CLAT PG Jurisprudence And Legal Theory Flashcards

24 sample cards from the Jurisprudence And Legal Theory deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What is possession in jurisprudence and its two elements?

   Possession is the de facto exercise/control of a claim over a thing. Its two elements are corpus possessionis (physical control/custody of the object) and animus possidendi (the intention to hold and exclude others). Both are generally required for legal possession.

2. What is the key distinction between ownership and possession?

   Ownership is the de jure (rightful, legal) relation/title to a thing; possession is the de facto (factual) control over it. Ownership is the right; possession is the fact. One may possess without owning (e.g., a thief) and own without possessing (e.g., a lessor).

3. Distinguish corporeal from incorporeal possession (and the maxim that links possession to ownership).

   Corporeal possession is possession of a material/tangible object; incorporeal possession is of rights/intangibles (e.g., a right of way). The connected maxim: 'possession is nine points of the law' and possession is prima facie evidence of ownership; long adverse possession can ripen into ownership (prescription).

4. What is a 'person' in jurisprudence, and the two kinds of persons?

   A person is any entity recognized by law as capable of holding rights and bearing duties (a subject of legal rights and duties). The two kinds are natural persons (human beings) and legal/juristic/artificial persons (e.g., corporations, companies, idols, states).

5. What is legal (juristic) personality and give examples of legal persons?

   Legal personality is the attribution by law of rights and duties to an entity, treating it as a person capable of suing and being sued. Examples: companies/corporations, registered societies, the State, municipalities, Hindu idols and trusts, and ships (in some contexts).

6. What are the main theories of corporate/juristic personality?

   Fiction Theory (Savigny — corporate personality is a legal fiction), Concession Theory (personality is a concession from the State), Realist/Organic Theory (Gierke — group has a real personality/will), Bracket (Symbolist) Theory (Ihering — name is a bracket for members), and Purpose Theory (rights without a subject, for a purpose).

7. What is the meaning of legal liability?

   Liability is the legal condition of being bound or obliged to answer for a wrong, the bond of necessity that exists between the wrongdoer and the remedy of the wrong. Salmond: liability is the 'vinculum juris' that arises from the commission of a wrong.

8. Distinguish civil liability from criminal liability.

   Civil liability arises from civil wrongs (torts, breach of contract); the remedy is enforcement of a right/compensation, and the proceeding is between private parties. Criminal liability arises from crimes against the State; the remedy is punishment, proof must be beyond reasonable doubt, and the State prosecutes.

9. What are mens rea and actus reus as elements of liability?

   Actus reus is the wrongful/prohibited act or omission (the physical element). Mens rea is the guilty mind/blameworthy mental state (intention, knowledge, recklessness, or negligence). The maxim 'actus non facit reum nisi mens sit rea' requires both for most criminal liability.

10. What is the distinction between absolute/strict liability and fault-based liability?

    Fault-based liability requires a wrongful mental state or negligence. Strict liability imposes liability irrespective of fault/intention (Rylands v. Fletcher — liability for escape of dangerous things). Absolute liability (M.C. Mehta) is strict liability without the exceptions, for hazardous enterprises.

11. What is the difference between a legal obligation and a duty?

    An obligation is a vinculum juris (legal bond) by which one person is bound to perform an act or forbearance for another's benefit — it correlates to a right in personam. A duty is the broader correlative of any right (in rem or in personam); every obligation contains a duty, but not every duty is an obligation.

12. How are obligations classified by their sources (civil law tradition)?

    Obligations ex contractu (arising from contract/agreement), ex delicto (arising from wrongs/torts/delicts), quasi ex contractu (quasi-contract, e.g., unjust enrichment), and quasi ex delicto. Salmond classified obligations as contractual, delictal, quasi-contractual, and innominate.

13. What is the difference between distributive justice and corrective (commutative) justice (Aristotle)?

    Distributive justice concerns the fair allocation of goods, honors, and resources among members of society according to merit/proportion. Corrective (commutative) justice concerns rectifying wrongs in transactions/dealings between individuals, restoring equality by remedying loss regardless of merit.

14. What are the two principles of justice in John Rawls' 'A Theory of Justice'?

    (1) Equal liberty principle: each person has an equal right to the most extensive basic liberties compatible with similar liberty for all. (2) Social/economic inequalities are just only if (a) attached to offices open to all under fair equality of opportunity, and (b) they benefit the least advantaged (the Difference Principle).

15. What are Rawls' 'original position' and 'veil of ignorance'?

    The original position is a hypothetical state in which rational parties choose principles of justice. Behind the veil of ignorance they do not know their own class, talents, gender, or conception of the good, ensuring impartial, fair principles that no one can bias toward themselves.

16. What is Robert Nozick's entitlement theory of justice?

    In 'Anarchy, State and Utopia', a distribution is just if it arises from just acquisition (original holdings), just transfer (voluntary exchange), and rectification of past injustice. Justice is historical/process-based, not patterned; Nozick rejects redistribution by a minimal 'night-watchman' state.

17. What is Amartya Sen's contribution to theories of justice (capabilities approach / 'The Idea of Justice')?

    Sen shifts focus from ideal/just institutions to actual realizations and people's real freedoms — the 'capabilities' to achieve valued functionings. He favors a comparative approach (reducing manifest injustice) over Rawls' transcendental search for perfectly just institutions.

18. What is the central thesis of Critical Legal Studies (CLS)?

    That law is not neutral, objective, or determinate but is politics — it masks and legitimizes existing hierarchies and power relations. CLS emphasizes legal indeterminacy, the law/politics merger, and the contingency of legal doctrine ('trashing' liberal legalism).

19. What does feminist jurisprudence critique, and name its main strands?

    It critiques law's male bias and the subordination of women, exposing how 'neutral' law reflects patriarchal norms. Main strands: liberal/formal-equality feminism, cultural/difference feminism (Gilligan's 'different voice'), radical/dominance feminism (Catharine MacKinnon), and postmodern/intersectional feminism.

20. What is Catharine MacKinnon's 'dominance theory' in feminist jurisprudence?

    That gender is a question of power, not difference: law institutionalizes male dominance and female subordination. The proper question is not whether women are the same as or different from men, but how law perpetuates the systematic subordination of women (e.g., her work on sexual harassment as sex discrimination).

21. What is the central debate in 'Law and Morality', and the key positions?

    Whether law should enforce morality and whether legal validity depends on moral content. Positivists (Hart) separate law from morality (separation thesis); natural lawyers (Fuller, Finnis) link them. The Hart–Devlin debate addressed whether law may enforce private morality.

22. What was the Hart–Devlin debate about?

    Sparked by the Wolfenden Report (decriminalizing private homosexual acts): Lord Devlin argued society may legislate against immorality to preserve its shared moral fabric (legal moralism). Hart, following Mill's harm principle, argued law should not enforce morality merely because it is immoral; only harm to others justifies coercion.

23. What is Mill's 'harm principle' and its relevance to law and morality?

    From 'On Liberty': the only legitimate ground for exercising power over an individual against their will is to prevent harm to others; an individual's own good is not sufficient warrant. It underpins the argument against legally enforcing private morality (the liberal anti-paternalist position).

24. What is the separation thesis versus the natural law overlap thesis?

    Separation thesis (positivism): there is no necessary conceptual connection between law and morality; an immoral rule can still be valid law. Overlap thesis (natural law): law and morality are necessarily connected; a grossly unjust rule fails to be law (lex iniusta non est lex).

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