Comprehension
Jurisprudence progresses as well as regresses. The late nineteenth-century analysis of rights which Hohfeld brought to completion makes a notable advance in clarity. But rights of each of the four Hohfeldian types are spoken of by Aquinas, as well as by the civilian lawyers of his age (and indeed of earlier ages). The word ‘right’ translates the Latin ius or jus, the root of the word’s ‘justice’, ‘jurist’, ‘juridical’, and ‘jurisprudence’. Though Aquinas does not use the plural forms of the word ius as often as we use the plural ‘rights’, it is a sheer mistake to claim, as some have, that he lacked or repudiated the concept of rights in the modern sense, in which a right is ‘subjective’ in the sense of belonging to someone (the
subject of the right). When he defines justice as the steady willingness to give to others what is theirs, Aquinas immediately goes on to treat that phrase as synonymous with their right (ius suum); hence he treats a right/rights (ius/iura) as subjective. He also uses the word to speak of ‘objective’ right, that is, what interpersonal action or relationship is right-morally or legally, depending upon the context. Hobbes, who got inspired much in Benthamite and Austinian positivism, spurned the classical juristic tradition and defined ‘right’ as liberty in the sense of sheer absence of duty. So, people have most rights in the state of nature where they have no duties. This move exemplifies regression in legal and,
more generally, in political and moral philosophy. Fortunately, the mistake is quite obvious. If no one has any duties to or in respect of others, it will be more accurate to say that no one has any rights at all. For everyone, in such a state of affairs, is subject to being destroyed or abused by everyone and anyone else, and everyone’s actions can be impeded as much as any person or group cares, and is able, to arrange. The truth is that the concept of a right makes little sense save as (the Hohfeldian claim-right) a correlative of someone else’s duty, or (the Hohfeldian liberty) as protected by someone else’s duty of non-interference, or (the Hohfeldian power) as promoted by the duty of officials and others to recognize and
effectuate one’s acts-in-the-law (or their ethical counterparts), or (the Hohfeldian immunity) as protected by a similar duty of officials and others not to recognize another’s juridical acts as it purportedly bears on my position.
(Extracted, with edits and revision, from The Oxford Handbook of Jurisprudence and Philosophy of Law, Edited by Jules L. Coleman, Kenneth Einar Himma, and Scott J. Shapiro)
subject of the right). When he defines justice as the steady willingness to give to others what is theirs, Aquinas immediately goes on to treat that phrase as synonymous with their right (ius suum); hence he treats a right/rights (ius/iura) as subjective. He also uses the word to speak of ‘objective’ right, that is, what interpersonal action or relationship is right-morally or legally, depending upon the context. Hobbes, who got inspired much in Benthamite and Austinian positivism, spurned the classical juristic tradition and defined ‘right’ as liberty in the sense of sheer absence of duty. So, people have most rights in the state of nature where they have no duties. This move exemplifies regression in legal and,
more generally, in political and moral philosophy. Fortunately, the mistake is quite obvious. If no one has any duties to or in respect of others, it will be more accurate to say that no one has any rights at all. For everyone, in such a state of affairs, is subject to being destroyed or abused by everyone and anyone else, and everyone’s actions can be impeded as much as any person or group cares, and is able, to arrange. The truth is that the concept of a right makes little sense save as (the Hohfeldian claim-right) a correlative of someone else’s duty, or (the Hohfeldian liberty) as protected by someone else’s duty of non-interference, or (the Hohfeldian power) as promoted by the duty of officials and others to recognize and
effectuate one’s acts-in-the-law (or their ethical counterparts), or (the Hohfeldian immunity) as protected by a similar duty of officials and others not to recognize another’s juridical acts as it purportedly bears on my position.
(Extracted, with edits and revision, from The Oxford Handbook of Jurisprudence and Philosophy of Law, Edited by Jules L. Coleman, Kenneth Einar Himma, and Scott J. Shapiro)
Question: 1
The Jural Correlative of Privilege is:
The Jural Correlative of Privilege is:
Updated On: Dec 3, 2024
- Duty
- Liability
- No right
- Disability
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The Correct Option is C
Solution and Explanation
The Jural Correlative of Privilege is ‘No right’. In Hohfeldian terms, a privilege refers to the absence of a duty, which means that there is no corresponding right imposed on others not to act in a certain way. A privilege allows a person to do something without violating anyone else’s legal rights.
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Question: 2
Which of the following statements is not true about Treatise on Law by St. Thomas Aquinas?
Which of the following statements is not true about Treatise on Law by St. Thomas Aquinas?
