Analytical School
1. Who divided
schools into Analytical, Historical, Ethical Schools?
Salmond
2. Why is
Analytical School called imperative school?
Because it
treats law as command from sovereign.
3. Who
embraced Analytical School in USA?
Gray,
Hohfield, Kocourck
4. Who is the
father positivism?
Bentham
5. Whose ideas
about individualism, law and legal reforms in English Law have been sketched in
the book `Law and Public Opinion` and by whom?
Bentham`s
ideas were sketched in the book by Dicey
6. Who first
determined the `principles` as basis and
`legislation` as mode of reform of law in England?
Benthem
7. Who defined
law as assemblage of signs declarative of a volition conceived or adopted by the Sovreign in as
State, concerning the conduct to be observed in a certain state by a person or
class or persons?
Benthem
8. Bentham was
a campaigner of reform and insisted that prior to reform there must be a
thorough classification of law. In which process did he classify?
Expositorial
(law as it is) and Censorial (law as it ought to be with emphasis on
legislation)
9. Who
criticized Natural Law theory and called it `nothing but a phrase` and called
Blackstonian natural rights as `nonsense upon stilts`?
Benthem
10. As per
Benthem what are the `two masters`, which nature has placed upon humans to help
them decide what to do and not to do?
Pain and
Pleasure. This he termed as hedonistic calculus, and was later known as
principle of utility. It is because of this reaon that morality had no place in
Benthem`s utilitarian approach.
11. What are
the four goals of law as suggested by Bentham?
Subsistence,
Abundance, Equality, Security
12. `Where
expression of law is complete in unequivocal terms, the judge must adopt
literal interpretation`
Bentham was
against judge made laws and favoured legislation
13. Bentham as
individualist believed that the function of law is to emancipate individual
from the bondage and restraint upon his freedom. To this end, which economic
principle was favoured by Benthem?
Laisez
Faire, which means minimum interference of state in economic activities of an
individual
14. Bentham
propounded the principle of utilitarianism which according to him should be the
aim of legislation, and which means:
`Promotion
of the greatest happiness of the greatest number`
15. Who defined
utility as `he property or tendency of a thing to prevent some evil or procure
some good`?
Benthem
16. Who was of
the opinion that the task of government is to promote happiness of society by
furthering enjoyment of pleasure and affording security against pain?
Benthem
17. Who wrote
`Rationale of Judicial Evidence`?
Benthem
18. What was
the opinion of Benthem regarding individual liberty and general security?
Individual
liberty must sometimes yield to general security, as he believed that not
liberty, but security and equality must form major objective of legal
regulation
19. Benthem repected people`s right to property
and encouraged private enterprise. He rejected natural rights and recognized no
limitations on parliamentary sovereignty.
20. Who agreed
with Benthem`s views of utilitarianism also called doctrince of hedonism?
John Stuart
Mill
21. Who wrote
`Fragment on Government`?
Benthem
22. Who said
about Benthem, “Benthem was in truth neither a jurist nor a moralist”?
Henry Maine
23. Who
introduced legal positivism and treated legal theory as a science of
investigation which should be approached through scientific method of
experimenting and reasoning?
Benthem
24. Whose view
was that justice is primarily a quality of social order regulating moral
relations of men, and longing for justice is, just longing for happiness in
society?
Benthem
25. What are
Benthem`s perception regarding society, morals, individual?
Each
society has its own different set of values, morals, to which the individuals of that society must
conform, otherwise there would be conflict of interests and need of justice
will arise.
26. Who wrote
`Introduction to Principles of Morals and Legislations`?
Benthem
27. What is the
meaning of `positive law` as per Benthem?
It commands
citized to obey the law as it is, or face legal snctions for disobedience.
28. Who
criticized that Benthem`s theory underestimates individual`s discretion,
flexibility and overestimates the power of legislator, and finally fails to
balance individual interests with the interests of community?
Friedman in
his book `legal theory`
29. What is the
criticism against Benthem`s hedonistic calculus?
Pain and
pleasure cannot be the final test of the adequacy of the law
30. Bentham
suggested legislation so as to promote individual, but it later turned out that
legislation restricted the individual`s freedom. Hence, regarding this whoc
commented the following about Benthem “the apostle of individualism was
destined to become the founder of State Socialism”?
Dicey
31. Who said
that “it is shocking that Benthem`s moraliszing and utilitarian theory was
rejected and excluded from European jurisprudence”?
GW Paton
32. Which was
the monumental work of Benthem and when was it published?
