Jurisprudence and Legal Theory
Jurisprudence and Legal Theory tests the schools of legal thought, the analysis of legal concepts and the doctrine of precedent. Answers must show that you can define a concept, attribute it to a school and apply it to a concrete legal problem.
Schools
- Natural law links validity to morality; positivism, from Austin to Hart, links law to command or to a rule of recognition; sociological jurisprudence examines law's social effects; realism treats law as what courts do.
Concepts
- Hohfeld's analysis separates right, duty, privilege and no-right; ownership is a bundle of incidents; possession requires corpus and animus.
- Liability may be civil or criminal; mens rea is a state of mind, and negligence is a breach of a duty of care judged objectively.
Precedent
- Article 141 makes Supreme Court law binding. The ratio decidendi binds later courts; obiter dicta persuade but do not bind. A decision given per incuriam, or sub silentio on a point not argued, does not carry precedential weight.
Worked example
A Supreme Court bench of three judges decides that a statutory rule is mandatory, but the point was not argued and a nine-judge bench decision to the contrary was not cited. Reasoning: the later decision is per incuriam because it ignored binding authority; a larger bench can overrule it, and a coordinate bench should refer the matter. The ratio must be distinguished from any incidental observation on limitation in the same judgment.
Traps
- Quoting an obiter as binding authority.
- Confusing legal rights with moral rights, or privilege with right under Hohfeld's scheme.
- Treating a distinguishing of facts as an overruling.