LEGAL METHODS

Definitions of law.
To define law is not so easy. Though there are different theories of law, but no neat and simple definition of law
has emerged from any theory. Till today we don’t have the exact and concrete definition of law.
Natural Law Theory- This theory is based on the principle of justice and morality. The basic tenet of natural is that
whether a rule is or is not law depends on its nature as it is commandment of God or on its moral quality and not on its
creation or acceptance by a particular human society. According to this theory any law contrary to principles of natural
law cannot be obligatory. Human law which is at variance with natural law is not really law, but merely an abuse of it.
Law is dictate of the reason.
Austinian Theory - Imperative Theory – Positivist According to this theory law is a type of command laid down by the
political sovereign and enforceable by sanction.
Salmond: The law may be defined as the body of principles recognized by the state in the administration of justice. In
other words the law consists of rules recognized and acted on by the courts of justice.
H.L.A. Hart- legal system arises from the combination of Primary and Secondary rules. Primary rules are those which
simply impose duties; secondary rules are those which confer power to make and unmake other rules of the legal system.
Roscoe Pound - a species of social engineering, whose purpose will be – a) to maximize the fulfillment of the interests of
the community and its members and b) to promote the smooth running of the machinery of society.
Hindu Idea- ‘Dharma is Law’. Here ‘Dharma’ is understood the rules which govern the whole mankind. ‘Dharma’
generally includes all kinds of rules, religious, moral, legal etc.(Metaphysical, scientific). Dharma applied to all whether
he be a king or poor citizen.
Thus, the ‘Law’ can be generally called as an instrument to regulate human behaviour and to secure justice.

Is law necessary?
In a world without law, we would be open to all manner of abuse. There are many reasons why we need law; to regulate
society, to protect people, to enforce rights and to solve conflicts, etc. Law prevents or deters people from behaving in a
manner that negatively affects the quality of life of other people.

Explain the essential functions of legal process.

Generally process means a series of actions or steps taken in order to achieve a particular end.
Essential functions of legal process: To find the essential function, to see what law must do in society, we should look
above all at law in action. Law in action is most clearly seen in the legal process and the juristic act. One cannot start by
asking what is the essential function of law in the legal process. Rather one must ask first what is the essential function of
the legal process itself. Functions of a legal process are as follows: 1. to resolve the dispute by doing or in order to do
justice; 2. to resolve the dispute by establishing the facts and applying the relevant rules of law to them; 3. to resolve the
dispute in the interest of the immediately involved parties; 4. to resolve the dispute in the best economic interests of
society at large; 5. to resolve the dispute in the best economic, social or political interests of the ruling class; 6. to resolve
the dispute with the specific object of inhibiting (prevent) further unregulated conflict.

Write a note on ‘Law as a necessary evil’

Law is a body of rules and regulations that govern the relationships among the individuals as well as between the
individuals and their society. These rules establish rights, duties and privileges that are consistent with the values and
beliefs of the society. Is law necessary, is it an evil or is it merely a necessary evil? Law is necessary in the society as a
control mechanism. Since society has so many variables what is one man’s right may be another man’s wrong. According
Prof. H.L.A hart, man needs to be regulated by laws as he does not live in isolation. Man lives in a community and must
therefore be regulated. If there was no system of law to have power over how people control their lives then there would
not be a society to live in.
What does make law evil? -1. Most laws are made based on the moral values of society. If these values are harmful to the
majority of the society, then the law generated based on these values will be equally harmful. For example, it was a
system of legal racial segregation and discrimination against blacks and other coloured descendents that was physically
enforced by the national party govt. in South Africa between 1948 to 1994. South Africa was dominated politically,
socially and economically by the nation’s minority white population. According to this system, white citizens had the
highest status and the black Africans had lowest status. This not only makes the law capricious but also oppressive.
2. Many may argue that law may not be evil but flawed, and that what makes law evil is the way it has been enforced.
3. It has been argued by legal academics that the law may sometimes be inaccessible to certain sectors due to financial
burdens incurred. In practice, this may lead to grave disparities in the quality of legal representation people receive and a
complete absence of a legal representation. Consequently, the law is unfair, bias and arguably evil.
4. It is said that laws are spider-webs, which catch the little flies, but cannot hold the big ones.
5. Sometimes private factors in the life of the members of the ruling group may result in legislation that meets the
particular short term desire.
6. Most of the legislation do not meet the need of the society as a whole or of an important group;
Nevertheless in performing functions, the law may sometimes fail to deliver effectively. Law may favour certain interests
and sectors in the society. But without law, society may collapse.
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The causes for divergence between legal rules and society.
a) There is no close, inherent, necessary relationship between law and the society in which it operates. Law cannot be
said to be the ‘spirit of the people’; b) Law does not emerge easily from the conditions of the society and does not
develop easily at all; c) Neither society nor its ruling class is usually too interested in the state of law, especially of private
law. Society finds it easy to tolerate unsatisfactory law and pressure on the legislature for reform is very limited. There is
no great demand for the ‘best law’. Law is only one agent of social control. In some sensitive areas, which change from
time to time and place to place, there exists a principle that maybe stated as ‘Law keeps out’.

