
bring theory and life into focus as it concerns human thought in relation to society. This
part of Jurisprudence deals with certain concepts which are the mainstay of law as a
system, its administration and adjudication. These concepts recur every day in law, its
administration and adjudication. Judges, lawyers, legislators and administrators have to
constantly understand the jurisprudential basis of these concepts which are continuously
being dealt with in law in all its manifestations. The reading materials being provided
are original writings by various thinkers who have thrown light on the understanding
and implication of these concepts.

Prescribed Books :
1.
2.
3.
4.

P.J. Fitzgerald, Salmond on Jurisprudence (12th ed., 1966)


R.W.M. Dias, Jurisprudence (5th ed., 1994)
David P. Derham (ed.), A Textbook of Jurisprudence by G.W. Paton
(4th ed., 1972)
Lloyds Introduction to Jurisprudence (7th ed., 2001)
Topic 1 : The Concept of Rights and Duties : Jurisprudential Analysis

Hohfelds analysis of the concept of rights is considered as a landmark analysis.


You are expected to use the analysis in understanding various constitutional and
statutory provisions in India. The analysis can also be used to understand the
rationale behind various judgments delivered by the esteemed Judiciary.
(a)

(b)
(c)
(d)

Hohfelds Contributions to the Science of Law


Walter Wheeler Cook (ed.), Fundamental Legal
Conceptions -as Applied in Judicial Reasoning and Other
Legal Essays by Wesley Newcomb Hohfeld, pp. 1-15
(1919)
Legal
Conceptions
contrasted
with
Non-legal
Conceptions, id., pp. 27-73
Jural Relations
R.W.M. Dias, Jurisprudence pp. 23-43 (1994)
Upendra Baxi, Laches and the Right to Constitutional
Remedies: Quis Custodiet Ipsos Custodes?, Alice Jacob
(ed.) Constitutional Developments since Independence
(1975)

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8
28

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Topic 2 : The Concept of Right and Duties : Philosophical Analysis
(a)

(b)
(c)
(d)

Bhikhu Parekh, The Modern Conception of Right and


Marxist Critique in Upendra Baxi (ed.), The Right to be
Human 1-22 (1987)
Upendra Baxi, From Human Rights to The Right to be
Human : Some Heresies, id. pp. 185-199
Allen Buchanan, What is so Special about Rights Social
Policy & Philosophy 61-75 (1984)
Amartya Sen, Culture and Human Rights in Development
as Freedom, Chapter 10, pp. 227-48 (2000)

41
57
66

81
Topic 3 : Feminist Legal Theory
The Constitution of India, 1950 guarantees right to equality to women yet
numerous areas can be identified where women are discriminated. The last few
decades have witnessed the impact of feminist critical approaches on social,
economic, political and legal institutions. One must correlate the jurisprudential
analysis of rights of women with the prevailing customs, laws and precedents in
India and determine whether equality for women is a reality or myth.
(a)

Susan Edwards, Sex, Gender and Legal Process 1-25


(Mimeo)
Indira Jaising, Gender Justice and the Supreme Court in
B.N. Kirpal et al (eds.) Supreme But Not Infallible Essays in Honour of the Supreme Court of India pp
289-319 (2000).
Feminist Jurisprudence from Lloyds Introduction to
Jurisprudence pp 41-47 (2001)

(b)

(c)

95
102

Topic 4 : Liability Civil and Criminal


(a)
(b)

Liability
P.J. Fitzgerald, Salmond on Jurisprudence, pp. 349-410
Civil and Criminal Justice
P.J. Fitzgerald, id., pp. 91-106

117
153

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Topic 5 : Personality
Theories of the Nature of Legal Persons
(a)
(b)
(c)

R.W.M. Dias, Jurisprudence, pp. 265-270


A.A. Berle, The Theory of Enterprise Entity, 47
Columbia L. Rev. 343-58 (1980)
A.K. Koul, The Multinational Corporations : Bonanza or
Source of Illusion for the Economics of the Developing
Countries, Rev. of Contemporary Law 231-46 (1980)

