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Jurisprudence
Previous Year Question Paper with Solution
B.A. LL.B. (Five Years) · Sem 5
2016 Dec Examination
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Mumbai
B.A. LL.B. (Five Years) Sem 5 Jurisprudence 2016 Dec Question Paper with Solutions
First published on munotes.in on 21 October 2026.
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The question paper reproduced here is the paper as set by Karnataka State Law University at the 2016 Dec examination.
Contents
The questions below are the paper as Karnataka State Law University set it at the 2016 Dec examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2016 Dec examination, reproduced as Karnataka State Law University set them, in the order it set them. Long reading passages are shortened to their first and last lines and our summary; the original paper prints them in full. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 13 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
Q1Discuss legal realism. How is it different from Austin's Theory of Law ?[16]
Answer
For full marks, cover: legal realism in outline (law as what courts and officials actually do; the American realists Holmes, Gray, Llewellyn and Frank; the Scandinavian realists Hagerstrom, Olivecrona and Ross); Austin's theory in outline (law as the general command of a determinate sovereign, backed by sanction; law and morality separate); the two compared point by point: the source of law, its nature, the place of rules, the role of judges, the place of sanction, method, certainty, and the State; what they share (both reject natural law and treat law as a social fact); the Indian experience read through both (A.K. Gopalan v. State of Madras, 1950; ADM Jabalpur v. Shivkant Shukla, 1976; Maneka Gandhi v. Union of India, 1978; I.C. Golak Nath v. State of Punjab, 1967); an assessment; a table; a conclusion.
Legal realism in outline
Legal realism treats law as a matter of fact: what courts and officials actually do when disputes come before them. It distrusts the idea that judges simply deduce answers from rules.
The American realists. Holmes called law the prophecy of what the courts will do in fact. Gray held that statutes are only sources of law, and that law is what courts lay down. Llewellyn contrasted the paper rules in books with the real rules courts follow. Jerome Frank doubted both the rules and the facts found at trial, which he called fact-scepticism.
The Scandinavian realists. Hagerstrom dismissed rights and duties as metaphysical notions. Olivecrona described laws as independent imperatives, commands that issue from no particular person and work by psychological conditioning. Ross said that a rule is valid law if we can predict that the courts will apply it.
Austin's theory in outline
John Austin defined law, in the strict sense, as a general command of a sovereign to his subjects, backed by a sanction. The sovereign is a determinate person or body whom the bulk of society habitually obeys. He in turn habitually obeys no one, and his power is legally illimitable. Austin separated law from morality: the existence of law is one thing, its merit another. Judges, on his view, apply the sovereign's commands. Where they make law, they do so as the sovereign's delegates, by "tacit command".
The two compared
1. The source of law. For Austin, law comes from the sovereign at the top of the State. For the realists, law is found at the bottom, in the decisions of courts and the acts of officials. Gray put it sharply: even a statute is not law until the courts have said what it means.
2. The nature of law. Austin saw law as a command, an expression of the sovereign's will. The American realists saw it as a prediction of judicial behaviour, and the Scandinavians as a set of ideas working on people's minds.
3. The place of rules. In Austin's theory, rules are central: law is a body of general commands. The realists were rule-sceptics. They argued that rules often do not decide cases, because they are vague, conflicting or open to many readings.
4. The role of judges. For Austin, judges apply the law the sovereign has laid down. For the realists, judges make law in every hard case. Their decisions are shaped by facts, policy, training and personality as much as by rules.
5. The place of sanction. Austin made the sanction, the threatened evil, the essence of legal duty. Olivecrona replied that people obey law mainly because they are conditioned to treat its rules as binding, not from fear of punishment.
6. Method. Austin's method was analytical: defining and classifying legal concepts. The realists' method was empirical: observing how courts and officials actually behave, often with the tools of psychology and sociology.
7. Certainty. Austin's model promises certainty, since law is a set of known commands. The realists stressed the uncertainty of law, especially at the trial stage, and Frank called the belief in legal certainty a "basic legal myth".
8. The State and the sovereign. Austin's theory is built around an illimitable sovereign. The realists paid little attention to sovereignty and much to institutions such as courts, agencies and the police.
The difference in one example
A rent control Act protects "a tenant" from eviction. A widow living with her late husband's tenancy asks whether she is protected. An Austinian lawyer looks at the words of the Act and at what the legislature commanded. He then states the answer as a matter of the text. A realist lawyer looks at how the local courts have treated widows in the past and at the policy of the Act. He also considers the outlook of the judges likely to hear the case. He then predicts the answer, and tells his client how likely it is. The Austinian gives a rule; the realist gives a forecast.
What they share
Despite the contrast, the two have common ground. Both reject natural law as a test of what law is. Both treat law as a fact about society rather than an ideal. Both separate what the law is from what it ought to be. Realism is sometimes called a form of positivism that moved its attention from the legislature to the courts.
The Indian experience read through both
Austin's approach in action. In A.K. Gopalan v. State of Madras, 1950 AIR 27, the majority read "law" in article 21 as State-made law. Any procedure enacted by the legislature would satisfy the article. That is close to Austin's idea that whatever the sovereign commands is law.
In ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, the majority held that during the Emergency no detenu could challenge his detention, since the right to move courts for article 21 was suspended. The decision treated the enacted command as complete, with no room for any standard beyond it. Khanna J. dissented. Article 21 was later made non-suspendable, and in 2017 a nine-judge Bench overruled the majority.
The realist insight in action. In Maneka Gandhi v. Union of India, 1978 AIR 597, the same words of article 21 were read to require a procedure that is fair, just and reasonable. The text had not changed; the judges' reading had. That bears out the realist claim that the law is, in large part, what the courts make of it.
In I.C. Golak Nath v. State of Punjab, 1967 AIR 1643, eleven judges held by six to five that Parliament could not amend fundamental rights. To avoid unsettling land reforms already made, they applied the ruling only to the future, by prospective overruling. That was a conscious judicial choice about policy, of the kind the realists described.
An assessment
Austin's theory explains the formal structure of law, especially penal statutes. It cannot explain judicial creativity, constitutional limits or the gap between law in books and law in action. Realism explains those things well. But it struggles to explain why judges themselves treat rules as binding, a point Hart pressed against both. A full account of law needs Austin's attention to rules and the realists' attention to what courts actually do.
| Point | Austin | Legal realism |
|---|---|---|
| Source of law | The sovereign | Courts and officials |
| Nature of law | A command | A prediction or psychological fact |
| Rules | Central | Often indeterminate |
| Point | Austin | Legal realism |
|---|---|---|
| Judges | Apply the sovereign's law | Make law in hard cases |
| Sanction | The essence of duty | Secondary to conditioning |
| Method | Analytical | Empirical |
| Certainty | Assumed | Doubted |
| Common ground | Rejects natural law; law as fact | Rejects natural law; law as fact |
| Indian echo | Gopalan; majority in ADM Jabalpur | Maneka Gandhi; Golak Nath |
Conclusion. Legal realism studies law as what courts and officials actually do. Holmes, Gray, Llewellyn and Frank developed it in America, and Hagerstrom, Olivecrona and Ross in Scandinavia. It differs from Austin's theory on the source and nature of law, the place of rules and sanction, the role of judges, method and certainty. Both, however, reject natural law and treat law as a fact. Indian decisions show both at work, from the Austinian readings in Gopalan and ADM Jabalpur to the creative judging in Maneka Gandhi and Golak Nath.
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