The influence of legal rules existing in society.

The relationship existing between legal rules and society.
Points: 1. Legal rules affect social life. Although the essential and distinguishing feature of law and the legal
rule is the process, the central feature of law is the possibility of the threat of the process; 2. It is necessary to know the
practical relationship between legal rules and the society in which they operate and the factors that determine how legal
rules develop; 3. Law and legal rules act as a control upon human behaviour. But many legal rules go beyond mere
controlling and actually direct human behaviour specified channels; 4. Intimate relationship exists between legal rules and
the society. Montesquieu, in his general statement, claimed that laws are so particular to the people for whom they are
made. Friedrich Savigny says that positive law lived in the common consciousness of the people, that law was not
produced from the arbitrary will of individuals, but was created by the spirit of the people (Volksgeist) that was in all the
individuals together. Roscoe Pound: Law is a social engineering. Law is in actual fact securing as much as possible of the
scheme of interests with the least friction and waste; These theories are united in the basic tenet that law stands in a close
rational or the natural (inevitable) relationship with society, to the needs or desires of the people or its ruling elite;
5. Inevitably the growth, history, social, political and religious outlook of a society will have some influence on the legal
rules; 6. Law will operate to a considerable degree to secure existing interests and to reduce frictions; 7. A society is not
monolithic but consists of various classes and groups with conflicting interests. It should not be the thought the law that
results for society is simply a patchwork of rules some of which suit the whole society, while others reflect the powers of
the various groups and suit them. It is possible that in important areas of law fundamental rules benefit neither the society
as a whole nor particular groups. Such rules may exist detrimental to, or inconvenient for, the society and be actively
wanted by no one; 8. Law makers can be broadly divided into two groups: first, the legislators, secondly the interpreters
of law, judges. Sometimes the jurists, professors of law interpret the law. The law-making powers of the legislators tend
to be very much greater than those of the interpreters who, in some systems, are in the theory not supposed to make law at
all but only to find it; 9. The legislators for the most part are charged not only with making law but with governing . Their
office is basically political in function, only secondary legal, therefore, the legislators are just not interested in much of
law or in law reform; 10. The political role of the legislators inhibits law reform in another way; 11. Sometimes private
factors in the life of the members of the ruling group may result in legislation that meets the particular short term desire;
12. Most of the legislation do not meet the need of the society as a whole or of an important group; 13. The powers of the
interpreters of law are limited, especially in theory. But when the legislators fail to keep the law in harmony with society,
the greater the responsibility thrust on the interpreters. But the legislators do not give the interpreters power to change the
law drastically; 14. The interpreters have usually no power to abolish existing rules, however unsuitable they may be. Of
course, in India, courts may set aside rules on the ground of unconstitutional or ultra vires;

‘Law as social engineering’.

