LL.B. VI Term Paper : LB – 602 - Jurisprudence Jurisprudence – II (Concepts) (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 i n 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 administrators have to constantly understand the jurisprudential basis of these concepts which are continuously being dealt d ealt 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.
th
P.J. Fitzgerald, Salmond on Jurisprudence (12 ed., 1966) th R.W.M. Dias, Jurisprudence (5 ed., 1994) David P. Derham (ed.) A Textbook of Jurisprudence by G.W. Paton th (4 ed., 1972) th Lloyd’s Introduction to Jurisprudence (7 ed., 2001) Topic 1 : The Concept Concept of Rights and Duties : Jurisprudential Jurisprudential Analysis
Hohfeld’s 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)
Hohfeld’s Contributions to the Science of Law Concepti ons Walter Wheeler Cook (ed.), Fundamental L egal Conceptions -as Applied in Judicial Reasoning and Other Legal Essays by Wesley Newcomb Hohfeld, pp. 1-15 (1919) (b) “Legal Conceptions contrasted with Non-legal Conceptions”, id., pp. 27-73 (c) Jural Relations R.W.M. Dias, pp. 23-43
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Topic 2 : The Concept of Right and Duties : Philosophical Analysis
(a) Bhikhu Parekh, “The Modern Modern Conception of Right and Marxist Marxist Critique” in Upendra Upendra Baxi (ed.), (ed.), The Right to be Human 122 (1987)
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(b) (c) (d)
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) Ronald Dworkin, Taking Rights Seriously, Chapter 7, pp.184205 (1977)
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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) (b)
(c)
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 Lloyd’s Jurisprudence pp 41-47 (2001)
Introduction
97 103
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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
Topic 5 : Personality
Theories of the Nature of Legal Persons (a) (b)
R.W.M. Dias, Jurisprudence, pp. 265-270 A.A. Berle, “The Theory of Enterprise Entity”, 47 Columbia L. Rev. 343-58 (1980)
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(c)
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) Topic 6 : Possession
P.J. Fitzgerald, Salmond on Jurisprudence, pp. 265-295
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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 2007-08 is printed below for guidance. *****
LL.B. Examinations, May-June, 2008 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) Hohfeld’s 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.
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 woman’s experience is excluded from the law and the law has contributed to women’s 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 don’t 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 Wasserstrom’s 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 Baxi’s ‘heresies’? Write short notes on following: (a) The basic needs approach to rethinking human rights. (b) Intimate relation between rights and violence.
Question Paper Note:
1.
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4.
5.
6.
7. 8.
Answer any five questions including Question No. 1 which is compulsory. All questions carry equal marks. Answer briefly any four of the following: (a) Give a few examples from the Indian Legal System (Legislation and precedent) to show that law can be used to improve the position of women. (b) Absolute duties and cases of subjection cannot fit into Hohfeldian analysis. Explain with examples. (c) According to Allen Buchanan, “the thesis that compensation presupposes infringement of right is ambiguous”. Do you agree with the reasoning given by Allen Buchanan. (d) Enumerate the changes that occurred in the ‘object’ of rights post-seventeenth century according to Prof. Bhiku Parekh. (e) Explain the terms: mediate, immediate and concurrent possession. Briefly explain Hohfeldian analysis of the concept of ‘right’. Define each term used by Hohfeld and then analyse the following using the scheme: (i) A wife has a right to take divorce from her husband under the Hindu Marriage Act,1955. (ii)
An Indian citizen has a right to go to Canada.
(iii)
Women have right to equality under Article 14 and Article 15(3) of the Constitution of India.
(iv)
Right of a person to make a will.
(v)
Right of a resident to stand in his balcony and enjoy the breeze.
Explain how Allen Buchanan has dealt with any one of the following features of rights: (i) The ‘enforcement’ feature; (ii) The ‘waiver’ feature. Do you agree with Allen Buchanan? “There is no one feminist approach to law or theory of law that can adequately explain the complex and multiple oppression in the legal regulation on women,” Elucidate the statement and show how the various approaches differ from one another. Which approach would you like to adopt as a feminist in India? How have various jurists tried to explain the term “personality’? Are the following treated as person in India: (i) an unborn child: (ii) a dead man. According to Prof. Bhiku Parekh some Marxists have drawn two dubious conclusions from Marx’s critique of the modern theory of rights. What are these conclusions? Why are they ‘dubious’?. According to Bhiku even Marx’s ideal communist society needs a theory of rights. How would this theory be different from the one that has been dominant for the past three hundred years? How has Salmond tried to explain the term ‘possession’? Enumerate the differences between the theories of Salmond and Savigny. What precisely is the distinction sought to be drawn by Prof. Baxi between “human rights” and the “right to be human”? How does he analyse the shift from rights to needs in a developing country like India?
LL.B. VI Term
Jurisprudence - II (Concepts)
Materials Selected and Edited by A.K. Koul Kamala Sankaran Alka Chawla Anju Wali Tikoo Mahavir Singh Sunanda Bharti Vageshwari Deswal Alok Sharma K.D. Singh Susheel Bala Dagar
FACULTY OF LAW UNIVERSITY OF DELHI, DELHI-110 007 January, 2009
