R.N. Patel Ipcowala School of Law & Justice
(A CVM Institution)
Second Class Examination
Max. marks 20
JURISPRUDENCE
Time One hr
N.B.- All questions carry equal marks.
I.
Tick [√ ] the correct Alternative or Do as directed
(Only ten questions will be asked: one mark each)
(10)
1. What does legal theory means?
Ans: Legal theory means the first principle of legal systems, which reveals the
manner in which people in different countries at different times have speculated
about some of the problems concerning the law. Dr. W. Friedmann writes in his
book legal theory that “all systematic thinking about the legal theory is linked at
one end with philosophy and at the other end with political theory”. Legal theory
reflects the struggle of law between `tradition and progress’, `stability and
change’, `certainty and flexibility’.
……………………………………………………………………………..
2. Idealistic legal theories deduce `Law’ from first principles based on man as an
ethical and rational being.
Ans: (true or false)
……………………………………………………………………………..
3. What are the two types of positivistic legal theories?
Ans: Two types of positivistic legal theories are (1). Analytical positivism, which
deals, concentrates analysis of legal concepts and relations. (2). Functional or
pragmatic positivism regards social facts as determining legal concepts.
……………………………………………………………………………..
4. What does `morality’ & `ethics’ means?
Ans: `Morality’ means generally laid down principles. `Ethics’ means generally
accepted principles.
……………………………………………………………………………..
5. Write a short note about the theory of St Aquinas. (Two or three sentence)
Ans: St Aquinas’s theory is based on eternal law, natural la & man made law
based on reason. His theory is also based on two concepts that (1). `means &
ends’ (Ex- Every things start with one end & end with other end) & (2).
“Inherent quality of its operation & results’ … (Ex- apple tree never gives
mangoes fruits).
……………………………………………………………………………..
6. What does `Analytical School’ or `Positive School’ or `English School’ means?
Ans: John Austin’s analytical school is known in different names. The school is
called as a Positive school because the contents of this school are not concern
with the past or with the future of the law but with law as it exists, i.e., with law
“as it is”. The school is dominant in England and is popularly known as the
English School.
……………………………………………………………………………..
7. Define John Austin’s `analytical theory of Law’
Ans:”A rule laid down for the guidance of an intelligent being by an intelligent
being having power over him”
……………………………………………………………………………..
8. What is the Hart’s concept of Law?
Ans:His theory is based on “legal system” of Primary & Secondary rule. He
defines the concept of law as “the combination of Primary & Secondary rule
constitute law when it is fulfilled with internal & external aspects”.
……………………………………………………………………………..
9. What you meant `Pure theory of law’ (Hans Kelson: 1881-1973?
Ans:His theory is based on a hierarchy of ought proportion by `Grand norms’ &
`norms’ by insisting purity. He defines law as, “in every legal order a hierarchy
of ought is tacable back to some intial and fundamental ought on which all the
validity of all other ultimately rest”. Example: Imprisonment for theft. Punishment
from judiciary. Judiciary from court. Court is from law and so on. His theory try
to find the grand norm on which all other est.
……………………………………………………………………………..
10.Man is liking `social life & peace’ though he is social animal and therefore he is
making `social contract’. This is called `social contract theory’, which was
founded by:
a.
b.
c.
d.
Rescoe Pound
Grotius
Locke
None of the above
II. (a). Give an account of the changes in the theory of Natural Law from middle age to modern
time and its impact on Indian Legal system.
(10)
Ans: Discuss.
1. Sources of natural law– Decretum Gratianum (C-1240), which origins
goes to Greece & Rome, where they dealt the `Law of Nature’ with `Law
of God’.
2. Write about evolution of natural law theories such as:
a. Medieval theological approach: Church occupied central position,
which control law & religion. This was opposed by the Protestants. St
Aquinas’s theory is based on this era which deals with eternal law,
natural & man made law based on reason. His theory is also based on
3.
4.
5.
6.
two concepts that (1). `means & ends’ (Ex- Every things start with one
end & end with other end) & (2). “Inherent quality of its operation
& results’ … (Ex- apple tree never gives mangoes fruits).
b. Classical theological approach (Classical era): This approach
came into existence due to opposition of medieval period and
developed a new approach about economic, political (secular thought),
legal field (separation of theology from law; to find out 1st principle of
law; focus developed to think about natural rights, etc.). The noted
personalities from the school were Grotius, Locke, Hobbes, etc.
c. German Transcendental Idealism: Systematic human thought were
developed to know the object without experience. Example, To
understand the effect of heat, without touching the heat by thinking.
Kant belongs to this school and he held that freedom of one can be
harmonized with freedom of all, etc.
d. Revival of Natural law & value: There was a sudden growth of
Analytical Positivism theories by opposing the natural law during the
19th & 20th centuries after the Bentham era. His followers developed a
theory which talks about `is’ law (positive law, which means present
law) rather than `is & ought to law’ (law with morality). Later, the
natural law developed on the principle that law will be a valid law, if it
satisfy the content & structure of law with minimum morality. During
this time the concept of human rights developed. The exponent of this
school are: Stammler, Fuller, John Finnis. Write about their view.
