1. 1 MODERN JURISPRUDENCE STUDY GUIDE FOR LL.B. PART – I Asmatullah Kakar UNIVERSITYLAWCOLLEGE, UNIVERSITYOF BALOCHISTAN, QUETTA 2. 2 COURSE TITLE: MODERN JURISPRUDENCE ACADEMIC YEAR: 2014 STANDARD: LL.B. PART – I RESOURCE PERSON: ASMATULLAH KAKAR LL.M. Previous (First Position) LL.B. (Gold Medal) M.A. Philosophy (Gold Medal) CONTACT: UNIVERSITY LAW COLLEGE, KHOJAK ROAD, QUETTA Email:
[email protected] FACEBOOK ADD: https://www.facebook.com/ulcq.jurisprudence AUTHOR: ASMATULLAH KAKAR 3. 3 FOREWORD Jurisprudence is the study of law in general. It sketches the general picture of all the legal systems of the world by analyzing the common fundamental legal principles. No doubt Jurisprudence is the driest subject in all the three years’ syllabi of LL.B. and is devoid of any practical value and is the most lengthy and tough subject to master. However, it is also an organic fact that if any student gets brilliance in this subject, he can be master of any other subject in law as it is the eye and grammar of law. Since the days when I used to be the student of LL.B. Part – I, jurisprudence was my favorite subject, perhaps due to the reason that I was interested in philosophy and jurisprudence has, in fact, a great deal with philosophy. After being appointed as Lecturer, in 2008, I promptly opted to teach jurisprudence and since then I have been teaching it. My experience as a teacher through the sessions, realized me that majority of the students feel uneasy in studying jurisprudence. My analysis of the problem reveals that it is, in fact, due to the reason that Jurisprudence is an open subject. In other words, it is a subject which cannot be studied on the basis of a single textbook in contrast with the subjects like Law of Contract or Pakistan Penal Code which can be prepared from a single textbook. It is so because Jurisprudence is not concerned with the study of a particular law found in statutes, rather it discusses the essence of all laws scientifically and philosophically. Moreover, the major part of the subject is dedicated to answer the question ‘what is law’? Therefore, the 4. 4 jurists in jurisprudence are having dissenting views which makes jurisprudence a lengthy subject full with doctrines, theories and opinions of jurists. Bearing in mind, the level of the students and the context of the problem I have designed the guide in hand, which may help the students in exploring the ways of how to study jurisprudence and how can it be understood at LL.B. level. This guide has been drafted with utmost care and attention, however, mistakes and errors cannot be avoided for which I apologize in anticipation and request that the same may kindly be brought in my knowledge so that they may not appear in the next edition. Thanking you all. Asmatullah Kakar 5. 5 TABLE OF CONTENTS 1. INTRODUCTION……… …………………………..……………………... 06 2. COURSE OBJECTIVES…………………………………………………… 07 3. COURSE SYLLABI………………………………….……………………...09 4. SUGGESTED BOOKS………………………………………………………10 5. REDESIGNING OF SYALLBUS…………………………………….……..11 6. LECTURES PLAN……………………….………………………………….14 7. STUDY METHOD…………………………….…………………………….16 7.1. CLASS LECTURES…………………………………………………… 16 7.2. TUTORIALS……………………………………….…………………... 16 7.3. ASSIGNMENTS……………………………….………………………. 16 7.4. CLASS PRESENTATIONS…………………………….……………… 17 7.5. CLASS TESTS………………………………………………….……….17 8. ANNUAL EXAMINATIONS……………………………………………..…18 9. MODEL QUESTIONS………………………….…………………………....19 10.INFORMATION AS TO STUDY HANDOUTS…...………………………. 22 6. 6 1. INTRODUCTION Law is a pivotal phenomenon in society. Every second we are having encounters with several provisions of laws, consciously or unconsciously. For example, on way to college you are meeting with traffic laws. If, God forbid, any accident happens, you meet with criminal law of negligent driving and law of torts. While sitting in classroom, you are concerned with UoB and ULC rules. At canteen of the College during break time you are concerned with contract law while buying food and other items. In short law is a continual companion of an individual throughout his life. To enjoy the company of a friend, it is important that you must know his background, his nature, his attitude, his likes and dislikes and everything about him. Jurisprudence is a subject which is acquainting you with your everlasting companion, the law. In this course study you will find out the nature of law, the relation of law and administration of justice, the sources from where the law is coming out, the nature and extent of rights and obligations that law is creating and certain legal phenomenon like possession, ownership, property, person and title. 