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: Sep 10, 2025
- Duty
- Liability
- No right
- Disability
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The Correct Option is C
Solution and Explanation
The jural correlatives are complex legal concepts that were notably detailed by Wesley N. Hohfeld in his work on jurisprudential analysis. These correlatives clarify the relationships between various legal entitlements and obligations. The correct pairing of these correlative terms helps in understanding legal rights and duties within a structured framework.
In the realm of Hohfeldian analysis, the term "privilege" refers to a concept where a party is free to perform or not perform a certain action without any associated duty. It signifies an absence of duty, allowing a person to act according to their preference within the limits of the law.
The jural correlative of a "privilege" is the "no-right." This means that while one party has the privilege (or liberty) to act, the other party does not have the right to insist upon the performance of, or restraint from, the said act. Essentially, privilege is the absence of a duty, and correspondingly, the other party has no claim-right to demand action or non-action from the privileged party.
| Jural Opposites | Jural Correlatives |
|---|---|
| Right | No-right |
| Duty | Privilege |
| Power | Liability |
| Immunity | Disability |
In this context, "privilege" aligns with a situation where there is no duty, and the corresponding correlative to "privilege" under Hohfeld's system is "no-right," making "no-right" the correct choice.
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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: Sep 10, 2025
- 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
In analyzing the statements regarding "Treatise on Law" by St. Thomas Aquinas, we need to identify which statement is not true. Here are the evaluations of each statement:
- He classified law into eternal law, natural law, human law, and divine law.This statement is true. Aquinas did categorize laws in such a manner to explain different aspects and functions of legal principles.
- He belonged to the Historical School of Jurisprudence.This statement is false. Aquinas is associated with Natural Law theory, not the Historical School. The Historical School emerged later and focuses on the evolution of law through cultural and social history, which does not align with Aquinas' philosophical approach.
- According to him, human nature is perfected or fully realised by harmonious and habitual excellence in the exercise of its intrinsic capacities and powers.This statement is true. Aquinas believed in the perfection of human nature through virtuous acts that align with reason.
- The first primary precept is that good is to be pursued and done and evil avoided.This statement is true. It reflects Aquinas' Natural Law theory, where following good and avoiding evil are fundamental principles.
Thus, the correct answer is:
He belonged to the Historical School of Jurisprudence
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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: Sep 10, 2025
- Roscoe Pound
- Salmond
- Holland
- Bentham
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The Correct Option is A
Solution and Explanation
In legal studies, the concept of a "right" is deeply intertwined with philosophical and historical understandings of justice and law. The analysis provided touches on different interpretations and evolutions of the concept by Hobbes, Aquinas, and Hohfeld, highlighting the complex nature of legal rights as both subjective and objective phenomena.
Roscoe Pound, an influential legal theorist, famously defined a "right" as an interest that is recognized, protected, and enforced by law, explaining how legal systems adopt and enforce certain human interests, providing structure and coherence to a society's legal system. This interpretation surpasses simplistic definitions and incorporates the breadth and depth of legal philosophy.
This aligns with the presented question:
Who said, “Right is an interest which is to be recognised, protected and enforced by law”? |
The correct answer is:
Roscoe Pound |
In summary, Pound's definition encapsulates the function of law in society, emphasizing the role of legal systems in facilitating and safeguarding societal interests, and reflects the depth of jurisprudential analysis involving the notions of rights within the legal framework.
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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: Sep 10, 2025
- Bracket theory
- Fiction theory
- Will theory
- Concession theory
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The Correct Option is C
Solution and Explanation
The theory of right refers to philosophical perspectives that define what constitutes a "right" and how such rights are justified or recognized in legal and moral contexts. Among the stated options:
- Bracket theory: This theory focuses on the conceptual framework of legal entities, especially in the context of corporate law.
- Fiction theory: This posits that legal entities, like corporations, are fictional constructs rather than real individuals.
- Will theory: This legal theory is centered around the concept of rights being derived from the intention or will of individuals. It suggests that rights are fundamental expressions of personal freedom and self-determination, making it a theory of right as it ties directly to the individual's autonomy and capacity to have rights.
- Concession theory: Similar to fiction theory, it suggests that legal entities are granted their status through state concession, focusing more on corporate rights than individual ones.
The correct choice as a theory of right is the Will theory, which aligns with the discussion that rights are fundamentally linked to individual autonomy and subjective entitlement.
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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: Sep 10, 2025
- 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
In order to determine the correctness of the given statements, let's analyze each one:
Statement I: Rights in rem are described as rights in the things of others, which is often termed as encumbrances. However, this is incorrect. Rights in rem actually refer to rights against the whole world concerning a particular object or thing, not merely the rights in the things of others.
Statement II: Rights in Re propria refers to rights against the whole world. This statement is incorrect since Rights in Re propria are actually concerned with rights pertaining to one's own property or things.
Statement III: Rights in personam means rights in one's own things. This is incorrect, as rights in personam relate to rights or obligations against a specific individual rather than against the world at large.
After evaluating each statement, we can conclude that none of the provided statements are correct.
| Option | Conclusion |
|---|---|
| Statement I is correct | Incorrect |
| Statements I & II are correct | Incorrect |
| Statements I, II & III are correct | Incorrect |
| None of the above | Correct |
Therefore, the correct answer is: 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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