LEGAL METHODS

UNIT - I
UNIT – I: THE DISCIPLINE OF LAW

• What is Law?
• Meaning and Definition
• Is Law necessary?
• Purpose and Functions of Law
• Law and Society
• Connection of Law with Other Disciplines
• Sources of Law:
• Statutes
• Precedents
• Customs
• Values
 WHAT IS LAW?

• The term “Law’ denotes different kinds of rules and

Principles.
• Law is an instrument which regulates human
conduct/behavior.
• Law means Justice, Morality, Reason, Order, and Right
from the viewpoint of the society.
• Law means Statutes, Acts, Rules, Regulations, Orders,
and Ordinances from point of view of legislature.
• Law means Rules of court, Decrees, Judgment, Orders of
courts, and Injunctions from the point of view of Judges.
• Therefore, Law is a broader term which includes Acts,
Statutes, Rules, Regulations, Orders, Ordinances, Justice,
Morality, Reason, Righteous, Rules of court, Decrees,
Judgment, Orders of courts, Injunctions, Tort,
Jurisprudence, Legal theory, etc.
 WHAT IS LAW?

• General sense of law –

• According to Salmond “In its widest sense the term law includes rule of
action”. That is to say, the relation derived from the nature of things.
Hence general laws may fall into three classes –
• Devine laws : These relate to the will of the supernatural power and
thus they are a part of the science of theology.
• Physical laws : These are expressions of the uniformities of nature such
as law of motion, gravitation etc.
• Human laws : These are laws by analog.
• Strict sense of law –
• Law as a general rule of external Human action – Thomas Holland
• Law as a command of the Sovereign – John Austin
• Law as a tool of Social Engineering – Roscoe Pound.
• Law as dictate of the Reason - Salmond
• Law as practice of the Courts – Oliver Wendell Holmes
 MEANING OF LAW

• Law – is a social science

• It grows and develops with the development of
society
• General meaning of law -
• A rule established by authority or by custom.
• It regulates the behavior of a state.
• In other words -
• It is the legislative pronouncements of the rules which should
guide one’s action in the society.
• It is a rule of action to which human beings conduct must
conform.
 DEFINITION OF LAW

• Sir William Blackstone – 18th Century

• “Law in its most general and comprehensive sense means a
rule of action or actions whether animate or inanimate,
rational or irrational”. Thus we say, the law of motion,
gravitation, nature and of nation.
• John Austin – 18th Century
• “In the widest sense, law is a rule laid down for the guidance of
an intelligent being by an intelligent being having power over
him”. In other words, it is the aggregate of rules set by men as
politically superior or sovereign to men as politically inferior.
• John William Salmond – 19th Century
• “The body of principles recognized and applied by the state in
the administration of justice”. In other words, it is consisted of
the rules recognized and acted upon by the court of justice.
 FUNCTIONS OF LAW
• Plato –
• “Mankind must either give themselves a law and regulate their lives by
it or live no better than the wildest of the wild beasts”
• St. Thomas Hobbes –
• “Law was brought into the world for nothing else but to limit natural
liberty of particular men in such a manner as they might not hurt but
assist one another and join together against a common enemy”
• John Locke –
• “The end of law is not to abolish or restrain but to preserve or enlarge
freedom”
• Jeremy Bentham –
• “Maximization of the happiness of the greatest number of the
members of the community”
• Roscoe Pound –He treats law as a species of social
engineering.
• He attributed four major functions of law, namely:
1. Maintenance of law and order in society;
2. To maintain status quo in society;
3. To ensure maximum freedom of individuals; and
4. To satisfy the basic needs of the people.
 FUNCTIONS OF LAW

Today the following are taken as important functions of

law:
• Social control –
• Informal social control – divine laws
• Formal social control –
o According to Lawrence Freedman two ways in which law plays
important role in social control:
▪ law clearly specifies rules and norms that are essential for the society and
punishes deviant behavior.
▪ the legal system carries out many rules of social control (Police arrest
burglars, prosecutors prosecute them, courts sentence them, prison
guards watch them, and parole broads release them).
• Dispute settlement –
• Through courts
• Through Alternative Dispute Resolution (ADR’s)
• Social change –
• Amendments
 IS LAW NECESSARY?