7. 7 2. COURSE OBJECTIVES The main objective of this Course is to introduce the students with the basic understanding of the most fundamental theories and legal concepts in jurisprudence. At the successful completion of this course the students shall be able to: Understand the meaning of jurisprudence, the dilemma of defining jurisprudence, the definitions offered by eminent jurists and their criticisms, classification of jurisprudence its scope and utility, and the way jurisprudence is related with other social sciences. Have a basic idea of Legal Theory and understand the differences of different legal theories. The students shall also grasp the idea of developing a definition of law in terms of its societal, economic and geographical situation. They shall also understand the classification and hierarchy of laws. Understand the meaning and kinds of administration of justice with special reference to the system of justice applicable in Pakistan. They shall also grasp the philosophy behind punishment in general and idea of punishment applicable in Pakistan in particular. Understand the sources of law and characteristics of law obtained from each source. Have understanding of Legal Rights and Obligations and their characteristics. They shall also be able to distinguish between different kinds of legal rights. 8. 8 Have a basic knowledge as to the Property Law in general and ownership and possession in particular. They shall also be able to differentiate between different kinds of ownership and possession. Understand the meaning and kinds of Persons, particularly of Legal Person and the legal status of different persons. Know what is Title? What facts are creating Title and what facts are destroying it? They shall also be able to assess the practical implementation of the concept. 9. 9 3. COURSE SYLLABUS University Law College (ULC), Quetta is a constituent College of University of Balochistan (UoB), therefore, it is regulated by the rules of UoB, Higher Education Commission (HEC) of Pakistan and Pakistan Bar Council (PBC). The Syllabus including that of Jurisprudence, prevailing in ULC, Quetta, is the one which has been designed by HEC in collaboration with PBC. Following is the syllabus of Jurisprudence, to be taught to the students of LL.B. I. Chapter 1: Jurisprudence as a Science Chapter 2: Nature of Law Chapter 3: Administration of Justice Chapter 4: Sources of Law Chapter 5: Legislation Chapter 6: Precedent Chapter 7: Custom Chapter 8: Legal Rights Chapter 9: Possession Chapter 10: Ownership Chapter 11: Legal Persons Chapter 12: Title 10. 10 4. SUGGESTED BOOKS 1. SALMOND, JOHN W., JURISPRUDENCE, 4TH ED., FORGOTTEN BOOKS, 2013 (ORIGINALLY PUBLISHED BY STEVENS AND HAYNES, LONDON: 1913) 2. FITZGERALD, P.J., SALMOND ON JURISPRUDENCE, 12TH EDITION, REPRINTED BY NATIONAL BOOK FOUNDATION, PAKISTAN, REPRODUCED BY ISTIQLAL PRESS, LAHORE, (ORIGINALLY BY SWEET &MAXWELL, LONDON, 1966) 3. AUSTIN, JOHN, THE PROVINCE OF JURISPRUDENCE DETERMINED, 2ND EDITION 4. HOLLAND, SIR THOMAS E., THE ELEMENTS OF JURISPRUDENCE, 13TH EDITION 5. HART, H.L.A., THE CONCEPT OF LAW, 3RD E.L.B.S. ED., 1975, (ORIGINALLY PUBLISHED BYOXFORD UNIVERSITY PRESS, LONDON: 1961) 6. M.D.A FREEMAN (ED.), LLOYD'S INTRODUCTION TO JURISPRUDENCE, 7TH ED., NATIONAL BOOK FOUNDATION, ISLAMABAD 7. PATON G.W., A TEXTBOOK OF JURISPRUDENCE (4TH ED.1972) OXFORD 8. V.D. MAHAJAN, JURISPRUDENCE AND LEGAL THEORY (2011 RE-PRINT) , EASTERN, LUCKNOW 9. KUMAR, DR. N. KRISHNA, JURISPRUDENCE AND COMPARATIVE LAW, CENTRAL LAW PUBLICATIONS, ALLAHABAD, INDIA, 2007 10.MCCOUBREY, H., THE DEVELOPMENT OF NATURALIST LEGAL THEORY, CROOM HELM (NEW YORK: 1987) 11.COTTERRELL, ROGER, THE POLITICS OF JURISPRUDENCE – A CRITICAL INTRODUCTION TO LEGAL PHILOSOPHY, BUTTERWORTHS, LONDON & EDINBURGH: 1989 11. 