Jurisprudence, Legal Theory and Interpretation of Statutes
Jurisprudence, Legal Theory and Interpretation of Statutes tests your command of legal concepts and your ability to read a statute as a judge would. Expect questions on schools of law, rights and duties, possession, personality, and the rules and maxims of statutory construction.
Schools of law
- Natural law: law is grounded in reason and morality; Fuller's inner morality of law.
- Positivism: Austin's command theory; Hart's rule of recognition and primary/secondary rules; Kelsen's pure theory and grundnorm.
- Sociological school: Ehrlich's living law; Pound's social engineering.
- Realism: Holmes and Frank, law as prediction of judicial behaviour.
Legal concepts
- Rights and duties are correlative; Hohfeld's analysis of claim, liberty, power and immunity.
- Legal personality: individuals and corporations; Salomon v. Salomon established corporate separate personality.
- Possession requires corpus and animus; ownership is a bundle of rights; liability may be civil or criminal, strict or absolute.
Interpretation
- Literal rule first; golden rule to avoid absurdity; mischief rule from Heydon's Case (1584); purposive interpretation.
- Maxims: ejusdem generis, noscitur a sociis, expressio unius est exclusio alterius, generalia specialibus non derogant, ut res magis valeat quam pereat.
- Presumptions: constitutionality, against retrospectivity, mens rea, and territorial operation.
- Aids: long title, preamble, headings, provisos, definitions, schedules; external aids such as dictionaries and reports.
Worked example
A statute taxes vehicles, including carts, bicycles and other similar conveyances. An aircraft is not taxable: under ejusdem generis the general words take colour from the specific ones, which are all road conveyances.
Traps
Do not invoke the mischief rule before trying the literal rule; a proviso is not a substantive provision; marginal notes are not decisive; do not treat DPSPs as enforceable.