CLAT PG Jurisprudence Syllabus

What is the central tenet of the Realist School (Legal Realism)?

Law is what courts and officials actually do in practice, not abstract rules in statute books; emphasis is on the study of law 'in action' and judicial behaviour rather than 'law in books.'

What did Justice Oliver Wendell Holmes mean by his 'prediction theory' of law?

Holmes said: 'The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law' — law is a prediction of how courts will decide.

Distinguish American Realism from Scandinavian Realism.

American Realism (Holmes, Gray, Llewellyn, Frank) is court/judge-centred and empirical, focusing on judicial behaviour. Scandinavian Realism (Hagerstrom, Olivecrona, Ross, Lundstedt) is more philosophical/psychological, treating legal concepts and rights as 'metaphysical' ideas with only psychological force.

What is Jerome Frank's distinction between 'rule skeptics' and 'fact skeptics'?

Rule skeptics doubt that legal rules predict decisions and look to other patterns; fact skeptics (Frank himself) doubt the certainty of fact-finding at the trial level, stressing the unpredictability of how facts are found.

According to John Chipman Gray, what is the role of judges in the realist view?

Gray held that statutes, precedents, and customs are merely 'sources of law'; the law itself consists of the rules laid down by courts in their decisions — judges are the makers of law, not mere discoverers.

What is a legal right according to Salmond, and what are its essential elements?

A legal right is an interest recognized and protected by law. Its elements are: (1) the person of inherence (owner/subject), (2) the person of incidence (bound party), (3) the content/subject-matter, (4) the object/thing, and (5) the title (facts giving rise to it).

Explain Hohfeld's scheme of jural correlatives.

Hohfeld paired legal concepts as correlatives: Right–Duty, Privilege(Liberty)–No-right, Power–Liability, and Immunity–Disability. Each right has a corresponding correlative in another person.

What are Hohfeld's jural opposites?

Right–No-right, Privilege(Liberty)–Duty, Power–Disability, and Immunity–Liability. These are the logical contradictories within Hohfeld's eight fundamental legal conceptions.

Distinguish between a right in rem and a right in personam.

A right in rem is available against the whole world (e.g., ownership), while a right in personam is available against a determinate person or persons (e.g., a contractual right against the other party).

What is the difference between perfect and imperfect rights and between positive and negative duties?

A perfect right is recognized and enforceable by law; an imperfect right is recognized but not enforceable (e.g., a time-barred debt). A positive duty requires a person to do an act; a negative duty requires forbearance from an act.

What is legal personality, and how is a 'person' defined in jurisprudence?

Legal personality is the capacity to bear legal rights and duties. A legal person is any being or entity to whom the law attributes rights and duties — it may be a natural person (human) or a juristic/artificial person (e.g., a company).

Distinguish natural persons from legal (juristic/artificial) persons with examples.

A natural person is a living human being recognized by law. A legal/juristic person is a non-human entity granted personality by law — e.g., companies, corporations, idols, universities, registered societies, and the state.

What are the leading theories of corporate (juristic) personality?

(1) Fiction Theory (Savigny) — personality is a legal fiction; (2) Concession Theory — personality flows from a state grant; (3) Realist/Organic Theory (Gierke) — corporations have a real group will; (4) Bracket/Symbolist Theory (Ihering); (5) Purpose Theory (Brinz).

What is the legal status of an unborn child, a dead person, and animals as legal persons?

An unborn child has limited, contingent personality (can inherit property if born alive). A dead person is generally not a legal person, but the law protects reputation, the body, and the will to a limited extent. Animals are generally not legal persons but are objects of legal protection.

What is meant by 'lifting/piercing the corporate veil'?

It is the judicial disregard of a company's separate legal personality to look at the persons behind it, done to prevent fraud, evasion of law, or improper conduct, holding the real controllers liable.

Define possession and state its two essential elements.

Possession is the continuing exercise of a claim to the exclusive use of a thing. Its two elements are corpus possessionis (physical control of the thing) and animus possidendi (the intention to exclude others / to hold for oneself).

Distinguish between possession in fact (de facto) and possession in law (de jure).

Possession in fact (corporeal/de facto) is actual physical control of a thing. Possession in law (de jure/constructive) is possession recognized and protected by law, which may exist even without immediate physical control.

Define ownership and list its principal characteristics according to Salmond.

Ownership is the relation between a person and a thing involving the complete/ultimate rights over it. Characteristics: right to possess, right to use and enjoy, right to consume/destroy/alienate, indeterminate duration, and residuary character.

What are the main kinds of ownership in jurisprudence?

Corporeal vs incorporeal; sole vs co-ownership; legal vs equitable; vested vs contingent; absolute vs limited; and trust/beneficial ownership.

State the key distinctions between possession and ownership.

Ownership is the de jure (rightful) ultimate relation to a thing; possession is the de facto (actual) control. Ownership is a wider bundle of rights and is permanent; possession is narrower and may be temporary. One may possess without owning and own without possessing; 'possession is nine points of the law.'

Define legal liability and state Salmond's classification of it.

Liability is the bond of necessity that exists between the wrongdoer and the remedy for the wrong — being responsible for a wrong. Salmond classified it into civil liability and criminal liability (and remedial vs penal liability).

Distinguish between civil and criminal liability.

Civil liability arises from breach of a private right and the remedy is enforcement of the right or compensation/damages to the injured party. Criminal liability arises from a public wrong (crime) and the remedy is punishment imposed by the state.

What are the two essential elements of penal/criminal liability expressed in the maxim 'actus non facit reum nisi mens sit rea'?

The maxim means 'an act does not make one guilty unless the mind is also guilty.' The two elements are actus reus (a wrongful/guilty act) and mens rea (a guilty mind/intention).

What is the difference between liability based on fault (subjective) and strict/absolute liability?

Fault-based (subjective) liability requires mens rea or negligence. Strict liability imposes responsibility without fault (e.g., Rylands v. Fletcher, subject to exceptions); absolute liability (M.C. Mehta v. Union of India) imposes liability for hazardous activities with no exceptions.

What is vicarious liability and on what principles does it rest?

Vicarious liability is liability of one person for the wrongful act of another due to their relationship (e.g., master for servant's acts in the course of employment). It rests on the maxims 'qui facit per alium facit per se' and 'respondeat superior.'

What is the central question in the relationship between law and morality?

Whether and to what extent law should enforce morality — the debate over the separation of law (positive rules) from morality (standards of right and wrong) and whether legal validity depends on moral content.

Summarize the Hart–Devlin debate on the enforcement of morality.

Following the Wolfenden Report, Lord Devlin argued that society may legislate to preserve its shared morality (morality as the cement of society). H.L.A. Hart, following J.S. Mill's harm principle, argued the law should not enforce morality merely as such, only to prevent harm to others.

Explain the Hart–Fuller debate on law and morality.

Hart (positivist) argued there is no necessary connection between law and morality — an unjust law is still law. Fuller argued law has an 'inner morality' (procedural principles of legality), so a system grossly failing them is not truly law; this arose over Nazi-era 'grudge informer' cases.

How do natural law and legal positivism differ on the connection between law and morality?

Natural law asserts a necessary connection — an immoral/unjust law is not true law ('lex iniusta non est lex'). Legal positivism asserts the separation thesis — the existence and validity of law is one thing, its moral merit another.

What are the key points of distinction between law and morality?

Law is enforced by the state with external sanctions and governs external conduct; morality relies on conscience/social disapproval and governs internal conduct/motives. Law is certain and uniform; morality is variable. All law is not moral and all morality is not enforced as law, though they overlap.