LL.B. I Term

1 I Term LB-101 - Jurisprudence-I (Legal Method, Indian Legal System and Basic Theories of Law) Cases Selected and Edited by Mahavir Singh Alka Chawla Anumeha Mishra Amrendra K. Ajit Anita Yadav Ashish Kumar Archa Vashistha Apanjot Kaur Ashutosh Acharya Ajay Sonawane Daya Devi Gurpreet Singh Harleen Kaur Kailash Kurmi Santosh Upadhyay Shakti K Aggarwal Shourie Anand Pushkar Anand Rubina Grewal Nagra Upendra Nath Silky Mukherjee FACULTY OF LAW UNIVERSITY OF DELHI, DELHI- 110 007 JULY, 2020 (For private use only in the course of instruction) ii Course Name: Jurisprudence- I (Legal Method) Course Code: LB-101 Course Objectives: To give an overview to the students about law and legal systems prevalent in the world and India in particular, so that they can understand the jurisprudence of all subjects taught to them over a span of three years. To learn the jurisprudential basis of various concepts which are continuously being dealt within law in all manifestations.

2 To sensitize the students to adopt a pragmatic approach in studying all the subjects in the six semesters by teaching them how to read cases and ways to club theory with practice. It is a subject which forms the foundation of the law degree. To make the students trace the evolution of law and legal systems in different countries. To familiarize the students with linkage of law with other social science such as psychology, history sociology, economics history etc. To familiarize the students with the growth of legal profession in India and the laws governing the profession. Learning Outcomes Students will be acquainted with the basic ideas and fundamental principles of Law in the given society. Knowledge of Law and Legal precepts will help the students to face exigencies of life boldly and courageously. Students will be inculcated with standards of ideal for human conduct in terms of law for the maintenance of Public conscience.

3 Students will be able to identify such pressing demand or problems which require solution within the parameters of the law, justice and other social norms. Course Content: 1 a. Major Legal Systems Of The World b. Indian Legal System (i) Madhava Menon, Our Legal System 01 (ii) Rene David & Brierley, Major Legal Systems in the World Today 17-31, 484-515 3rd ed. 1985 08 (iii) Joseph Minatur, Indian Legal System, Introduction vii-xiv (2nd ed. 2006) 14 2. Structure Of Indian Legal System, Basic Principles Of Law And Rule Of Law (I) Hierarchy Of Courts And Jurisdiction 19 (Ii) Legal Services And Lok Adalat 22 (Iii) Dicey s Rule Of Law. 38 (Iv) Doctrine Of Separation Of Powers And Its Applicability In India 45 (V) Method Of Legal Study And Rules Of Interpretation Glanville Williams, Learning The Law, Chapter 7, The Interpretation Of Statutes pp.

4 97-108 (11th ed., 12th Indian Reprint 2006) 49 3. A. Sources Of Law a. Custom b. Legislation c. Precedent B. Legal Profession In India (i) Jain, Custom As A Source Of Law In India , 3 Jaipur Law Journal 96 (1963) 56 (ii) Dias, Jurisprudence, Chapter 7, Justice In Deciding Disputes pp. 126-164 (Ed. 5, 2013) 78 iv (iii) Glanville Williams, Learning The Law, Chapter 6, Learning The Techniques PP. 67-79 (11th Ed.,12th Indian Reprint 2006) 106 (iv) Advocates Act, 1961 Veera Raghavan, Legal Profession And The Advocates Act, 1961, 14 Journal Of The Indian Law Institute pp. 228-262 (1972) 114 4. Positive/Analytical School Of Thought John Austin, Province Of Jurisprudence Determined 128 Hart, Concept Of Law, Law As The Union Of Primary And Secondary Rules And The Foundation Of A Legal System.

