(Revised w.e.f. the Academic Year 2017-2018)
Duration : 02 Years
Total No. of Semesters : 04
Duration of each semester : 15 weeks
SCHOOLS OF JURISPRUDENCE AND THEORIES OF LAW (Common Paper for All the Branches)
Nature and scope of Jurisprudence – Classification of Jurisprudence into Schools-Salient features of Analytical, Historical, Philosophical and Sociological Schools.
Meaning of Positivism-Analytical positivism of Bentham and Austin-Kelsen’s Pure Theory of Law-Hart’s Concept of Law-Dworkin’s criticism-Hart-Fuller controversy-Hart-Devlin’s debate-Modern trends in Analytical and Normative Jurisprudence-Rawls and Distributive Justice-Nozick and the Minimal State.
Historical and Ancient Indian Jurisprudence-Savigny’s concept of Volksgeist-Contribution of Henry Maine; Economic theory of law-Views of Karl Marx and Friedrich Engles; Sociological theories of law- Contribution of Ihering-Contribution of Ehrlich-Duguit’s theory of Social Solidarity-Roscoe Pound’s Social Engineering and Classification of Interests-American and Scandinavian Realism-Critical Legal Studies Movement.
Theories of Natural Law-Meaning of Natural Law-History of Natural law – Greek origins-Medieval period-View of St.Thomas Acquinas-Period of Renaissance/Reformation-Grotius and International Law- Transcendental Idealism-View of Immanuel Kant”:Natural Law and Social Contract theories-Stammler and Natural Law with variable content-Fuller and the Morality of Law-Hart on Natural Law-Finnis and Restatement of Natural law-Positivists and Naturalists debate.
- G.W.Paton: A Text book of Jurisprudence, 4th Edition; Clarendon Press, Oxford, 1972. o R.W.M. Dias, Jurisprudence. 5th Edition; Aditya Books Private Ltd., New Delhi, 1994.
- W.Friedmann: Legal Theory, 5th Edition; Columbia University Press, New York
- Dennis Lloyd: Lloyd’s Introduction to Jurisprudence, 6th Edition, Sweet and Maxwell, London, 1994.
- Julius Stone: The Province and Function of Law; Associated General Publications Pvt. Ltd. Sydney.
- Howard Davies and David Holdcraft: Jurisprudence: Texts and Commentary; Butterworths, London, Dublin, Edinburgh, 1991.
- S.N.Dhyani: Fundamentals of Jurisprudence: The lndian Approach,2nd Edition, Central Law Agency, Allahabad, 1997.
- Edgar Bodenheimer: Jurisprudence; The Philosophy and Method of the Law, Universal Book Traders, Delhi, 1996.
- Rama Jois, Seeds of Modern Public Law in Ancient Jurisprudence, Eastern Book
Company, Lucknow, 1990.
- Rama Jois, Ancient Indian Law-Eternal Values in Manu Smriti, Universal Law Publishing Co., New Delhi, 2002.
SOURCES OF LAW
UNIT – I
Meaning of the term ‘source’ – Classification of sources of law – Formal, material and literary sources – Legal and historical sources – Binding and persuasive sources – Legal sources of English and Indian law – Equity and juristic opinion as source of law.
Definition of custom – Origin of Custom – Early importance of customary law – Theories as to the nature of customary law – Essentials of valid custom – kinds of custom – Customs and usage – Custom and prescription – Place of custom among various sources – Present position of customary law.
Precedent as a source of law – Theories as to the nature of judicial function – declaratory theory – Judges as law makers – classification of precedents – Hierarchy of courts in England and India – Doctrine of stare decisis – circumstances destroying or weakening the binding force of precedent – overruling of precedents – Doctrine of prospective overruling – Ratio Decidendi and obiter dictum – Tests to determine ratio decidendi of a case – Precedent and judicial reasoning – Relation of precedent to legislation – Precedent in various Legal systems.
