TRIBHUVAN UNIVERSITY
2065
LL.M 1st year Full Marks: 100
Comparative Jurisprudence Pass Marks: 50
Time: 4 hrs.
Candidates are required to give their answers in their own words as far as practicable. The questions are of equal value.
Attempt any SIX questions:
1. Dworkin seems to be a leading positivist. He emphasizes that judges are always constrained by the law because there is no law beyond law. The law, according to him is a seamless web in which there is always a right answer. He contemplates that even in the ‘hard cases’ there are controlling standards which the judge is obligated to follow and thus he objects to judges acting as ‘deputy legislators.’ The ‘open texture’ of Hart permits judges to act as deputy legislators and exercise discretion in the interpretation of law. How does the Hart case of Dworkin differ from the ‘open texture’ of Hart in the understanding of law and legal theory? Critically examine them.
2. Emile Durkheim is one of the earliest sociological thinkers to promote sociological and anthropological thoughts in the context of law and legal theory. His thesis observes law as the measuring rod of any society as it (law) reproduces the principal forms of social solidarity. Another contemporary French Professor Duguit also contemplates the same principle of social solidarity. Do you think that they have the common points of the understanding of social solidarity thesis? Explain and highlight their contributions in legal theory.
3. The legal thinkers of the classical era of natural law were convinced that the power of reason was universal for all men, nations and ages, and that a complete and satisfactory system of law could be erected on the foundation of a rational analysis of human social life. Discuss the backgrounds of the classical era of natural law and show the contributions of Hobbes, Locke and Rousseau in this regard and critically evaluate them.
4. Justice is too virtuous to be encompassed in a formulae. Nevertheless, the master mind of Greek Philosopher Aristotle propounded pioneer analysis of justice. What is his analysis of justice? Do you think his theory of justice still serves as a crucible into which even modern craftsmen continue to pour problem of the existing situation? What are the weaknesses of Aristotelian principles of justice? Elucidate.
5. Write a critical essay on the communication jurisprudence in the Nepalese perspective.
6. “Critical legal studies” (C.L.S.) burst on the scene in the United States in the late 1970s with a series of conferences. It extends dissatisfaction with the current legal scholarship. It rejects formalism and contradicts. Liberalism to and sets aside the conceptual framework of law. Crits anxiously say that law is politics and it has no existence outside the ideological battles within the society. Do you agree with this notion? Critically examine the critical legal studies of law. Also enumerate and highlight the off shoots of C.L.S. like CRT and Lat-crit movement.
7. Morality is a sphere in which there is a public interest and a private interest often in conflict and the problem is to reconcile the two through the text of law to regulate individual behavior and social behaviors. Discuss the debate between Hart and Devlin in this regard and equate the debate in the existing Nepalese scenario.
8. Write short notes on any THREE of the followings.
a) Law and economics
b) Structural functionalism
c) Fact skeptics and rule skeptics
d) Participatory law-making process
e) Public interest litigation (PIL) in Nepal
