THE ELEMENTS OF JURISPRUDENCE A-3

Multiple Choice Questions

1. The word Jurisprudence is derived from Latin Word Jurisprudentia which

means .........

(a) Study of law (b) The origin of law

(C) Knowledge of law (d) Custom of Law [ Ans.: (c)]

2. As per Analytical Jurisprudence, Sanction means

(a) acquiescence (b) punishment
(c) agreement (d) permission [ Ans. : (b)]

3. The word jurisprudence was first started in which country?

(a) Rome (b) Greek
(c) Britain (d) Russia [ Ans. :(a)]

4. “The aim of law should be the greatest good of the greatest number of people.”
Who said this?

(a) Sevigny (b) Maine

(c) Puchta (d) Bentham [ Ans. :(d)]

5. Who introduced the concept of Pure theory of Law?

(a) Holland (b) Salmond
(c) Austin (d) Hans Kelson [ Ans. : (d)]

6. Jurisprudence means ........

(a) Knowledge of Law (b) Knowledge of Science
(c) Knowledge of Society (d) Knowledge of Social Security [ Ans. : (a) ]
7. Who defined jurisprudence as 'the formal Science of positive law”?
(a) Salmond (b) Holland
(c) Gray (d) Bentham [ Ans, : (a) ]

8. “Prudentia”, means
(a) Skill (b) Knowledge
(c) Skill or knowledge (d) Wise [ Ans. : (c)]
A-4
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

9. The most prominent philosophy of law in the 18th Century was .......
(a) Sociological School of Law (b) Positive School of Law
(c) Realistic School of Law (d) Analytical School of Law
[ Ans. : (d) ]
10. The study of Jurisprudence as a separate branch of knowledge started with ....
(a) Romans (b) French
(c) Arabic (d) English [ Ans. : (a) ]
11. defined jurisprudence as “the formal science of positive law'.
(a) Holland (b) Austin
(c) Salmond (d) Allen [ Ans. : (a)]
12. Who was the founder of Analytical School of Law?
(a) Holland (b) Austin
(c) Salmond (d) Bentham [ Ans. : (b)]
ved blood We Tomis or
13. The functional aspect of law is studied by
Eid bine on!
(a) Realist School (b) Sociological School
(C) Philosophical School (d) Analytical school [ Ans
. : (b)]

14. rights are recognised and enforced at law.

(a) Legal (b) Moral
(c) Natural (d) Ethical [ Ans. : (a)]

15. The founder of Historical School of Law is

ใน การ 111 ไปสนาน เป็ น
(a) Austin (b) Holland
(c) Savigny (d) Harold Laski [ Ans. :(c)]
16. In civil criminal justice wrongs are divisible into ........
(a) Good and bad (b) Punishable and non-punishable
(c) Public and private (d) Enforceable and non-enforceable
[ Ans.: (C) ]
17. Personal rights are
(a) Inheritable (b) Uninheritable
(c) Inheritable or uninheritable (d) Neither inheritable or uninheritable
[ Ans. : (b) ]
THE ELEMENTS OF JURISPRUDENCE

18. Who made the following observation?

*Pure theory of Law is an exercise in logic and not life'.
(a) Harold Laski (b) Austin
(c) Holland (d) Salmond [ Ans. : (a) ]
19. Retribution under the retributive theory of punishment means the wrong doer

(a) is shunned by the society (b) pays for his wrong doing
(C) is punishment by God (d) is morally reformed [ Ans. : (b) ]
20. The judicature Act of 1873 did not abolish ...., but abolish rules of its conflict.
(a) Law (b) Equity
(c) Law or equity (d) Law and equity [ Ans. : (d)]
21. The Article, “the Province of Jurisprudence determined was written by .....
(a) Kelson (b) H.L.A. Hart
(c) Austin (d) Pound [Ans.: (c)]
22. Jural correlative of power is .......
(a) Liability (b) Disability
(c) Immunity (d) Right (Ans. : (a)]
23. Grundnorm is the basic hypothesis of ........
(a) Kelson (b) H.L.A. Hart
(c) Austin (d) Pound [ Ans. :(a)]
24. Salmond considers absence of right as ........
(a) co-relative of duty (b) co-relative of liberty
(c) co-relative of power (d) co-relative of Immunity [ Ans. : (b)]
25. Classification of Jurisprudence as general and particular has been made by ....
(a) Austin (b) Kelson
(c) Austin (d) Gray [ Ans. : (a))

26. The meaning of corporation aggregate is ........

(a) A combination of persons to do business
(b) An incorporated group of coexisting persons
AS MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

(c) A juristic group of various

(d) Natural person [ Ans. : (b) ]

27. Who made the following observation?

Law must remain free from social science metaphysical, ethical and moral
elements. This concept was propounded by ........
(a) Hart (b) Austin
(c) Pound (d) Kelson [ Ans. : (d) ]

28. Who made following observation?

Law is derived from social facts and depends not on state authority but on
social compulsion.
(a) Duguit (b) Ehrlict
(c) Kelson (d) Pound [ Ans. : (b) ]

29. Bracket theory propounded by

(a) Holland and Austin (b) Kelson and Ihering
(c) Thering and Duguit (d) Kelson and Duguit [ Ans. : (b)]

30. Custom is not law but source of law. This statement was made by
(a) Kelson (6) Hart
(c) Austin (d) Holland [ Ans. :(c)]

31. Precedents are considered as a source of law under

(a) English Law (b) Indian Law
(c) French Law (d) Muslim Law [ Ans. :(a) ]
32. Rights are classified
(a) Rights in repropria and rights in realiena
(b) Proprietary rights and personal rights
(c) both (a) and (b)
(d) None of these [ Ans. :)
33. Who made the following definition?

Right has been defined as permission to exercise certain actual power and
upon certain conditions with the aid of public force.
THE ELEMENTS OF JURISPRUDENCE A-7

(a) Holmes (b) Kelson

(c) Hart (d) Austin ( Ans. : (a)]

34. Law is an order of human behavior. This definition of law is by

(a) Kelson (b) Austin
(c) Pound (d) Hart [ Ans. :(a)]
35. Who made the following observation?
Legal theory is science. Jurisprudence is knowledge of law what it is, and not
what law ought to be.
(a) Hart (b) Austin
(c) Pound (d) Kelson [ Ans. :(c)]

36. Following definition by

Right is a legally protected interest.
(a) Ihering (b) Kelson
(c) Hart (d) Austin [ Ans. : (a)]
37. Co-relatives are
(a) Right and duty (b) Privilege and no-right
(c) both (a) and (b) (d) None of these (Ans.:(0)]
38. An obiter dict?
(a) It is useless
(b) Is binding on the court
(C) Is not binding on the court
(d) It is persuasive value in any subsequent decision in the same court or in
another court. [ Ans. :(d)]
39. In delegation, the essential policy is to be determined by .......
(a) Rule framing body (b) Legislative
(c) Department concerned (d) None of these [ Ans. : (b) ]
40. Opposites are
(a) Immunity and Liability (b) Power and disability
(c) Right and Duty (d) Power and Liability [ Ans. : (a) ]
A-8
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

41. Person is defined as

(a) An entity which has rights and duties

(b) Bearer of rights Tolly sad na Tobro as I was
(c) Bearer of rights and duties
Is (d) All of the above [Ans. : (d) )

42. Who made the following observation? sado un wollotori abismod

Law is the instrument of social solidarity and cohesion. i vioad lagu
(a) Bentham (b) Ohguit od of triguo walted
(c) Salmond (d) Friendman au [ Ans. : (b) ]
DH04 2)
43. The Doctrine of Social engineering propounded by ......
(a) Hart (b) Pound Vd to initab galwollos de
(c) Kelson ]
44. Is a sale of property by a shareholder to the company, a sale to oneself ?
(a) Yes (b) No
(C) Depend upon the facts and circumstances 916 29VISIO
(d) None of the above Vino ES [ Ans. : (b)]
45. Human beings own duties and no right. The main protagonist of this view is ...
(a) Holland (b) Duguit Stoib yotda88

(C) Ihering (d) Mark 82519eu [Ans. :(b) ]

46. The greatest disadvantages of legislation is ... sino gaibrid al (0)
(a) Its flexibility (b) Its rigiditysh no goibnid on: 2003
(c) Its modification (d) All the above is ovisu 2199 [ Ans. : (d)]
JUOD 1911
47. Interpretation of a state is of the following kinds .......
29 di ottisgalsbaea
(a) Desirative (b) Contextual
cu ybod gainst .
(c) Grammatical (d) All the above [ Ans. : (a) ]

48. A legal duty may be towards.

918 291209900
(a) God (b) Spiritual head
(c) Animals (d) Human being [ Ans. : (d) ]
THE ELEMENTS OF JURISPRUDENCE A-9

49. Natural persons are

(a) New born child (b) Child in womb
(c) Lunatics (d) All the above [ Ans. :(d)]

50. The greatest contribution of Pound was

(a) Theory of social engineering.
(b) Balancing of social interest and the doctrines of social engineering.
(c) Formulation of rural postulates.
(d) All of the above. [ Ans. : (d) ]
51. Philosophy school of jurisprudence emphasizes on ..
(a) The Philosophy behind law
(b) The reality behind law
(c) Guiding principles behind law
(d) The ideal end of law [ Ans. :(d)]
52. A corporation has no will of its own, therefore .......
(a) It cannot commit a fraud (b) It cannot commit a tort
(c) It cannot commit a crime (d) None of the above [ Ans. : (d))
53. Duties may be ........
(a) Particular (b) Universal
(c) General (d) All the above [ Ans. : (d)]
54. A legislation enacted by the state legislation falls in .....
(a) Delegated (b) Subordinate
(c) Autonomous (d) Supreme [ Ans. :(a) ]
55. Interpretation of a state may be ........
(a) Grammatical (b) Literal
(c) Logical (d) All the above [ Ans. :(d) ]
56. Classification of custom is into
(a) Family (b) Legal
(c) Conventional (d) All the above [ Ans. : (d)]
A-10
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

57. Concession theory was propounded by.........

(a) Austin (b) Holland
(c) Salmond (d) Pound 300 [Ans. : (c)]
58. Historical school emerged from ....... Tomos ng od 18
(a) French Revolution (b) Natural Law School to you)
(c) Only (a) (d) Both (a) and (b) gain [Ans. : (d)]

to
59. Who made the following observation? mois TOHO

What is visible to us is only the product, as it has emerged from the dark
laboratory which it was prepared and where it because real. dqdoras de
(a) Savigny (b) Puchta triqozolirant (5
(c) Laski (d) Friend man si brinisd wailbo [ Ans. : (b)]
60. The realist theory was propounded by ........ dd zaldining gab. (5)
(a) Holland (b) Austin wish to beglsabied by
(c) Kelson (d) Ihering and Duguits mo [ Ans. : (d) ]
61. Another classification of legal custom is ....... E tinto consol (3)
(a) Local (b) Family stimog TORNGO
(c) Class (d) All the above [ Ans. : (d) ]
62. Law is the instrument of social solidarity and cohension. This formation was
made by 679
(a) Enrich (b) Polland and ved bogens moineziol
(C) Holland (d) Kelson Ans. : (a) ]
63. Pure theory of law is an exercise in logic and not life. This observation was
made by .......
ΠΟΙΟΙεοΙΙο
(a) Austin (b) Holland
(c) Kelson (d) Harold Laski [ Ans. : (d)]
64. Customs are

