Questions/ Notes on the Philosophical or Ethical School of Jurisprudence Part 1

Philosophical or Ethical School

1.       What is the basis and premise of Ethical or Philosophical School?

Law is a product of reason, intuition, ethics, morality, etc. Law being based on `reason` cannot be isolated from ethics. Law must be based on ethical values so as to motivate people for an upright living. The school is not concerned with the historical past nor with the analytical present, but with future of law as it ought to be. “It considers law as the means by which the individual`s will is harmonized with the general will of the community.”

2.       Who said “true law is right reason in agreement with nature”

Cicero

3.       ___________ is the common ground of moral and legal philosophy, and of ethics and jurisprudence.

Philosophical Jurisprudence

4.       Who is considered the father of philosophical jusrisprudence?

Hugo Grotius

5.       Who wrote the book `law of war and peace`?

Grotius

6.       Who said that natural law springs from the social nature of man and the natural law as well as positive morality, both are based on the notion of righteousness?

Grotius

7.       Grotius was of the opinion that the coercive force of the State is not the real sanction behind rule, what was as per Grotius the real sanction?

Censure of public disapprobation

8.       From which philosophy was Grotius inspired?

Natural law

9.       Who was the propounder of the theory of social contract for origin of state?

Thomas Hobbes

10.   Who observed “State as well law, both are the product of General Will of the people”?

Rousseau

11.   What is volente generale General Will according to Rousseau?

The real source of state, sovereignty, law, rights, and liberties of subject was the general will of the community as a whole and therefore, as per Rousseau the concept of law, sovereignty, state etc were interchangeable.

12.   Who in his own metaphyscical theory said that ethics and law are not one and the same thing?

Immanuel Kant

13.   How did Kant differentiate between ethics and law?

He said that ethics deals with inner life of the individual and law deals with and regulates external conduct. His legal theory is modeled on what law ought to be.

14.   Who said “Law is the sum total of the conditions under which the personal wishes of man can be reconciled with the  personal wishes of other man according to a general law of freedom”?

Kant

15.   Who wrote the book `A critique of pure reason`?

Kant

16.   Who said “The freedom of man to act according to his will and the ethical postulates are mutually corealtive because no ethical postulate is possible without man`s freedom of self determination”?

Kant

17.   What is the name given by Kant to ethical postulates which form the basis of his moral and legal theory?

Categoriacal Imperative

18.   What does Kant mean by `Categorical Imperative`?

A man should act in such a way that his maximum actions could be made the maximum of a general action.

19.   Who wrote book `Philosophy of law`?

Kant

20.   Who defined law as “Law is the aggregate of the conditions under which the arbitrary will of one individual may be combined with that of another under a general inclusive law of freedom”?

Kant

21.   What are the view of Kant on `compulsion` and `right`?

He considered compulsion as an essential element of law and right, the power to compel.

22.   Who believed that property is an expression of personality of man?

Kant

23.   About Immanuel Kant:

a.       Law to be acceptable to people in general should have within it an element of justness, Legislation could be effective only when it represents the united will of the people.

b.      Categorical Imperative is a moral obligation and is derived from duty, hence categorical imperative must always be followed. Other moral obligations are also generated from Categorical Imperative.

c.       He believed that `to follow the law is to be just`.

d.      Justice lies in whatever is lawful. The laws must be metaphysical and derived from reason in order to be just.

e.      He wrote the book `Metaphysical Elements of Justice`.

f.        He believed that in order to be effective the International Law, must have an international authority superior to member states.

g.       He believed in doctrine of freedom of will.

24.   Who deduced his legal theory from the inherent self-consciousness of a reasonable man?

Fitche

25.   Who said “It is the moral duty of every person to respect the liberty of others, but a legal duty to do is dependant on reciprocity”?