163

Topic 6 : Possession
P.J. Fitzgerald, Salmond on Jurisprudence, pp. 265-295

168

Important Note:
1. The topics and materials given above are not exhaustive. The teachers teaching
the course shall be at liberty to add new topics/materials.
2. The students are required to study latest editions of books and available
materials.
3. The Question Paper shall include one compulsory question consisting of five
parts out of which four parts will be required to be attempted. The Question paper
set for the academic year 2008-09 is printed below for guidance.

*****
LL.B. Exams (Supplementary), May-June, 2008
Jurisprudence
Note: Answer any five questions including Question No. 1 which is compulsory.
All questions carry equal marks.
1. Write short answer on any four, not exceeding 150 words:
(a) Legal personality of a foetus.
(b) Natural Rights, Fundamental Rights, Human Rights and Legal Rights although appear
to be separate and different. Discuss.
(c) Hohfelds analysis of Duties towards the state and society.
(d) How Buchanan finds merit in the claim that part of what is distinctively valuable
about right is that they may be involved or not invoked or waived:
(e) Analyse Art 368 of Indian Constitution so as to focus on the usefulness of Hohfeldian
analysis in constitutional interpretation.

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2. Feminist approach to law can be seen to start from basic assumption about relationship
between man and women and the law is informed by and serves to reinforce patriarchal
social relationship that is based on male norms, male experience and male dominance that
womans experience is excluded from the law and the law has contributed to womens
oppression. Critically analyse it in the light of various feminist legal theories with
special reference to Indian legal system.
3. (a) Explain in brief the Hohfeldian analysis of jural relations.
(b) Examine the following in the light of Hohfeldian scheme of jural relations and
reframe them where necessary.
(i)

The accused has privilege against self incrimination.

(ii)

Article 21 of Indian constitution states, No person shall be deprived of his


life or personal liberty except according to procedure established by law.

4. Theories of legal personality are indeed fascinating in their analogy and ideologies. But
they dont always provide safe guide for lawyers and judges in their daily tasks.
Critically analyse it and pick out any two theories of legal personality for arguing against
this proposition.
5. (a) What difficulties does Buchanan had with Wasserstroms treatment of the case of
racist who fails to recognize Negroes have rights.
(b) How has Allen Buchanan dealt with compensatory feature of rights. Do you agree
with Buchanan that law of torts dealing with fault liability provides instances in
which a successful case for compensation does not depend upon establishing that law
was infringed?
6. What do you understand by concept of Possession? What are the various theories
supporting one or other concept of possession? What is role of possession in law and legal
system? Refer to relevant case law.
7. Elaborate how the developments from the 17th century demarcated an individual and
treated an individual as bearer of rights. Do you agree that approach of Bikhu Parekh has
been glimpsed in our legal system? Give the answer with illustration.
8. What are Baxis heresies? Write short notes on following:
(a) The basic needs approach to rethinking Human Rights.
(b) Intimate relation between rights and violence.

*****
LL.B. Exams (Supplementary), May-June, 2010
1.

Briefly answer any four of the following :(a)


Fiction theory of legal personality;
(b)
Subjective theory of negligence;
(c)
Distinction between liberty and a claim-right;

2.

3.

4.

5.

6.

7.
8.

