1. Who said
that Austin is the pioneer of modern positivism?
Olivercrona
2. Who said “for a systematic exposition of
methods of English Jurisprudence, we will have to turn to Austin”?
Dr Allen
3. Who said
regarding Austin`s work “no conception of law and society has ever removed so
much undoubted delusions.”
Henry Maine
4. Who wrote
the book Elements of Jurisprudence?
Holland
5. Who defined
law as ` a general rule of human action enforced by superior authority on his
subjects`?
Holland
6. About
Thomas Erkskine Holland
a. Was a
professor of International Law in Oxford,
b. Followed
Benthem and Austin
7. Who
characterized jurisprudence as `formal science of positive laws`
Holland
8. Who said
that jurisprudence is not a science of legal relations a priori (as they ought
to have been followed), but is a posteriori (as has been actually imposed by
state as positive law)
Holland
9. Who rejects
Austin`s division of jurisprudence into general and particular, saying that
jurisprudence is a science and it cannot be particularized?
Holland
10. Criticism
of Holland`s rejection of `particular jurisprudence`:
a. Buckland:
Jurisprudence is like biology, it can grow and change with times.
b. Salmond: Jurisprudence is not the study of legal
systems in general but study of general principles of a particular legal
system.
11. About
Salmond:
a. Born in
England, later served as a judge in New Zealand
b. Was the
drafting officer and solicitor general and judge of Supreme Court of New
Zealand
12. Books of
Salmond:
a. Jurisprudence
and Legal Theory
b. Jurisprudence
c. Law of
Torts
d. Principles
of Law of Contract
13. Who defined
jurisprudence as “the science of first principles of civil law”?
Salmond
14. What does Salmond include in `civil law`?
Law of a
state as administered by courts and includes statutes, customs and judicial
precedents
15. Regarding jurisprudential generalis who said that Jurisprudence is not the study of legal
systems in general but study of general principles of a particular legal
system.
Salmond
16. Who wrote
the book Essays on Jurisprudence?
CK Allen
17. Who was of
the opinion that Salmond adopted a narrow approach by confining study of
jurisprudence to one particular legal system and Holland was vague in defining
scope of jurisprudence, as reconciled by defining jurisprudence as
“Jurisprudence is scientific synthesis of essential principles of law”?
CK Allen in
Essays on Jurisprudence
18. Who
favoured Analytical positivism but rejected Austin`s analytical positivism and
formed his own theory on the premise that law, coercion and morality are
related social phenomenon having sociological implications?
HLA Hart
19. Which book
was written by Hart in criticism of Austin`s theory?
Concept of
Law
20. Who said
that law is a system of two rules the union of which provides key to the
science of jurisprudence?
Hart:
Primary and Secondary Rules
21. Elucidate
Primary Rules of Hart as done by Colvin in his article Sociology of Secondary
Rules
a. Impose duty
upon individuals
b. binding
because of popular acceptance, such as kinship, family settlements, etc
c. suffer from
3 defects: uncertainty, static character, inefficiency
d. individuals
are required to do or abstain from doing certain acts whether they wish to do
or not
e. they impose
duties
22. Elucidate
Secondary Rules of Hart as done by Colvin in his article Sociology of Secondary
Rules
a. Enable
legislators to modify their policies as per needs of society
b. Remedy
defects of Primary rules
c. Confer public
or private powers and lead to creation
of duties or obligations.
23. As per
Hart:
The union
of primary rules and secondary rules leads to birth of law. Hart in The Concept
of Law
24. What
according to Hart is the binding force in law?
He
explained existence of law with reference to rule of recognition, the binding
force of which depends upon its acceptance. The validity of law is to be tested
upon the basis of rule of recognition.
25. Hart said
that morality is an implicit content in law. Law and morality are supplementary
and complementary to each other. In a society members feel morally bound to
abide by both primary and secondary rules.
26. What are
the four elements of morality as per Hart?
a. Importance,
b. Immunity
from deliberate change,
c. Voluntary
character of moral offences,
d. Forms of
moral pressue which spertate it from etiquette, custom and other social rules.
27. Who was of
the view that law should have certain standards of behavior or moral principles
which society should follow and the breach of which should be an offence?
Devlin
28. Criticizing
Devlin, who said that “law`s function is only the last line of defence, other
attempts to preserve the accepted morality should come from within the society
itself”?
Hart
29. Criticizing
Hart, who said that a legal system cannot be conceived merely as an aggregate
of rules but it has to be based on certain solid principles and policies?
Dworkin
30. Who defined
principle as “a standard that is to be observed because it is a requirement of
justice or fairness or some other dimension of morality”?
Dworkin
31. Who laid
down the principles of `inner moralirty`?
Lon Fuller
32. Hart`s
theory says that there is no law other than rules of recognition. Cirticizing
this, who said that law as an instrument
of control must concern itself with both law `as it is` and `as it ought to
be`?