Unit – IV
Nature of Legislation – classification of Legislation –supreme and subordinate legislation – comparison of case law and statutory law – the growing importance of statutory law – Codification.
1. C.K. Allen : Law in the Making, 7th Edition, Universal Law Publishing Co.Pvt. Ltd. Delhi, 1997.
2. Rupert Cross : Precedent in English Law, 3rd Edition Clarendron Press Oxford, 1977
3. Benjamin N. Cardozo: The Nature of the Judicial Process, Universal Book Traders, Delhi, 1995
4. Salmond : Jurisprudence, 12th Edition, Edited by P.J. Fitzgerald, Sweet & Maxwell, London, 1966.
5. J.C. Gray: The Nature and Sources of the Law, Columbia University Press, New York, 1909.
6. A.Lakshminath : Precedent in the Indian Legal System, Eastern Book Company, Lucknow, 1990.
Hindu and Muslim Jurisprudence
Nature of Hindu Jurisprudence – Hindu Concept of Law – Meaning and sources of Dharma – Dharma and Positive Law – Nature of Dharma Shastra – Sources of Hindu Law – Vedas as Fundamental sources of Hindu Jurisprudence – Importance of Shastra Literature – Dharma Sutras as basis of Hindu Jurisprudence – Importance of Dharma, Sutras of Gautama, Apastambha, Boudhayana and Vasistha
Unit – II
Smritis as sources of Hindu Law – The importance of Smritis- Manu smriti, the foundation of the orthodox system, influence of Manu smriti in other countries. Yajnavalkya smriti record of liberal juridical norms controversy regarding Manu Dharmasastra. Importance of Yajnavalkya Smrithis – Comparative study of Manu, and Yajnavalkya with regard to political theories, civil law, law of crimes and position of women – contribution of Narada, Brihaspati and Katyayana – Arthasastra of Koutilya – Tikas and Nibandhanas as sources of Hindu Law – schools of Hindu Law – importance of Mitakshara, Dayabhaga, Vyvahara Mayuka, Smriti Chandrika, Dattaka Chardika and Dattaka Mimamsa – Custom, judicial Decisions and Statutes as sources of Hindu Law.
Nature of Muslim jurisprudence –history and sources of Muslim Law – The Quran – Traditions – Ijma _Qiyas _Istihasan – Istidlal and Istislah – Ijtihad and Taqlid.
Formation of various sects in Islam with special reference to Historical and Political background – schools of Muslim Law – Institution of Imamat and Khalifat and their requisites.
1. P.V. Kane: History of Dharma, Sastra, Bhandarkar Oriental Research Institute, Pune, 1958.
2. P.N. Sen : General principles of Hindu Jurisprudence (Tagore law Lectures) Allahabad Law Agency, Allahabad, 1984
3. M.S. Pandit : Outlines of Ancient Hindu Jurisprudence, N.M Tripathi Pvt. Ltd. Bombay, 1989
4. S.K. Purohit : Ancient Indian Legal Philosophy, Deep and Deep, New Delhi, 1994.
5. N.J. Coulson : A history of Islamic Law, Universal Law Publishing Co. Pvt. Ltd. Delhi, 1997 (First Indian Reprint).
6. Joseph Schacht : An Introduction to Islamic Law, Clarendon Press, Oxford, 1966
7. Joseph Schacht : The origins of Muhammadan Jurisprudence, Clarendon Press, Oxford, 1950.
8. Adbur Rahim : The principles of Muhammadan Jurisprudence, (Tagore law Lectures ), Allahabad Law Agency, Allahabad.
THEORY OF LEGISLATION AND INTERPRETATION OF STATUTES
UNIT – I
Bentham’s general principles of legislation – Principle of Utility – Individualistic Utilitarianism – pleasures and pains – their knowledge and measurement – The extensity of Pleasures and Pains – Rational and Irrational criteria of Legislation – Morals and Legislation – their separation
– Reasons for erecting certain acts into offences-Principles of the Civil code
– objects of the Civil Law – Subsistence, Abundance, Equality and Security. Principles of the Penal Code – Classification of offences – Remedies against the evil of offences – punishments, Assessment of Benthamite theory – The period of Benthamism – Revival of Benthamism.
