XI Legal Studies Marking Scheme(Half-Yearly)

Transcription

1 XI Legal Studies Marking Scheme(Half-Yearly) 1. Aristotle ( BCE) 2. Powers of High Courts to issue certain Writs. 3. Constitutio which means to establish. 4. A Roman goddess of justice. 5. the process by which the law is adapted and advanced over a period of time in response to changing social values and priorities. 6. Edward Jenks illustrates: a) Organizations of some Australian primitive tribes. b) They were united by a common symbol like a tree or an animal. 7. a) Where the government is headed by the President. b) President is the real head of the country. c) He/She is the real head of executive. (any two) 8.. Where a State or Nation is not controlled by any other country. Where a nation is having the highest possible authority. Where a state or nation is having no external pressure to take any decision. (Any two) 9. Legal Custom is a custom whose authority is absolute; it possesses the force of law. It is recognized and enforced by the courts. Where as Local Custom is a type of Legal Custom. Local customs are applicable to a part of the state, or a particular region of the country.

2 10. Municipal laws are basically domestic or national laws. They regulate the relationship between the state and its citizens and determine the relationship among citizens. It can be further classified into Public Law and Private Law. 11. State is established and governed by God or super human power or king as his agent and religious scriptures. As God created animals, plants, rivers and other inanimate objects, God also created the state for a particular end in view, that is, peace, protection and preservation of creatures on this earth. Supported by Political thinkers like James I ( ) and Rober Filmer ( ). This theory Adds moral character to state functions. 12. Alfred Cobban ( ) It is the government of one man who has not obtained the position by inheritance, but either by force or consent or a combination of both. Dictatorial form of government is the rule by a single person or a determined set of individuals. He controls and exercises the political powers of the state. He occupies the position by force, invasion, intervention and militarism, in contrast to monarch. His dictates are the law of the country. 13. The constitution of India provides single citizenship to its citizens. Part II of our constitution contains provisions regarding citizenship. The Citizenship Act 1955 provides that citizenship can be acquired by way of birth, descent or registration. This Act also provides for citizenship by naturalization and by incorporation of territory. 14. Justice Oliver Wendell Holmes was an Associate Justice of the U.S. Supreme Court.

3 He wrote in his landmark article The Path to Law which appeared in Harvard Law Review (1897): the prophecies of what the court will do in fact, and nothing more pretentious, are what I mean by law. The law is ultimately little more than an exercise in trying to guess the way a judge will rule in a case. The life of the law has not been the logic; it has been experience. 15. Law of Torts: Tort is a civil wrong. This branch of law creates and provides remedies for civil wrongs that do not arise out of contractual duties. A tort deals with negligence cases as well as intentional wrongs which cause harm. Torts cover intentional acts and accidents. With example. 16. Ratio decidendi (Reason of Decision): it refers to the binding part of a judgement. It is considered as the general principle which is deduced by the courts from the facts of a particular case. It generally becomes binding on the lower courts in future cases involving similar questions of law. Obiter dicta (Said by the way): it refers to parts of judicial decisions which are general observations of the judge and do not have any binding authority. However obiter of a higher judiciary is given due consideration by lower courts and has persuasive value. 17. This theory is based on Sociological facts. The earliest advocate of this theory is Aristotle ( BCE). In his treatise Politics, Aristotle states Society of many families is called a village and a village is most naturally composed of the descendents of one family, the children and the children s children., for every family is governed by the elder, as are the branches thereof, on account of their relation, there unto. And when many families

4 so entirely join themselves together as in every respect to form one society, that society is state and contains in itself that perfection of government. To be explained. 18. The British Monarch is the Executive head. The British Queen acts as the nominal executive head devoid of political powers. She holds the office by virtue of hereditary succession. The real executive powers vest with the Prime Minister and Council of Ministers. The Queen exercises powers on the advice of council of ministers. 19.The Constitution of India guarantees its people certain basic human rights and freedoms known as Fundamental Rights. Enlisted in part-iii of the constitution. Article 12 to 35. Six fundamental rights. The Right to education was inserted as Article 21A vide the Constitution 86 th amendment act,2002. Fundamental Rights stated under Article 14 and 21 are even conferred to non-citizens. The legislative and executive actions which infringe upon or violate the Fundamental Rights are declared null and void. The Supreme Court and the High Courts shall have power to issue directions or orders or Writs. 20. Hierarchy of Criminal Justice System in India Supreme Court High Court Sessions Judge and Additional Sessions Judge Assistant Sessions Judge

5 Chief Judicial Magistrate Chief Metropolitan Magistrate Judicial Magistrate of the class Special Judicial Magistrate To be explained. 21. There is a strong relationship between the law and the society. Law has to be dynamic. It cannot afford to be static. Law and society act and react upon each other. Law reform is the process by which the law is adapted and advanced over a period of time. Law has to respond to the social concerns and has to provide amicable solutions to the problem that keep coming up before the society. 22. Supreme Court High Court Subordinate Courts Specialized Tribunals Civil Courts Criminal Courts Consumer Forum, Tax Tribunal, Service Tribunal,Railway Tribunal, Labour Courts Small Cause Courts City Civil Courts, Munsifs, Sub-Judges Civil Judge Courts of Metropolitan Magistrates (i) (ii) (iii) Role of Judiciary Judiciary and its Jurisdiction Judiciary and interpretation of laws 23. The doctrine of separation of powers emerged as a distinct doctrine in his famous book Esprit Des Lois (The Spirit of Laws) published in Division of powers Never used the term federative power for executive power in regard to external affairs. Used the term executive to cover all internal affairs, both governmental and judicial.

6 Different departments must exercise the three powers of the government with their respective personnel. It is inherent in any authority to abuse powers unless limitations are imposed on its exercise. Each organ of the government shall have the obligation to act within its own sphere and not beyond it. 24. The Constitution (forty-secondamendment) Act, 1976 added Part IV-A, Article 51- A on fundamental Duties of citizens, to the constitution. 11 such fundamental duties No provision in our constitution to enforce Fundamental Duties. Supreme Court in Bijoe Emmanuel v. State of Kerela held that duties imposed on the citizens may be enforced through the enactment of legislations. Insulting national honour is a punishable offence. Mohan Kumar v. Union of India AIR 1922 SC Sociological School insist on the fact that, law exists for the needs of society. It provides an opportunity to social and legal reformers. Chief exponent Roscoe Pound ( ) An American Jurist Leon Duguit considered law as a tool for enhancing social solidarity. D. Rudolf von Ihering ( ), a German legal scholar, developed a philosophy of social utilitarianism. Eugene Ehrlich ( ), an Austrian legal scholar, emphasized the importance of social sciences to understand the law. He considered law as a social institution created to satisfy individual and social wants. Law is a tool of social engineering to balance conflicting interests. 26. i) An offer ii) An acceptance of that offer which results in a meeting of the minds. iii) A promise to perform iv) A valuable and legal consideration v) A time or event when performance must be made (meet commitments) vi) Terms and conditions for performance, including fulfilling promises vii) Performance

7 27. In Independent India, the newly enacted Constitution and Principles enshrined under it were the main guiding forces of law. The Fundamental Rights and Directives Principles of State Policy are now the basis for any social change. After independence, the constitution under Article 372, recognized the preconstitutional laws. First law commission of India under the chairmanship of then Attorney General, Mr. M.C.Setalvad. As many as 243 reports have been submitted by the law commissions till The 20 th law commission has been set up in 2013 under Justice D.K.Jain Economic reforms in top priority now a day along with urgent need to tackle white - collar crimes and crime against women..

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