Roscoe Pound: Law is a social engineering. Law is in actual fact securing as much as possible of the scheme of
interests with the least friction and waste. Man is a social animal and needs a society for his leaving, working and
enjoying life1. A group of individual forms a society. Society has become an essential condition for human life to develop
his or her personality. Therefore society and human life always go together. Every human being has also born with some
desires and expectations which are inherent in nature. From childhood to till old age, every human being expects that his
or her desire is to be fulfilled for which their arise conflict of desires or claims which comes under the term ‘interest’. It is
impossible to fulfil all the desires of a human being. So to fulfil the desires of maximum human being for the welfare of
society the concept of Social Engineering was emerged and which was coined by Roscoe Pound. The force which asks for
the adoption of Social engineering is nothing but the conflict of interests of individuals. Interests more particularly the
conflicting interest are the subject of Social Engineering. Social engineering is based on the notion that Laws are used as
a means to shape society and regulate people’s behaviour. It is an attempt to control the human conduct through the help
of Law. According to Pound, aaw is social engineering which means a balance between the competing interests in
society, in which applied science are used for resolving individual and social problems.

The necessity of law for the creation of just society.

‘Law’ can be generally called as an instrument to regulate human behaviour and to secure justice. Law is a
means to an end. It is an instrument to secure justice. Justice may be divided into – i) Distributive Justice - It asks each
one similarly situated to be treated alike. ii) Corrective Justice - It redresses the grievances. E.g. if a right to hold and
enjoy the property peacefully is violated by another person, then he may get the remedy.
Law binds all people living in a community. Law protects our general safety and ensures our rights against abuses by
other people, by organizations and by the government itself. Just society is for the people and not for one’s benefits. A just
society should provide equal opportunity for every one subject to some exceptions, equal respect for all, basic facilities,
controlled law and order situation, speedy justice, transparency in govt., etc. A single law, enforced by severe penalties, is
worth more for the maintenance of order than all the words of all the sages. Augustine’s assertion was that law was a
natural necessity to curb man’s sinful nature. Then law is the indispensable restraint upon the forces of evil.
Without law, government and coercion, human society could not exist and so in this sense law was a natural
necessity for man- (David Hume). The highest perfection of society is found in the union of order and anarchy. It is useful
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to remember that in many less well-regulated societies, the operation of law may appear in a more unfavourable guise.
The feeling that law inherently is or should be necessary for a man in a properly ordered society receives little
encouragement from the long succession of leading Western philosophers from Plato to Karl Marx who, in one way or
other, have lent their support to the rejection of law. Every age (and certainly our own in no exception) produces
individuals or groups who feel a general restlessness against all authority and who respond to this feeling by giving vent
(expression of a strong emotion,) to various acts or demonstrations against the force of law and order. Such people are
often motivated by the vague notion that in some mysterious way their demonstrations will lead to a better and happier
life for mankind.

The nature of man.

1. Man at the primitive level is innately good and it is the social and political organization of civilized life
which has introduced the seeds of violence and disorder and which in their turn have led to systems of legal coercion.
2. For those who see in man either the incarnation of evil or at best an amalgam (mixture) of good and bad impulses
constantly in conflict, the bad tending repeatedly to prevail over the good, it seems evident that here are dark and
dangerous forces implanted in man’s very nature which need to be curbed and which, if not curbed, will lead to the total
destruction of that social order in whose absence man’s state would be no higher than that of the animals.
3. Some postulated that man’s nature was intrinsically evil and that no social progress could be attained without the
restraints of penal laws.
4. Some held that man was originally created good by nature, but that due to sin, corruption or some other internal
weakness, such as avarice (extreme greed for wealth or material gain), man’s original or true nature had become distorted
and thus required for its control the rigours of a punitive system of law.
5. Jean Bodin- the original state of man was one of disorder, force and violence. Thomas Hobbes: description of the life
of primitive man as a state of perpetual warfare, where individual existence was ‘brutish, nasty and short’, has become
classical. David Hume: - without law, government and coercion, human society could not exist and so in this sense law
was a natural necessity for man. Augustine’s assertion that law was a natural necessity to curb man’s sinful nature.
Man’s nature might be corrupt and sinful but he still possessed a natural virtue which was capable of
development. According to Godwin - the evils of society arose not from man’s corrupt or sinful nature but from the
detrimental effects of oppressive human institutions. Man is inherently capable of unlimited progress and only coercive
institutions and ignorance stand in the way. Godwin held that voluntary cooperation and education would enable all law
to be abolished.