Write about `law’ with `morality’ & `morality with `ethics’. `Morality’ means
generally laid down principles. And `Ethics’ means generally accepted
principles, etc.
Write that natural law also shined like a tinkle star in the sky.
Write about defect of natural law & your suggestion.
Write about the impact in the Indian legal system that the Indian legal
system also based on the natural law on the line of `Dharma concept’.
However, a new concept of positive law developed with modern PIL,
Social justice, compensatory jurisprudence, etc. as Bharat jurisprudence.
Or
(a). Theory of natural law has occupied a prominent sphere amongst all the theories of law.
Do you support this view? Discuss.
(10)
Ans: Discuss.
7. Sources of natural law– Decretum Gratianum (C-1240), which origins
goes to Greece & Rome, where they dealt the `Law of Nature’ with `Law
of God’.
8. Write about evolution of natural law theories such as:
e. Medieval theological approach: Church occupied central position,
which control law & religion. This was opposed by the Protestants. St
Aquinas’s theory is based on this era which deals with eternal law,
natural & man made law based on reason. His theory is also based on
two concepts that (1). `means & ends’ (Ex- Every things start with one
end & end with other end) & (2). “Inherent quality of its operation
& results’ … (Ex- apple tree never gives mangoes fruits).
f. Classical theological approach (Classical era): This approach
came into existence due to opposition of medieval period and
developed a new approach about economic, political (secular thought),
legal field (separation of theology from law; to find out 1st principle of
law; focus developed to think about natural rights, etc.). The noted
personalities from the school were Grotius, Locke, Hobbes, etc.
g. German Transcendental Idealism: Systematic human thought were
developed to know the object without experience. Example, To
understand the effect of heat, without touching the heat by thinking.
Kant belongs to this school and he held that freedom of one can be
harmonized with freedom of all, etc.
h. Revival of Natural law & value: There was a sudden growth of
Analytical Positivism theories by opposing the natural law during the
19th & 20th centuries after the Bentham era. His followers developed a
theory which talks about `is’ law (positive law, which means present
law) rather than `is & ought to law’ (law with morality). Later, the
natural law developed on the principle that law will be a valid law, if it
satisfy the content & structure of law with minimum morality. During
this time the concept of human rights developed. The exponent of this
school are: Stammler, Fuller, John Finnis. Write about their view.
9. Write about `law’ with `morality’ & `morality with `ethics’. `Morality’ means
generally laid down principles. And `Ethics’ means generally accepted
principles, etc.
10. Write that natural law also shined like a tinkle star in the sky.
11. Write about defect of natural law & your suggestion.
12. Write about the impact in the Indian legal system that the Indian legal
system also based on the natural law on the line of `Dharma concept’.
However, a new concept of positive law developed with modern PIL,
Social justice, compensatory jurisprudence, etc. as Bharat jurisprudence.
Or
(a).
Austin’s theory of law does not serve a purpose for which law is to
be made or enacted in today’s world. Critically analyze. (10)
Ans: Discuss.
1. Write about Bentham wok (He is the father of positive law).deals with:
a. Expositorial Jurisprudence (is law), which deals with content of actual
legal system.
b. Censorocal Jurisprudence (ought law), which deals with art of
legislation
c. His first part of work deals with positive law but later he dealt with
utilitarian law (maximum happiness to maximum people).
2. Discuss the two types of positivist legal theories such as (1). Analytical
positivism, which deals, concentrates analysis of legal concepts and
relations. (2). Functional or pragmatic positivism regards social facts as
determining legal concepts.
3. Discuss about the `Analytical School’, which also called as `Positive
School’ or `English School’. John Austin’s analytical school is known in
different names. The school is called as a Positive school because the
contents of this school are not concern with the past or with the future of
the law but with law as it exists, i.e., with law “as it is”. The school is
dominant in England and is popularly known as the English School.
4. Analytical positivism says that the positivist want to decide subject in hand
and therefore they think about present law in hand (i.e. law for day to day
decision) and thus omitted the moral contents.
5. Define John Austin’s (1790-1859) `analytical theory of Law’,
”A rule laid down for the guidance of an intelligent being by an intelligent
being having power over him”.
It deals with
I. Sovereign- Indivisible supreme power.
II. Command- order, superior to inferior
III. Sanction- corrosive (punishment)
6. Austin (1790-1859) law is based on “a method of accurate law” (is law),
which he called positive law to do good to society. But he said no, where
he is concern himself with condition of continuance
7. Draw the diagram of law, which was pictured by John Austin
8. Conclude that John Austin’s law is not fit to the modern time because the
modern time measure the law with minimum morality contents, etc.
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