11 5. REDESIGNING OF SYALLBUS BY TUTOR Bearing in mind the objectives behind the syllabus and level of the students, I would prefer the following design of the above syllabus: PART – I INTRODUCTION TO JURISPRUDENCE Unit 1: Jurisprudence as a Science Etymology, Subject-matter, Definitions, Classification, Scope, Utility of Jurisprudence and its Relationship with other Social Science. Unit 2: Law – Its Definition and Classification Meaning and Provisional Definition of Law, Classification of Law, Codification, Advantages and Disadvantages of Law, Question of Law, Question of Fact, Mixed Question of Law and Fact, Question of Discretion, Legal Presumption and Legal Fiction. PART – II LEGAL THEORY Unit 3: Introduction to Legal Theory What is legal theory? Aim of legal theory, contents of legal theory and developmental stages of legal theory. Unit 4: Natural Law Theory Introduction, Greek’s Natural Law Theory, Roman’s Natural Law Theory, Natural Law Theory of the Medieval Period with Special Reference to St. Thomas Aquinas, Modern Currents in Natural Law Theory. Is Natural Law a Universal Law? Merits and Demerits of Natural Law Theory. Unit 5: Command Theory of Law Bentham and John Austin – The Similarities and Dissimilarities in their Teachings, John Austin’s Command Theory of Law, Essentials of Austin’s Sovereign, Critique of CTL. New dimensions. 12. 12 Unit 6: Legal Realism What is Legal Realism? Its Origin and Development, American Legal Realism, Critique of Legal Realism Unit 7: Law as a System of Rules H.L.A. Hart’s Concept of Law, Law as a System of Rules, Law as the Union of Primary and Secondary Rules, Critique PART – III JUSTICE AND ITS ADMINISTRATION Unit 8: Justice and its Relation with Law Justice – Its Meaning and Definition, Importance of Justice, Kinds of Justice, Justice and Law, Theories of Justice, Advantages and Disadvantages of Legal Justice. Unit 9: Administration of Justice Administration of Justice – Its Meaning, Necessity, Origin and Growth, Administration of Public Justice – Its Components, Purpose. Punishments – Its Kinds and Aims, Administration of Civil or Private Justice, Secondary Functions of Civil Courts. PART – IV SOURCES OF LAW Unit 10: Meaning and Classification of Sources of Law Sources of Law – Its Meaning, Keeton’s Classification of Sources of Law, Salmond Classification of Sources of Law. Unit 11: Legislation Legislation – Its Etymology and Definition, Legislation as a Source of Law, Kinds, Advantages and Disadvantages of Legislation, Codification – Its Kinds, Merits and Demerits, Rules of Interpretation of Statutes. Unit 12: Precedent Precedent – Its Meaning and Definition, Stare Decisis, Ratio Decidendi, Obiter Dictum. Precedent as a Source of Law, Its, Nature and Kinds. Unit 13: Custom Definition, Custom as a Source of Law, Custom and Usage, Origin, Essentials and Kinds, Custom and Prescription 13. 13 PART – V LEGAL CONCEPTS Unit 14: Legal Rights and Obligations Definition, Theories, Essentials, Classification, Legal Wrong and Duty. Unit 15: Possession Possession – Its Meaning and Definition, Essentials, Classification, Modes of Acquiring and Losing of Possession, Possession and Prescription. Unit 16: Ownership Its Definitions and Classification, Difference between Ownership and Possession, Modes of Acquiring and Losing of Ownership. Unit 17: Person Person – Its Definition and Kinds, Legal Status of Unborn Child, Legal Status of Dead man, Legal Statues of Minor Person, Legal Status of Drunken Persons, Legal Status of Animals, Legal Status of Firm, Legal Status of Corporation or Company. Unit 18: Titles Title – Its Definition and Classification, Modes of Alienation of Titles 14. 