• Man can attain a truly human condition given the

existence or non-existence of law.
• Goal being – food and drink.
• Hunt for what is good for man.
• Man is amalgam of good and bad impulses constantly in
conflict.
• When the bad tends to prevail over the good, it seems
evident that here are dark and dangerous forces
implanted in man’s very nature.
• This need to be sternly curbed and which, if not curbed,
will lead to the total destruction of the social order.
• And in such case mans state would be no higher than
that of animals.
• Law is then the indispensable restraint upon forces of evil.
 IS LAW NECESSARY?

• On the other hand, man’s nature is inherently good and

seek to find the sources of ills of man’s present condition
in situations external to man himself.
• Hence look for fundamental defect in man’s social
environment as the true cause of the evils which afflict
him.
• The most conspicuous features of this environment are
government of the reigning powers and the legal system
through which they exert their political authority.
• In the age of social reforms, it was seemed that such
critics would have better directed towards reformation
of existing laws rather than to its total elimination.
 IS LAW NECESSARY?

• On one hand, mans nature was intrinsically evil and no

social progress could be attained without the restraints of
penal laws.
• On the other hand, man was originally created good by
nature but due to sin, corruption, or some other such
internal weakness the true nature had become distorted
and thus required for its control the rigorous of punitive
system of law.
• 3rd Century BC in China – “Legists”:
• Man is intrinsically evil and the good ways in which men acted were
due to either teachings of rituals or the restraints of penal laws.
• ‘A single law, enforced by severe penalties, is worth more for the
maintenance of order than all the words of sages.’
• Indian writers – “Shastras”:
• Men are by nature passionate and if left to themselves the world would
resemble a ‘devil’s workshop’ where the logic of fish would reign.
 IS LAW NECESSARY?

• Jean Bodin – A French Jurist:

• The original state of man was one of disorder, force and
violence.
• Thomas Hobbes – An English Jurist:
• Describes life of primitive man as a state of perpetual warfare,
where individual existence was brutish, nasty and short.
• David Hume – A Scottish Jurist:
• Without law, government and coercion the human society
could not exist and so in this sense law was a natural necessity
of man.
• Niccolò Machiavelli – An Italian Jurist:
• He told the then prince that Men are naturally bad and will not
observe their faith towards you, so you, so you must, in the
same way, not observe yours to them.
 LAW AND SOCIETTY

• Plato – 429 – 348 B.C.

• Law is one of the means to social control.
• The state of republic is an executive state, governed by the
free intelligence of the best men rather than by the rule of
law. Justice is to be administered “without law”.
• Law is always imperfect.
• Aristotle – 384 – 322 B.C.
• A state based on law is the only practicable means of
achieving “good life”.
• The man with eminence in virtue must rule the state with
law.
• Rightly constituted laws should be the sovereign.
• Imperfection of law can be cured by principle of equity.
 LAW AND SOCIETTY

• George Hegel – 1700-1831

• Realization of freedom can be fulfilled only under law and
state.
• Law is chief instrument which is based upon a reason to
secure freedom.
• Karl Marx – 1818-1883
• Emergence of proletarian dictatorship state through
revolution.
• Society is built upon super structure of economics.
• Law is instrument of exploitation by rulers against mass poor
people.
• Law and state is the mask of rulers to protect their own
selfish interest.
 SOURCES OF LAW

• Source of Law- Meaning

• Custom as a Source of Law

• Precedent as a Source of Law

• Legislation as a Source of Law

• Values as a source of law

 SOURCE OF LAW - MEANING

• Sources of law mean the sources from where law or the

binding rules of human conduct originate.
• Legal experts approach the sources of law from various
angles:
• Austin considers sovereign as the source of law.
• Savigny and Henry Maine consider custom as the most important
source of law.
• Natural law school considers nature and human reason as the source
of law,
• Theologians consider the religious scripts as sources of law.
• John Austin said that the term ‘source of law’ has three
different meanings:
1. This term refers to immediate or direct author of the law which
means the sovereign in the country.
2. This term refers to the historical document from which the body of
law can be known.
3. This term refers to the causes that have brought into existence the
rules that later on acquire the force of law. E.g. customs, judicial
decision, equity etc.
 SOURCE OF LAW - CLASSIFICATION