`The Limits
of Jurisprudence Defined` published in AD 1945
33. About John
Austin
a. First
served in army (the reason he believed on positive law and coercive force of
law was his army training and discipline), and graduated in law afterwards
b. Joined as
professor in Benthamite College in London and was later elevated to Chair of
Jurisprudence in University of London
c. He went to
Germany to study and was impressed by the scientific treatment to Roman Law and
was inspired to introduce the same method for legal exposition in England
34. Who wrote
`Province of Jurisprudence Determined`?
Austin. The
same is the compilation of his lectures in London University.
35. Which book
did Austin write in response to Professor Gray`s work `On Parliamentary
Government`?
`A Plea for
Constitution`
36. Who is the
father of English Jurisprudence?
Austin
37. Which are
the heads in which Austin divided law?
`laws
properly so called` as distinguished from morals and `laws improperly so
called` which lack forced or sanction of
State
38. Who
described positive law as `the aggregate of rules set by men as politically
superior to men as politically inferior subjects`?
Austin
39. What are
the essential attributes of positive law as per Austin?
Command,
Sanction, Duty and Sovreignty
40. Who for the
first time studied jurisprudence as a science of law concerned with analysis of
legal concepts, and comparison in a scientific manner to determine their scope
and extent?
Austin
41. Austin
distinguishes positive law from positive morality which is devoid of any legal
sanction, and only identified it with command, duty, sanction. Who said that “Austin`s
distinction between positive law and positive morality seeks to exclude the
considerations of goodness and badness in the realm of law. In Austin`s law
there is no place for ideal or justness in law”?
Justice
Holmes
42. Who said
that “the existence of law is one thing, its merit demerit another. A law which
actually exists, is a law, though we happen to dislike it”?
Austin
43. Who said
that “ Austin`s positive law must be legally binding, though unjust. Austin thus made his system of
law logical, coercive, and enforceable as distinct from law as it ought to be.
For him `command` was the key to science of jurisprudence”?
Amos
44. Criticizing
Austin`s command theory, who said that it creates a situation where law only
obligates subjects and threatens them with physical coercion unmindful of
legitimate moral-cum-social obligations of the soverign towards his subjects?
HLA Hart
45. Criticizing
Austin`s command theory, who said that law to be effective must have in it
ethics, reasonableness and justice?
Salmond
46. Criticizing
Austin`s command theory in USA, who said that “law in derogation of popular
will and needs of society shall be short lived”?
Lon Fuller
47. Who
criticized Austin`s theory by saying that it led to Nazism?
Gustav
Radburch
48. Who defined
law as “a rule laid down for the guidance of intelligent beings by an
intelligent being having power over him”?
Austin
49. What are
the divisions of law given by Austin?
a. Laws set by
Gods for men
b. Human laws
for humans
c. Laws by
analogy which includes Positive Morality
50. Who said “The
subject matter of jurisprudence is positive law- law simply and strictly so
called, or law set by political superior to political inferiors, including
characteristics of positive law, ie, command, duty, and socverign”?
Austin in
Province of Jurisprudence Determined
51. Who said
that law is the command of soverign and carries with it threat of evil, which
is sanction (punishment) and the party commanded is under obligation to obey
it?
Austin
52. As per
Autin what are the three laws which though not command are to be included in
purview of law as eceptions?
a. Declratory
or Explanatory laws: which explain esisting laws
b. Laws of
repeal: which repeal an existing law
c. Laws of
imperfect obligation: there is no sanction attached to them
53. Who
criticized Austin`s work by saying that is is full of errors and hardly has any
significance in juristic thoughts?
Bryce
54. What are
the criticisms of Austin`s work?
a. It ignored
customs, by taking command of sovereign as the only source of law. Customs were
socure of law before existence of State and still are.
b. Laws which
confer privileges were ignored
c. There is no
space for judge made laws
d. It treated
International law a mere positive morality, however the same is hardly tenable
in modern times
e. Swedish
Olivercrona criticized it on the grounds that it over emphasized `command`. In
modern world of democracy law is an expression of general will of people.
f.
It ignored morality and ethics from study of law, and
was criticized on these lines by Jethro Brown`s analogy to a dictator who
cannot ignore the spirit of his race and time while making laws
g. Sanction
cannot alone be the consideration to induce obedience
h. Austin was
of the view that sovereign cannot be divided. However, in modern times there
are various organs of government. Bentham said that sovereign could be divided
as was done in `colonial legislature` by British Crown. Jethro Brown said that
even sovereign could be bound by duty towards his subjects
All rights reserved with Lex Luminati (c) Copyright 2017
Really good collection of questions !
ReplyDeleteThank you very much!
Delete