LL.B. V Term

Paper LB - 502 - Jurisprudence - I (Theories of Law)

Prescribed Readings:

1. Lloyds Introduction to Jurisprudence by M.D.A. Freeman (7thed., 2001) 2. R.W.M. Dias, Jurisprudence (5th ed. 1985) 3. P.J. Fitzgerald, Salmond on Jurisprudence (12th ed., 1966) 4. David P. Dertam (ed.) A Textbook of Jurisprudence by G.W. Paton (4th ed. 1972)

Topic 1: Nature and Scope of Jurisprudence: Schools of Thought

Topic 2: Austin’s Command and Sovereignty Theory

i) Positivism : British Theories R.W.M. Dias, Jurisprudence 331- 335 1 ii) John Austin, The Province of Jurisprudence Determined by H.L.A. Hart,

pp. 9-221 (1954) 5

Topic 3 : Kelsen’s Theory of Law

i) Hans Kelsen, Pure Theory of Law Translated by Max Knight pp. 1-17, 24-58 (1970) 32

ii) Hans Kelsen, General Theory of Law and State Translated by Anders Wedberg, pp. 110-137 (1946) 65

Topic 4: Hart’s Legal System

i) Law as the Union of Primary and Secondary Rules, H.L.A. Hart, The Concept of Law 79-99 (2nd ed., 1961) 85

ii) The Foundations of a Legal System : H.L.A. Hart, id., pp. 100-123 98 Topic 5 : Karl Von Savigny’s Theory of Law

Topic 6 : Henry Maine’s Historical Materialism

Readings for Topic 5 & 6

i) “System of Modern Roman Law” in Lloyd’s Introduction to Jurisprudence by M.D.A. Freeman, pp. 921-925 (7th ed. 2001) 110

ii

ii) “Sir Henry Maine : Ancient Law” in Lloyd’s Introduction to Jurisprudence by M.D.A. Freeman, pp. 925–928 (7th ed., 2001) 115

iii) Historical and Anthropological Approaches in R.W.M. Dias, Jurisprudence 375-393 118

Topic 7: Roscoe Pound’s Theory of Law

i) Roscoe Pound, “A Survey of Social Interests” 57 Harvard Law Review 1-39 (1943) 131

ii) Roscoe Pound, in R.W.M. Dias, Jurisprudence 431-435 147

Topic 8: Judicial Process

Lon L-Fullers, “The Case of Speluncean Explorers,”, 62 Harvard Law Review 616-664 (1949) 153

Topic 9: Revival of Natural in Law in the Twentieth Century

R.W.M. Dias, Jurisprudence 479-488 173

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. The students are required to consult the latest editions of books.

. 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 papers set for the academic years 2007-08 and 2008-09 are given below for guidance of the students.

* * * * *

iii

LL.B. V Term Examinations, December, 2007

Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following:- (i) Dynamic principles and normative system. (ii) Negative mark of sanction. (iii) Grundnorm is neither legal nor extra legal and it has a self dependant beginning. (iv) Do you agree with Henry Maine that primitive Hindu society was a static society. (v) Volksgeist. 2. Do you agree with the view that Savigny made a great contribution by drawing attention to

the study of law in relation to people’s life and their history but he failed to appreciate the creative role of legislature and judiciary? Assess critically.

3. Natural Law has had an abiding impact on legal thought, its concept and meaning has varied from time to time. Even today it has neither lost its vitality nor its role. Discuss the revival of natural law in the 20th century as propounded by Stammler.

4. How, according to Pound, in any given case, competing interests are to be balanced? Do you think that the balancing metaphor is appropriate regarding reservation for

Scheduled Caste, Schedule Tribe and other socially and educationally backward classes under Article 15(4) and 15(5) of Constitution of India.

5. Explain the ‘idea of obligation’ in Hart theory of law as union of primary and secondary rules. How the defects in the ‘idea of obligation’ are supplemented by secondary rules and at what level? Do you think ‘rule of recognition’ is centripetal force of secondary rules?

6. According to Hans Kelsen, the legal system is a system of norms. The question then arises: What is it that makes a system out of a multitude of norms? When does a norm belong to a certain system of norms, an order? What are the reasons for validity of norm? Explain and illustrate fully.

7. Austin conceptualizes a sovereign as being illimitable, indivisible and continuous. Critically evaluate this theory of sovereignty in the light of modern states having written Constitutions and characterized both by limits on legislative powers and the doctrine of separation of powers.

8. Ram in Vidharba, Maharastra is the head of the family comprising of his wife, three daughters and two sons. His means of sustenance is 10 acres farm. He has taken a loan of Rs. two lakh from Central Cooperative Bank to buy cotton seeds and pesticides. In that very year, the monsoon failed, resulting to failure of crops.

iv

Ram again takes a loan of two lakhs by mortgaging his land. The earlier loan was taken by keeping his house as collateral security with bank. This time again the crops failed due to attack of new pests. Ram and his wife are driven to despair by the mounting loans and the starvation faced by their family. All of their children are under 10 years of age. Ram and his wife, driven by starvation and their bleak financial state, fed their 5 children pesticide and also consumed the same themselves.