• Salmond on Sources of Law- Salmond has done his own

classification of sources of law:
• Formal Sources- A Formal Source is as that from which rule of
law derives its force and validity. The formal source of law is the
will of the state as manifested in statutes or decisions of the
court and the authority of law proceeds from that.
• Material Sources- Material Sources are those from which is
derived the matter though not the validity of law and the
matter of law may be drawn from all kind of material sources.
• There are three major sources of law can be identified in
any modern society are as follows:
1. Custom
2. Judicial precedent
3. Legislation
4. Values
 CUSTOM AS SOURCE OF LAW

• Customs - The long established practices or

unwritten rules which have acquired binding or
obligatory character.
• Broadly, there are two views which prevail in this
regard on whether custom is law –
• Austin opposed custom as law because it did not originate
from the will of the sovereign.
• Jurists like Savigny consider custom as the main source of
law. According to him the real source of law is the will of the
people and not the will of the sovereign.
• The will of the people has always been reflected in
the custom and traditions of the society. Custom is
hence a main source of law.
 KINDS OF CUSTOMS

• Customs can be broadly divided into two

classes:
• Customs without sanction: These kinds of customs
are non-obligatory in nature and are followed
because of public opinion.
• Customs with sanction: These customs are binding
in nature and are enforced by the State.
 CUSTOMS WITH SANCTION

• These customs may further be divided into the

following categories:
• Legal Custom: Whose authority is absolute; it possesses the
force of law. It is recognized and enforced by the courts.
Legal custom may be further classified into the following
two types:
• General Customs: These types of customs prevail throughout the
territory of the State.
• Local Customs: Local customs are applicable to a part of the
State, or a particular region of the country.
• Conventional Customs: These are binding on the parties to
an agreement. When two or more persons enter into an
agreement related to a trade, it is presumed in law that
they make the contract in accordance with established
convention or usage of that trade.
ESSENTIALS OF A VALID CUSTOM

• Antiquity:
• In order to be legally valid customs should have been in existence for
a long time, even beyond human memory.
• Continuous:
• A custom to be valid should have been in continuous practice. It must
have been enjoyed without any kind of interruption.
• Exercised as a matter of right:
• Custom must be enjoyed openly and with the knowledge of the
community. It should not have been practiced secretly. A custom
must be proved to be a matter of right.
• Reasonableness:
• A custom must conform to the norms of justice and public utility. A
custom, to be valid, should be based on rationality and reason.
• Morality:
• A custom which is immoral or opposed to public policy cannot be a
valid custom.
• Status with regard to:
• It is imperative that a custom must not be opposed or contrary to
legislation.
 WHY CUSTOM IS IMPORTANT
SOURCE OF LAW
• According to Salmond – Two main reasons:
• It is the embodiment of those principles which have
commanded themselves to the national conscience as
principles of justice and public utility.
• The existence of an established usage is the basis of a
rational expectation of its continuance in the future.
• According to Keeton –
• Before state organs undertook the task of framing laws for
the community, who made laws? – It was people.
• The rules elaborated by habit were enforced in popular
courts.
• Thus, the state in advancing its authority takes over and
enforces customary rules, first formulated by the people
themselves for their own regulation.
 CUSTOM - FURTHER ANALYZED

• Austin’s view on customs – Two propositions:

• It is not every custom that is binding but only those which are
valid-the validity being determined by judicial recognition.
• A sovereign or a legislature very often abolishes customs and is,
therefore, superior to them. A custom is law only because a
sovereign allows it to be so.
• Hollands view of custom –
• Customs are not laws when they arise but they are largely
adopted into laws by state recognition of the existence of a
custom.
• Courts require that not only the existence of a custom be
proved but it should also be proved that the same is
reasonable.
• The legislature can also abrogate customs whether partially or
wholly.
PRECEDENT AS A SOURCE OF LAW

• Precedent – It is a previously decided judgment of the superior

courts, such as the High Courts and the Supreme Court, which
judges are bound to follow.
• It is an important feature of the English legal system as well as
of other common law countries.
• According to Salmond –
• In loose sense, it includes merely reported case law which may be
cited & followed by courts. In strict sense, that case law which not
only has a great binding authority but must also be followed.
• According to Keeton –
• A judicial precedent is a judgment to which authority has in
some measure been attached.
• According to Bentham - ‘Judge made Law.’
• According to Austin – ‘Judiciary’s Law.’
 THEORIES OF PRECEDENT

• There are two theories of precedent:

