COURSE TITLE: LEGAL METHODS

COURSE INSTRUCTORS: FAIZAN MUSTAFA, P. ASHWINI KUMAR, PRERNA

NATURE OF COURSE AND CREDITS: Mandatory: 5 Credits

OFFERED TO: FIRST SEMESTER

COURSE DURATION: August- November, 2021

COURSE PORTRAYAL: This sole mandatory course on legal theory has been designed to
familiarize you with the legal universe in its multiple dimensions. The course attempts the
difficult straddle of information and critique. Even as it is acknowledged that positivism has a
dominating grip on the practice of the law, it is simultaneously shown that source-based law is
not the only player in the field. Other ideational approaches also inform the enactment,
implementation and interpretation of the law. It is due to this presence of these multiple
theoretical approaches that the course is called Legal Methods and not Legal Method.

Plurality is not just explained ideationally but also institutionally and systemically. There
are variations in the institutions through which the tasks of lawmaking, implementation and
interpretation are undertaken. Similarly, the operation of the law varies in the common, civil,
Islamic, indigenous and international legal system. Herein again the course will provide
information on the nature of the system and then show how the systemic differences influence
operation.

OBJECTIVE OF THE COURSE:

The overarching objective of the course is to provide students with the basic building blocks with
which they can aspire for autonomous scholarship. The creation, operation and understanding of
law is a constant exercise of choice making. The course will familiarize students with the
amplitude of that choice by foregrounding the choices made by governments, courts, and civil
society organizations that sometimes perform law

In order to achieve its objective of providing information and enabling critique the course will be
transacted illustratively. The course will constantly move from example to theory. Thus, for
example students will be instructed first on how to read a piece legislation having an operative
relevance and then study how a change in ideational approach can alter the meaning of a statute
or how a case is read or a rule made and implemented.

TEACHING METHODOLOGY: As the course has both a theoretical and a practical

dimension. The theoretical underpinnings of the course would be undertaken in the main classes,
and instructions on developing practical skills apart from having doubt clearance sessions will be
provided in the tutorials. Classes would be a mix of learning and doing. To facilitate this
operation the course would run on a mix of instruction and practical exercises wherein we will
try to connect the example discussed in a given week with the theoretical materials provided in
the course pack.

LECTURE PLAN

Class Hours: 70

The course will cover the institutional, systemic, ideational and people driven approaches
towards law. Like the earlier years all these modules would be transacted through case studies
and examples along with the mandatory readings to deepen the theoretical understanding. The
lecture plan will be shared with the students on a monthly basis once the time table for the
semester has been circulated.

EVALUATION SCHEME

Mid-Semester- 25 marks

End-Semester- 50 marks

Project- 20 Marks

Presentation- 5 marks

The course would have open book examinations. Also, any part of the syllabus covered in the tutorial
hours will also form a part of the syllabus for examinations.
COURSE CONTENT

WHAT IS AN IDEATIONAL UNDERSTANDING OF LAW

This module familiarizes you with the various perspectives from which law is theorized
even as the institutional or positivist mode of looking at law has assumed an overwhelming
importance. Insofar as the positivist lens robs the individual citizen of agency it is important to
look at law from varied perspectives and appreciate how these perspectives nuance and layer our
understanding of law.

The ‘natural law tradition’ suggests that the validity of official sources of law should be
derived from norms established by higher sources, which could range from religious beliefs to
humanist moral reasoning and ethics. With the evolution of liberal democratic institutions, there
was considerable disputation of this view since it seems to enable a high degree of subjectivity in
addressing specific disputes. In response, some other scholars framed the position of ‘legal
positivism’ which describes official sources of law as part of a self-validating system that
ultimately relies on ideas of political authority. This approach situates the formal study of law as
an autonomous discipline and pursues the objectives of clarity and predictability in the eyes of
the participants in a legal system. There are internal disagreements among those who subscribe
to these two positions.

Legal scholarship in the 20th century emphasized a third strand, namely ‘Legal Realism’,
which treats official sources of law as derivatives of human behaviour. In this view, disputes
about the meaning of rules cannot be addressed without understanding the background and
motivations of the individuals (as well as institutions) who are involved in creating, interpreting
and enforcing them. As opposed to the legal positivists, this approach firmly situates the study of
law in the larger realm of the humanities and the social sciences. Contemporary legal scholarship
has extended the key ideas of ‘Legal Realism’ to highlight problems that arise when legitimate
interests are excluded while creating law as well as when the interpretation and enforcement of
laws have a discriminatory impact. We study distinctive approaches to legal philosophy under
the framework of ‘Critical Legal Studies’ (CLS), ‘Feminist Legal Theory’ ‘Critical Race
Studies’ and ‘Queer Theory’.

Core Readings facilitating the Ideational Understanding of Law

 Peter Goodrich, Reading the Law, Blackwell Oxford (1986) pp. 3-13
 George P. Fletcher, Basic Concepts of Legal Thought, Oxford University Press, New
York (1996) pp. 28-38
 Ronald Dworkin, the Model of Rules, 35 Univ. of Chic. L. Rev. 14 (1967)( edited)
 Lon Fuller, The Morality of Law, Yale University Press (1965) pp. 33-43 ( edited)
  Karl Llewellyn, Some Realism about Realism: Responding to Dean Pound, 44 Harv. L.
Rev. 1222 (1931)
 Oliver Wendell Holmes, Jr., ‘The Path of the Law’, 10 Harvard Law Review 457-478
(1897)
 Margaret Davies, Asking the Law Question, Sweet and Maxwell (1994) pp. 167-68
 Carol Smart, Feminism and the Power of Law, Routledge London (1989) pp. 10-13
 Lucinda M. Finley, Breaking Women’s Silence in Law: The Dilemma of the Gendered
Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886 (1989)
 David Kairy’s, The Politics of Law: A progressive Critique, 3 rd Basic Books (1990) pp. 2-
4
 Kimberle Crenshaw et al, Critical Race Theory: The Key Writings that Formed the
Movement, The New Press, New York (1995) pp. xiii, xxii-xxiii
 Carl Stychin, Law’s Desire: Sexuality and the Limits of Justice, Routledge London (1995)
p. 148
 Erin Calhoun Davis, Situating “Fluidity” (Trans) Gender Identification and the Regulation
of Gender Diversity, 15 Journal of Lesbian and Gay Studies (2009) pp. 97-130
 Urvashi Butalia, The Other Side of Silence, Penguin Books (1998) pp. 143-151