Fitche

26.   Who said that function of law is to `reconcile conflicting egos in society`?

Hegel

27.   About Hegel:

a.       Reconciliation of conflicting egos is achieved by merger of self centered consciousness of each ego resulting into universal consciousness.

b.      Freedom of each ego is limited by like freedom of other egos.

c.       He was of the opinion that all laws must conform to dynamic changes in society for thr purposeful attainment of human perfection

d.      He emphasized three kinds of functions of the State:

e.      State is not the embodiment of the common will or the will of majority, but of the rational will.

f.        His most important contribution was the idea of evolution of law.

28.   Explain Thesis, Antithesis, Synthesis as per Hegel.

A thesis becomes a leading idea in a particular time. Later objections and criticisms are generated against it setting up antithesis, which later results into synthesis and evolution of law takes place consequently.

29.   Like the premise of Philosophical School who said that “law is the means by which the individual will is harmonized with the general will of the community”?

Scbelling

30.   What is the main defect of philosophical school of law?

The faulty assumption that ideal law is discoverable by reason and the actual system of law should correspond to this reason based law.

31.   Who wrote the book `Philosophy of Law` apart from Kant?

Kohler

32.   Who said about law “the standard of conduct which in consequences of the inner impulse that urges man towards a reasonable form of life, emanates from the whole, and is forced upon the individual”?

Kohler

33.   Who said “Formation of Jural Postulates of the time and place is one of the most important achievements of recent legal science”?

Roscoe Pound

34.   Who wrote the book `Interpretation of Legal History`?

Roscoe Pound

35.   Who wrote the book `The Theory of Justice`?

Stammler

36.   Who wrote the book `Theory of Law`?

Stammler

37.   Who is known as the neo Kantian?

Rudolph Stammler

38.   What was the belief of Stammler regarding philosophical school and historical school?

Despite their differences in rules and principles, both schools can work together in fulfillment of social ideal.

39.   About Stammler:

a.       He believed in `just law`,

b.      A just law furthers social ideal, i.e, harmonizes individual interests with those of society.

c.       Social ideal represents the unity of individual purposes.

d.      Believed that law is a volition, and relates to willingness of the persons for whom it is made.

40.   Who said “There is not a single rule of law the positive content of which can be fixed a priori”?

Stammler

41.   Who wrote the book “Legal Theory”

Freidman

42.   Who gave the concept of  donnes?

Geny

43.   What does Geny mean by donnes?

These are certain actual factors like customs, environment, reasonability and morality in law. Geny believed that the positive law to be operative must contain these certain immutable factors.

44.   Who believed that human mind could discover rules of justice unaided by positive law?

Del Vehico

45.   Who wrote the book `Formal Bases of Law`?

Del Vehico

46.   Who said “Since Benthem`s time English legal thought has become unduly narrow and devoid of imagination, it hardly gives any place to philosophy, ethics or sociology in the formulation of laws”?

Robson

47.   Who wrote the book `Civilization and the Growth of Law`?

Robson

48.   Who wrote the book `Austinian Theory of Law`?

Jethro Brown

49.   Who defined law as “An expression of the general will affirming an order which will be enforced by the organized might of the state and directed to the realization of some real or imaginary good”?

Jethro Brown

50.   Who said that notion of justice is a socio-ethical phenomenon and therefore an absolute justice is an irrational ideal and one of the eternal illusions of mankind?

Kelson

51.   Who said “longing for justice is longing for happiness and happiness is sought in society”?

Kelson

52.   Who defined justice as “a principle guaranteeing the individual happiness of all subjects, into a social order protecting certain interests socially recognized by the majority as worthy of being protected”?

Benthem

53.   Who said that justice is a virtue and it occurs within state which distinguished between just actions and unjust actions?

