LAW & MORALITY

NATURAL LAW – AQUINAS, FULLER

• Thomas Aquinas:
• Natural law: Eternal law applied to human conduct.
o Per se nota (known through themselves)
▪ ascertainable (mortals could and did find them out)
▪ self-evident (don’t require proof)
o General and unchanging, same for everyone.
• Man-made law: It is constructed by human beings to accommodate the
requirements of natural law to the needs of specific and changing
circumstances of human beings.
o There are areas where we need to spell out man-made regulations
(e.g. driving on the right side), but they are also guided by natural
laws (e.g. health and safety should be protected).
o Man-made law may conflict with natural law – unjust laws. They
have no legal validity and cease to be law.
• Natural law and Morality:
• An objective moral code order underlies natural law.
• Attempts to identify the moral compass to guide the lawmaking power
to promote the good.
• Refers to the use of reason and revelation (of God) to deduce binding
rules of moral behaviour from human nature. This is a ‘higher law’,
superior to man-made laws.
• Laws that are imminent in nature to which the legislature should
correspond to.
• Fuller: Morality is the source of law. Rules can only legitimately be called
law if they are based on moral code.

LEGAL POSITIVISM – AUSTIN, BENTHAM, HART – Separability

Thesis
• Law is that which has been “posited”, i.e. enacted or laid down in a prescribed
fashion – it is artificial rather than natural.
• Law is not related to morality based on two arguments:
• Many legal systems are by definition immoral – implies that there is no
necessary requirement that all laws are moral.
• Morality/immorality is controversial (e.g. abortion). Moral uncertainty or
controversy, however, does not entail legal uncertainty or controversy.
Laws are fixed.
• Positivists believe in a separation between the law as it is and the law as it should
be – legal rights and moral rights are not related beyond mere coincidence.
• The philosophy of law is the philosophy of a particular social institution, not a
branch of moral or ethical philosophy.
• Law is nothing more than a set of rules to provide order and governance in
society.
• Laws may seek to enforce justice and morality, but their success or failure in
doing so does not determine their legitimacy.
• Legitimacy comes from the sources of law and not its merits.
• Austin:
• Law is a command issued by a sovereign, someone who people living in
a territory obey due to a threat of punishment.
• Need not be legitimate.
• Proposed the separability thesis.
• Hart:
• Rejected the command theory – it only works for criminal law, but what
about other laws?
• Agreed with the separability thesis.
• Application of law need not be based on moral judgments. It can be
done by looking at the purpose of the rule and social policy.

REALISM – OLIVER WEDDELL HOLMES

• Concerned with ‘law in action’ rather than ‘law in books’. Real world practice of
law is what determines what the law is.
• Law consists of decisions, not rules – determined by the actual practices of
courts, judges, etc. and not what legal theories set forth.
• Law is not logic, it is experience. To understand the law, you must concentrate
on the patterns of decisions by judges in actual cases, whether they are logical
or not.
• Not a rigid body of fixed and unchanging rules but a shifting and flexible social
institution with sufficient play and give-and-take to accommodate the balancing
of competing interests within a society.
• Law is made by human beings and is thus subject to imperfections.
• Emphasize the indeterminacy and looseness of the doctrine of precedent – a
ruling in one case never binds a future case because the there is always some
differentiating feature.
STATUTORY INTERPRETATION 12/7/2014 10:43:00 AM

Statute: A Statute is a rule or order having the force of law, issued by the
executive authority of the government under power granted by the Constitution.

Interpretation: The objective of the rules of interpretation is to help the judge

ascertain the intention of the legislature - not control that intention or confine it.

LITERAL RULE

The words of an enactment are to be given their literal meaning, and if such
meaning is clear and unambiguous, effect should be given to provision of a statute
whatever be the consequences. Judges can’t add or subtract or modify the letter of
the law.

• R v. Harris
• Defendant bit off victims nose.
• Statute made it an offence to “stab, cut or wound”.
• Court observed that under the literal rule the act of biting did not come
within the meaning of 
stab, cut or wound as these words implied that
an instrument had to be used. Thus defendants conviction was
overturned.
• Fisher v. Bell
• Defendant had a flick knife displayed in his shop window with a price
tag on it.
• Statute made it a criminal offence to offer such flick knives for sale.
• Court observed that good on display in shops are not “offers” in the
technical sense under contract law but merely an invitation to begin the
negotiation process. Thus defendants conviction was overturned. 