Relation between public opinion and legislative formulation – the growth of collectivism – twentieth century legislative trends – judicial legislation – effect of Judge-made law on Parliamentary legislation – Relevance of John Rawls and Robert Nozick – Individual interest to community interest. Law making for social change – the interactions of legal and social change. Limitations on Legislative Authority – Doctrine of Laissez Faire – Doctrine of Natural Rights – Doctrine of Reasonableness – Doctrine of Basic structure of the Constitution – The views of Positivists and Naturalists.
Meaning of the term ‘Statute’ – Meaning of interpretation – Need and Purpose of interpretation of statutes – the subject matter of statutory interpretation – commencement, operation, expiry and repeal of statues – kinds of statutes – internal and external Aids to interpretation – General Rules of construction under the General Clauses Act, 1897. Basic rules of Interpretation – Literal Rule – Golden Rule – Mischief Rule – rule of Harmonious construction – secondary rules – Noscitur a sociis- Ejusdem generis – expressio unius rule.
UNIT – IV
Restrictive and Beneficial construction – Interpretation of Penal Statutes – Interpretation of Welfare Legislations – Interpretation of Taxing Statutes – Interpretation of Statutes conferring powers- Interpretation of codifying and consolidating statutes – Interpretation of directory and mandatory provisions
– Interpretation of substantive and procedural statutes. Presumptions in Statutory Interpretations; principles of Constitutional Interpretation – Harmonious Construction – Doctrine of Pith and substance – Colourable legislation – Ancillary powers – occupied field – Residuary power – Doctrine of Repugnancy – Doctrine of Eclipse – Doctrine of Severability – Doctrine of Immunity of Instrumentality – Doctrine of Implied Rights – Doctrine of Prospective Overruling – Doctrine of Basic Structure.
1. Jeremy Bentham : The Theory of Legislation, N.M. Tripathi Pvt. Ltd., Bombay, 1986.
2. W. Friedmann: Law in a changing Society, 2nd Ed., Universal Book Traders, Delhi, 1996 (First Indian Reprint)
3. A.V. Dicey : Law and Public Opinion I England, 2nd Ed. Universal Book Traders, Delhi, 1996 (First Indian Reprint).
4. W. Jethro Brown : The Underlying Principles of Modern Legislation,
Maxwell on the Interpretation of Statutes : 12th Ed. Edited by P.St.J. Lagan, N.M. Tripathi Pvt. Ltd., Bombay, 1976
5. Sir Rupert Cross: Statutory Interpretation, 2nd Ed. Edited by John Bell and Sir George Engle, Butterworths, London, 1987.
6. G.P. Singh: Principles of Statutory Interpretation, 4th Ed. Wadhwa and Company, Nagpur, 1988
7. Vepa P. Sarathi, Interpretation of Statutes (second edition).
Legal Research Methodology
(Common Paper for All the Branches)
Meaning of Research-Types of Research-Scientific Method-Social Science Research- Scope and importance of Legal Research-Concepts-Variables Definitions-Relevance of empirical research in law-Induction and Deduction-Case study.
Finding the Law-Sources of legal material including e-sources-Law reporting in India-Using a law library-Survey of available legal material-bibliographical search. Research Methods-Socio-legal research-doctrinal and non-doctrinal research.
Research tools and techniques for collection of data-Observation -Questionnaire-Schedule-Interview-Sampling techniques-Types of sampling. Formulation of Research Problem-Hypothesis-Research Design.
Data processing and analysis-Use of Statistics in the analysis and interpretation of data-Use of computers in Legal Research-Report writing. Legal Research and Law Reforms-Types of Research needed for Law Reforms-Analytical Research, Historical Research.