The essence of law.

An essential feature of law is the institutionalized process. It is frequently assumed that a law or legal rule must
be part of a legal system and if this were so then this would be another essential feature of law. The possibility of threat of
process is the central feature of law. In a developed legal system a legal rule is unthinkable unless it can be used to bring a
dispute situation into the context of a process and validate the decision. The process may be a court or an administrative
tribunal or it may involve the services of an arbiter who is selected by some accepted mechanism. Law is the means
adopted to institutionalize disputes and to validate decisions given in the appropriate process that has the specific object
of inhibiting further unregulated conflict. It is an essential function of law to provide the means by which a dispute can
be resolved in a process. Although the process is an essential feature of law, it cannot be considered the central feature of
law. Many legal disputes are resolved without recourse to a process.

Law makers:
Law makers can be broadly divided into two groups: first, the legislators, secondly the interpreters of law,
judges. The law-making powers of the legislators tend to be very much greater than those of the interpreters who, in
some systems, are in the theory not supposed to make law at all but only to find it. The legislators for the most part are
charged not only with making law but with governing. Their office is basically political in function, only secondary legal.
The powers of the interpreters of law are limited, especially in theory. But when the legislators fail to keep the
law in harmony with society, the greater the responsibility thrust on the interpreters. But the legislators do not give the
interpreters power to change the law drastically. The interpreters have usually no power to abolish existing rules,
however unsuitable they may be. Of course, in India, courts may set aside rules on the ground of unconstitutional or ultra
vires.

‘Tolstoy colony’
Tolstoy (1828-1910- Russian writer)- propounded a form of anarchy based on his conception of the simple Christian God-
inspired life led by the early Christian communities. Many of his supporters attempted to set up ‘Tolstoy colonies’ on
these lines in various parts of the world, but the results were hardly inspiring. Aylmer Maude-[1858-1938- English
translator’s of Leo Tolstoy’s work]- in ‘Life of Tolstoy’, Aylmer Maude relates some of the strange and comic ways in
which these societies speedily collapsed. For instance, in one such colony, a boy stole a waistcoat from a fellow-colonist.
This youth had previously indoctrinated (teach to accept a set of belief)by his companions in the view that private
property is wrongful and that the police and law-courts a part of an immoral regime of coercion. When the return of the
waistcoat is demanded, the youth proved to have learned his lessons only too well. If property is wrong, he inquired, why
was it more wrong for a boy to have it than a man? He wanted the waistcoat as much as the man did. He was quite
willing to discuss the subject but he would not alter his opinion that he was going to keep the waistcoat and that it would
be very wrong to take it from him.
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Typical attributes of law.

Typical attributes of Law and Legal Process:
1. They form part of a system that is more or less all embracing- Legal systems are comprehensive. Legal systems claim
authority to regulate any type of behaviour. Thus, they differ from most other institutionalized systems. Sports
associations, commercial companies, cultural organizations, political parties and so on. These are all established to
achieve certain limited goals and each claims authority over behaviour relevant to that goal only. But legal systems do not
acknowledge any limitation and they claim authority to regulate any type of behavior; 2. It is created by a recognizable
person or body that has the power to make law- but we cannot find a legislature or sovereign for international law that is
largely based on custom; 3. Authoritative and Authoritarian- ‘Authoritative’ means that those in charge of the law and the
process insist that no other body has the right to claim authority over the behaviour of the parties, and that their legal
decision is correct because it is their decision. ‘Authoritarian’ means that those in charge of the law and the process claim
authority on that account over the behaviour of the parties to the dispute and assert that the parties must assent to the
decision reached in the process and abide by it; 4. Regulated sanction- It means that for failure to observe a legal rule,
the court imposes some sanction or punishment that is definite in extent (or reasonable so) and that will be enforced by
persons appointed to that task; 5. They receive obedience- People regulate their behaviour by it, in other words, law is
obeyed. The bulk of the given society are in a habit of obedience or submission. Even those who do not obey a law may
regulate their conduct by it to an appreciable extent.

