B.A. LL.B. (Five Years) Sem 5 Jurisprudence 2018 Dec Question Paper with Solutions

2. Austin called it the philosophy of positive law, meaning law laid down by the State.
3. Holland called it the formal science of positive law.
4. Salmond called it the science of the first principles of the civil law, that is, the law of the State.

Put simply, jurisprudence is the study of the general nature of law, its sources, its basic concepts and its purposes. It asks what law is, where it comes from, and what ideas such as right, duty, possession and person mean.

The question of utility

Jurisprudence has no sections to memorise and no forms to fill. So students sometimes ask whether it has any practical use. The best answer is to look at decided cases. Again and again, courts have had to decide disputes by asking what a basic legal idea means. What binds as precedent? When is a custom law? What is possession, and what is a right? When does liability arise, and who is a person? Those are questions of jurisprudence. The cases below show its utility in each area.

The Supreme Court held that every custom must be proved. The only exception is a custom so often recognised by the courts that they take judicial notice of it. The custom here was not proved, and the sister succeeded under Hindu law. The decision turned on the jurisprudential tests of custom and on its relation to the courts.

Utility in the theory of possession

Possession is a legal position, not merely a fact. In Krishna Ram Mahale v. Shobha Venkat Rao, AIR 1989 SC 2097, the owner of a restaurant business in Bombay took it back behind the back of the woman running it under an agreement. He argued that her licence had expired.

The Supreme Court held that a person in settled possession cannot be dispossessed, even by the owner, except by recourse to law. It approved the statement that in India persons are not permitted to take forcible possession. The protection of possession for its own sake, a core idea of jurisprudence, decided the case.

Utility in the theory of liability

Jurisprudence asks when a person should be liable without fault. In M.C. Mehta v. Union of India, AIR 1987 SC 1086, oleum gas leaked from a unit of Shriram Foods and Fertiliser Industries in Delhi in December 1985. The Supreme Court held that an enterprise carrying on a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community. It is liable for any harm, without the exceptions the English rule allowed. The Court reasoned from the purpose of liability in an industrial society, which is jurisprudence at work.

Utility in the theory of legal personality

Jurisprudence explains who can hold rights. In Shiromani Gurudwara Prabandhak Committee, Amritsar v. Som Nath Dass, AIR 2000 SC 1421, land had stood in the name of Guru Granth Sahib since 1928. Objectors later argued that it could not hold property because it was not a person. The Supreme Court held that Guru Granth Sahib, installed in a gurdwara or other public place, is a juristic person and can hold property. No statute answered the question. The concept of legal personality did.

1. To students, it gives a map of the whole law and trains them to define and analyse.
2. To lawyers, it supplies arguments when the statute is silent, as in all the cases above.
3. To judges, it gives principles for deciding new questions and for weighing competing interests.
4. To legislators, it shows how to frame rights and duties clearly, and what law can achieve in society.
5. To citizens, it gives standards for judging and reforming the law.

Its limits

Jurisprudence does not replace the study of statutes and procedure. Its schools also disagree. But its disagreements are themselves useful, because they show that legal rules embody choices that can be examined. A good lawyer needs both the rules and the ideas behind them. The rules tell him what the law says, and jurisprudence tells him what it means and why.

Conclusion. Jurisprudence is the study of the first principles of law, and its utility is best shown by decided cases. Gurnam Kaur turned on the theory of precedent, and Ujagar Singh on the theory of custom. Krishna Ram Mahale turned on possession and Bhim Singh on rights and remedies. M.C. Mehta turned on liability and Shiromani Gurudwara on legal personality. Rattan Lal and Bengal Immunity show the same for punishment and interpretation. In each, the answer came from a jurisprudential concept, not from the words of a section. Jurisprudence is therefore useful to every student, lawyer, judge, legislator and citizen.