(a) Tribal (b) Local

(c) Family (d) All the above [ Ans

AROL . : (d) ]
THE ELEMENTS OF JURISPRUDENCE A-11

65. Legal persons are

(a) Charitable societies registered under the law.
(b) Human beings
(c) Companies incorporated under the law.
(d) All the above. Ans. : (b) ]

66. ‘Law is found, it cannot be made”. This formation has been made by
(a) Realistic School of Law (b) Natural School of Law
(c) Historical School of Law (d) Positivist School of Law
[ Ans. :))
67. theory is being adopted in the case of juvenile offenders.
(a) Reformative (b) Preventive
(c) Deterrent (d) Retributive [ Ans. :(a) ]
68. means Right to Reputation.
(a) Right in personam (b) Right in rem
(c) Right in re aliena (d) None of these [ Ans. : (b) ]
69. A lower court is bound to follow a precedent.
(a) True (b) False
(c) Partly True (d) Partly False (Ans. : (a) ]
70. Social Control is followed in which of the following modes?
(a) Fashion and belief (b) Religion and Culture
(c) Law and Morality (d) All of these [ Ans. : (d)]
71. Who was the author of the book “The Concept of Law'?
(a) Kelsen (b) H.L.A. Hart
(c) Savingny (d) Salmond [ Ans. : (b) ]
72. Name the branches of Jurisprudence.
(a) Historical Jurisprudence (b) Analytical Jurisprudence
(c) Ethical Jurisprudence (d) All of these [ Ans. :(d)]
 MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

73. Which amongst the following is NOT a school of Jurisprudence?

(2) Historical School of Jurisprudence
(b) Analytical School of Jurisprudence
(c) Philosophical School of Jurisprudence
(d) Cultural School of Jurisprudence [ Ans. : (d)]

74. Amongst the following which is a School of Jurisprudence?

(a) Synthetic School of Jurisprudence
(6) Sociological School of Jurisprudence learn? RODA )

to
(c) Comparative School of Jurisprudence
(d) All of the above [ Ans. :(d)]

73. The Right to Equality is enshrined in

(2) Articles 14 to 18 (6) Articles 10 to 13
(c) Articles 19 to 22 d) None of these [ Ans.: (a)]

76. The most essential functions of the state are primarily ......
(a) War (b) Administration of Justice
(C) Both (a) and (b) (d) None of these [ Ans. :(c)]

71. The main sources of law are

(a) Formal (6) Material
(c) Both (a) and (b) (d) Only (a) [ Ans. :(c)]

78. Kinds of legal sources are ....

(a) Legislation (6) Precedent
(e) Custom (d) All of these [ Ans. : (d)]
79. Amongst the following which are the categories of Agreement?
(a) Contracts (b) Grants
(C) Assignments (d) All of these od [Ans. : (d) ]
80. Professional opinion of eminent jurists may be called ........
(a) Juristic Law (b) Professional Law
(c) Opinion Law (d) None of these [ Ans. : (a)]
THE ELEMENTS OF JURISPRUDENCE A-13

81. Obiter dicta is what the judge said ........

(a) Unwantedly (b) Just by the way
(c) Not necessary (d) All of these [ Ans. :(d) ]

82. Corporeal possession is the possession of a ........

(a) Material object (b) Essential object
(c) Anything but a Material object (d) None of these [ Ans. : (a)]
A-14
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

Descriptive Questions with Answers

1. What is Jurisprudence?
Ans. : Jurisprudence is a subject which materially differs from other branches
of law to be found in a legal syllabus.
Jurisprudence is thus 'the study of fundamental legal principles’. “Juris” in
Latin signifies legal, and “prudentia” means skill or knowledge. Thus, in a very
wide sense, the term connotes the basic knowledge of law. Holland describes
Jurisprudence as “the formal science of positive law”, and Allen as “the scientific
synthesis of the essential principles of law”.
2. Which are the three branches of Jurisprudence?
Ans. : Jurisprudence, in the technical sense, is divisible into the following
three branches:

1. Historical Jurisprudence : The Historical School of Jurisprudence deals,

firstly, with the general principles governing the origin and the development of the
law and with the influences that affect the law. Secondly, it also deals with the origin
and development of those legal conceptions and principles, which are so essential in
their nature as to deserve a place in the philosophy of law.
2. Analytical Jurisprudence: Analytical jurisprudence deals with the present.
Its purpose is to analyse the firstprinciples of the law as they exist in a legal system.
3. Ethical Jurisprudence : The Ethical or Philosophical School of
Jurisprudence deals with the first principles of the ethical significance and adequacy
of law. It expounds the first principles of law as they ought to be.
3. What is Analytical Jurisprudence?
Ans.: Analytical jurisprudence deals with the present. Its purpose is to analyse
the first principles of the law as they exist in a legal system.
4. What is “law” according to the Historical School?
Ans. : The task of the historical school is to deal with the general principles
governing the origin und development of law and with the influences that affect the
law. This school points out to the history of the first principles and conceptions of
THE ELEMENTS OF JURISPRUDENCE A-15

the legal system. From this school of jurisprudence, one can know the origin,sources
and development of law, together with the origin and the development of different
societies.

5. Explain historical school of jurisprudence. Critically describe the

contributions made by Henry Maine and Savigny in the growth of historical
school.

Ans. : According to Sir Henry Maine, Montesquieu may easily be considered

as the first jurist of this school, who in his “Esprit des Lois' (Spirit of the Laws) has
made a very great contribution to human knowledge. According to him, all laws
should have the basis of historical observations. His only defect was that he paid too
much importance to the accidental and external causes in the framing of the laws,
and thus failed to see the importance of the qualities of the human nature or race
which go to make and develop the law. Even then, Montesquieu's contribution to
this school is great, for other jurists after him utilised his observations and have
approached the problem in its correct perspective.
According to Savigny, “The organic evolution of Law,with the life and character
of a people, develops with the ages; and in this, it resembles language. As in the
latter, so in the Law, there can be no rest; there is always movement and development.
Law is governed by the same power of internal necessity as simple phenomena. Law
grows with a nation, increases with it, and dies at its dissolution, and is a characteristic
of it”. Law thus becomes the result of the genius of the people.
6. State the main contribution of the Analytical School of Jurisprudence.
Ans. : The Analytical School has made several important contributions, which
can be summarised as follows:

1. Positive law and ideal law have been kept strictly distinct. It has thus
analysed the concept of civil law, and established its relationship with
other forms of law.

2. All positive law is deduced from a clearly determinable law-giver, e.g., a

sovereign

3. This school also lays down the essential elements that go to make up the
whole fabric of law, as for instance, State sovereignty and the administra
tion of justice
A-16
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

4. It also takes into account the legal (as opposed to the historical) sources,
which are the sources from which the law proceeds. The most important
legal sources are legislation, judicial precedents and customary law. The
Analytical School investigates the claim of each of these sources from
which law proceeds.
5. It inquires into the scientific divisions of the whole fabric of law, i.e., how
law has come to be divided into different departments and the reason
behind these divisions.
6. It also analyses the concept of legal rights, together with the division of
rights into various classes, and the general theory of the creation, transfer,
and extinction of rights, together with the investigation into the theory of
legal liability — both civil and criminal.
7. This school also considers such other allied problems which directly or
indirectly affect the fabric of law, such as property, possession, obligations,
contracts, trusts, incorporation, intention, motive and negligence, and many
more which deserve our attention.

8. It favours codification of law and regards law as a conscious enactment

or command with legal sanction behind it.

7. Write a short note on : Sociological School.

Ans. : This school is comparatively modern, and it devotes itself to the study
of law as a social phenomenon, and tries to examine the consequences of law on
human beings in civilised societies. To understand the scope of this school, one has
to examine how sociology can influence the legal system in a particular country.
By ‘sociology' is meant the study of man in society, and in studying man, the
sociologist studies the law, not as it is understood by the lawyer in his professional
capacity, but in so far as law actually governs the behaviour of an ordinary citizen.
Sociological jurisprudence deals with the study of social consequences of law
and with the observation of sociological phenomena. In its important branch called
Criminology, Sociological Jurisprudence studies the phenomena of crime, the mind
of the criminal, the causes of crime, the remedies therefor, the effect of punishment,
and so on.
THE ELEMENTS OF JURISPRUDENCE A-17

8. Explain the relationship between Jurisprudence and Economics.

Ans. : Economics is the science of wealth, and as such, has a very close
relationship with the science of law. Behind many crimes, it has been found that
economic crisis is, very often, the main reason. It is the fundamental right of every
individual to live well, and if he is denied that right, he resorts to all sorts of anti
social activities. So many economic problems exist in everyday life and the law
giver is called upon to solve these problems. The aim of economists is to improve
the standard of life, so that the people at large can develop their personalities.
Jurisprudence teaches the legislators how to make good laws for promoting social
and economic welfare.

Both economics and jurisprudence, therefore, aim at the betterment and the
greater good of the citizens of a particular society. Thus, there are laws relating to
workmen's compensation, factory laws, law limiting hours of work and thus giving
sufficient leisure to the working-class people), laws relating to labour, insurance,
maternity welfare, bonus, leave facilities and other concessions given to workers, so
that they may feel that they have an equal right of enjoying their lives to their own
satisfaction. Likewise, there are also laws for the benefit of poor agriculturists, e.g.,
Agricultural Debtors Relief Acts, the Zamindari Abolition Acts, Acts preventing
fragmentation and sub-division of agricultural holdings, and Acts for the regulation
of agricultural labour. Jurisprudence, as a science of law, is therefore intimately linked
up with the science of economics. Both help each other in furthering the welfare of
the society.

9. What is the relationship between law and morality?

Ans. : Ethics has been defined as the science of human conduct. How men
behave, and how they are actually behaving, and what should be the ideal human
behaviour, are all considered by the science of ethics. Thus, there is the ideal moral
code and the positive moral code.
Jurisprudence is related to positive morality, in so far as law may be considered
as the instrument through which positive ethics tries to assert itself. Divine morality
does not require any sanction of the law. Positive morality is not dependant upon the
good actions of good men only. Positive morality requires a strong coercive influence
for the maintenance of a public conscience — what public opinion and the culture or
moral enlightenment of the citizens in the locality demand. There is, therefore, a
A-18
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

separate branch of ethical jurisprudence, which tries to examine the existing ethical
opinions and standards of conduct in terms of law, and makes suggestions for the
necessary changes to be brought about in the system of law, so that it can properly
depict the public conscience.