All 5 children and Ram’s wife died. However Ram is saved and now faces trial for murder of his 5 children and his wife. He is also charged for attempt to commit suicide.

Discuss the above case on the lines of Speluncean Explorer’s Case. Should Ram be convicted or not?

LL.B. V Term Examinations, December, 2008 Note: Answer five question including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (a) Tacit command theory of Austin with respect to judge made law and customary

law. (b) Static and dynamic system of Norms. (c) Rule of Recognition. (d) “The movement of progressive societies has hitherto been a movement from

status to contract.” (e) ‘Social Engineering’ thesis of Pound. 2. Explain with examples the following terms used by Austin in his lectures: (i) Sovereignty; (ii) Subjection, and (iii) Independent political society. Can you locate such sovereign in India? (India has federal system with a written

Constitution and is a member of organizations like U.N. and W.T.O.). 3. According to Kelsen, ‘Norm is an ought proposition and a relation exists between validity,

effectiveness and legitimacy in a normative system’. Explain the above and show how his theory ceases to be pure, uniform and general. 4. “The root cause of failure is that the elements out of which the theory was constructed, viz.

the idea of orders, obedience, habits and threats, do not include and cannot by their combination yield, the idea of a rule, without which we cannot hope to elucidate even the most elementary forms of law.…. The union of primary and secondary rules occupies the central place in a legal system.” - H.L.A. Hart. Evaluate.

5. Elucidate the statement briefly:

v

“Law grows with the growth and strengthens with the strength of the people and finally dies away as the nation loses its nationality.”

Volksgeist has attracted various comments in the contemporary modern world. Discuss.

6. What is the practical program given by Roscoe Pound to balance the competing interests in any given society? Does it suffer from any defects and weaknesses when actually applied in a social system? Explain with the help of examples.

7. Rudolf Stammler departed from Kantian theory by breaking the notion of law into two components: (i) The concept of law; (ii) The idea of law. Discuss critically.

8. It appears from the judgements of Trupency, Foster and Keen JJ., in the ‘Speluncean Explorer’ case that they belong to positive school of thought, yet they have given different reasons and arguments. Illustrate how the judges manage to do that. According to you, which judgment is most convincing and why?

LL.B. V Term (Supplementary) Examinations, May-June 2009

Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (i) Declaratory laws; (ii) Hans Kelsen and nature of international law; (iii) What does Henry Maine mean by “from ‘Status’ to ‘Contract’”? (iv) Jural Postulates; (v) Match the following: (1) Law of found, not made — Natural School (2) Law of command — Analytical School (3) Law is human reason — Historical School (4) Law should serve the needs of the society — Realist School (5) Law is what the judge thinks it ought to be — Sociological School

2. Austin’s classification of laws is almost foolproof. Critically analyse the statement. 3. ‘Validity’ and ‘Effectiveness’ of norms are two separate concepts, yet they are intimately

connected. Explain the relationship between the two as presented by Kelsen. 4. Vijay (27), Ajay (28) and Karan (17), three friends, embark on an overnight voyage from Port

Blair but are blown out to sea and lost for 17 days. During this time, starving and almost delusional, Ajay with the aid of Vijay decide to kill the ailing Karan, who had started drinking seawater. After making their kill, they derive sustenance from Karan’s body for the next 3 days, till they are rescued by the Eastern navy – their boat drifting in the Bay of Bengal. They are returned to the mainland and put on trial for the murder of Karan. They plead that they killed Karan because they had no choice.

Placing yourselves in the shoes of Justice Foster, and demolishing all other viewpoints, state the arguments that you would putforth against their conviction. Assume that the relevant

vi

legal provision of the Criminal law says : “Whosoever willfully takes the life of another shall be punished with death.”

5. Do you agree that the functions of Volksgeist, in law making, in modern times is limited? Evaluate, bringing out clear the positive and negative aspects of the concept.

6. Can a modern day society function efficiently, only on Primary rules of Obligation? Discuss with the help of HLA Hart’s ‘Concept of Law’.

7. Roscoe Pound’s theory of Social Engineering proceeds on the assumption that conflicting or competing social interests can be reconciled. Recently, in West Bengal, the social interest in maintaining the integrity of land could not be reconciled with the inherent interest that every society has in development and progress. Is Pound’s theory impractical then? Comment.

8. (a) State how, secondary rule of recognition is the ultimate rule? (b) Explain Stammler’s idea of justice.

vii

LL.B. V Term

Jurisprudence – I (Theories of Law)

Materials Selected and Edited by Kamala Sankaran Alka Chawla Mahavir Singh Sunanda Bharti Vageswari Deswal

FACULTY OF LAW UNIVERSITY OF DELHI, DELHI-110007

July, 2009