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Jurisprudence
Previous Year Question Paper with Solution
B.A. LL.B. (Five Years) · Sem 5
2019 Jun Examination
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B.A. LL.B. (Five Years) Sem 5 Jurisprudence 2019 Jun 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 2019 Jun examination.
Contents
The questions below are the paper as Karnataka State Law University set it at the 2019 Jun examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2019 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 Legal Realism Theory.[16]
Answer
For full marks, cover: what legal realism is and the formalism it reacted against; its forerunners (Holmes, "The Path of the Law", 1897, law as prophecy and the "bad man"; Gray, courts as the source of law); American realism: Llewellyn (paper rules and real rules; what officials do), Jerome Frank (rule-scepticism and fact-scepticism; the trial court); Scandinavian realism: Hagerstrom, Olivecrona (law as "independent imperatives"), Ross (validity as prediction of what courts will do); the two schools compared; the contributions of realism; the criticisms (Hart's internal point of view, the judge's own position, rule-scepticism carried too far); realism and Indian judicial practice (A.K. Gopalan v. State of Madras, 1950, and Maneka Gandhi v. Union of India, 1978; I.C. Golak Nath v. State of Punjab, 1967; Vishaka v. State of Rajasthan, 1997); a table; a conclusion.
What legal realism is
Legal realism is the view that law should be studied as it actually works, mainly in the decisions of courts and officials. It is not to be studied only as a set of rules written in statutes and textbooks. Realists ask what judges do, not what the rule books say they should do.
It arose in the early twentieth century as a reaction against formalism. Formalists taught that judges find the answer to every case by logical deduction from existing rules. The realists said this was a myth. In real cases, rules are often vague or conflicting, and judges choose between them. Their choices are shaped by facts, policy, personality and social pressures.
The forerunners
Oliver Wendell Holmes later became a judge of the United States Supreme Court. In "The Path of the Law" (1897), he wrote that law is the prophecy of what the courts will do in fact. He asked us to look at law through the eyes of a "bad man". Such a man does not care about morality. He wants to know only what the courts will do to him if he acts in a certain way. Holmes also wrote that the life of the law has not been logic but experience.
John Chipman Gray argued that statutes are only sources of law. The law itself is what the courts lay down. Until a court has interpreted a statute, no one can say for certain what it means.
American realism
Karl Llewellyn distinguished paper rules, the rules found in books, from real rules, the practices that courts actually follow. In The Bramble Bush (1930) he wrote that what officials do about disputes is the law itself, a remark he later qualified. He urged a functional approach: study what law does, and test rules by their results.
Jerome Frank, a judge and writer, took the argument further in Law and the Modern Mind (1930). He called the belief that law can be certain the "basic legal myth". He separated two kinds of doubt.
- Rule-scepticism. The rules do not decide cases; judges' choices do. Most realists shared this view.
- Fact-scepticism. Even the facts found by a trial court are uncertain. Witnesses err, memories fade, and judges and juries have biases. Frank said the trial court, not the appellate court, is where the real uncertainty lies.
Scandinavian realism
A second realist school grew in Sweden and Denmark. It was more philosophical than the American one.
- Axel Hagerstrom attacked ideas such as "rights" and "duties" as metaphysical. He said they refer to nothing real in the world. Talk of rights, for him, expresses feelings and is used to influence behaviour.
- Karl Olivecrona, in Law as Fact (1939), described laws as independent imperatives. They are commands in form, but not commands of any particular person. They work because people are psychologically conditioned to obey them.
- Alf Ross, in On Law and Justice (1958), said that to call a rule "valid law" is to predict that the courts will apply it. Its validity depends on the judges' actual ideology and behaviour.
Realism and sociological jurisprudence
Realism is close to the sociological school of Roscoe Pound, but not the same. Pound treated law as a tool of social engineering, balancing competing interests, and still respected legal rules as guides. The realists were more sceptical. They doubted that rules guide decisions at all, and they studied what judges and officials actually do. Pound criticised them for going too far. Both schools, however, looked at law in action rather than law in books.
A worked example
A statute forbids "vehicles" in a public park. A formalist asks only what the word "vehicle" means, and applies that meaning logically. A realist asks how the local courts have in fact treated bicycles, toy cars and ambulances. He asks what the judge's background and the policy of the rule suggest, and so predicts how the next case will be decided. For the realist, that prediction is the law that matters to the client.
The two schools compared
| Point | American realism | Scandinavian realism |
|---|---|---|
| Focus | Courts and judicial behaviour | Legal concepts and their psychological effect |
| Method | Practical, empirical | Philosophical, analytical |
| Key figures | Holmes, Gray, Llewellyn, Frank | Hagerstrom, Olivecrona, Ross |
| Law is | What courts do, or will do | A set of ideas that conditions behaviour |
| Attitude to concepts | Rules are often indeterminate | Rights and duties are not real entities |
Contributions of realism
- Honesty about judicial choice. It showed that judges often make law in hard cases and do not merely find it.
- Attention to facts. It made lawyers aware of how uncertain fact-finding can be.
- Empirical study. It led to research on how courts and officials actually behave.
- Legal education. It encouraged practical and clinical training and the study of law in its social setting.
- Later movements. Critical legal studies and law and economics both draw on realist insights.
Criticisms
- The judge's own position. Hart objected that the predictive theory cannot explain what a judge is doing. A judge does not decide by predicting his own decision. He treats the rule as a reason for deciding.
- The internal point of view. Rules are not just predictions. Officials and citizens accept them as standards that ought to be followed, and criticise departures.
- Rule-scepticism carried too far. Most cases are easy and are decided by clear rules. Uncertainty exists mainly in hard cases at the margins.
- Courts are not all of law. Most legal life, such as making contracts and wills, never reaches a court.
- Uncertainty. If law is only what judges do, it becomes unpredictable, which undermines the rule of law.
Realism and Indian judicial practice
Indian courts have not adopted realism as a theory. But their practice shows its central insight, that judges choose and so shape the law.
Choice in reading the Constitution. 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 do. In Maneka Gandhi v. Union of India, 1978 AIR 597, the Supreme Court held that the procedure must be fair, just and reasonable. The words of article 21 did not change. The judges' reading did, and with it the law.
Judges shaping the effect of their rulings. 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, the Court applied its ruling only to the future, by prospective overruling. That is judicial policy-making of the kind realists described.
Judges filling a legislative gap. In Vishaka v. State of Rajasthan, AIR 1997 SC 3011, there was no law on sexual harassment at the workplace. The Supreme Court laid down guidelines, binding under article 141, until Parliament acted. Here the law was, in a very real sense, what the court declared.
Conclusion. Legal realism holds that law is best understood through what courts and officials actually do. Holmes and Gray prepared the ground, Llewellyn contrasted paper rules with real rules, and Frank added fact-scepticism. The Scandinavians, Hagerstrom, Olivecrona and Ross, analysed legal concepts as psychological facts. Hart's criticism shows that realism neglects the internal point of view and the judge's own reasoning. Yet its central insight is borne out in India, from Gopalan to Maneka Gandhi, and in Golak Nath and Vishaka. Realism is not a complete theory of law, but it corrects the myth that judges only find the law.
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