5 155 and 168 5. Hans kelsen , Pure Theory Of Law 175 6. Historical And Sociological School Of Thought 208 Karl Von Savigny Roscoe Pound 221 7. Judicial Process Applying Theories Of Law, Lon. L. Fuller, The Case Of Speluncean Explore , 62 Harvard Law Review 616-664 (1949). 227 8. Rights And Duties Dias, Jurisprudence, Concept Of Rights And Duties: Jurisprudential Analysis. 247 IMPORTANT NOTE: 1. The topics, cases and suggested readings given above are not exhaustive. The Committee of teachers teaching the Course shall be at liberty to revise the topics/case/suggested readings. 2. Students are required to study/refer to the legislations as amended from time to time, and consult the latest editions of books. ** Questions to Ponder Unit 1 1. Discuss the major legal systems of the world and their impact on development of India s legal system?

6 2. What are the major components of Indian Legal System? Unit 2 1. Discuss the importance of Legal Aid and Lok Adalat as a means of providing easy access to Justice. 2. To what extent Dicey, writing in Introduction to the Study of Law of the Constitution (1885) has been influential in establishing the rule of law within the 19th century? Is application of rule of law a myth or reality in India? 3. Elaborate various rules of interpretation of the statues. 4. How does the system of checks and balances reinforce the separation of powers? Discuss the application of theory of separation of powers in India. 5. Explain the hierarchy of Court System in India and their Jurisdiction . Unit 3 1. Briefly discuss the objectives and the main features of The Advocates Act, 1961. Unit 4 1. Critically examine Austin s view on Sovereignty. How is a sovereign identified in the command theory of law?

7 Also discuss the existence of a sovereign as a postulate in the current scenario in India. vi 2. Not all laws are expression of a wish by a sovereign, that some others behave in a certain way. In the light of the given statement discuss Hart s Concept of Law . How does he define the two types of Rules and what is the difference between the two rules? Unit 5 1. What is role of sanctions in kelsen s legal order? Does it differ from Austin s idea of sanctions? 2. Can we locate a grundnorm in the Indian Legal System? 3. Are there any similarities and/or differences between HLA Hart s Rule of Recognition and kelsen s grundnorm ? Unit 6 1. Why did Savigny argue that legislation was subordinate to custom? Does Savigny s approach towards custom differ from the approach of positivists like Austin and Hart? 2. How far is the concept of Volksgeist relevant in contemporary legal discourse?

8 3. Does Pound s sociological jurisprudence challenge the idea of law propounded by the Positivists ? Unit 7 1. The Speluncean Explorer's case provides a window to look into the process of judicial decision making, use any of the two given doctrines to show how the judges differed from each other in either reasoning or decision making while deciding the fate of the explorers. a) doctrine of separation of powers and the morality of legalism. b) varying rules of interpretation. c) Judges of the Supreme Court are to provide justice to the people and not merely provide judgement applying the law of the land in the given situation. Unit 8 1. How does Hohfeld s jural relations help in judicial reasoning and decision? 2. Is it possible to state legal problems with the help of Hohfeld s eight fundamental conceptions? Explain these conceptions with the aid of examples.

9 Major Legal Systems in the World Today 1 Our Legal System ( Madhava Menon) The legal system of a country is part of its social system and reflects the social, political, and cultural characteristics of that society. It is, therefore, difficult to understand the legal system outside the socio-cultural milieu in which it operates. It is true in the case of India also even though the legal system we now have is largely the gift of the British rulers. There is a view that the system is still alien to the majority of Indians whose legal culture is more indigenous and whose contact with the formal legal system (the imported British model) is marginal if not altogether non-existent. The language, technicality and procedure of the inherited legal system are indeed factors which limit access to justice for the illiterate, impoverished masses of our country.

10 Nevertheless, the rights and benefits conferred by the laws and the Constitution offer the opportunity for those very people to enjoy the fruits of a welfare democracy which the people of India have given unto themselves on the 26th January 1950. It is in this context familiarity with law and its processes becomes essential to every Indian, rich or poor, man or woman, young or old. Components of a Legal System A legal system consists of certain basic principles and values (largely outlined by the Constitution), a set of operational norms including rights and duties of citizens spelt out in laws -Central, State and local, institutional structures for enforcement of the laws and a cadre of legal personnel endowed with the responsibility of administering the system. The Constitution: The Fundamental Law of the Land The Constitution of a country is variously described depending upon the nature of the policy and the aspirations of the people in a given society.