10. State the main benefits of Jurisprudence.

Ans. : Jurisprudence is not without its practical value also. It has been rightly
said that Jurisprudence is the eye of the law, and this statement may be best illustrated
by stating in short, the main uses of Jurisprudence, as follows :
(i) A study of those fundamental principles which are common to all systems
of law is of great advantage in the study of a particular system of law.
Thus, by studying how the rule of law works in western countries, one
can better understand how it operates in the Indian legal system.
(ii) For the practical work of the legislator and the advocate, the knowledge
of the fundamental principles which are adopted by society to adjust the
relations between man and man is absolutely essential. The aim of
jurisprudence is to formulate these principles and to supply the foundations
which the science of law demands, but of which the art of law is careless.
(iii) A study of jurisprudence is of immense advantage to the closely allied
science of legislation. Whereas legislation may declare what the law is,
jurisprudence will assist legislation at arriving at what the law ought to
be.

(iv) Jurisprudence also has an educational value, since the logical analysis of
legal concepts sharpens the lawyer's own logical technique, which is one
of his invaluable assets.

11. Write a short note on : Feminist jurisprudence.

Ans. : In the olden days, women were subjected to various disabilities - only
because they were women. They were barred from becoming lawyers - and at one
time, even from being doctors!
Under Roman Law, women had perpetual tutelage. Even after her father's
death, a woman had to continue under the tutelage of a nominee appointed by her
father, who would act as her guardian. She was not even allowed to dispose of her
own property without the guardian's consent (as was also the position in India several
years ago).
THE ELEMENTS OF JURISPRUDENCE A-19

In England, it was the Married Women's Property Act that removed the
bondages of their proprietary rights. Nor was a married English woman allowed to
choose a domicile for herself. Like a minor, her domicile slavishly followed that of
her husband until 1974, when English law gave a married woman full powers to
choose her own domicile.
The position under Hindu Law was not much better. Only male children born
into a Hindu joint family could become a coparcener and it was only recently that the
law was amended to give the same right to a girl child born into such a family.
The Constitution of India has also recognised the principle of equality of sex
and has guaranteed fundamental rights to all persons - irrespective of sex. In fact,
discrimination based on gender is prohibited.
Interestingly, it was as far back as 1910 that the first International Women's
Conference was held in Copenhagen, where it was decided that March 8 would be
celebrated every year as International Women's Day.
In India, the historic Women's Reservation Bill was introduced in Parliament
on March, 8, 2010 to provide for a mandatory reservation of 33% for women in
Parliament. The Bill has, however, yet to see the light of the day.
12. What is ‘Positive Morality?
Ans. : Natural justice and positive morality are both based on right-doing or
righteousness. Natural justice is justice in truth and in deed. Positive morality means
the rules of conduct approved by the public opinion of any community, that is, the
rules which are maintained and enforced in that community, not by civil law, but by
the sanction of public disapprobation and censure.

13. State and explain the Kinds of Special Law.

Ans. : Kinds of Special Law
The rules of special law fall, for the most part, into seven distinct
classes :

1. Local customs : Immemorial custom in a particular locality has the force

of law. Most of Hindu Law, as it existed prior to 1955, was based on custom, and
almost the whole of it was uncodified.
(The law relating to custom is discussed in Chapter 8.)
A-20
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

2. Mercantile customs : The second kind of special law consists of the body
of mercantile customs and usage, known as the law-merchant.
Thus, the whole of the Indian law relating to negotiable instruments in an
Indian language (hundies) derives its origin from mercantile customs.
3. Private legislation : Statutes are of two kinds, public and private. The
distinguishing characteristic of a public Act (as for instance, the Indian Penal Code
or the Indian Contract Act), is that judicial notice is taken of its existence. A private
Act, on the other hand, is one which does not fall within the ordinary cognizance of
the Courts of justice, and will not be applied by them, unless specially called to their
notice.

Thus, examples of private legislation are Acts incorporating individual

companies or Electricity Boards, Acts regulating the navigation of a river, or any
other Act concerned with the interests of private individuals or particular localities.
4. Foreign law : It is essential in many cases to take account of a system of
foreign law and to determine the rights and liabilities of litigants on its basis. This is
the field of Private International Law, also known as Conflict of Laws.
Ignorance of law, i.e., the law of India, is no excuse. One is supposed to know
the law : Ignoratio legis neminem excusat. But ignorance of foreign law is like
ignorance of afact and, if not known, is a good excuse Ignoratio facti excusat.
:

5. Conventional law : Another variety of special law has its source in the
agreement of those who are subject to it. Agreement is law for those who make it.
Thus, when A enters into a contract with B, the contract creates rights, duties and
liabilities enforceable by and against A and B only. Rules of a club or a co-operative
society are also instances of conventional law.

6. Autonomic law : Autonomic law is that species of enacted law which has
its source in various forms of subordinate legislative authority possessed by private
persons and bodies of persons. Thus, a Railway Company may make bylaws for
regulating its undertaking, or a university may make regulations for governing its
members, and so on.

7. Martial law : Martial law is the law applied by Courts-martial in the

administration of military justice. The army also exercises the function of
administering justice. The Courts established within the army for this purpose are
called Courts-martial, and the law is of three kinds, being either (i) the law for
THE ELEMENTS OF JURISPRUDENCE A-21

discipline and government of the army itself, or (ii) the law by which the army, in
times of war, governs foreign territory in its military occupation outside the realm,
or (iii) the law by which in times of war, the army governs the realm itself in derogation
ofthe civil law.

14. Distinguish between Martial Law and Military Law.

Ans. : Difference between Martial Law and Military Law.
1. While Military law is a State law, Martial law is based on Common law.
2. Military law is applicable to soldiers alone. It is embodied in the Army
Act. Offences under this Act are triable by the Courtsmartial. This does
not absolve a soldier from his liabilities under the ordinary law. He is
liable in a dual capacity:
(i) As a soldier, he is governed by the Military law; here, the Military
law imposes upon him some liabilities from which an ordinary citizen
is exempt.
(ii) As an ordinary citizen, a soldier is governed by the ordinary law of
the land. While Military law is applicable to soldiers alone, Martial
law is applicable to soldiers as well as to civilians in times of war.
3. Lastly, even when there is no war or rebellion, soldiers are governed by
the Military law. Martial law, on the other hand, would be tolerated only
on the ground of necessity.

15. Is international law, law?

Ans. : Public International Law (or the Law of Nations) according to Lord
Birkenhead, consists of rules, acknowledged by the general body or civilised
independent States, to be binding upon them in their mutual relations. It consists of
those rules which govern Sovereign States in their relations and conduct towards
each other. According to Salmond, it is essentially a species of conventional law, and
has its source in international agreement. It consists of those rules which Sovereign
States have agreed to observe in their dealings with one another.
International law is that body of rules which regulate the relations between the
different States, as also the relations between the individuals and the States.
International law, as it has developed, is more or less customary and conventional,
and these rules have developed as a result of international conferences, opinions,
and writings of the jurists.
A-22
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS
16. What is Prize law?

Ans. : ‘Prize law' is that portion of the law of nations which regulates the
practice of the capture of ships and cargo at sea in times of war. It is the law as
applied by courts called Prize Courts, in administering justice as between the captors
and all persons interested in the property seized.
A Prize Court is not an international tribunal; it is a court established by, and
belonging exclusively to, the individual State by which the ships and cargo have
been taken. Nevertheless, the law which it is the duty and function of these courts to
administer is the law of the nations. It has its source in the agreement of sovereign
States among themselves.
Thus, Prize Courts were set up to decide the fate of ships and cargo captured
during the 1971 Indo-Pak War.

17. What is Common Law?

Ans. : The term “Common Law” is purely an English term. There is nothing
like common law in India. The general law of England is divided into three parts,
viz., Statute Law, Equity and Common Law.

18. What do you understand by legal theory?

Ans. : The primary purpose of legal theory is to define law. There have been
several theories of law. These different theories often look at law from various points
of view.

19. Critically examine the Natural law Theory.

Ans. : According to the Natural Law Theory, there are objective principles,
which depend on the essential nature of the universe, and which can be discovered
by natural reason. From the point of view of the ordinary human being, law is only
true law so far as it conforms to these fundamental rights. According to this theory,
there are certain objective and absolute principles of morality and justice which are
the basis of law. These principles can be ascertained by human reason and common
sense.

The roots of this theory are to be found in the philosophies of the ancient
Greek philosophers. This theory is also responsible for much of the legal and political
thinking of the middle ages.
 THE ELEMENTS OF JURISPRUDENCE A-23

Another great use of this theory is that it rejects ethical relativism. Ethical
relativism considers morality as a product of history and convenience, while natural
law affirms the existence of certain objective and absolute values.
The main criticism against the Doctrine of Natural Law is that it confuses the
nature of law and morality with the scientific laws. In law and morality, the value is
not a logical outcome of the fact, whereas the scientific laws are objective and describe
a phenomenon.The natural laws or human laws do not prescribe a phenomenon, but
they prescribe a code of conduct. This criticism is met by the natural lawyers, by
showing that human laws also describe how men are ordained to behave. According
to them, everything has its proper functions, and so to be good, it must fulfil this
function, and natural law also fulfills such function.

20. Write the main features of Positive Law.

Ans. : According to Austin, positive law has three main features : (i) It is a
kind of a command; (ii) it is laid down by a sovereign authority; and (iii) it has a
sanction behind it. A typical illustration would be the English Road Traffic Act. This
Act lays down certain rules which have to be followed (command), it has been passed
by the Queen in Parliament (laid down by the sovereign authority of England), and
its violations are met with penalties (sanction).
21. State how H.L.A. Hart defines law.

Ans. : Prof. Herbert Linonel Adolphus Hart (H. L. A. Hart), who was a Professor
of Jurisprudence at Oxford University, defined the word “law” as follows:
“Law consists of rules which are of broad application and nonoptional character,
but which are at the same time amenable to formalisation, legislation and
adjudication.”
Hart's analysis of legal rules is different from the Austinian concept of legal
rules. According to Austin, the command of the State is imposed and one is obliged
or compelled to obey it. According to Hart, a legal rule is observed because one has
a sense of obligation to observe it. Law prescribes, not a command, but a standard of
conduct. This standard is adhered to, not only because there is a sense of obligation
to adhere to it, but also because there is an expectation that others have some obligation
to adhere to it. Therefore, even a person who cannot be compelled to obey the law is
still reckoned as having an obligation to obey. According to this view, law is concerned
with obligation rather than coercion.
A-24
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS
23. What is the pure theory of law?
Ans. : Kelsen advocated the “pure” theory of law. He called it pure, because
the theory describes only the law, excluding everything that is strictly not law. It
seeks to lay down what is the law, and not what the law ought to be.
Kelsen was ofthe view that, to be acceptable, any theory of law must be “pure”,
that is, logically self-supporting, and not dependent on any extraneous factors, i.e.
not influenced by factors like natural law or sociological or political or historic
influences.