1. Declaratory Theory:
▪ Judges do not make law but only declare law.
▪ According Blackstone, judges are sworn to determine not
according to their own private judgement but according to the
known law and custom of the land.
▪ Power to make law is not delegated to them. They have to find
the law, explain it and apply it to given situation.
2. Authoritative Theory:
▪ Courts do more than just declaring law.
▪ Henry Maine points out the gulf between the archaic English
Common law and social necessities of the progressive English
society was being narrowed down by formulating, extending,
modifying and improving the principles of equity.
 KINDS OF PRECEDENT

Authoritative Persuasive
Precedent Precedent
 ADVANTAGES

1. Respect for ancestor's opinion.

2. Evidences for existence of customs.

3. Saving of labour.

4. Certainty in law.

5. Flexibility to the law.

6. More practical.

7. It brings scientific development in law.

8. It is guiding force and eliminates errors is future decisions.

 DISADVANTAGES

1. Overlooking Authorities.

2. Conflicting judgements.

3. They are generally developed on certain incidents.

4. Erroneous decisions.
 LEGISLATION AS A SOURCE OF LAW

• The term ‘legislation’ is derived from two Latin words

i.e. ‘legis’ and ‘latum’ where the former means
‘law’ and later means ‘to make’.
• Sir John William Salmond-
• legislation is that source of law which consists in the declaration of
legal rules by a competent authority.
• John Austin –
• there can be no law without a legislative act, meaning that the
law is made by a supreme or a sovereign authority which must be
followed by every stratum of the society.
• According to Gray –
• “Legislation implies the formal expression of the administrative
organs of the general public.”
 KINDS OF LEGISLATION

• Supreme Legislation - The Supreme legislation is the legislation

adopted by the sovereign intensity of the state.
• Subordinate Legislation - Subordinate legislation will be legislation by
some other authority than the Supreme specialist in the state. It is
made under the powers designated by the Supreme authority.
• Colonial Legislation - The nations which are not autonomous, and are
under the control of some other state have no Supreme capacity to
make law. The laws made by them are subject to the Supreme
legislation of the state under whose control they are.
• Executive Legislation - At the point when legislative powers are
delegated by the designated official to an executive, it is called
executive legislation.
• Judicial Legislation - Powers delegated to the judicial system to make
and implement their own laws to maintain transparency in the
judicial system of the country.
 KINDS OF LEGISLATION

• Municipal Legislation - Municipal bodies are offered powers to make

bye-laws concerning their neighbourhood matters. Bye-law made by
a neighbourhood body works inside its individual area. In India, such
municipal bodies are Municipal corporations, Municipal Boards, Zila
Parishads, and so on.
• Autonomous Legislation - At the point when the Supreme authority
gives powers upon a gathering of people to administer on the issues
depended to them as a gathering, the law made by the last is
known as the autonomous law and the body is known as a self-ruling
body.
• Delegated Legislation – Delegated (subordinate or subsidiary)
Legislation alludes to those laws made by people or bodies to whom
parliament has delegated law-making powers.
 ADVANTAGES

• Abrogative Power — It can change or annul old law, which

control isn’t controlled by different sources.
• Effectiveness — It separates the elements of making law and
overseeing it between the Legislature and the legal executive.
• Declaration — it gives that principles of law will be known
before they are authorised.
• Reliance on Accidental Legislation — Legislation is
independent and emerges out of as the authoritative source
of law it need not hold up until the original case of legislation.
• Unrivalled in Form — It is predominant in structure, brief, clear,
effectively available and understandable as against case law,
which is an increase of sense in a considerable amount of
pointless issue.
 DISADVANTAGES

• Unbending nature—Law in the legislation is inflexible though the

law in the precedents is versatile and adaptable.
• In view of Hypothesis — Legislation, for the most part, continues
on speculative certainties, by considering the existing
environment and surrounding in which the established law is
frequently observed to be blemished in its application to the
mind-boggling issues emerging in genuine life though piece-
scratches develop out of the commonsense exigencies and
convenience.
• An excessive amount of Importance to the Wordings —Legislation
appends a lot of significance to its wordings. Thus, if the
articulation is faulty, the law in itself gets effectively turned. In the
precedents, the wording matters close to nothing as there is a
genuine introduction which performs separate checks on the
applicability of precedent as a source of law. Same goes with the
customary law as well.