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Jurisprudence
Previous Year Question Paper with Solution
B.A. LL.B. (Five Years) · Sem 5
2017 Jun Examination
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Mumbai
B.A. LL.B. (Five Years) Sem 5 Jurisprudence 2017 Jun Question Paper with Solutions
First published on munotes.in on 21 October 2026.
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Contents
The questions below are the paper as Karnataka State Law University set it at the 2017 Jun examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2017 Jun 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 the Natural law theory. State the criticisms against natural law theory.[16]
Answer
For full marks, cover: the natural law theory stated in its core propositions; its development in four phases, in a table (ancient, medieval, natural rights, modern revival); the criticisms, grouped and explained: logical (Hume's is and ought), uncertainty and disagreement, relativism, political misuse (slavery, divine right), the positivist objection (Bentham's "nonsense upon stilts", Austin, Kelsen, Hart's separation thesis), the historical and sociological objections; the replies of modern natural lawyers (Stammler's variable content, Radbruch's formula, Fuller's inner morality, Finnis's basic goods, Hart's minimum content); natural law and its critics in Indian decisions (A.K. Gopalan v. State of Madras, 1950; Maneka Gandhi v. Union of India, 1978; ADM Jabalpur v. Shivkant Shukla, 1976; Kesavananda Bharati v. State of Kerala, 1973); an assessment; a conclusion.
The theory in its core propositions
Natural law theory makes four claims.
- There is a higher law above the law made by States.
- It is discoverable by reason, by reflecting on human nature and the conditions of a good life together.
- It is universal and unchanging: the same for all people at all times.
- It is the standard of positive law. A human law that conflicts with it lacks true authority; in the strongest version, an unjust law is not law at all.
Its development
| Phase | Key thinkers | What natural law meant |
|---|---|---|
| Ancient | Stoics, Cicero, Roman jurists | Right reason in agreement with nature |
| Medieval | Aquinas | Man's share, through reason, in God's eternal law |
| Natural rights | Grotius, Hobbes, Locke, Rousseau | Rights of individuals derived from reason; limits on government |
| Modern revival | Stammler, Radbruch, Fuller, Finnis | Procedural or value-based limits on law |
The criticisms
1. The logical objection: "is" and "ought". David Hume argued that one cannot derive what ought to be from what is. Natural lawyers move from facts about human nature, such as that people seek to live, to rules about how they ought to act. Critics say that step is never justified by logic alone.
2. Uncertainty and disagreement. If natural law is known by reason, why do reasonable people disagree so much about it? Hobbes reasoned his way to absolute monarchy; Locke reasoned to limited government. A standard that yields opposite answers gives little guidance.
3. Relativism. What seems "natural" usually reflects the culture of the thinker. Practices once called natural, such as the subordination of women, are now seen as unjust. So the "eternal" law appears to change with time and place.
4. Political misuse. Natural law has been used to justify almost anything. Aristotle defended slavery as natural. Kings claimed a divine right to rule. The same idea that inspired the American and French revolutions was used to defend established power. A theory that can support both sides of every question cannot be a reliable test of law.
5. The positivist objection. Positivists insist that law and morality must be kept apart.
- Bentham called natural rights "nonsense upon stilts". For him, rights exist only where law creates them.
- Austin held that the existence of law is one thing and its merit another. An unjust law is still law.
- Kelsen sought a "pure" theory of law, free of moral and political ideas. He treated natural law as ideology rather than science.
- Hart argued that confusing law with morality is dangerous. It is clearer to say that a wicked statute is law but too evil to be obeyed. Saying it is not law at all hides the moral choice.
6. The historical and sociological objections. Savigny taught that law grows from the spirit of a particular people, not from universal reason. The sociological school judged law by its social effects, not by abstract standards. Both doubted that any single natural law fits every society.
7. Judicial subjectivity. If judges may refuse to apply laws they think contrary to natural law, they may substitute their own views for those of the legislature. That threatens democracy and legal certainty.
| Criticism | Who made it | The reply |
|---|---|---|
| "Ought" cannot come from "is" | Hume | Finnis: basic goods are self-evident, not derived from facts |
| Uncertain and disputed | Many critics | Fuller: procedural standards are clear |
| Relative to culture | Historical school | Stammler: variable content |
| Used to justify anything | Liberals and positivists | Radbruch: only intolerable injustice loses validity |
| Confuses law and morality | Bentham, Austin, Kelsen, Hart | Hart himself accepts a minimum content |
| Gives judges too much power | Democrats, positivists | Courts work through constitutional text |
The replies of modern natural lawyers
- Stammler proposed natural law with a variable content. The ideal of justice is constant, but its application changes with time and place. This answers the relativism objection.
- Radbruch, after the Nazi period, argued that a statute so unjust that it reaches an intolerable degree loses its validity as law. This answers the claim that natural law has no practical use.
- Fuller found an inner morality of law in eight procedural requirements. Rules must be general, published, prospective, clear and consistent. They must also be possible to obey, reasonably stable, and applied as announced. A regime that fails them has no legal system at all.
- Finnis listed basic human goods, such as life, knowledge, friendship and practical reasonableness. He argued that law exists to secure them. He accepted that unjust laws may be legally valid, while denying that they bind in conscience.
- Hart, though a positivist, accepted a minimum content of natural law. Given human vulnerability, approximate equality, limited altruism, limited resources, and limited understanding and strength of will, every legal system must contain certain basic rules. These protect persons and property and require promises to be kept.
Natural law and its critics in Indian decisions
The positivist reading. In A.K. Gopalan v. State of Madras, 1950 AIR 27, the majority read "law" in article 21 as State-made law. They refused to read it as embodying the principles of natural justice. This followed the positivist criticism: judges should not import moral standards into the text.
The natural law reading. In Maneka Gandhi v. Union of India, 1978 AIR 597, the Supreme Court held that the procedure under article 21 must be fair, just and reasonable. A standard of reason and fairness became part of the meaning of law.
The cost of strict positivism. In ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, the majority held that during the Emergency no detenu could challenge his detention, because the right to move the courts under article 21 was suspended. Khanna J. dissented. He held that the sanctity of life and liberty did not depend on the Constitution's text. The Forty-fourth Amendment of 1978 made article 21 non-suspendable, and in 2017 a nine-judge Bench overruled the majority.
Limits on the law-maker. In Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, the Supreme Court held that Parliament cannot amend the Constitution so as to destroy its basic structure. The Court rested this on the Constitution itself, not on natural law as such. But the result is close to the natural law idea that some principles bind every law-maker.
An assessment
The criticisms are serious. Natural law cannot give precise answers, and it has been misused. But the replies show that it need not claim to override every statute. In its modern forms it offers standards of fairness, procedure and human good by which law can be judged and improved. Indian law reflects this middle path. It does not let judges ignore statutes for moral reasons, but it requires law to be fair, reasonable and consistent with the basic structure. The positivists were right that law and morality are different questions. The natural lawyers were right that a legal system that ignores morality entirely loses its claim to obedience. A sound jurisprudence keeps both insights.
Conclusion. Natural law theory holds that positive law is subject to a higher law known by reason. It is criticised for the leap from "is" to "ought", for uncertainty and relativism, and for political misuse. Positivists such as Bentham, Austin, Kelsen and Hart, and the historical and sociological schools, add their own objections. Modern natural lawyers, Stammler, Radbruch, Fuller and Finnis, and Hart's minimum content, answer many of them. India moved from the positivism of Gopalan and ADM Jabalpur towards the reasonableness of Maneka Gandhi and the limits of Kesavananda. Natural law survives, chastened by its critics, as a standard for judging law.
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