24. What is “grundnorm”?

Ans. : According to Kelsen, every system of law is based on a grundnorm or
ground rule, from which the validity of other statements of law in that legal system
follow. Norms' are regulations setting forth how persons are to behave; and
grundnorm is the basic norm in a given legal system. It is that ultimate norm that
confers validity on all other norms. In other words, it is the basic rule which is the
underlying basis of a legal system.
According to Kelsen, any legal system is made up of a hierarchy of norms.
Each norm is derived from its superior norms. Now, the ultimate norm from which
every legal norm gets its validity is the grundnorm, that is, the highest basic norm.
25. Explain the term Sanction.
Ans. : The term "sanction’ has a peculiar meaning in Jurisprudence. It means
and involves the idea of compulsion or threat. It may be defined as the instrument of
coercion employed by any regulative system, and any rule of right supported by such
means is said to be “sanctioned. The instrument of coercion need not necessarily be
physical. It may be moral, divine, or even political. Thus:
1. Physical force is the sanction applied by the State in the administration of
justice. (The watchful eyes of the policeman and ultimately the prison
bars serve as an effective deterrent to prospective offenders.
2. Censure, ridicule and contempt are the sanctions by which society enforces
the rules of positive morality.
3. War is the last and most formidable of the sanctions which, in the society
of nations, maintains the law of nations,

4. The threat of divine displeasure or divine anger are the sanctions of religion.
 THE ELEMENTS OF JURISPRUDENCE A-25

26. Explain the advantages of law.

Ans. : The chief uses or advantages of law are the following:
1. Uniformity and certainty : Fixed rules of law impart, to a considerable
extent, uniformity and certainty to the administration of justice.It is very important,
not only that judicial decisions should be just, but also that people should be able to
know beforehand the decision to which the Courts of Justice will come. It is often
more important that rule should be definite, certain, known and permanent, than that
it should be ideally just.
2. Protection against improper motives of judges : The necessity of
conforming to publicly declared principles protects the administration of justice from
the disturbing influence of improper motives on the part of those entrusted with
judicial functions. The law is necessarily impartial, and as already observed, it is
certain and known. Therefore, a departure from a rule of law by the judicial authority
is visible to all men. Thus, it is not enough that justice should be done; it is also
necessary that it should be seen to be done. On the other hand, if administration of
justice was left completely to the individual discretion of the judge, improper motives
and dishonest opinions could affect the administration of justice.
As Salmond observes, “It is to its impartiality, far more than its wisdom (for
this latter virtue it too often lacks) that are due to the influence and reputation which
the law has possessed at all times; wise or foolish, it is the same for all.” Therefore,
law acts necessarily impartially, which is considered as one of the first principles of
political liberty. That is why the words of Cicero, “we are the slaves of the law so
that we may be free”.

3. Freedom from the errors of individual judgment: Law serves to protect

the administration of justice from the errors of individual judgment. The problems
offered for judicial decisions are often difficult and complicated. Therefore, there is
a great need of guidance from the experience and wisdom of the world at large, of
which the law is the record. As Salmond observes, “The establishment of the law is
the substitution of the opinion and conscience of the community at large for those of
the individuals to whom the judicial functions are entrusted. The law is not always
wise, but on the whole, and in the long run, it is wiser than those who administer it.”
Aristotle also observes : “To seek to be wiser than the laws is the very thing which is
by good laws forbidden.”
A-26
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

4. Reliability : It is also said that law is more reliable than individual judgment.
The human mind is certainly not infallable, and the judge is no exception. It is,
therefore, believed that the wisdom of the legislature, i.e., the collective wisdom of
the representatives of the people, is a safer and more reliable means of protection,
than the momentary fancy of an individual judge.
27. What are the Demerits / Defects of law.

Ans. : The four main defects of the law are the following:
1. Rigidity : The first defect of law is its rigidity. A legal principle is the
product of a process of generalisation and abstraction. Therefore, it has to disregard
particular, individual or exceptional circumstances. But one cannot be sure, while
administering justice, that those individual or exceptional circumstances will be
irrelevant in a particular case. But the law is to be applied without any allowance for
special circumstances. The result is inflexibility, which often results in hardship and
injustice.

2. Conservation : Another defect of law, which is analogous to that of rigidity,

is that of conservatism. Conservatism is the failure on the part of law to conform
itself to the changes in circumstances and in men's views of truth and justice, which
are brought about by the lapse of time. Rigidity is a defect arising out of the failure of
law to meet the requirements of special or exceptional cases, while conservatism is
the defect arising out of the failure of law to conform itself to the changing needs
and notions of justice. Though this defect can be remedied by legislation, yet it is
impossible to completely counteract the evil of legal conservatism.
3. Formalism : The third defect of law is formalism. The law has often a
tendency to attribute more importance to technical requirements than to substantial
rights and wrongs. Though the ancient legal systems were more formal and technical,
yet it cannot be said that modern legal systems are completely free from such bonds.
4. Complexity: The last defect ofthe law is its undue and endless complexity.
Law, being the reflection within Courts of Justice of the complex facts of civilised
existence, it is to a considerable extent complex. Though everyone is presumed to
know the law, it is not possible for everyone to know it on account of its elaborate
nature, excessive subtlety and complexity. Though this defect can be cured by
codification, by reducing its size and by increasing its intelligibility, yet a complex
law for a complex social existence is unavoidable.
 THE ELEMENTS OF JURISPRUDENCE A-27

In conclusion, Salmond observes that if the benefits of law are great, the evils
of too much law are also not small.

28. What is Deterrent Punishment? Explain.

Ans. : Punishment is said to be deterrent when its object is to show the futility
of crime and thereby teach a lesson to other persons. Others with similar designs
may have second thoughts in the matter, and may actually abstain from putting their
evil designs into practice.
According to this theory, offences are the result of a conflict between the
interests of the wrong-doer and those of society. The aim of punishment is to dissolve
the conflict of interests by making every offence, to use the famous words ofLocke,
"an ill-bargain to the offender”.

29. Explain Preventive Theory of Punishment.

Ans. : The preventive theory aims at preventing a crime by disabling the
criminal himself, as for example, by exposing the criminal to the death penalty, or
by confining him in the prison, or by suspension of his driving licence. Thus, the
extreme penalty, the death sentence, ensures that once and for all, the offender will
be prevented from repeating his heinous acts. In the past, maiming was considered
an effective method of preventing the wrong-doer from committing the same crime
in the future, by dismembering the offending limb. Thus, a thief's hand would be cut
off, a sexual offender would be castrated, and so on. Although considered “primitive”,
such forms of punishment still exist in some countries.
30. What is compen-sative jurisprudence?
Ans. : According to this theory, the object of punishment must be not merely
to prevent further crimes, but also to compensate the victim ofthe crime. This theory
further believes that “the main spring of criminality is greed, and if the offender is
made to return the ill-gotten benefits of the crime, the spring of the criminality would
be dried up.” (Dr. Sethna)
Though there is considerable truth in this theory, it must be pointed out that
this theory over-simplifies the motives of the crime, and the motive of crime is not
always economic. Offences against the State, against justice, against religion, against
marriage, and even against the person, may not always be actuated by the economic
motives. There may be other complicated motives. In such cases, the theory of
A-28
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

compensation may be neither workable nor effective. Quite often, even in the case of
offences actuated by economic motives, the economic condition of the offender may
be such that he cannot compensate the victim. Therefore, this theory can at best play
a subordinate role in the framing of a penal code.
31. What is the Object of Capital Punishment?
Ans. : The object of capital punishment can be said to be twofold. By putting
the offender to death, it may instil fear in the minds of others and make a lesson out
of it. Secondly, if the offender is an incorrigible one, by putting him to death, it
prevents the repetition of the crime. But it is evident that it is not based on the
reformative object of punishment; in a sense, it is a step of despair.
32. What is Deportation?
Ans. : Next to capital punishment, a method of elimination of incorrigible or
dangerous offenders is the punishment of deportation. In India, It used to be called
transportation (which is now abolished). This could hardly be a solution to the
problem. If a man is dangerous in one society, and if he is let loose in another
society, he is likely to be equally dangerous there. Even if a separate colony or
settlement were to be created for deportation of such offenders, the problem of
maintaining such settlement might create a number of difficulties, in addition to
such colony having a degrading influence on the character of the offenders. Therefore,
this kind of punishment was abolished in England long ago, and now, it has been
abolished in India also.

33. Write a short note on Corporal Punishment.

Ans. : The punishments of flogging, caning, whipping and torture fall under
this head. This was a very common kind of punishment in the ancient and the
mediaeval times. The main object of this kind of punishment is deterrence. It has
been long ago realised that this kind of punishment is not only inhuman, but also
ineffective. The person who undergoes this kind of punishment may become more
anti-social than he was before. The criminal tendencies in him might be hardened,
and reforming him might become impossible.
Though whipping was one of the kinds of punishment provided in the Pena
Code, it has now been abolished. It is indeed a matter of surprise, that some countries
still have this kind of punishment in their legal systems. Thus even today, caning i
THE ELEMENTS OF JURISPRUDENCE A-29

a mandatory punishment (in addition to a jail sentence) in Singapore, and some

Arabian states, for offences like robbery, rape, attempted murder, drug trafficking,
etc.

34. What is Imprisonment. Which 3 Objects can it serve?

Ans. : Imprisonment is a kind of punishment which, if properly used, can
serve all the three objects of punishment. It can be deterrent, because it makes an
example of the offender to others. It can be preventive, because it disables the offender,
at least for some time, from repeating the offence; and it might, if properly used,
give opportunities for reforming the character of the offender.

35. Explain Solitary Confinement.

Ans. : Solitary confinement is an aggravated kind of imprisonment. This kind
of punishment seeks to fully exploit the sociable nature of the man, and by denying
him the society of his fellow beings, it tries to inflict pain on him.
It has been felt by many criminologists that this kind of punishment is inhuman
and perverse. It is possible that this might convert a man with sound mental health
into a lunatic. Ifused in excess, it may inflict permanent harm on the offender. Though
in limited cases, if used in a proper proportion, this kind of punishment may be
useful, yet if those limits are surpassed, it is likely to be unnecessarily cruel. The
Indian Penal Code, therefore, provides stringent limits to the extent and maximum
duration of this type of punishment.

36. Discuss 'Fine' as a Punishment.

Ans. : Some criminologists are of the opinion that the punishment of fine,
addition to serving its deterrent object, also serves three more purposes. Firstly, it
helps to support the prisoners; secondly, it can provide expenses for the prosecution
of the prisoners; and thirdly, it may be used for compensating the aggrieved party.
This kind of punishment may be very useful in cases of hardened criminals. But care
must be taken to see that heavy and excessive fines, which would almost result in
forfeiture of the property of the offenders, should not be inflicted. Moreover, the
facilities for collecting fines must be created in such a way that levying of fine may
not inevitably drive the offender to the prison on account of his inability to pay the
fine.