14 6. LECTURE PLAN Academic session, 2014 is starting formally from 1st June, and may end in the last week of October. As the session is very late, therefore, the whole syllabus could not be completed. Hence, ‘Part-II Legal Theories’ and Unit 8 of Part-III shall be excluded from the syllabus of the current session. However, the main concepts of Part-II may be discussed in First Unit 1, and that of Unit 8 may be discussed in Unit 9. A rational calculation shows that Academic Year, 2014 may be consisted on a total of 20 weeks. However, there are public holidays, festivals and summer vacations. This lecture plan is designed in accordance with the number of 17 total weeks, reserving three weeks for holidays etc. The course is assessed to be completed in 17th working week of the academic session provided that in Class time table two periods, each of 40 to 50 minutes, have been allocated to Jurisprudence per week. It is important to mention here, that this timeline is crucial and if due to any reason, the estimated classes could not be obtained it will directly affect the completion of the syllabus. However, depending on the availability of tutorial classes or any extra-classes, an attempt shall be made to address the summary of the excluding contents of syllabus. It is also pertinent to mention that each and everything could not be discussed in the classroom, owing to the restraints of time. But examination paper may include any topic from the syllabus even from the excluded Units. Therefore, students are advised to prepare these Units and the remaining contents of the syllabus at their own, however, I will be 15. 15 ready to answer and discuss these concepts with students outside of classrooms or on internet. The lectures plan is as under: L. No.* Topic Weak L. No.* Topic Weak 1 Orientation Lecture 1st 18 Legislation-III: Rules of Interpretation of Statutes 9th 2 Etymology of Jurisprudence 1st 19 Precedent-I: Meaning, Stare Decisis, Ratio Decidendi & Obiter Dictum 10th 3 Philosophy, Science and Law 2nd 20 Precedent-II: Nature and Kinds 10th 4 Definitions of Jurisprudence 2nd 21 Custom-I: Definition, Origin and Essentials 11th 5 Classification, Scope and Utility of Jurisprudence 3rd 22 Custom-II: Kinds, Custom and Usage, Custom and Prescription 11th 6 Relation of Jurisprudence with other Social Sciences 3rd 23 Legal Rights-I: Definition, Theories and Essentials 12th 7 Law – Its meaning, definition and classification 4th 24 Legal Rights-II: Classification 12th 8 Law – Its Advantages and Disadvantages, Codification 4th 25 Legal Wrong and Duty 13th 9 Questions of Law & Fact, Mixed Question of Law and Fact, Questions of Discretion 5th 26 Possession-I: Meaning, Essentials & Classification 13th 10 Legal Fiction and Legal Presumption 5th 27 Possession-II: Modes of Acquiring and losing, Possession and Prescription 14th 11 Administration of Justice-I: Meaning, Necessity, Origin, Growth and Kinds 6th 28 Ownership-I: Definition & Classification 14th 12 Administration of Justice-II: Public Justice and Its Components 6th 29 Ownership-II: Ownership and Possession, Modes of Acquiring and Losing 15th 13 Administration of Justice-III: Punishment 7th 30 Person-I: Meaning and Kinds 15th 14 Administration of Justice IV: Civil Justice and secondary Functions of Civil Courts 7th 31 Persons-II: Legal Status of some entities 16th 15 Meaning and Classification of Sources of Law 8th 32 Persons-II: Corporate legal personality 16th 16 Legislation-I: Meaning, Definition and Kinds 8th 33 Titles 17th 17 Legislation-II: Codification – Its Kinds, Merits & Demerits 9th 34 Discussion on Exam Paper 17th Lecture Number 16. 16 7. STUDY METHOD The following method shall be adopted throughout the year in completion of the syllabus: A. Class Lectures: The students are strictly advised to go through the relevant Reading List provided under each Unit in this guide, before coming to lecture hall. While delivering lecture the tutor will assume that every student know about the background and the theme of the topic, therefore, he shall be analyzing and comparing the concepts instead of explaining them. B. Tutorials: The time table shall accommodate seven tutorials throughout the academic year. In tutorials the concepts shall be discussed in more detail. The tutorial and their details shall be notified periodically. C. Assessment Methodology: All the students shall be subjected to the following methodology for the purpose to assess whether the learning techniques are effective and whether they need any modifications. Moreover, these assessments shall also help the students to get themselves prepared for the examinations. The title of the assessment shall be “Jurisprudence Assessment Test (JAT)” Which shall include: a. Assignments: All the students are required to submit the assignments in the prescribed manner and format assigned by the tutor. Usually there shall be four assignments to be submitted by the students throughout the year. 17. 