Goode & Hatt: Methods in Social Research:McGraw-Hill Book Company,Singapore 1981
C.R.Kothari: Research Methodology :Methods and Techniques,2″dEdition,WishwaPrakashan,NewDelhi,1995.
Wilkinson & Bhandarkar, Methodology and Techniques of Social Research,9th Edition, Himalaya Publishing Housing, Bombay-Delhi-Nagpur 1994.
Pauline V Young :Scientific Social Survey and research,3rd Edition,PrenticeHall,NewYork,1960.
B.N.Ghosh, Scientific Method and Social Research;4th Edition Sterling Publishers Private Limited,NewDelhi,1987.
S.K.Verma & Afzalwani, Legal Research and Methodology; ILI Publication, New Delhi,
Hans Raj, Theory and Practice in Social Research;4th Edition, Surjeet Publicatios,NewDelhi,1992.
Fundamental Legal Concepts
Rights and Duties: The Concept of legal right – characteristics of right – Legal rights in wider sense of right – kinds of legal rights – Rights duties correlation – Duties – function of duty – structure of duty – Enforceability – sanction – conflicting duties – future duties-Persons – Nature of Personality – natural and artificial –Legal status of Unborn, Minor, lunatic, drunken, dead persons and lower animals. Theories of Corporate personality – Corporate Sole and Corporate Aggregate – uses and purposes of corporate personality – Acts and liability of corporation – The State as corporation – Unincorporated Associations.
Obligation – definition of obligation – chose in action –chose in possession – nature and kinds of obligation – source of obligation innominate obligations-Liability-Definition and nature of liability –kinds of Liability – Theories of remedial and penal liability – Vicarious Liability – Absolute or strict Liability – General and Conditional Liability –acts – classes of wrongful acts – causation – Mens rea, Intention, motives, malice, negligence – theories of Negligence – Mistake of Law and Mistake of Fact – Accident- Measure of criminal and civil liability.
Possession – importance of possession – possession in fact and possession in Law – Corpus Possession – animus Possidendi – theories of possession – Savigny, Iherring, Salmond, Holmes, Pollock –Possession in Roman and English law- Kinds of Possession – Possessory remedies.
Property – Definition of Property – kinds of property – ownership of material things – movable and immovable property – real and personal property – Rights in re propria- Re-aliena-Leases-servitudes – securities- modes of acquisition – possession – prescription – agreement –inheritance – theories of property – Titles – Definition of titles – Vestitive facts – Acts in the Law – Agreement – Classes of Agreements- Void and voidable agreements.
1. Dias R.W.M. Jurisprudence, 5th Edn. 1994 Butterworth’s & Co and Aditya Books Pvt. Ltd New Delhi
2. Salmond on Jurisprudence 12th Edn. 1995 Sweet and Maxwell, Ltd. London.
3. Paton G.W. A text book on Jurisprudence, 4th Edn, 1972, oxford university press.
4. V.D. Mahajan Jurisprudence and Legal Theory, 1996 – reprint Eastern Book Company, Lucknow.
Introduction: Legislative Drafting as a science and an art – The scope of Legislative drafting – Its importance in the law – making process-Forms of Legislative instruments: Bills, Acts, Ordinances, Orders, Rules, Circulars and Formal constitutions-Qualities of good drafting: Simplicity, Preciseness, Consistency, Clarity, Brevity, Certainty, Alignment with existing law, Effectiveness.
Materials and Preliminaries: Study of analogous legislations that exist in other countries or in other parts of the country – Legislation that already exists on the subject – study of judicial decisions – Constitutional law issues – International treaties-Classification of Statutes : constitutional statutes – taxing statutes – penal statutes – statutes dealing with local government – statutes dealing with particular corporations- statutes dealing with personal law – statutes in the nature of law reforms – statutes dealing with procedure of the courts – social security statutes – repealing and amending statutes etc.