Advantages:
• Provides no scope for judges to use their opinions or prejudices.
• Upholds the separation of powers.

Disadvantages:
• Disagreement as to what amounts to ordinary/natural meaning of a word.
• Creates loopholes in the law.
• Fails to recognize the complexities and limitations of language.
• Can lead to injustice or absurd results: London and North Eastern Railway
v. Berriman:
• A railway worker was killed while oiling the track.
• A statute provided compensation payable on death for those “relaying or
repairing” the track.
• Under the literal rule oiling did not come under either of these
categories.
• So the worker’s widow received no compensation.

Lord Denning: “A judge must not alter the material of which the fabric is woven, but
he can and should iron out the creases.”

GOLDEN RULE

This rule states that the literal meaning should not be taken but the meaning
should be chosen contextually. Fitting the context would mean:
a) avoiding
absurdity or inconvenience, and b) avoiding conflict with other sections of the Act.

• Grey v. Pearson: Ordinary grammatical sense of the words is to be adhered to

unless that would lead to an absurdity or inconsistency, in which case the
grammatical and ordinary sense of the words may be modified so as to avoid
such absurdity.
• Adler v George
• Statute made it an offence to obstruct a member of the armed forces “in
the vicinity of a prohibited place”.

• Defendant was in prohibited place rather than in vicinity of it at the time
of obstruction.
• Court applied golden rule, as it would be absurd for a person to be liable
if they were near a prohibited place and not if they were actually in it.
Defendants conviction was upheld
• Re Sigsworth
• A son murdered his mother and she had not made a will.

• As her only child he stood to inherit her entire estate

• Court applied golden rule as an application of the literal rule would lead
to a repugnant result. He was thus entitled to nothing
Advantages:
• Errors in drafting can be corrected without having to wait for amendments.
• Decisions are more in line with legislature’s intention.
• Closes loopholes.
• Gives a more just result.
• Brings common sense to the law.

Disadvantages:
• Judges can change the meaning and thereby become lawmakers – disturbs the
separation of powers.
• Disagreement.

MISCHIEF RULE

The main aim of this rule is to determine the ‘mischief and defect’ that the statute
in question has set out to remedy, and interpret the words in the statute in such a
way as to suppress the mischief and advance the remedy.

• Heydon Case:
For true interpretation of statutes, four things have to be

considered:
• what was the common law before the making of the act

• what was the mischief and defect for which the common law did not
provide
• what remedy has the parliament resolved to correct it

• the true reason of the remedy
• Smith v. Hughes
• Under Street Offences Act, it was a crime to solicit or loiter in the streets
for the purposes of prostitution.
• Defendants were calling to men in the street from balconies and tapping
on windows. They claimed they were not guilty as they were not in the
“street”.
• Judge applied mischief rule to come to the conclusion that they were
guilty as the intention of the act was to cover the mischief of harassment
by prostitutes.
• Elliot v. Grey
• Under the Road Traffic Act 1930 it was an offence to use an uninsured
vehicle on the road.
 • The defendant’s car was parked and had its batteries removed.
• Defendant argued that he was not “using” the car on the road as it was
clearly not drivable.
• Court held that care was being used on the road as it represented a
hazard and therefore
insurance would be required in the event of an
accident. Therefore court used mischief rule as the statute was aimed at
ensuring people were compensated when injured due to hazards created
by others. 


Advantages:
• Closes loopholes.
• Allows the law to evolve and adapt to changing needs.
• Avoids unjust or absurd results.

Disadvantages:
• Can create a crime after the fact.
• Gives judges a law making role – infringes on separation of powers.
• Judges’ own prejudices, sense of morality, etc. make it subjective.
• Sometimes the mischief can be hard to identify, leading to uncertainty.