17 b. Class Presentations: The students shall also be required to deliver presentation before class in the presence of the tutor consisted on the assignments they have submitted. However, a student who has not submitted his/her assignment shall not be entitled to deliver presentation. c. Tests: Besides Assignments and Class Presentations, all the students shall also appear in Periodical Class Tests. Four tests shall be conducted throughout the year. Criteria of Assessment: Each of four JATs shall be announced through the Students Notice Board of the College along with respective deadlines and instructions. However, Assignments shall be the first in the timeline to be submitted. The Test and presentations shall be conducted in the week preceding the deadline of the assignments. Cumulative Result of Each Test shall be announced on the Students Notice Board of the College within 5 days of the conduct of Test and Presentation whichever is later. Moreover, in the last week of the academic session, there will be announced the Final Cumulative Result of all the four JATs. ASSIGNMENT PRESENTATION TEST TOTAL MARKS Max. Marks Min. Marks to be obtained Max. Marks Min. Marks to be obtained Max. Marks Min. Marks to be obtained Max. Marks Min. Marks to be obtained 30 15 20 10 50 25 100 50 CUMULATIVE RESULT OF JATS JATS Assignment Presentation Test Total Max. M Min. Marks Max. M Min. Marks Max. M Min. Marks Max. M Min. Marks JAT-I 30 15 20 10 50 25 100 50 JAT-II 30 15 20 10 50 25 100 50 JAT-III 30 15 20 10 50 25 100 50 JAT-IV 30 15 20 10 50 25 100 50 G. TOTAL 120 60 80 40 200 100 400 200 18. 18 8. ANNUAL EXAMINATION Jurisprudence is the first paper in the date sheet of LL.B. Examinations. Therefore, it requires much attention on part of students. When examination comes nearer the students become much more curious about their studies and the experience reveals that they allocate much time out of their crucial time for the preparation, to study for the first paper i.e. jurisprudence. This trend greatly affects the preparation of other subjects. Therefore, the students are advised to prepare this subject much earlier the annual examinations, so that they could not mismanage the revision time of other subjects. The Jurisprudence Paper is consisted of 100 Marks. Question 1 is compulsory consisted on OBJECTIVES carrying 20 Marks. From rest of the nine questions the students have to answer any four questions carrying 20 Marks each. Total time allowed including first question, is 3 Hours. A separate answer sheet may be provided for Objective Question No. 1, and it may be attempted in the first 40 minutes. 40% are passing marks for each paper with Aggregate Marks of 50% in all Papers. Moreover, after completion of LL.B. those students who are desirous to enroll as advocates have to appear in Balochistan Bar Council Examination which is to be conducted by National Testing Service (NTS). Hence, it is advisable for the students to keep themselves prepare from now. 19. 19 9. MODEL QUESTIONS Q. No.1: What is Jurisprudence? Discuss its relationship with other social sciences. Q.No.2: Define Jurisprudence. Describe its scope and also classify it. Q.No.3: What do you understand by the term ‘Jurisprudence’? What is the utility of Jurisprudence? Q.No.4: What do know by Nature of Law? Discuss the Natural Law Theory? Q.No.5: Write a short note on the development of Natural Law Theory through ages? Q.No.6: What is Natural Law Theory? Compose your answer in the light of the teachings of Greek Philosophers. Q.No.7: Write a comprehensive note on the Natural Law Theory of Romans. Q.No.8: Discuss the Natural Law Theory of the Medieval Ages with reference to the teachings of Thomas Aquinas. Q.No.9: What are the modern currents in Natural Law Theory? Also compare it with Positive Theory of Law. Q.No.10: Critically analyze Command Theory of Law. Q.No.11: Give a critical account of John Austin’s Sovereign. Q.No.12: What do you do know by Legal Realism. Discuss Q.No.13: Discuss in detail Hart’s notion of ‘Law as a system of rules’. Q.No.14: Give a critique of Hart’s Rule of Recognition. Q.No.15: Define Codification and also state its kinds. What are advantages and disadvantages of codification? Q.No.16: Define ‘question of law’, ‘question of fact’ and ‘mixed question of law and fact’. Also explain ‘question of discretion’. When can a ‘question of discretion’ be converted into ‘question of law’? 