The mechanism of an Act – various parts of a statute – long title – preamble – enacting clause – short title – extent and application – commencement clause – exceptions and exemptions – principal provisions – procedural provisions – penal provisions – provisions regarding delegated legislation – enforcement machinery contemplated by the statute – temporary provisions – repeal and saving clauses – punctuations – marginal notes- provisos – illustrations – presumptions – non-obstante clauses – retrospective operation – removal of difficulty clause – fictions – explanations.
Some flaws in drafting: looseness – obscurity – shabbiness – unenforceability – vagueness. Exclusion of judicial review – use of protection clauses and finally causes – as if enacted in this Act – conclusive evidence clause. Chronology of the process in Parliament – Rules of composition for legislative drafting.
1. Indian Law Institute, The Drafting of Laws (1980)
2. Vepa P. Sarathi, Interpretation of Statutes (second Edition )
3. Allen, Law in the making, Sweet & Max well,
4. Thomson G.C. Legislative Drafting, Butterworth’s, London
5. Zander, M., The Law Making Process, Widenfeld and Nicholson, England
6. Renton C’Hee Report, Preparation of Legislation, Sweet and Max Well.
Indian Constitutional Law: The New Challenges
(Common Paper for All the Branches)
Concept of Federalism-Allocation of resources-Inter State Disputes -Central-State Relations-Special status of certain States-Concept of Secularism and religious fanaticism-Definition of State-Need for widening the definition in the wake of recent developments.
Right to Equality-its new dimensions-Protective Discrimination in the wake of privatization –gender Justice-Rights of third gender-Uniform Civil Code-Freedom of Speech and Expression -Right to broadcast and telecast-Right to Strike, Hartal and Bandh.
New regime of Constitutional Rights-Reading Directive Principles and Fundamental Duties in to Fundamental Rights-Theory of Emanation-Compensatory Jurisprudence-Right to Education-Right to Information-Right to wholesome environment- Doctrine of public trust
Institutional Dynamics-An overview of functioning of three organs of State with special reference to the Indian experience of post independence era –
Separation of Powers, and theory of checks and Balances-Privileges and Immunities of Legislatures and their members-Judicial Activism and Judicial Accountability-Contempt of Courts-Political Morality and effect of Anti-defection Law
H. M. Seervai, Constitutional Law of India (in 2-Volumes),Universal Book Traders, New Delhi.
Granville Austin, Indian Constitution-Cornerstone Nation, Clarendon Press, Oxford.
Constituent Assembly Debates (Official Report),(in 5 Books and 12 Volumes),Lok Sabha Secretariat, New Delhi.
B.Shiva Rao, Framing of the Indian Constitution (in 5- Volumes),Indian Institute of Public Administration, New Delhi.
M.P.Jain, Constitutional Law of India, Wadhwa and Co., Nagpur.
Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, OUP
Landmark and Recent Articles on relevant topics published in Standard Law Journals like Journal of Indian Law Institute, Indian Bar Review, All India Reporter and Supreme Court Cases & landmark judgments of Indian Higher Judiciary on the given topics.
LL.M. IV Semester students shall have to submit Dissertation on the topic approved by the concerned Committee before the expiry of the date as per the almanac in accordance with guidelines given below. Further the topics for thesis should be got approved before the expiry of the III semester. The candidates who fail to submit the thesis before the stipulated date will have to submit the same along with the next batch.
1. LL.M. IV Semester students shall prepare a synopsis on the topics allotted to them.
2. It must be approved by the Guide and be submitted to the concerned Principals in the first week, after commencement of LL.M. IV semester.
3. A Record shall be maintained by the students in which the summary of study and the progress made by them shall
be entered once in every 15 days and it is to be signed by the guide in approval of the same.
4. Thorough discussion shall be had by the students with the Guide at the end of the study, and the thesis shall be prepared on the lines indicated by the Guide.
5. The thesis shall correspond with the notes/record maintained by the Guide.
The thesis shall be equivalent to two theory papers, and there will be 200 marks out of which 160 shall be for evaluation and 40 shall be for viva-voce examination.