AIDS TO STATUTORY INTERPRETATION

INTRINSIC: Contained in the statute itself:

• Long title of the Act
• Explanatory notes
• Other sections of the Act
• Definition sections in the Act
• Presumptions:
• Statutes do not operate retrospectively.
• Existing rights are not to be interfered with.
• Statutes do not change the common law.
• Mens rea is required for criminal liability.
• Rules of language:
• Ejusdem generis rule:
o When a list of specific descriptors is followed by more general
descriptors, the meaning of the general descriptors must be
restricted to the same class as the specific descriptors.
 o For e.g. a statue that specifies dogs, cats, cows and donkeys would
only apply to horses but not to leopards (domesticated animals
only).
• Expressio unius est exclusion alterius: Items not mentioned on the list are
assumed to not be covered by the statute.
• Noscitur a sociis: When a word is ambiguous, its meaning may be
determined by reference to the rest of the statute.

EXTRINSIC:
• Dictionaries
• Textbooks
• Academic writings
• Law Commission Reports
• Case law from other jurisdictions
• Legislative history
• Etc.
LOGIC 12/7/2014 10:43:00 AM

INDUCTIVE AND DEDUCTIVE REASONING

Inductive Reasoning: Particular to general – PRECEDENTS

• By generalization – particular to general
• By analogy – particular to particular

Deductive Reasoning: General to particular – RULES

Some objects of worship are fir trees.

All fir trees are evergreens.
Therefore some evergreens are objects of worship.

Major premise: predicate of conclusion

Minor premise: subject of conclusion
Middle term: predicate of major premise, subject of minor premise, does not
feature in the conclusion.
LEGAL SYSTEMS 12/7/2014 10:43:00 AM

COMMON LAW CIVIL LAW

Was nurtured in London law courts, by Older Roman law-developed by jurists

judges and barristers. who were not practicing lawyers (didn’t
have official power) but public minded
It was spread only by conquest and citizens (took no charges, pure public
colonization: no one accepted it freely. service).
The Roman part of Civil law, preserved in
Justinian’s collection of 533 AD was
Although written in Latin and spoken in rediscovered in the 11th century and
Norman French, the language of embraced by university law schools of
common law today is virtually only Northern Italy.
English.
Main creators of common law are the Civil Law was found in most languages.
Judiciary-Recruited from ranks of
successful practicing lawyers.
Until very recently, the judges played a
very minor role in the settling of disputes
In Common Law, the typical statute in Civil law.
merely adjusts some details of the rule
laid down by the courts. In contrast, modern civil law systems think
of themselves to be codified – Judges
In Common Law, a rule of precedent don’t interpret but strictly follow the rule.
binds the judges to the law as declared
by higher courts in their jurisdiction. In civil law, decisions in individual cases
and opinions handed down by courts in
Jury system- fact finding was left to a particular lawsuits are non-enforceable in
group of non-lawyers. Originally other cases.
neighbors who were thought of to know
a background of the case and expected to The task of deciding was always left to
decide after hearing the evidence. the judges. The judge could call a witness
and decide what questions to ask. The
In Common Law countries, there is not judge is thought to be capable of accurately
much emphasis on organizing the legal assessing the testimony. It is easier for a
system in a clear and coherent manner. higher court to revise its decision.
A lot of emphasis is laid on system and
Scholarly work is seldom cited as structure.
authority for what the law is-conclusion
is reached only through analysis of facts
by the court. As a contrast, significant weightage is given
to writings of law professors and legal
Follows an adversarial model. scholars.

Follows an inquisitorial model.

Binding force Previous decisions by higher Traditionally, there is little

of case law courts are binding on lower use of judicial precedent
courts. (case law). This means Judges
are free to decide each case
independently of previous
decisions, by applying the
relevant statutes. There is
therefore heavier reliance on
comprehensive
statutes/codes of law.
Investigation The responsibility for gathering The typical criminal
evidence rests with the parties proceeding is divided into 3
(the Police and the defence). phases: the investigate phase,
the examining phase, and the
trial.
In the investigative phase, a
government official
(generally the public
prosecutor) collects evidence
and decides whether to press