Aristotle

54.   What is Aristotle`s concept of justice?

a.       Law should be capable of being complied by those to whom it is addressed,

b.      It must treat equally those who are similarly situated in all aspects relevant to the sphere of that particular law,

c.       Law must be publicly known,

d.      There would be a well set procedure for establishing the facts necessary to the application of that law

55.   Who wrote the book `The Problems of Jurisprudence`?

Posner

56.   Who said  ”Justice is a habit, formed through action and experience”?

Aquinas

57.   About John Rawls:

a.       Believed that principles for justice for institutions are distinct from those that apply to individuals

b.      Justice for a society is different from justice from an individual,

c.       He believed in dualism, I.e., both institutional as well as individual justice aim at the common goal of a just social order

 

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Important case laws in May 2017||| Landmark Judgments in May 2017||| Recent Case Laws in May 2017

IMPORTANT JUDGMENTS/ RECENT JUDGMENTS (MAY 2017)

Sr.	Case name	Court	Issue	Decision
1	Smt Archana pandey v The State of Madhya Pradesh	MP High Court	Whether a contractor worker is allowed the benefits of the Maternity Benefit Act?	The High Court of MP answered the issue in positive and reasoned that not granting maternity leave benefits to contractual employees would run contrary to the legislative mandate.
2		Gujarat high Court	Whether medical termination of pregnancy can be allowed to a pregnancy over 20 weeks to the minor patient?	The Gujarat High Court allowed a 16 year old rape survivor to undergo abortion, even though she had pregnancy of above 20 weeks.  Various other High Courts, and The Supreme Court have allowed termination of pregnancy of above 20 weeks on case to case basis citing `best interests` of the patient. (Medical termination of Pregnancy Act prescribes 20 week limit for abortion. An amendment bill to enhance the same to 24 has been pending since 2014.)
3		Gujarat High Court	Whether a divorced wife will come within the ambit of Section 125(4) of CrPC and hence not entitled to claim maintenance from husband?	The Gujarat high Court answering the issue in negative held that Section 125(4) of CrPC by its language, while barring wife from maintenance, pre supposes that there is a right and obligation to live with the husband, and subsistence of relationship between them for applicability of Section 125(4). Hence, once they are divorced Section 125(4) becomes inapplicable, and the divorced wife becomes entitled to maintenance.
4	Sudhir Gopi v IGNOU	Delhi High Court	Whether the arbitrator has power to pierce the corporate veil so as to include non-parties to arbitration?	The Delhi High Court has answered the issue in negative. UEIT and IGNOU were party to an arbitration agreement. While passing award in an arbitration proceeding, the arbitral tribunal had made the shareholder of UEIT liable to make good the award, along with UEIT. The award was assailed before Delhi High Court, which held that, by making the shareholder of UEIT as party to arbitration agreement, the arbitrator had pierced the veil. The High Court held the same to be void, and opined that piercing the corporate veil cannot be done by arbitrator its jurisdiction is confined by the arbitration agreement – which includes the parties to arbitration – and it would not be permissible for the arbitral tribunal to expand or extend the same to other persons.
5	Jaspal Singh v State of Rajasthan	Rajasthan High Court	Rajasthan Cooperative Societies Act	The Rajasthan High Court declared certain sections of Rajasthan Cooperative Societies Act as amended by 2015 and 2016 amendment unconstitutional, in light of provisions for cooperative societies under Part IXB, Article 43B, and Article 243.
6	Zuberi Engineering Company v MP tar Products and MSME, Raipur	High Court of Chhattisgarh	Whether Parties can resort to another forum for dispute resolution having valid jurisdiction under law, even if the arbitration agreement between them confers name a specific court as having exclusive jurisdiction?	The High Court answered the issue in negative, and held that irrespective of the clause barring or not barring jurisdiction of any other court, if the parties have agreed to submit before a named court for dispute resolution in the agreement between them, only that court shall have jurisdiction between the parties with respect to that contract. In this case the High Court disallowed the Respondent to approach Micro Small and Medium Enterprises Facilitation Council and directed it to proceed before the court mentioned in the Contract.
7	Poonam Jain v Union of India	Delhi High Court	Right to the person being prosecuted to all the documents on which prosecution has relied upon to prosecute him/her.	The High Court has emphasized upon the right of the person being prosecuted, upon a copy of all documents on which the prosecution shall rely upon. The High Court reached this decisions, while citing Principles of Natural Justice.