Updated On: Dec 3, 2024
- He classified law into eternal law, natural law, human law and divine law
- He belonged to the Historical School of Jurisprudence
- According to him, human nature is perfected or fully realised by harmonious and habitual excellence in the exercise of its intrinsic capacities and powers
- The first primary precept is that good is to be pursued and done and evil avoided
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The Correct Option is B
Solution and Explanation
St. Thomas Aquinas is not associated with the Historical School of Jurisprudence. The Historical School was primarily represented by figures like Savigny, who emphasized the importance of history and custom in the development of law. Aquinas, on the other hand, was a proponent of natural law theory.
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Question: 3
Who said, “Right is an interest which is to be recognised, protected and enforced by law”?
Who said, “Right is an interest which is to be recognised, protected and enforced by law”?
Updated On: Dec 3, 2024
- Roscoe Pound
- Salmond
- Holland
- Bentham
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The Correct Option is A
Solution and Explanation
Roscoe Pound defined rights as an interest which is to be recognized, protected, and enforced by law. Pound’s theory emphasized the practical protection of social interests through legal processes.
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Question: 4
Which of the following theories can be identified as a theory of right?
Which of the following theories can be identified as a theory of right?
Updated On: Dec 3, 2024
- Bracket theory
- Fiction theory
- Will theory
- Concession theory
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The Correct Option is C
Solution and Explanation
The Will theory identifies rights as the ability of individuals to assert their will and to make choices that are protected by law. This theory emphasizes personal autonomy and individual control over one’s own actions and choices.
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Question: 5
Consider the given statements:
Statement I: Rights in Rem are the rights in the things of others, also called encumbrances.
Statement II: Rights in Re propria means the right available against the whole world.
Statement III: Rights in Personam mean the rights in one’s own things.
Choose the correct answer:
Consider the given statements:
Statement I: Rights in Rem are the rights in the things of others, also called encumbrances.
Statement II: Rights in Re propria means the right available against the whole world.
Statement III: Rights in Personam mean the rights in one’s own things.
Choose the correct answer:
Statement I: Rights in Rem are the rights in the things of others, also called encumbrances.
Statement II: Rights in Re propria means the right available against the whole world.
Statement III: Rights in Personam mean the rights in one’s own things.
Choose the correct answer:
Updated On: Dec 3, 2024
- Statement I is correct
- Statements I & II are correct
- Statements I, II & III are correct
- None of the above
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The Correct Option is D
Solution and Explanation
Statement I is incorrect because Rights in Rem are rights over things that are enforceable against all the world, not merely encumbrances. Encumbrances are specific interests in property that limit the owner’s rights.
Statement II is incorrect because Rights in Re propria are rights in one’s own things, not rights available against the whole world.
Statement III is incorrect because Rights in Personam refer to personal rights against specific individuals, not rights in one’s own things.
Thus, the correct answer is (D) None of the above.
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- The Hon’ble Supreme Court in the case of ‘Nil Ratan Kundu and another v. Abhijit Kundu’ 2008(3) Apex Court Judgements 232 (SC), while granting the custody to the maternal grandparents observed: In our judgement, the law relating to custody of a child is fairly well settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem in live in relationship and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, may bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favorable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable consideration. If the minor is old enough to form an intelligent preference or judgement, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.
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The impugned constitutional amendments by which Article 16 (4-A) and 16 (4-B) have been inserted, flow from Article 16 (4). They do not alter the structure of Article 16 (4). They retain the controlling factors or the compelling reasons which enables the State to provide for reservation keeping in mind the overall efficiency of the state administration under article 335. Sub-categorization within a class is a constitutional requirement to secure substantive equality in the event that there is a distinction between two sections of a class; Sub-classification must not lead to the exclusion of one of the categories in the class. A model that provides sufficient opportunities to all categories of the class must be adopted; and Sub-classification among a class must be on a reasonable basis.
Justice Bela Trivedi opined, in dissent, that presidential list of scheduled castes notified under Article 341 cannot be altered by the States. Any change to this list can only be made by a law enacted by Parliament. Sub-classification, according to her would amount to tampering with the Presidential List and undermine the object Article 341, which aims to eliminate political influence in the SC-ST List. Further, she emphasised the importance of adhering to the rule of plain and literal interpretation. She mentions that any preferential treatment for a sub-class within the presidential list would deprive other classes within the same category of their benefits. In the absence of executive or legislative power, state lack the competence to sub-classify castes and the benefit reserved for all SCs. Allowing states to do so would constitute a colourable exercise of power, which is impermissible under law. Justice Trivedi concluded by affirming that affirmative action by States must remain within constitutional boundaries and held that the law laid down in E.V. Chinnaiah case was correct and should be upheld.
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