In Indian Courts, it is a very common practice to award both imprisonment

and fine, with a further period of imprisonment in case the fine is not paid.
A-30
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS
37. What is the Primary Function of a Court of Law.
Ans. : The primary function of a Court of law is the administration of justice,
viz., the application by the State of the sanction ofthe physical force to the rules of
justice. It is to administer justice that the tribunals of the State are established.
38. Explain the Secondary Functions which the courts perform.
Ans. : There are five secondary functions which the Courts also perform. They
are:

1. Petition of right: In England, proceedings against the Crown can be taken

only by a petition of right in a Court of law which determines the rights of the parties.
This is not administration of justice, strictly and properly so called, for the essential
elements ofcoercive force is lacking. The State is to judge its own cause and cannot
exercise constraint against itself.
2. Declaration of right: A person may seek the assistance of a Court ofjustice,
not by way of obtaining redress, but by way of having it declared that he has or has
not a certain right. The Court of justice, after hearing the parties, either makes or
refuses to make the necessary declaratory order.
Thus, under the Specific Relief Act,a plaintiff may pray only for a Declaratory
Decree against the defendant, as for instance, a declaration that persons of a particular
village have no right to pass through his land.
3. Administration : Courts of justice sometimes undertake the managemen
and distribution ofproperty. Examples are the administration of a trust, the liquidation
of a company, etc.
4. Titles to right : These are all those cases in which judicial decrees are
employed as the means of creating, transferring or extinguishing rights, e.g., an
adjudication of bankruptcy, a grant of a probate or letters of administration, etc.
5. Supervision of lower courts : Superior Courts are often armed with th
power of supervising the Courts below them. Such a power is given to the High
Courts in India by Art. 227 of the Constitution.
39. What are the two main sources of law?
Ans. : The two main sources of law are :
1. Formal, and

2. Material.
THE ELEMENTS OF JURISPRUDENCE A-31

Material sources can further be sub-divided into :

(a) Legal sources : (1) Legislation, (2) Precedent, (3) Custom, (4) Agreement,
(5) Professional opinion.
(b) Historical sources.
40. What is a Formal Source of Law?

Ans. : A formal source of law is defined by Salmond as that from which a rule
of law derives its force and validity. The formal source of the law is the will of the
State, as manifested in statutes or decisions of the Courts. It is that from which the
authority of the law proceeds.

41. What are Material Sources of Law?

Ans. : The material sources of law are those from which is derived the matter,
though not the validity, of the law. The matter of the law, as stated above, may be
drawn from all kinds of material sources.
42. Write the two main Kinds of Material Sources of Law.

Ans. : Material sources of law are of two kinds — legal and historical.
(a) Legal : Legal sources are those sources which are the instruments or organs
of the State by which legal rules are created, e.g., legislation and custom. They are
authoritative and are allowed by the law Courts as of right.They are the gates through
which new principles find their way into the realm of law.
(b) Historical : Historical sources are sources where rules, subsequently turned
into legal principles, were first to be found in an unauthoritative form. They are not
allowed by the law Courts as of right. Some examples are religion, morality and
opinion of text-book writers. They operate only mediately and indirectly.
43. Distinguish between Legal Sources and Historical Sources.
Ans. : Difference between Legal Sources and Historical Sources.
Legal Sources Historical Sources

1. Recognised by law itself. 1. Not so recognised.

2. Are authoritative. 2. Are authoritative.
3. Allowed as a matter of right. 3. Not allowed as a matter of right.
 MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS
A-32

44. State and Explain the kinds of Legal Sources of Law.

Ans. : Following are three kinds of legal sources. They are:
1. Legislation : Legislation is the making of law by the formal and expressed
declaration of rules by some authority in the body politic, which is recognised by the
Courts of law as competent for that purpose. Law which has its origin in legislation
is called enacted law. It is also called statute law.
2. Precedent: Precedents establish the law by the recognition and application
of new rules by the Courts themselves in the administration of justice. Precedents
produce case-law.

Judicial decisions form an important source of law. It was on the raw materials
of custom that the judges fashioned up rules of law. Like sculptors working on marble,
the judges worked on the raw material of custom supplied mostly by the merchants,
and thus made a valuable contribution to the law of the land.
3. Custom : Law based on custom is known as customary law. In fact, custom
is one of the most fruitful sources of law. Custom is to society what law is to the
State. Each is the expression and realisation, to the measure of men’s insight and
ability, of the principles of right and justice.
45. Discuss judicial decisions as a source of law.
Ans. : Judicial decisions form an important source of law. It was on the raw
materials of custom that the judges fashioned up rules of law. Like sculptors working
on marble, the judges worked on the raw material of custom supplied mostly by the
merchants, and thus made a valuable contribution to the law of the land.

46. Define custom.

Ans. : Law based on custom is known as customary law. In fact, custom is one
of themost fruitfulsources of law.Custom is to society what law is to the State. Each
is the expression and realisation, to the measure of men’s insight and ability, of the
principles of right and justice.

47. Which are the four categories of Agreement.

Ans. : English law regards the following four categories of agreements:
1. Contracts – which create rights in personam.
2. Grants - which create rights of any other kind.
THE ELEMENTS OF JURISPRUDENCE A-33

3. Assignments – which transfer rights.

4. Releases – which extinguish certain rights.
48. What is the purpose of a Formal Contract?
Ans. : The purpose underlying a formal contract is twofold. Firstly, it ensures
that the rights and liabilities of the parties are set out with an adequate degree of
clarity, certainty and permanence. Secondly, since there is a time gap between the
preliminary negotiation and the execution ofthe formal document, the parties cannot
successfully plead ignorance, misunderstanding, absence of consent, etc.
49. Write a short note on : Legislation.
Ans. : Legislation consists in the declaration of legal rules by a competent
authority, conferring upon such rules the force of law. Such competent authority' is
styled as the 'Legislature' of a country.
Legislation, therefore, means making laws.
Legislation includes every expression of the will of the legislature, whether
directed to the making of rules of law or not. In this use, every Act of Parliament is
an instance of legislation, irrespective of its purpose and effect. An Act of Parliament
may do no more than ratify a treaty with a foreign State, or alter the calendar or
coinage or declare war or make peace. All this is legislation in a wide sense, but it is
not the declaration of legal principles with which we are concerned”. (Salmond)
50. Mention the 2 kinds/classification of Legislation.
Ans. : Legislation may be classified into -
(A) Supreme and subordinate legislation
(B) Direct and indirect legislation.

51. What is Supreme Legislation?

Ans. : The former is that which proceeds directly from the sovereign power in
the State, and is therefore free from any external control. It is also incapable of being
annulled or repealed.
52. What is Subordinate legislation?
Ans. : Subordinate legislation is that which proceeds from any authority other
than the sovereign power, and is, therefore, dependent for its continued existence
and validity on some supreme or superior authority.
A-34
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS
53. State and Explain the forms of subordinate legislation.
Ans. : Subordinate legislation may take any of the following five forms :
1. Executive : The executive is entrusted with the working ofthe administrative
department of the State, but it also enjoys certain subordinate legislative powers
which have been expressly delegated to it by Parliament or pertain to it by the common
law. Thus, it is the prerogative of the Crown by the common law to make laws for
the government of the territories acquired by conquest or by cession, and not yet
possessed of representatives local legislation.
2. Judicial : The superior Courts have the power of making rules for the
regulation of their own procedure. Thus, the High Courts of India are empowered to
make Rules to regulate their own procedure. Thus, for instance, we have the Bombay
High Court Rules, which are Rules governing the Bombay High Court and matters
coming before that Court.
3. Colonial : The powers of self-government entrusted to the colonies and
other dependencies of the Crown are subject to the control of the Imperial Legislature,
which may repeal, alter, or supersede any colonial enactment.
4. Municipal : Municipal authorities are entrusted with the power of
establishing special law for the districts under their control. These are sometimes
called bye-laws.
5. Autonomic (or Autonomous) : By autonomic legislation is meant that
species of enacted law which has its source in various forms of subordinate and
restricted legislative authority possessed by private persons and bodies of persons.
A railway company, for example, may make rules for the regulation of its undertaking,
or a university may make statutes for governing its members. Legislation thus effected
is called “autonomic' or “autonomous'.

54. Write short note on : Codification.

Ans. : Legislation as a source of law, has the advantage of form and brevity.
The modern tendency is towards reduction of the whole body of law into the form of
enacted law. This process is known as codification. According to Salmond,
codification consists in the reduction of the whole corpus juris to the form of enacted
law.
THE ELEMENTS OF JURISPRUDENCE A-35

55. State the important merits of Legislation.

Ans. : The following are the seven important merits of legislation:
1. Abrogative power
2. Efficiency (Division of functions)
3. Declaration

4. Provisions for future cases

5. Form

6. Greater access and generality

7. Reliability

56. What are the main demerits/defects of legislation.

Ans. : The following are the three main defects of legislation:
1. No scope for judicialdiscretion : It has often been said that where there is
an express provision of the law, the judge is tied down to it, and has to follow it, even
ifit results in injustice. On the other hand, precedent allows a judge to give a decision
on the merits of that particular case, without being rigidly tied down to water-tight
rules of the enactment.

There is, indeed, considerable strength in this criticism. However, the remedy
lies in enacting legislation which is not absolutely binding on the judge, and which
provides scope for judicial discretion within the four corners of the statute.
2. Lack of clarity : It is also said that statute-law is often worded in
cumbersome language, which makes little sense to a layman, whereas precedent is
often to be found in clear and simple words.
There is not much strength in this criticism, and the remedy lies in employing
competent draftsman to frame the statutes. At the same time, it is well-known that
quite a few judgments are verbose and couched in high-sounding language, which
make little sense to a lawyer – much less to a layman.
3. Rigidity : Lastly, it is said that statutes are extremely rigid and leave little
scope for selective application, thus resulting in injustice in extreme cases.
The remedy for this is once again to provide an in-built flexibility in the statute
itself, so that there is a greater scope for judicial discretion.
A36
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS
57. What is the meaning of Noscitur a Socis?
Ans. : The Latin maxim, Noscitur a Socis has been translated by Lord
Macmillan as, “The meaning of a word is judged by the company it keeps.” This
means that the meaning of a word, the connotation whereof is not clear, may be
ascertained by referring to the meaning of the other words associated with it.
58. Explain the term Expressio unius est exclusio alterius.
Ans. : This maxim means that when one thing is specifically mentioned, it
implies that other similar things are excluded by implication. Thus, where a person
talks of “men” and “women”, and then makes a statement regarding “women” it
shows that he did not imply it to cover men also. Similarly, if an Act seeks to regulate
land and buildings, and then makes a provision for ‘land’, it may be taken to exclude
buildings.

However, this maxim is to be very carefully applied, and is indeed a valuable

servant but a dangerous master. In certain circumstances, Courts may hold that a
reference to only one of two items is merely by way of abundant caution, and that the
provision applies to the other item also.

