Jurisprudence and Legal Theory
Jurisprudence tests the ability to place a problem inside a theoretical framework and to use concepts precisely, not to recount schools in isolation.
Schools and their claims
- Natural law: law derives from reason or morality; Fuller's inner morality asks whether rules are prospective, published, clear and stable.
- Positivism: Austin's command theory (sovereign, command, sanction); Hart's rule of recognition and the open texture of law; Kelsen's Grundnorm and the unity of the legal order. Positivism separates validity from merit.
- Dworkin: law includes principles as well as rules; in hard cases judges identify the best interpretation, and rights function as trumps against utilitarian calculation.
- Realism: Holmes's prediction theory and the gap between law in books and law in action.
- Historical and sociological schools: Savigny (law as the spirit of a people), Maine (status to contract), Ehrlich (living law), Pound (social engineering).
Concepts
- Hohfeld's correlatives: right/duty, privilege/no-right, power/liability, immunity/disability.
- Legal personality and corporate personality; possession and ownership; liability and mens rea.
- Precedent: ratio decidendi binds; obiter dicta does not; per incuriam and sub silentio weaken authority.
Worked example
A question asks whether a court may recognise a new right against the State. A positivist looks for a statute or binding precedent recognising it; a Dworkinian judge asks whether it follows from principles already embedded in the system. In K.S. Puttaswamy (2017) the Supreme Court adopted the latter method, deriving privacy from dignity, liberty and proportionality rather than from a single statutory source.
Traps
- Presenting Austin and Hart as identical.
- Equating the ratio with the outcome of a case.
- Treating natural law as a source of enforceable rights in India.