Lon Fuller
33. Who said
:law may be of little or of no service if it does not conform to inner
moarality”?
Dwonrkin
34. List down
the elements ofa Fuller`s `inner morality`:
a. There must
be rules,
b. The rules
must be published,
c. Retractive
legislation must not be used abusively,
d. The rules
msut be understandable,
e. The rules
must not be contradictory,
f.
The rules must not require the conduct beyond the
power of the affected parties,
g. The rules
must not be changed so frequently that the subjects cannot guide their actions
by them,
h. There
should be congruence between the rules as announced and their actual
enforcement
35. Who wrote
the book `Law in Quest of Itself`?
Lon Fuller
36. Who wrote
down the book `Positivism and Fidality of Law: A reply to Proff Hart`?
Lon Fuller
37. Who said
“good order is law that corresponds to demand of justice or morality of men`s
notion of what ought to be. Law represents Order Simpliciter”?
Lon Fuller
38. Whicn
approach rejects apriori test and claims to be more realistsc and cientifc in
interpreting and applying law in a given society?
Positivist
Approach
39. Who said
that :Morality emanates from natural law whereas law emerges from absolute
obligation, morality is abstract, law is concrete, both though separate but are
components of same phenomenon”?
Taylor in
his book `The Conception of Morality in Jurisprudence`
40. Who said
that “When individual moralities clash, it calls for enactment of a law to lay
down common standards of behavior”?
Taylor in
his book `The Conception of Morality in Jurisprudence`
41. Who said
there is a distinct relation between law and morality but this by itself does
not permit a law to be rejected on the grounds of its morality?
Freidman in
his book `Legal Theory`
42. Who revived
analytical thought in 20th Century?
Kelson
through his pure theory of law, which was similar to Austin`s theory
43. About
Kelson:
a. Did not
favour widening the scope of jurisprudence by co relating it with all social
sciences
b. Insisted
upon separation of law from politics, sociology, metaphysics, etc
c. Kelson`s
pure theory tried to save jurisprudence from vague mysticism
d. Divested
moral, ideal, ethical elements from law and wished to create a `pure` science
of law
e. He rejected
Austin`s theory to the extent of law being a command of sovereign as it creates
subjectivity, while he wanted his legal theory to be objective,
f.
Disregarding notion of justice as essential element of
law, because there are many laws which are unjust, but still have to be
followed.
g. Similarity
between Austin`s theory and Kelson`s theory is that, Austin has a sovereign
while Kelson has Grundnorm, both are the supreme source of authorities, Austin
has sanction, Kelson had norm.
h. Pure theory
is also known as Theory of Interpretation,
i.
Normative character of law: Kelson was of the view
that science of law is knowledge of what law ought to be `das sollen`. It is
this ought, which gives law a normative character. Pure theory is not concerned
with law as it ought to be.
j.
Defined law as a primary norm which stipulates
sanction.
k. A person
should not steal is a moral norm. A person who steals shall be(ought to be) punished is a legal norm.
l.
As per Kelson, norm is a rule forebidding or
prescribing a certain behavior, and legal order is the hierarchy of these
norms, and jurisprudence is the study of these norms.
44. Define
Kelson`s Grundnorm
His pure
theory is based on pyramidical structure of hierarchical norms which derive
their validity from the basic norm which he termed as the Grundnorm. It gives
validity to other norms. Kelson has no answer as to where from Grundnorm got
its validity. The validity of the Grundnorm cannot be validly tested.
45. Who said
that law is not an eternal scared order, but a compromise of battling social
forces, the concept of law has no moral connotations whatsoever.”
Kelson
46.
As per Kelson following are the same:
a. Law and
State
b. Public and
Private Law
c. Natural and
Juristic Personality
47. Who does
not believe in existence of individual rights and asserts that `legal duties`
are the essence of law?
Kelson
48. About duty,
who said that “Legal right is merely the duty as viewed by the person entitled
to require its fulfillment”?
Kelson
49. Criticizing
the source of power of the Grundnorm, who said :We are invited to forget the
illegitimacy of the ancestor in admiration of the pure blood of the progeny”?
Julius
Stone
50. Cirticizing
Kelson`s theory who said that `Kelson`s pure theory is impracticable and creates
and algebra of law?
Laski
51. Who wrote
the book `Introduction to the Problems of Legal Theory`?
Kelson
52. Which
approach was adopted by the Supreme Court in the Habeus Corpurs case (ADM
Jabalpur v Shivkant Shukla)?
Positivist
approach, as it was held that, during emergency, the provisions of Constitution
as affected by emergency provisions are applicable.
53. Which
approach was adopted by Supreme Court in Maneka Gandhi case?
Naturalist
approach
54. Which
approach was adopted by Supreme Court in AK Gopalan v State of Madras?
Positivist
approach, as it was held that `law` as used in Article 21 could not include
principles of natural justice.
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