59. What is a precedent?

Ans. : A precedent is a statement of law found in the decision of a superior
court, which decision has to be followed by that Court and by Courts inferior to it. If
each judge were left to himself in deciding cases without reference to similar cases
decided in the past, the result would be utter confusion and chaos; the law would be
uncertain, and the fate of litigants would hinge on the temperament of the judge or
his mood of the day. Uniformity can only be achieved by the judges following, as far
as possible, the law laid down by their fellow judges. It is through precedents that
the judges herald the law to the world. Thus, the theory of precedentplays a very
important role in the jurisprudence of every country.
60. What is doctrine of Stare Decisis?
Ans. : The origin of the doctrine ofStare Decisis (binding force of precedents)
can be traced to the practice of law reporting, i.e., reporting and publishing decisions
of the Court.
“Stare decisis” literally means “to stand by decided cases”. The doctrine i
embodied in the Latin maxim, Stare decisis et non quieta mouere.
THE ELEMENTS OF JURISPRUDENCE A-37

The doctrine of stare decisis has also been recognised by the Constitution of
India. Article 141 gives it constitutional sanction, and provides that the law declared
by the Supreme Court shall be binding on all Courts in India.
61. What is Authoritativel Absolute Precedents.
Ans. : An authoritative (also known as “absolute ) precedent is one which the
judges must follow, whether they approve of it or not. It is binding upon them and
excludes their judicial discretion for the future. The authoritative precedents
recognised by English law are the decisions of the superior Courts of Justice in
England.

62. Write any five Rules regarding Authoritative Precedents in India.

Ans. : Following are the rules regarding authoritative precedents in India:
1. The decisions of the Supreme Court are of the highest authority.
2. The decisions of one High Court are not authoritative with regard to
another High Court.
3. In the same High Court, the decision of a single judge is binding on another
single judge, but not on a Division Bench.
4. Ajudge of the lower Court is bound to follow the ruling of the High Court
of his own State when there is a conflict amongst various High Courts.
Unreported judgments have as much binding authority as reported ones.

63. Which are the main exceptions to the rule of Authoritative Precedents?
Ans. : There are four main exceptions to this rule of the authoritative nature of
precedent. They are as follows:
1. Where there is another equally authoritative precedent conflicting with
the rule sought to be overruled, the latter need not be followed.
2. Where the Court deciding the case erred by not being aware of a statutory
provision or rule, the precedent need not be followed.
3. Likewise, a precedent will not be followed, when it is inconsistent with a
later precedent of a high Court, though the first precedent may not have
been expressly rejected.
4. A precedent must be rejected after the law has been changed by an
enactment, so as to nullify or modify the effect of the precedent.
A-38
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS
64. What is Persuasive Precedents?

Ans. : A persuasive precedent is one which the judges are under no obligation
to follow, but which they will take into consideration and to which they will attach
such weight as they deem fit. Thus, judgments of American Courts are merely
persuasive in their nature, as far as Indian Courts are concerned.
65. Explain Declaratory Precedents.
Ans. : A declaratory precedent is one which is merely the application of an
already existing rule of law. A declaratory precedent is not a source of new law; an
original precedent is.
Declaratory precedents are far more numerous than original precedents; for,
on most points, the law is already settled and judicial decisions are, therefore, usually
mere declarations of pre-existing principles.
66. What is Original Precedents?
Ans. : An original precedent is one which creates and applies a new rule.
Original precedents though fewer in number, are greater in importance, for they
alone develop the law.

67. What is obiter dicta?

Ans. : Obiter dicta is what the Judge said unwantedly, just by the way. Judges
often express legal opinions on issues they are not asked to decide. These statements
of law were not necessary for the decision, and go beyond the requirements of the
particular case. Such dicta are, therefore, called obiter dicta.
In Keeton's jurisprudence, obiter dicta are described as “statements of law
made by a judge in the course of a decision, arising out of the circumstances of the
case, but not necessary for the decision”.
Obiter dicta are merely things said by the way, they merely possess persuasive
efficacy — and not any binding authority.
68. What is Custom?

Ans. : Custom is one of the most fruitful sources of law. “Custom is to society
what law is to the State. Each is the expression and realization, to the measure of
men's insight and ability, of the principles of right and justice.” When the State takes
up its function of administering justice, it accepts, as true and valid, the rules of right
THE ELEMENTS OF JURISPRUDENCE A-39

already accepted by the society of which it is itself a product, and it finds these
principles already realised in the customs of the realm.

69. Write the Importance of Custom?

Ans. : According to Paton, custom is useful to the law-giver and codifier in
two ways. First ofall, it provides the material out of which the law can be fashioned,
because it usually takes a great deal of intellectual effort to create law de novo.
Secondly, psychologically also, it is easier to secure reverence for a law, if the same
is based on a custom which has immemorially been observed. There is always a
tendency to feel that what has been followed in the past would be a safe guide for the
future.
The role played by custom even today is not totally insignificant. Much of
statute law itself is subject to well-recognised customs to the contrary. Thus, the law
relating to hundies (negotiable instruments in an Indian language) is not governed
by the Indian Negotiable Instruments Act, but by local custom, unless such custom
is expressly excluded by any provision of that Act.

70. Mention the Kinds of Custom.

Ans. : Customs, which have the force of law, are of two kinds, viz., legal and
conventional. Legal custom, in turn, may be general or local.

71. Briefly explain Legal Custom.

Ans. : A legal custom is one which has the force of law, irrespective of any
agreement on the part of those who are bound by it; its legal authority is absolute.
Legal custom is itself of two kinds, it is either general or local.

72. What is (a) General custom, (b) Local custom?

Ans. : (a) General : Where a custom is observed by all the members of a
society, it is general custom.
(b) Local: Where a custom is observed only by residents of particular locality,
it is a local custom. Local custom is one which prevails in some defined locality, and
constitutes a source of a law for that place only. General custom is that which prevails
throughout the country, and constitutes one of the sources of the common law of the
land. The term 'custom' in the narrowest sense means local custom only.
A40
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS
73. What is Conventional custom?
Ans. : A conventional custom (or usage) is one whose authority depends on its
being incorporated, expressly or impliedly, into an agreement between two or more
parties to regulate their mutual relations.
A conventional custom or usage does not exist or arise out of any legal authority
independently possessed by it, but arises out of an agreement between the parties.
74. What are the requisites of a valid Local Custom? (In Brief).
Ans. :: A local custom becomes valid and operates as a source of a law only if
it is reasonable and is of immemorial antiquity having a continuity, is capable of
peaceful enjoyment and is not inconsistent with statute, and is observed as of right.
In other words, to be fully operative as a source of law, a local custom must
satisfy the following seven requirements:
1. Reasonableness
2. Immemorial antiquity
3. Opinio necessitatis
4. Conformity with statute law
5. Conformity with the Common Law
6. Continuity
7. Peaceable enjoyment
75. Explain the term 'Legal Right.
Ans. : The concept of a right is of fundamental significance in modern legal
theory, because one cannot live without rights which are recognised and enforced at
law. Different authors have defined rights in different ways. According to Salmond,
right is an interest, recognised and protected by a rule of Law. It is any interest,
respect for which is a duty, and the disregard of which is a wrong. Thus, a right is
recognised and protected by a rule of legal justice.
According to Austin, a party has a right when another or others are bound or
obliged by law to do or forbear something towards or in regard to him.
According to Holland, a right is the ability possessed by a person to control
other's actions and self-protection, with the help and assistance of the State.
According to Dr. Sethna, a right is any interest, either vested or created under
a law or under a contract.
THE ELEMENTS OF JURISPRUDENCE A 41

76. State the definition of a legal duty.

Ans. : “A duty is an obligatory act; it is an act the opposite of which would be
a wrong. Duties and wrongs are co-relative. The commission of a wrong is the breach
of a duty, and the performance of a duty is the avoidance of a wrong”. (Salmond)
77. What are the Characteristics of a 'Legal Right.
Ans. : Every legal right possesses the following five characteristics:
1. There is a person who is the owner of the right. He is the subject of the
legal right, sometimes also described as the person of inherence.
The owner of a right need not be a determinate or fixed person. When an
individual owes a duty towards society at large, it can be said that an
indeterminate body, i.e., the society at large is the subject of inherence.
Similarly, in the case of a bequest to an unborn person, the owner of the
right is an unborn child, i.e., an unascertained person.
2. A legal right accrues against another person or persons, who are under a
corresponding duty to respect that right. Such a person is called the person
of incidence or the subject of the duty.
Thus, if A has a particular right against B, A would be the person of
inherence, and B the subject of incidence.
3. Next is the content or substance of the legal right. It may be an act which
the subject of incidence is bound to do or it may be a forbearance on his
part.

4. Then, there is the object of the right. This is the thing over which the right
is exercised. This may also be called the subject-matter of the right.
5. Lastly, there is the title to the right, i.e., the facts showing how the right
vested in the owner of the right. This may be by purchase, gift, inheritance,
assignment, prescription, etc.
78. Explain in detail the kinds of Legal Rights with reference to their
objects.

Ans. : The following are the sì chief kinds of legal rights with reference to
their objects:
1. Rights over material things : Thus, one has rights over one's house, books,
car, furniture, etc.
A-42
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS
2. Rights in respect of one's own person : Thus, one's rights not to be
assaulted or falsely imprisoned by anybody are rights in respect of one's person.
3. The right of reputation : Every person has a right not to be defamed by
another, either by libel or slander.
4. Rights in respect of domestic relations : These include marital rights,
parental rights and a master's rights over his servant.
ПА
Violation of marital rights can take place in three ways :
(i) Abduction, or taking away a man's wife.
(ii) Adultery, or sexual intercourse by a man with the wife of another man.
(iii) Causing physical injuries to the wife.
Violation of parental rights consists in the seduction of a person's daughter or
child.

Lastly, a master's rights over his servant are violated by anyone who deprives
him of the services of his servant by
(i) injuring or imprisoning him so as to prevent performance of his services;
or

(ii) inducing the servant to leave the master's service wrongfully; or

(iii) harbouring a servant who has left his service wrongfully, i.e., before the
expiration of the stipulated period.
In addition to the above, a master may sue for loss of service caused by the
seduction of a female servant. The relationship of master and servant must exis
both at the time of seduction and at the time of the illness causing the loss of service
5. Rights in respect of other rights : In many cases, a right has another righ
as its subject-matter. Thus, by a contract for sale, the buyer acquires a right to th
right of ownership over the object of the sale.
6. Rights over immaterial property : Examples of rights over immateria
property are patent rights, copy-rights, trade marks and commercial goodwill.
79. Define power.
Ans.: A power may be defined as an ability conferred upon a person by th
law to alter, by his own will directed to that end, the rights, duties, liabilities or oth
legal relations, either of himself or of other persons.
 THE ELEMENTS OF JURISPRUDENCE A-43

80. Define 'immunity'.

Ans. : According to Paton, immunity is a freedom on the part of one person
against having a legal relation altered by a given act or omission on the part of
another person. Thus, immunity is the advantage conferred by the absence of legal
powers in other persons.