20. 20 Q.No.17: What do you know by ‘Legal Fiction’ and ‘Legal Presumption’? Discuss in detail. Q.No.18: What is Justice? What are different theories of Justice? Q.No.19: Narrate in your own words the origin and nature of justice. Q.No.20: State different forms of justice. Also write a critical note on legal justice. Q.No.21: Discuss the concept of distributive justice in the light of the maxims, ‘Justice hurried is justice buried’ and ‘justice delayed is justice denied’. Q.No.22: What do you mean by Administration of Justice? Also give its kinds. Q.No.23: What are the components of Public Justice? Q.No.24: Define Punishment give its origin and state theories of punishment. Q.No.25: Explain Deterrent Theory of Punishment with special reference to the work of Cessare Becarria. Q.No.26: Discuss Compensatory Theory of Punishment in the light of Islamic Penal System. Q.No.27: Write a short note on the administration of civil justice and also state the secondary functions of civil courts. Q.No.28: What is source of law? Explain the classification of sources of law given by Keeton and Salmond. Q.No.29: Define Legislation and give its kinds Q.No.30: Describe in your own words the concept of Delegated Legislation. Also advance reasons for dependence of the supreme legislature on Delegated Legislation. Q.No.31: What do you understand by Interpretation of Statutes? Also explain the rules of Interpretation of Statutes. Q.No.32: Define the term Precedent. Give its nature and kinds. Q.No.33: Write short note on the following: 21. 21 A. Stare Decisis B. Ration Decidendi C. Obiter Dicta Q.No.34: What is Precedent? Explain its kinds and legal authority. Q.No.35: Define Custom and state its essential characteristics? Q.No.36: Define usage. Differentiate between usage and custom? When can a usage be converted into a custom? Q.No.37: Discuss various kinds of customs. Q.No.38: “Custom is the source of Law while prescription is the source of right”. Please substantiate the statement and also make distinction between custom and prescription. Q.No.39: Define Legal Right and state its essentials. Q.No.40: What are the classification of Legal Rights? Discuss in detail. Q.No.41: How Ownership has been defined? Articulate your own definition of Ownership. Also state its essentials. Q.No.42: What are different classes of ownership? State in detail. Q.No.43: What is Possession? State its characteristics. Q.No.44: Write a detailed note on the kinds of Possession? Q.No.45: What do you mean by Legal Personality? Discuss its nature and scope. Q.No.46: Discuss the legal status of the following entities: A. Unborn Child B. Minor C. Insane Person D. Animals E. Dead Person Q.No.47: Define Title and also explain different facts giving rise to different kinds of titles. 22. 22 10. INFORMATION AS TO HANDOUTS Handouts of all the lectures of jurisprudence may be uploaded on the following sites of internet few days earlier to the respective lecture and shall be deleted from there after the expiry of one weak. Therefore, all the students are highly recommended to download the same as soon as they receive the notification on the Facebook about the upload. Moreover, on the Jurisprudence Facebook Page, links of other relevant internet sites online books and journals may also be given. Furthermore, a brief outline of the lecture may be posted on the said page of jurisprudence one day before the lecture. Therefore, all the students are highly recommended to go to Facebook Site on internet and LIKE the Facebook Page of Jurisprudence so that they may receive the daily and weekly notifications as to Handouts and other stuffs regarding Jurisprudence. Following is the link of Jurisprudence Facebook Page: https://www.facebook.com/ulcq.jurisprudence Or alternatively you can search in the Facebook Search Engine the following title: University Law College, Quetta-Department of Jurisprudence Following is the look of the page: Wish you Best of Luck…