HOW TO ACQUIRE AN INSTITUTIONAL UNDERSTANDING OF LAW

An institutional understanding of law primarily underscores the fact that in every system,
particular institutions have been designated to perform varied law jobs be they of legislating,
enforcing, adjudicating or regulating. In order to have rounded legal understanding This part of
the course aims to provide familiarity with those institutions whilst showing by using the
example of India how constitution makers exercise choice in adopting a particular design to
constitute the legal institutions of a country. This part also examines the varied principles which
have been put out by judges and jurists to guide the inter se relationship between various organs
of the State. The institutional plane would point out how a body making law on a specific subject
matter is required to possess jurisdiction in the matter. Here the conflict between the Centre,
States and local governments are at issue. Of significance here also would be the inter se
relationship between the legislature and the judiciary in the law making process

The relationship between legislation and subordinate legislation shall be again studied from
the standpoint of institutional essentialism whereby the subordinate legislation is to be totally
guided by the legislation and any departure from the legislation nullifies the subordinate
legislation. The practice of the rule may however, show that it is the executive and not the
legislature which is determining the law in action. This practice brings forth the gap between the
law in books and the law in action. It also asks for a lot more critical analysis of the rule in law.
If a rule is only observed in the breach then should it still be referred to as the rule? Or would it
not be more accurate to accept that the practice is the rule and devise oversight accordingly. Also
what would be the legitimacy of lawmaking in a parliamentary democracy if the operative laws
are not being made by Parliament but by the Government? Questions would also need to be
raised around the transparency of this manner of law making and the involvement of the people
in the law-making process.

The operation of law does not just alter with the socio-political climate it also changes
according to the specific legal context. Thus the system of penal norm creation is different from
the civil one. Laws operating in the realm of taxation vary from those operating in the field of
welfare. A change of context alters the considerations which operate in both the making and
interpretation of laws.

Core Readings

 An introduction to Legislative Process

 Extracts from Prof. Amita Dhanda (revised), Bindra Interpretation of Statutes (2017)

ACQUIRING A SYSTEMIC UNDERSTANDING OF LAW

The systemic concerns of law influence the relationship between legal institutions as well
as the values informing them. Consequently, the construction of these institutions or the role
allocated to them could alter depending upon the system in which they are situated. For example
the common law system perceives the role of a judge differently from a civil law system; and the
process of making law is different in the international and municipal legal systems.

Insofar as law develops in response to wider social and political development, there are
varied systems of law subsisting in different parts of the world. Any holistic understanding of
law in this globalizing era cannot be restricted to the system of law subsisting in one’s own
country but has to extend to all legal systems. Such understanding is also required due to the
expanding reach of international law. It is not possible to negotiate the content of law in
international for a without an understanding of the varied systems subsisting in the world.

The common law system highlights how law could develop through a process of
accretion cases by case. The demands of stability and change being played out by the adoption of
the doctrine of stare decisis. How the doctrine of stare decisis influences the reading of a case is
the major concern. The doctrine of stare decisis makes a distinction between ratio decidendi and
obiter dicta however, how do these distinctions play out in practice. On the traditional
categorization if the court pronounces on an issue which was not in dispute then is the entire
judgment obiter dicta. How should judicial legislation be read or cases where the court has laid
down guidelines for parties who are not before it? What is the status of authoritative statements
on non-law matters in court judgments? What insights are provided by non-positivist reading of
judgments? And what is missed when a case is only read in accordance with positivist theory
only?

Core Readings

 Cook et al, “An Introduction to Legal History” in Laying Down the Law, 5 th ed. (2001)
pp. 9-31
 A Primer on the Civil Law System, Part 1: The History & Development of the Civil Law
System, pp. 3- 21
 Peter G. Stein, Roman Law, Common Law, and Civil Law, 66 Tul. L. Rev. 1591 (1991-
1992) pp. 1591-1604
 Martin Dixon, “The Nature of International Law and the International System” in
International Law, Oxford University Press (2007) pp. 33-52
 Rene A. Wormser, The Legal System of Islam, 64 A.B.A. J 1359 (1978).
 John A. Makdisi, Islamic Origins of the Common Law, 77 N.C. L. REV. 1635
(1999)

PEOPLE’ S PARTICIPATION AND THE LAW

Law is not just a state centric exercise. People’ s participation, consent and dissent also play a
significant role in understanding the observance and implementation of the law. How should we
understand the relationship between the State and the People as also the inter se relationship of
the people.

The course objectives states that the course aims to equip students with requisite knowledge and
skills which enable scholastic choice. However, such choice making can happen only if we are
convinced that the choice exists. In this with the aid of hypothetical and real case studies the
reality of scholastic choice is explored.

Core Readings

 Iris Marion Young, Activist Challenges to Deliberative Democracy, Political Theory,

Vol. 29, No. 5 (Oct., 2001), pp. 670-690