81. What are the kinds of Civil Rights?

Ans. : Civil rights are of two kinds — primary and sanctioning. The object of
a civil (not ‘criminal) proceeding is the enforcement of the plaintiff's right. The
right so enforced is either primary or sanctioning. A sanctioning right is one which
arises out of the violation of another right; all others are primary.
It is, however sometimes not possible for the law to enforce the primary right.
At other times, this may be possible, but not expedient.

82. What is the purpose of sanctioning rights?

Ans. : The purpose of sanctioning right can be (1) penal action, i.e., the
imposition of a pecuniary penalty upon the defendant for the wrong which he has
committed, or (2) restitution and penal redress, i.e., grant of pecuniary compensation
to the plaintiff in respect of the damage which he has suffered from the defendant's
wrong-doing

83. What is Penal Action.

Ans. : Penal action does not mean “criminal prosecution'. It means a civil
action in which the defendant is made to pay a penalty. The law often creates and
enforces a sanctioning right which has in it no element of compensation to the person
injured, but is intended solely as a punishment for the wrong-doer. Such an action is
called a penal action as being brought for the recovery of a penalty. But it is
nonetheless a purely civil proceeding, and not a criminal proceeding.
84. What is meant by Restitution and Penal Redress?
Ans. : The second form of sanctioning right is the right to pecuniary
compensation or damages. Such compensation is divided into two kinds, restitution
and penal redress. The distinction between restitution and penal redress is the
following : In restitution, the defendant is compelled to give up the pecuniary value
of some benefit which he has wrongfully obtained at the expense of the plaintiff; he
A-44
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

has to restore the plaintiff to his original position (status quo). Thus, if a defendant
has made profits by infringing the plaintiff's trade mark, he must compensate the
plaintiff by handing over all the profits made by him as a result of such infringement.
In penal redress, the defendant has to restore all the benefits derived from his
wrongful conduct in addition to a full redress for the loss of the plaintiff. In such
cases, the defendant may have to pay much more than what he gained by his wrongful
conduct.

85. What is perfect right?

Ans. : A perfect right is one which corresponds to a perfect duty; and a perfect
:

duty is one which is not merely recognised, but also enforced by the law. A duty is
enforceable when an action (i.e., a suit) or other legal proceeding will lie for its
breach. In other words, a perfect right is enforceable in law. An imperfect right is
not.

86. Differentiate between Proprietary Rights and Personal Rights.

Ans. :

Proprietary Rights Personal Rights

1. They can be valued in terms of 1. They cannot be so valued.
money.

2. The are elements of a man's 2. They are elements of a man's

wealth. well-being.
3. They are inheritable. 3. They are not inheritable.
4. They are more permanent. 4. They are less permanent.

87. What are inheri-table and uniheri-table rights?

Ans.: A right is inheritable if it survives its owner; it is uninheritable if it dies
with him. Proprietary rights are inheritable, while personal rights are uninheritable.
In other words, the heirs of a proprietary owner become owners after his death,
which cannot be the case with personal rights, which die with the owner.
88. What are principal and accessary rights?
Ans. : A principal right is the main or primary right vested in a person under
the law. An accessory right is secondary right which is connected to, or arises out of,
THE ELEMENTS OF JURISPRUDENCE A-45

the principal right. Thus, the right of a person who has bought a tree is a principal
right, but the right to enjoy the fruits of the tree is an accessory right which flows
from the principal right.
89. Distinguish between Positive Right and Negative Right.
Ans. :

Positive right Negative right

1. Corresponds to a positive duty. 1. Corresponds to a negative duty.
2. Content : positive act. 2. Content : forbearance or
nondoing.
3. Entitles the owner to an alteration 3. It maintains the present position
of the present position to his of things.
advantage.
4. Aim is positive benefit. 4. Aim is not to be harmed.
5. Is a right to receive something 5. Is a right to retain what one
more than one already has. already has.
6. Requires the active assistance of 6. Requires only passive acquies
other persons. cence of other persons.
7. Mediate and indirect relation to 7. Immediate relation to the other.
the object.

90. What are Legal and Equitable Rights?

Ans. : Legal rights are those which were recognised by the Courts of Common
Law. Equitable rights (also called equities) are those which were recognised solely
in the Court of Chancery.
91. What is a right in rem? Give an example.
Ans. : A right in rem is one which is available against the whole world.
A right in rem is a right vested in some determinate person (either personally
or as a member of the community) and available against the world at large. Thus X's
rights not to be defamed or assaulted are rights available against the whole world.
Such rights are rights in rem. Their number is countless. Thus, the right to freedom
of person, ownership and possession of property, the right to reputation, the right to
copyright and trade-marks are all instances of rights in rem.
 MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS
A-46

92. What are rights in personam? Give examples.

Ans. : A right in personam is one which is available against a particular
individual only. In personal rights, it is the personal relation that is the predominant
factor, and therefore, such rights are called jus in personam.
A right in personam is a right available only against some determinate person
or body, and in which the community at large has no concern. Thus, X agrees to sell
his house to Y for a certain sum. X does not carry out the contract. Y will thereupon
have a right to sue X for damages for breach of contract. Here, the mutual right of X
and Y are created by their private mutual agreement. These rights are personal to
both. Third parties are not concerned with them. Such rights are, therefore, called
rights in personam, i.e., personal rights, as opposed to general rights.
93. Define “Ownership”.
Ans. : Ownership is the relation between a person and any right that is vested
in him. That which a man owns is, in all cases, a right.
According to Salmond, “ownership denotes the relation between a person and
an object forming the subject-matter of his ownership. It consists in a complex of
rights, all of which are rights in rem, being good against all the world, and not merely
against some persons”.

94. Describe briefly the different kinds of ownership.

Ans. : The six essential characteristics or incidents of ownership can be summed
up as follows:
(1) The owner has a right to possess the thing which he owns. It is immaterial
whether he has actual possession of it or not, as long as he has a right to such
possession.

(2) Generally, the owner has the right to use and enjoy the thing owned. Although
this is commonly called a right to possess and use such thing, as Salmond points
out, these rights are, in fact, liberties. The owner has actually a liberty to use the
things, i.e., he is under no duty not to use it, whereas others are under a duty not
to use it or otherwise interfere with it.
(3) Thirdly, the owner has the right to exhaust the thing while using it, if the nature
of the thing owned is such.
THE ELEMENTS OF JURISPRUDENCE A-47

(4) Generally, the owner has the right to destroy or alienate the thing he owns.
Thus, a man can effectively dispose of his property by a conveyance during his
life-time or by will after his death. This is a general right, though in some cases,
such a right may be restricted by law.
(5) Another important characteristic of ownership is that it is indeterminate in
duration. Those who are not owners may be entitled to possess or use a thing,
but the period for which they are so entitled is of a limited duration. In the case
of an owner, it is of an indeterminate duration.
(6) Lastly, ownership has a residuary character. It is possible that an owner has
parted with several rights in respect of the thing owned. Nevertheless, he
continues to be the owner of the thing in view of the residuary character of
ownership

95. Explain the concept Ownership and Possession.

Ans. : Ownership, as a legal concept, has to be distinguished from the concept
of possession.Possession is the de facto relation of continuing exercise and enjoyment,
whereas ownership is the de jure relation between a person and a right. One may
possess a thing without owning it, and he may own it without possessing it.
Sometimes, he may both own and possess it.

96. What is the subject matter of ownership?

Ans. : The primary subject matter of ownership consists of material objects,
like land and chattels. However, a man's wealth may also consist of other things, as
for example, interests in the land of other people, debts due to him by his debtors,
shares in the companies, patents, copyrights, etc.

97. Differentiate between Trust and Agency,

Ans. :

Trust Agency

1. A bona fide purchaser from a trustee 1. A bona fide purchaser from an agent
gets a good title. acting outside the sphere of his
authority gets no title.
2. An agent is not personally liable, as 2. A trustee is personally liable on all
his contracts are entered into on contracts entered into by him.
behalf of the principal.
A-48

MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

3. A trustee derives his authority from 3. The agent derives his authority from
the Trust Deed, and the wishes of the the principal.
beneficiaries have nothing to do with
it.

4. A beneficiary can follow the trust 4. The principal can also follow the
property in the hands of the trustee. property in the hands of his agent, but
this right is not derived from any trust
relationship
5. A trust arises when one person holds 5. Agency arises from a contract and
property which he ought to employ property may not be involved at all.
for the benefit of another person.
98. What is ‘Vested' and 'Contingent' Ownership?
Ans. : Ownership is either vested or contingent. It is vested when the owner's
title is already perfect; it is contingent when his title is imperfect, but is capable of
being perfect on the fulfilment of some condition. In the former case, he owns the
right absolutely; in the latter, he owns it only conditionally.
99. What is Vested Interest?
Ans. : An interest is said to be vested, when it is not subject to any condition
precedent, or when it is to take effect on the happening of an event which is certain.
A person takes a vested interest in property when he acquires a proprietary right in it,
but the right of enjoyment is only deferred till a future event happens, which event is
certain to happen.

100. What is Contingent Interest?

Ans. : Where, on a transfer ofproperty, an interest therein is created in favour
of a person to take effect only on the happening or not happening, of a specified
uncertain event (i.e., an event which may or may not happen) — such a person acquires
thereby a contingent interest in the property.
101. Write the main Features of a Contingent Interest.
Ans. : The following are three main features of a contingent interest:
1. A contingent interest is solely dependent upon the fulfilment of a condition,
sothrough
that in case of non-fulfilment of the condition, the interest may fall
THE ELEMENTS OF JURISPRUDENCE A-49

2. If the transferee dies before obtaining possession, the contingent interest

fails, and the property then reverts to the transferor.
3. It is neither transferable nor heritable.
102. Difference between Vested Interest and Contingent Interest.
Ans. :

Vested Interest Contingent Interest

1. Definition : Where, on a transfer of property, an interest therein is created in
favour a person
(a) without specifying the time when it (a) to take effect only on the happening
is to take effect; or of a specified uncertain event, or
(b) specifying that it is to take effect | (b) if a specified uncertain event shall
forthwith; or not happen, — such person thereby
(c) on the happening of an event which acquires a contingent interest in the
must happen, such interest is property.
vested.

2. Fulfilment of condition

A vested interest does not depend A contingent interest is solely

upon the fulfilment of any condition; dependent upon the fulfilment of the
it creates an immediate right, though condition, so that if the condition is
the enjoyment may be postponed to not fulfilled, the interest may fall
a future date. through
3. Effect of transferee's death
A vested interest is not defeated by A contingent interest cannot take
the death of transferee before he effect in the event of transferee's
obtains possession death before the fulfilment of the
condition.

4. Whether transferable and heritable

(a) A vested interest is both transferable |(a) A contingent interest is neither
as well as heritable. transferable nor heritable.
Contd.
 MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS
ofthe transfere of a rested interest (b) If the transferee of a contingent in
dies before actual enjoyment, it terest dies before actual enjoyment,
passes on to his heirs. the interest does not pass on to his
heirs, because such an interest is in
alienable and incapable ofdescend
ing to his heirs.
. Present right of enjoyment
In a rested interest, there is apresent In a contingent interest, there is no
immediaie right, even when its present right; there is a mere promise
enjoyment is postponed. for giving such right, and such
promise may be nullified by the
failure of the condition.