Examining There is no examination phase, so
phase an independent evaluation of the
evidence collected during
investigation is left to the trial.
The trial An adversarial system requires the
prosecutor, acting on behalf of
the State, and the defence lawyer,
acting on behalf of the accused,
charges. Prosecutors carry
out investigations themselves
or request Police to do so.
The prosecution can give
general instructions to the
Police regarding how
particular cases are to be
handled and can set areas of
priority for investigations.
In some inquisitorial systems,
a Judge may carry out or
oversee the investigative
phase.
The examining phase is
usually conducted in
writing. An examining Judge
completes and reviews the
written record and decides
whether the case should
proceed to trial.
The examining Judge plays
an active role in the
collection of evidence and
interrogation of witnesses. In
some inquisitorial systems,
the “legality principle”
dictates that prosecution
must take place in all cases in
which sufficient evidence
exists (ie, the prosecutor or
Judge has limited discretion
as to whether or not charges
will be brought).
As a result of the
thoroughness of the
examining phase, a record of
evidence has already been
 to offer their version of events
and argue their case before an
impartial adjudicator (a Judge
and/or jury).
Each witness gives their
evidence-in-chief (orally) and may
be cross-examined by opposing
counsel and re-examined. [74]
Role of the The Judge is a referee at the
trial Judge hearing. It is the Judge’s function
and counsel to ensure that the court case is
conducted in a manner that
observes due process. The Judge
decides whether the defendant is
guilty beyond reasonable doubt
(except in jury trials where the
jury performs that role), and
determines the sentence.
Lawyers are primarily responsible
for introducing evidence and
questioning witnesses.
made and is equally available
to the prosecution and
defence well in advance of
the trial.
The main function of a trial
is to present the case to the
trial Judge and, in some
cases, the jury, and to allow
the lawyers to present oral
argument in public.
While there is no cross- and
re-examination of witnesses,
witnesses are still questioned
and challenged.
In Germany there is a
preference for narrative
testimony, in which the
witness gives their version of
events without shaping by
questions from the
prosecution or defence. [75]
Traditionally there is no
ability for the defendant to
plead guilty.
Judges are required to direct
the courtroom debate and to
come to a final decision.
The Judge assumes the role
of principal interrogator of
witnesses and the defendant,
and is under an obligation to
take evidence until he or she
ascertains the truth.
It is the Judge that carries out
most of the examination of
witnesses, arising from their
obligation to inquire into the

Use of juries Juries are used in many cases. In Juries are generally only used
New Zealand, if the maximum for the most serious cases.
sentence of the charge is more
than three months, the defendant
has the right to elect trial by jury.
Rules of Evidence which is prejudicial or
evidence of little probative value, is more
likely to be withheld from juries
(who don’t have training on the
weight that should be given to
certain evidence). However,
hearsay evidence is more readily
allowable if it is reliable.
A significant category of
inadmissible evidence is ‘hearsay’
evidence (with numerous
exceptions). At the heart of the
hearsay rule is the idea that, if the
court is to discover the truth, it is
essential that parties have the
opportunity to verify the
information provided by the
witnesses, which is difficult to do
if the court receives evidence in
writing or via a third party (and
are therefore unable to cross-
examine the person).
Rights of the In both systems the accused is In both systems the accused
charges and to evaluate all
relevant evidence in reaching
their decision. However, it is
now accepted that the
defence should have the right
to confront each witness
during at least one stage in
the proceedings.
The rules around
admissibility of evidence are
significantly more
lenient. The absence of
juries in many cases alleviates
the need for many formal
rules of evidence. More
evidence is likely to be
admitted, regardless of its
reliability or prejudicial
effect. Evidence is admitted
if the Judge decides it is
relevant.
In many inquisitorial systems,
there is no hearsay rule (eg,
France, Belgium and
Germany). It is up to the
Judge to decide the value of
such testimony.
defendant protected from self-incrimination is protected from self-
and guaranteed the right to a fair incrimination and guaranteed
trial. the right to a fair trial.
However, some commentators
view adversarial systems as
offering stronger protections for
defendants due to their
interpretation of the right to
silence.
Role of the Victims are not a party to The victim generally has a
victim proceedings. Prosecutors act on more recognised role in
behalf of the State and do not inquisitorial systems – they
represent the victim. usually have the status of a
party to proceedings.
In some jurisdictions, victims
have a formal role in the pre-
trial investigative stage,
including a recognised right
to request particular lines of
inquiry or to participate in
interviews by the
investigating authority.
At the trial, they generally
have independent standing
and some jurisdictions allow
victims to be represented by
their own lawyer.
Organisation Adversarial systems have courts Civil law systems tend to
of the courts of general jurisdiction available to have specialist courts (and
adjudicate a wide range of cases. specialist appeal courts) to
deal with constitutional law,
criminal law, administrative
law, commercial law, and
civil or private law.
STARE DECISIS 12/7/2014 10:43:00 AM

STARE DECISIS
• The doctrine of judicial precedent is based on stare decisis. That is the standing
by of previous decisions. Once a point of law has been decided in a particular
case, that law should be applied in all future cases containing the same material
facts.
• For example, in Donoghue v. Stevenson, the court held that a manufacturer owed a
duty of care to the ultimate consumer of the product. This set a binding
precedent that was followed in later cases.

