LLB Examination 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. Distinguish between binding (authoritative) and persuasive precedent.

   Binding precedent must be followed by the court (decisions of higher courts in the same hierarchy); persuasive precedent may be considered but need not be followed (e.g. foreign decisions, obiter, lower court rulings).

2. What is meant by 'distinguishing' a precedent?

   A technique by which a court avoids following a precedent by showing that the material facts of the present case differ from those of the earlier case, so the rule does not apply.

3. What are 'overruling' and 'reversing' of precedents?

   Overruling: a higher court declares a legal principle in an earlier case wrong and no longer law, affecting future cases. Reversing: a higher court sets aside the decision of a lower court in the same case on appeal.

4. What is a precedent 'per incuriam'?

   A decision rendered in ignorance or forgetfulness of a relevant statute or binding authority; such a precedent is not binding and may be disregarded.

5. Define legislation as a source of law.

   Legislation is the making or laying down of legal rules by a competent authority (the legislature/State), expressed in an authoritative written form. It is the most important and direct source of modern law.

6. Distinguish supreme from subordinate legislation.

   Supreme legislation is enacted by the sovereign/supreme legislature and cannot be repealed by any other body; subordinate legislation is made by an authority under powers delegated by the supreme legislature and is subject to its control.

7. Name the main forms of subordinate legislation.

   Colonial, executive, judicial, municipal (local-body), and autonomous (e.g. by universities or corporations) legislation.

8. What is delegated legislation and why is it used?

   Law made by an executive or other body under authority delegated by the legislature (rules, by-laws, orders). Used to save parliamentary time, allow flexibility, handle technical detail, and meet emergencies.

9. Compare legislation and precedent as sources of law.

   Legislation is abstract, prospective, made before disputes, and can create new law; precedent is concrete, retrospective, arises from actual disputes, and develops law gradually within decided cases.

10. Explain 'justice, equity and good conscience' as a source of law.

    Where no statute, custom, or precedent governs a matter, courts may decide according to justice, equity and good conscience — i.e. principles of fairness and reason (in India/Pakistan, often English law principles).

11. Distinguish the two main kinds of justice.

    Distributive justice — fair allocation of benefits, burdens and rights among members of society; Corrective (remedial) justice — restoring the balance disturbed by a wrong, through compensation or punishment.

12. What is equity in the jurisprudential sense?

    Equity is the body of rules and principles, originally developed to mitigate the rigour and harshness of the common law, founded on fairness, conscience and natural justice.

13. Define a legal right.

    A legal right is an interest recognised and protected by law, the violation of which is a legal wrong, and respect for which is a legal duty enforced by the State.

14. State the elements of a legal right (Salmond).

    (1) The person of inherence (subject/owner of the right), (2) the person of incidence (subject of the correlative duty), (3) the content/subject-matter, (4) the object/thing concerned, and (5) the title (facts giving rise to the right).

15. What is the correlation between rights and duties?

    Every right implies a correlative duty in another person, and vice versa; one person's right is matched by another's duty (e.g. my right to property correlates with others' duty not to interfere).

16. Explain the Hohfeldian jural correlatives.

    Hohfeld's correlatives are: right-duty, privilege(liberty)-no-right, power-liability, and immunity-disability. Each legal advantage has a correlative on another person.

17. Distinguish perfect from imperfect rights.

    A perfect right is one recognised and enforceable by law through legal process; an imperfect right is recognised by law but not directly enforceable (e.g. a time-barred debt).

18. Distinguish a right in rem from a right in personam.

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

19. Define ownership.

    Ownership is the complete and ultimate right of a person over a thing — comprising the rights to possess, use, enjoy, manage, exclude others, and dispose of it — recognised and protected by law.

20. Define possession in jurisprudence.

    Possession is the actual physical control or detention of a thing (corpus possessionis) coupled with the intention to hold it as one's own and exclude others (animus possidendi).

21. Distinguish ownership from possession.

    Ownership is the de jure (legal) right to a thing and is permanent; possession is the de facto (physical) control and may be temporary. Owner may not possess, and possessor may not own.

22. What is meant by 'possession is nine points of the law'?

    It expresses that the possessor enjoys a strong presumptive legal advantage — possession is prima facie evidence of ownership, and the law protects a possessor against all but the true owner.

23. Define legal personality and distinguish natural from legal persons.

    Legal personality is the capacity to bear rights and duties recognised by law. A natural person is a human being; a legal (juristic/artificial) person is a non-human entity (e.g. company, corporation, idol, State) treated by law as having rights and duties.

24. What are the main theories of corporate (juristic) personality?

    Fiction theory (Savigny) — corporate personality is a legal fiction; Concession theory — it exists only by State grant; Realist theory (Gierke) — the group has a real will/personality; Bracket (Symbolist) theory; and Purpose theory.

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