103. Explain Condition Precedent.

Ans. : A condition precedent is one which delays the vesting of a right until
the happening of an event. Thus, a gift of a house may be made to A,provided he
passes the law examination. Till A passes the exam, the gift does not take effect.
104. What is Condition Subsequent?
Ans. : A condition subsequent, also called a condition of defeasance, is one
which destroys or divests the right upon the happening of an event.
105. Explain Condition Limitation.
Ans. : A conditional limitation is a combination of a condition precedent and
a condition subsequent; it is one containing a condition which (i) divests an estate
that has vested, and (ii) vests it in another person. As regards the prior interest, it is
a condition subsequent; but as regards the ulterior interest, it is a condition precedent.
106. Write the Characteristics of a Condition Precedent.
Ans. : Characteristics of a Condition Precedent are four, namely:
1. A condition precedent is one which must happen before the estate can
vest.

2.
Where the condition is precedent, the estate is not in the grantee until the
condition is performed.
THE ELEMENTS OF JURISPRUDENCE A 51

3. In the case of a condition precedent being or becoming impossible to be

performed or being immoral or opposed to public policy, the estate will
not vest, and the transfer will be void.
4. A condition precedent is deemed to be fulfilled if it is substantially
complied with.

107. State the Characteristics of a Condition Subsequent.

Ans. : Characteristics of a Condition Subsequent are four, namely:
1. A condition subsequent is one by the happening of which an existing
estate will be defeated.
2. Where the condition is subsequent, the estate immediately vests in the
grantee, and remains in him till the condition is broken.
3. In the case of an impossible, unlawful or immoral condition subsequent,
the estate becomes absolute, and the condition is to be ignored.
4. A condition subsequent has to be strictly complied with.

108. What are the differences between Condition Precedent and Condition
Subsequent
Ans. :

Condition precednet Conditon subsequent

1. As to vesting of estate —
(a) Precedes the vesting, i.e., the (a) Follows the vesting, i.e., the interest
condition comes before the creation is created before the condition can
of the interest. operate and divest it.
(b) Vesting of estate is postponed till the (b) Vesting is complete and not
performance of the condition. postponed
(c) Interest once vested can never be (c) Interest, even though vested, is liable
divested by reason ofnon-fulfilment to be divested by reason of the
of the condition. nonfulfilment of the condition.
(d) Estate is not in the grantee until the d)
( Estate immediately vests in the
condition is performed. grantee and remains in him till the
condition is broken.
A52
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

2. Where the condition is (i) impossible of performance, or (ii) immoral, or

(iii) opposed to public policy —
transfer will be void transfer becomes absolute and the
condition will be ignored.
3. Validit: of condition
Must be valid in law Need not be so, as an invalid or
illegal condition subsequent will be
ignored
4. Applicability of the doctrine of cy-pres
It is fulfilled if it is substantially Must be strictly fulfilled (i, e., the cy
complied with (ie, the doctrine of pres doctrine does not apply).
cy-pres applies).

109. What is “animus possidendi” ?

Ans. : Animus possidendi or the subjective element is the intent to appropriate
to oneself, the exclusive use of the thing possessed. It is an exclusive claim to a
material object. It is the intention of using the thing oneself and of excluding the
interference of other persons.
110. Write a short note on : Kinds of mediate possession.
Ans. : Mediate possession is of three kinds:
(a) The first is that which one acquires through an agent or servant, that is to
say, through some one who holds solely on one's account, and claims no
interest of his own.

(b) The second kind of mediate possession is that in which the direct
possession is with a person who holds the thing possessed, both on his
own account, and also on someone else's account, but who also recognises
the owner's superior right to obtain from him the direct possession
whenever the latter chooses to demand it. This is the case of a borrower,
hirer or tenant-at-will.
(C) The third form of mediate possession is the case in which the immediate
possession is with a person who claims it for him until some time has
elapsed or some condition has been fufilled. Securities are instances of
this type of mediate possession.
THE ELEMENTS OF JURISPRUDENCE A-53

111. Write a short note on : Modes of acquisition of possession.

Ans. : There are two modes of acquiring possession, namely, taking and
delivery
1. Taking : Taking is the acquisition of possession without the consent of the
previous possessor. Such taking may be either rightful or wrongful.
2. Delivery : Delivery is the acquisition of possession with the consent and
cooperation of the previous possessor. It may be actual or constructive.
(a) Actual delivery is the transfer of immediate possession. It is of two kinds,
according as the mediate possession is or is not retained by the transferor.
(b) Constructive delivery is that which is not actual. It is of three kinds. The
first consists in the surrender of the mediate possession of a thing to him
who is already in immediate possession of it.
112. Explain Adverse Possession.
Ans. : Adverse possession means the possession of a person whereby he claims
an exclusive right to the land of another person. Thus, if X has openly enjoyed an
unbroken possession of Y's land for a continuous period of twelve years or more, X
gets a good title to Y's land. In such a case, the true owner's title is extinguished by
the possessor, who has exercised adverse possession for the required period of time.
113. Write a short note on : Title.
Ans. : Every right involves a title or source from which it is derived. The title
is the de facto antecedent of which the right is the de jure consequent.
Now, titles are of two kinds : original or derivative. Original titles are those
that create a right de novo (i.e., for the first time), whereas derivative titles are those
that transfer an existing right to a new owner. Thus, a fisherman catching fish is an
instance of an original title of the right of ownership, as before him, the right did not
exist in anyone else. However, when the fisherman sells such fish, the buyer acquires
a derivative title.In legal theory, no new right is created. That right which is acquired
by the purchaser is identical to the one lost by the fisherman, the vendor.
Facts establishing title are of three kinds : 1. Vestitive, 2. Investitive, and 3.
Divestitive.
A-54
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

114. Define Vestitive Fact.

Ans. : A vestitive fact is one which determines positively or negatively, the
vesting of a right in its owner. It is one which either creates or destroys or transfers
rights

115. Define “Obligation”.

Ans. : According to Holland, an obligation is a tie, whereby one person is
bound to perform some act for the benefit of another. Salmond defines it as “a
proprietary right in personam or a duty which corresponds to such a right”.
116. What are the kinds of obligations?
Ans. : The main kinds of obligations are
1. Contractual
2. Delictal

3. Quasi-contractual

117. Mention the Types of Quasi-Contracts.

Ans. : The following five types of quasi-contracts are recognized by the Indian
Contract Act:
1. Claim for necessaries supplied to person incapable of contracting, or on
his account.
2. Reimbursement of person paying money due by another in payment of
which he is interested.

3. Obligation of person enjoying benefit of non-gratuitous act.

4. Liability of person to whom money is paid, or thing delivered, by mistake
or under coercion.
5. Rights and liabilities of a finder of goods.

118. What is solidary obligation?

Ans. : The normal type of obligation is that in which there is one creditor and
one debtor. It often happens, however, that there are two or more creditors, entitled
to the same obligation, or two or more debtors under the same liability. Such an
obligation is known as “solidary'
THE ELEMENTS OF JURISPRUDENCE A-55

119. What are the different kinds of Legal Person.

Ans. : Legal personality is divided into three varieties, by reference to the
different kinds of things which the law selects for personification:
1. Corporation : The first class consists of corporations.A corporation is a
group or series of persons which, by a legal fiction, is regarded and treated
as a person.
2. Institution : The second class is that in which the object selected for
personification is not a group or series of persons, but an institution, for
example, a church or university.
3. Fund or Estate : The third class is where the corpus is some fund or
estate devoted to special uses—a charitable fund, for example, or a trust
estate.

120. State two kinds of Corporation?

Ans. : Corporations are of two kinds :
Corporations aggregate and corporation sole.
121. State the main theories of Corporation.
Ans. : There are many theories relating to the legal personality of a corporation,
the main three being the following:
1. The fictitious theory
2. The realistic theory
3. The bracket theory or the symbolist theory.
122. What are the modes of acquiring property?
Ans. : Of the various existing modes of acquiring property, the following four
are of primary importance : 1. Possession; 2. Prescription; 3. Agreement; and
4. Inheritance.

123. What are the two elements of possession?

Ans. : By possessing a material object, the owner may acquire a legal title to it
in two ways, — by occupation or by possessory ownership.
A-56
MULTIPLE CHOICE QUESTIONS & DESCRIPTIVE QUESTIONS WITH ANSWERS

124. Define jus re aliena or encumbrance.

Ans. : A jus re aliena or encumbrance is a right which limits or derogates
from some more general right belonging to some other person in respect of the subject
matter.

125. Name the kinds of encumbrances.

Ans. : The following are the four main kinds of encumbrances :
1. Leases,
2. Servitudes,

3. Securities, and
4. Trusts.

126. What is "servitude”.

Ans. : A servitude is the form of encumbrance which consists of a right to the
limited use of a piece of land without the possession of such land, as for instance, a
right of way over it.
A servitude, therefore, is a right to the limited use of a piece of land,
unaccompanied either by the ownership or by the possession of such land, as for
example, a right of way, or a right to the passage of light or water across adjoining
land.

127. Define “security”.

Ans. : A security is an encumbrance vested in a creditor over the property of
his debtor for the purpose of securing the recovery of the debt, a right for example,
to retain possession of a chattel until the debt is paid. Security on immovable property
is called a “mortgage'; one created on, movable property is called a 'pledge’.
128. State the Difference between Mortgage and Lien.
Ans. :

Mortgage Lien

1. It is an independent and principal 1. It is only a security for a debt; i.e., a

right, and not a mere security. right to retain possession of a chattel
until payment or right to receive
payment out of a certain fund.
THE ELEMENTS OF JURISPRUDENCE A-57

2. Right of a mortgagee is vested in him | 2. Right of the person who exercises a

conditionally and by way of security lien is vested in him absolutely, and
only. not merely as security.
3. It is created either by transfer or by | 3. It is created by way of encumbrance
encumbrance. only.
4. Right of redemption is an infallible 4. There is nothing to ‘redeem'. It is
test of a mortgage. merely the shadow of the debt cast
on the property.
5. Encumbrance is created indepen- 5. Its duration is dependent on and
dently of the debt. coincident with the debt secured, e.g.,
pledge, vendor's lien.
6. In a mortgage by way of transfer, the 6. A lien leaves the full legal and
debtor is the beneficial or equitable equitable ownership in the debtor, but
owner. The right to reconveyance is vests in the creditor such rights and
more than a personal right of the powers (e.g., sale, possession, etc.)
debtor.
as are required according to the
nature of the subject-matter, to give
the creditor sufficient protection.
7. There is a double ownership of the | 7. Lien lapses ipso jure with the
mortgaged property, the mortgagee discharge of the debt secured.
being merely a trustee for the Mortgage Lien
morgagor on the extinction of the
debt.