(d)
Radical feminism;
(e)
Trumping feature of rights.
Briefly explain the Hohfeldian concept of rights and analyse the following :
(a)
Right to constitutional remedies under Article 32 of the Constitution of India.
(b)
Right to travel abroad.
(c)
Right to marry.
What are the important features of feminist legal theory and methodology for the
study of law?
With the help of suitable examples explain whether, in your opinion, the law
contributes to womens oppression or advances her status in the private and public
sphere.
Critically examine the following statements :
(a)
A unique feature of rights is that the right-holder may either invoke or not
invoke his right.
(b)
Rights play an indispensable role in distinguishing those principles that can
justly be enforced from those that cannot.
Trace the development of a modern conception of rights over the past four hundred
years. Do you agree with the idea that rights are a source of both benefits and burdens
?
(a) Distinguish between mediate and immediate possession. How have these
concepts been used in Indian law?
(b) (i) If A momentarily hands his wallet to B, from whom it is stolen by C. Who
has the legal possession of the wallet according to Indian law? Explain.
(ii) A sells B a cupboard, which unknown to both, contains jewels in a secret
drawer. Who has legal possession, A or B?
What is the distinction between intention and negligence? Bring out the distinction
between these two terms and explain their relevance in criminal and civil liability?
Do you consider the idea of human rights to be universal or are they specific to the
manner in which different cultures recognize human rights? Discuss in the light of
Amartya Sens discussion on culture and human rights.

*****
LL.B. Exams (Supplementary), May-June, 2010
1.

Briefly answer any four of the following :(a)

Positive Morality by Austin.

(b)

Kelsen on International Law.

(c)

The idea of obligation.

(d)

Concept of Social engineering.

(e)

Relevance of Legislation by Maine.

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2.

Discuss the Austinian concept of Sovereignty and its attributes that sovereignty is
indivisible, universal and unlimited. Locate the Austinian sovereign in the Indian
Legal System and discuss the conceptual difficulties in such a locating exercise.

3.

Why the theory given by Kelsen is known as Pure theory of Law ? How far he
succeeded in that particularly when he insisted that grundnorm must be efficacious ?

4.

Explain the Hartian concept of Rule of Recognition and validity in his concept of law.

5.

The movement of progressive societies has hither to be a movement fom status to


contract. Critically comment Do you agree that this movement in 21st century is
from contract to status though the nature of status has drastically changed ? Discuss.

6.

Savigny promoted the view that Law has a nation character. Discuss in the light of his
theory of Volksgeist. How far is the theory of Volksgeist applicable to the Indian
Legal System ?

7.

Discuss Roscoe Pounds theory of interests and jural postulates and clearly bring out
the relevance of jural postulates in implementing the theory of interests.

8.

Discuss the relevance of the study of the speluncean

Explorers case in

jurisprudence. (Do not discuss the facts of the case).

*****
LL.B. Exams (Supplementary), July-August, 2011
1.

1.

Briefly answer any four of the following :(a)

Moral agents;

(b)

Vicarious liability of employers;

(c)

Human rights as imperfect obligation;

(d)

Distinction between claim and immunity;

(e)

Corporeal and incorporeal possession.

Analyse the various Hohfeldian categories of jural correlatives, opposites and


contradictories in the following instances:
(i)

B is the owner of a house, He decides to sell the property to C even though he


has received a higher officer from D.

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(ii)

The right of a citizen to move the Supreme Court under Article 32 of the
Constitution to enforce her fundamental rights.

3.

Trace the development the modern conception of rights from the 17th century.
Discuss the theory of individuation, emergence of an individual as a bearer of rights
and the benefits and burdens associated with rights.

4.

Evaluate the contribution of feminist legal theory to the study of law.


Illustrate your answer with examples from Indian Legislation and precedents.

5.

The approach of the law has not been consistent in defining a person. Elaborate your
answer using any three theories of personality.

6.

(a)

What is the importance of the trumping feature of rights in a diverse society


like India?

7.

(b)

Critically discuss the view that rights alone provide a basis for compensation.

(a)

Discuss Salmonds theory of possession.

(i)

A dropped his purse on the floor of a shop and after one day it was picked
up by B, a customer. S, the shopkeeper claims possession of the purse.
Decide.

(ii)

A sells B a cupboard, which unknown to both contains jewels in a secret


drawer. Who has possession? Decide.

8.

(a)

Distinguish between the subjective and objective theories of negligence.

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