RATIO DECIDENDI
• In order for the doctrine of judicial precedent to work, it is necessary to be
able to determine what a point of law is. In the course of delivering a
judgment, the judge will set out his reasons for reaching a decision. The
reason(s) that are necessary for the judge to reach his decision amount to
the ratio decidendi (the “reason for deciding”) of the case (the holding).
• The ratio decidendi forms the legal principle which a binding precedent is
meaning it must be followed in future cases containing the same material
facts. In simple terms, a ratio is a ruling on a point of law.

OBITER DICTA
• In order for the doctrine of judicial precedent to work, it is necessary to be
able to determine what a point of law is. In the course of delivering a
judgment, the judge will set out his reasons for reaching a decision. The
reason(s) that are necessary for the judge to reach his decision amount to
the ratio decidendi (the “reason for deciding”) of the case (the holding).
• The ratio decidendi forms the legal principle which is a binding precedent
meaning it must be followed in future cases containing the same material
facts. In simple terms, a ratio is a ruling on a point of law.
• Obiter dicta are judicial opinions on points of law which are not directly
relevant to the case in question. They are made when a judge chooses to
give some indication of how he or she would decide a case similar,
but not identical, to case under consideration. These statements are
often meant to clarify the legal principle which the judge proposes to apply
in his or her judgment. For this reason, obiter dicta often take the form of
analogies, illustrations, points of contrast or conclusions based on
hypothetical situations.
 • Obiter dicta in one case might be adopted as ratio decidendi in subsequent
cases. This occurs when a situation regarded as hypothetical by one judge
arises in a subsequent case.

BINDING V. PERSUASIVE PRECEDENTS

• Binding precedents are the ratios from courts above the current court in the
judicial hierarchy. The basic rule is that a court must follow the precedents
from a higher court, but they are not bound to follow decisions from courts
lower in the hierarchy.
• Alternatively, there are “persuasive precedents.”
• Judicial statements that are not binding but may be taken into
account– Obiter dicta
• Case law from other jurisdictions

WAYS OF AVOIDING PRECEDENT

▪ Overruling: This is where a court higher in the hierarchy departs from a
decision made in a lower court. The previous decision is no longer binding.
Another scenario is where the same court decides to no longer follow a
precedent that it had set in a previous judgment
Example: In Lawrence v. Texas, the US Supreme Court decided to overrule the
precedent that it had set in its earlier case Bowers v. Hardwick
▪ Reversing: This is where a higher court departs from the decision of the lower
court on appeal in the same case. The decision of the lower court is no longer
binding. Reversing is very similar to overruling, and generally these terms are
used interchangeably, even though there is a slight technical difference
▪ Distinguishing: This is where the facts of the case are deemed sufficiently
different so that the previous case’s precedent is no longer binding on the
current case.
Example: Balfour v. Balfour (1919) and Merritt v. Merritt (1970)

Balfour v. Balfour:
• A husband worked oversees and agreed to send maintenance payments to
his wife. At the time of the agreement the couple were happily married. The
relationship later soured and the husband stopped making the payments.
The wife sought to enforce the payments.
• Held: The agreement was a purely social and domestic agreement and
therefore it was presumed that the parties did not intend to be legally
bound.
Merritt v. Merritt:
• A husband worked oversees and agreed to send maintenance payments to
his wife. At the time of the agreement the couple were happily married. The
relationship later soured and the husband stopped making the payments.
The wife sought to enforce the payments.
• Held: The agreement was a purely social and domestic agreement and
therefore it was presumed that the parties did not intend to be legally
bound.
CASES 12/7/2014 10:43:00 AM

VISHAKA V. STATE OF RAJASTHAN

The fundamental right to carry on any occupation, trade or profession depends on
the availability of a ‘safe’ working environment. The right to life means life with
dignity. The primary responsibility for ensuring such safety and dignity through
suitable legislation, and the creation of a mechanism for its enforcement, belongs
to the legislature and the executive. When, however, instances of sexual
harassment resulting in violations of Arts 14, 19 and 21 are brought under Art 32,
effective redress requires that some guidelines for the protection of these rights
should be laid down to fill the legislative vacuum.