The areas where ‘law keeps out’.

It is a striking feature of law, including the law of a territorial state, that despite all its power and its wide scope
it does not directly invade all aspects of human activity. In some sensitive areas, which change from time to time and
place to place, there exists a principle that maybe stated as ‘Law keeps out’. In some of these areas there will, in fact, be
legal rules, but when they are considered closely it will emerge that their message, too, is ‘Law keeps out’. It will be
remembered that the law is only one agent of social control; religion and popular morality may be mentioned as others.
We are made most aware of the principle when, looking at a different system, we suddenly find legal rules in existence
where for us the basic norm is ‘Law keeps out’. Instances of this may be found in the Prussian code of 1974. The second
title of part two concerns the rights and duties of parents, and provides, inter alia, children owe both parents respect and
obedience, a healthy mother is under the obligation of suckling her child herself, how long she must keep the child at the
breast is determined by the father’s decision, however, he must submit himself to the ruling of experts if the health of the
mother or child would suffer from his decision, neither of the parents can bind the other, even by contract, to set aside
these legal rules, children are bound in accordance with their strength to provide a helping hand to their parents and their
business and trade, but time necessary for their teaching and education should not be taken from the children in that way,
etc.

Arbitration as a process of law.

Arbitration means use of arbitrator to settle the dispute. It is said that sometimes an arbitration does not amount
to a legal process, even though arbitration is the institutionalizing of a dispute. Process generally means a series of
actions or steps taken in order to achieve a particular end. When arbitration does not amount to a process, the missing
element is decision. Parties to a contract may insert an arbitration clause in the contract to the effect that in the event of a
dispute an arbitrator, elected in a specified way, will have power to give a binding ruling on the interpretation of the
contract and the obligation of the parties. Should arbitration occur, it will certainly be a legal process. There will be a
dispute institutionalized with the specific object of inhibiting further unregulated conflict and there will be a decision.
But this does not hold true of some other forms of arbitration, for instance, where there is a dispute between
employer and employees over wage levels and the parties agree to have the matter heard before an arbitrator whose
recommendation, however, need not be accepted by the parties. The prime factor in declaring that this is not a legal
process is that there is no decision saying ‘you must do this’. The claim that initiates a legal process also demands a
decision, not a recommendation. Since there is no decision in this case, it cannot be claimed that law validates the
decision. If arbitration is not binding one, then it lacks an essential of the legal process. The arbitration is not usually set
up by a person or body with the power to create law; usually the parties to the dispute jointly decide on the method of
arbitration and the person of the arbiter. The arbitral body does not act as if it was authoritative and authoritarian. Failure
to observe the recommendations does not result in a regulated sanction imposed by the arbiters and enforced by persons
appointed to that task. In India, the Arbitration and Conciliation Act 1996 is in force.

Different types of law.