8	V. Shantha v. State of Telangana	Supreme Court	Recourse to preventive detention.	The accused was ordered to be detained under preventive detention, on the grounds that the illegal activities of accused were a threat to farmers, and that recourse to normal legal procedure shall be time consuming. The Apex Court held that repeated use of the words `goonda` and `prejudicial to maintenance of public order` are not sufficient for taking recourse to preventive detention.
9	Anil Kumar  v Shashi Bal	High Court of Himachal Pradesh	No right of maintenance allowance under Section 12 of Domestic Violence Act, in case there is no proof of domestic violence.	The Himachal Pradesh High Court has held that, in the absence of proof domestic violence, there is no right to claim maintenance allowance. The High Court set aside the judgment by Fast Track court which had allowed maintenance allowed to complainant wife in absence of clear proof of domestic violence, on the mere basis that the complainant wife was living separately.
11	Kesoram Industries v Allahabad Bank	Calcutta High Court	Whether State Consumer Forums and NCDRC are courts so as to be covered within the ambit of Section11 of CPC making res judicata applicable?	The Calcutta High Court answered the question in positive and held that NCDRC and State Consumer Forums are courts for the purpose of Section 11 of CPC. The High Court observed that these forums are presided over by judges and they are authorized to take evidence-on-affidavits, so, these bodies have trappings of courts and are adjudicatory bodies. Hence, principle of res judicata shall be applicable on the proceedings before NCDRC and State Consumer Forums.
12	Re Inhuman Conditions in 1382 Prisons	Supreme Court	Establishment of a Manual for juvenile justice homes.	The Apex Court had earlier directed the Centre to prepare manual similar to Model Prison Manual to address the living conditions and other issues pertaining to juveniles who are living in various homes in terms of the Juvenile Justice (Care and Protection of Children) Act, 2015. The same has been published and contains a guideline as to model behaviour of staffers, what they should do or should desist from.
13	Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India	Supreme Court	Directions for registration and maintenance of the child care institutions.	The Supreme Court held that “child in need of care and protection” under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2000 should not be interpreted as an exhaustive definition, as even child accused of an offence and brought before the Juvenile Justice Board or any other authority might also be a child in need of care and protection. The bench also gave elaborate directions in order to ensure the welfare of the children in need of care and protection. The Apex Court further held that every child in need of care and protection must not be placed in a child care institutions, the Court said that alternatives such as adoption and foster care need to be seriously considered by the concerned authorities.
13	State of UP v Sunil	Supreme Court	Impact of adverse inference caused due to non-compliance to orders regarding giving finger prints and foot prints.	During trial the court might order accused to give finger prints and foot prints, and the same shall not violate Article 20(3). The Apex Court held that non-compliance of such direction of the Court may lead to adverse inference, nevertheless, the same cannot be entertained as the sole basis of conviction.
14		Supreme Court		NDPS being a presumptive legislation, needs to be interpreted strictly.
15	Deepak Malhotra vs Deepti Malhotra and Ors.	Delhi High Court	Maintenance to wife cannot be mechanically determined by a mathematical formula from husband`s income.	that while making an award for maintenance under the aforementioned provision, not only should the income of the husband be taken into consideration, but other factors like the status of the parties, the liabilities of the husband and the number of persons dependent on him should also be considered. There isn`t any mathematical formula for determining the amount of compensation, the courts should be flexible in their approach for the same.
16	Naveen Jindal v Zee Media Corporation	Delhi High Court	Whether a Party to a suit can be forced to produce such documents which the other Party can rely on to use against him?	The defendant was in possession of certain news clips which they had telecasted. The plaintiff sought the same so as to bring it to notice of the court. However, the defendant argued that, it is the obligation of the plaintiff, and it is onus upon the plaintiff to prove defamation and by his own copy of telecast and that the defendants cannot be called upon to produce evidence which may be used by the plaintiff against them. The DHC observed that a plain meaning of Order XI Rule 14 is that a party to a suit, who is in possession or power of a document, may be directed during the pendency of the suit to produce the same, and ordered the respondents accordingly.

IMPORTANT JUDGMENTS/ RECENT JUDGMENTS (MAY 2017)

Sources: www.livelaw.in,  blog.scconline.com 

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