K.M. NANAVATI V. STATE OF MAHARASHTRA

(1) The test of "grave and sudden" provocation is whether a reasonable man,
belonging to the same class of society as the accused, placed in the situation in
which the accused was placed would be so provoked as to lose his self-control. (2)
In India, words and gestures may also, under certain circumstances, cause grave
and sudden provocation to an accused so as to bring his act within the first
Exception to s. 300 of the Indian Penal Code. (3) The mental background created
by the previous act of the victim may be taken into consideration in ascertaining
whether the subsequent act caused grave and sudden provocation for committing
the offence. (4) The fatal blow should be clearly traced to the influence of passion
arising from that provocation and not after the passion had cooled down by lapse
of time, or otherwise giving room and scope for premeditation and calculation

WILKINSON V. DOWNTON
A party may seek recovery for outrageous conduct that causes physical harm or
mental distress.

GOLAKNATH V. STATE OF PUNJAB

(a) Parliament cannot amend Part III of the Constitution of India so as to "take
away or abridge" the fundamental rights; (b) all amendments made prior to
February 27, 1967 and affecting fundamental rights other than the "right to
property" have full validity; (c) the effect of the first, fourth and seventh
amendments on the "right to property", though made prior to February 27, 1967
remains valid and operative as part of the law of India; (d) the seventh amendment
to Article 31-A(2) is similarly valid and operative; (e) the seventeenth amendment
expanding the list of statutes in the Ninth Schedule is similarly valid and operative;
and (f) the impugned land reform legislation of Punjab and Mysore (Karnataka) is
wholly valid.
ZEE TELEFILMS V UNION OF INDIA
(1)The Board is not created by any statute and is only registered under the
Societies Registration Act 1860 and that it is an autonomous body, administration
of which is not controlled by any other authority including Union of India. He
further submitted that it also does not take any financial assistance from the
Government nor is it subjected to any financial control by the Government or its
accounts are subject to the scrutiny of the Government. It is his submission that
though in the field of Cricket it enjoys a monopoly status the same is not conferred
on the Board by any statute or by any order of the Government. It enjoys that
monopoly status only by virtue of its first mover advantage and its continuance as
the solitary player in the field of cricket control and that is why article 12 cannot
apply and cannot be a state under article 12.
A perusal of the Article 12 shows that the definition of State in the said Article
includes the Government of India, Parliament of India, Government of the State,
Legislatures of the States, local authorities as also "other authorities". It is the
argument of the Board that it does not come under the term "other authorities",
hence is not a State for the purpose of Article 12. While the petitioner contends to
the contrary on the ground that the various activities of the Board are in the nature
of public duties. The learned counsel appearing for the petitioners, however,
contended that there are certain facets of the activities of the Board which really
did not come up for consideration in any one of the earlier cases including in
Pradeep Kumar Biswas case (supra) and those facts if considered would clearly go
on to show that the Board is an instrumentality of the State. In support of this
argument, he contended that in the present day context cricket has become a
profession and that the cricketers have a fundamental right under Article 19 (1) (g)
to pursue their professional career as cricketers. It was also submitted that the
Board controls the said rights of a citizen by its rules and regulations and since
such a regulation can be done only by the State the Board of necessity must be
regarded as an instrumentality of the State.

RYLANDS V FLETCHER
Under the rule in Rylands v. Fletcher, a person who allows a dangerous element on
their land which, if it escapes and damages a neighbor, is liable on a strict
liability basis - it is not necessary to prove negligence on the part of the landowner
from which has escaped the dangerous substance.
INDIRA GANDHI V RAJ NARAIN
The elections of the prime minister, president and vice president were placed
outside the purview of judicial review

MC MEHTA V UNION OF INDIA

The principle of absolute was established

KESAVANAND BHARTI V UNION OF INDIA

That the parliament cannot amendment certain parts of the constitution which are
the basic structure of the constitution essential is the feature of fundamental rights.
The supreme court can declare certain law as unconstitutional if they contravene
certain basic features of the constitution.