To define law is not so easy. Though there are different theories of law, but no neat and simple definition of law
has emerged from any theory. There is no exact and concrete definition of law. The ‘Law’ can be generally called as an
instrument to regulate human behaviour and to secure justice.
Laws may be broadly classified as follows:
1. Civil Law and Criminal Law- Law may be divided into two main branches, Civil and Criminal. Civil law
deals with civil wrongs, whereas criminal law deals with crimes. The distinction between these two does not reside in the
nature of the wrongful act itself. Because, sometimes the same act may be both a crime and civil wrong. Distinction does
not depend on what is done, because what is done may be same in each case. Therefore, the true distinction resides not in
the nature of wrongful act , but in the legal consequences that may follow it (Civil proceedings – civil wrongs and
criminal proceedings – crime). Whereas more serious wrongs have been considered to be public wrongs and are known as
crimes. 2. Private Law and Public Law: Law which regulates and governs the relations of citizens with each other is
private law. E.g. Contract Act, Transfer of Property Act, etc. Law which deals with relationship between person and the
state is public law. Public law can be divided into – (i) Constitutional Law – It is defined as the body of rules governing
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the relation between the sovereign and his subjects and different parts of the sovereign body. (ii) Administrative Law. - it
is the law which defines the organization, powers and duties of administrative authorities. It is a law relating to
administration. 3. General Law and Special Law: General Law means territorial law of the land. Those laws which
have general application throughout the country are general laws. E.g. Indian Penal code, Criminal Procedure Code, Civil
Procedure Code, etc. Special Law consists of legal rules which are special and exceptional in their nature, sources and
applications. They are classified into- Local law, Foreign law, Conventional Law, Autonomic law, Martial Law .
4. Territorial Law and Personal Law: Territorial law is similar to that of General Law. Personal Law is the law which
governs certain aspects of a person's status, relationships, rights or privileges in regard to certain matters, such as
succession, marriage etc. by virtue of his belonging to a particular community or group. E.g. Hindu Law, Mohammedan
Law, etc. 5. Substantive Law and Procedural Law (adjectival law): Substantive law is that part of law which creates,
defines the rights, duties, powers etc. The Procedural Law (adjectival law) defines methods of enforcing of rights. In
other words, a law regulating procedure, i.e. the law as to pleading, practice, evidence etc. But it is not an easy task to
state with precision the exact nature of the distinction between them. 6. Customary Law: Any rule of action which is
actually observed by men. When a custom is firmly established, it is enforced by the state as law because of its general
approval by the people. 7. International Law: It is the body of customary and conventional rules which are considered
legally binding by civilized states in their intercourse with each other. It consists of rules which regulate the relations
between states inter se.
Salmond has referred the following eight kinds of law: 1. Imperative law; 2. Physical or scientific law; 3. Natural or
moral law; 4. Conventional law; 5. Customary law; 6. Practical or technical law; 7. International law; 8. Civil law.

What is Law? Distinguish between civil and criminal law.

To define law is not so easy. Though there are different theories of law, but no neat and simple definition of law
has emerged from any theory. There is no exact and concrete definition of law. Salmond: The law may be defined as the
body of principles recognized by the state in the administration of justice. John Austin: Law is a command laid down
by the political sovereign and enforceable by sanction. The ‘Law’ can be generally called as an instrument to regulate
human behaviour and to secure justice.
Civil law deals with civil wrongs, whereas criminal law deals with crimes. The distinction between Civil and
Criminal does not reside in the nature of the wrongful act itself. Because sometimes the same act may be both a crime and
civil wrong. Distinction does not depend on what is done, because what is done may be same in each case. Therefore, the
true distinction resides not in the nature of wrongful act , but in the legal consequences that may follow it. Civil
proceedings – civil wrongs and criminal proceedings – crime. Whereas more serious wrongs have been considered to be
public wrongs and are known as crimes. According to Blackstone wrongs are divisible into two sorts or species,
private wrongs and public wrongs. The former are infringement of the private or the civil rights belonging to individuals
and thereupon they are frequently termed civil injuries. But the latter are breach and violation of public rights and duties
which affect the whole community.
CIVIL WRONGS: 1. Wrongs comparatively less serious; 2. Private wrongs; 3. Injured party himself has to file a
suit or take civil action; 4. Party may agree to a compromise; 5.Remedies- compensation, transfer of property, injunction
or specific performance etc. ; 6. Proceedings are brought in civil courts; 7. Procedural law is C.P.C.;
8. Terminology – Plaintiff and Defendant
CRIMES: 1. More serious; 2. Public wrongs; 3. Usually criminal proceedings are brought by the state; 4. As
a general rule compromise of an offence is considered to be unlawful and not permitted. But there are some
exceptions under section 320 of the Cr.P.C. (offences of private nature relatively not quite serious); 5. Punishment;
6. Proceedings in criminal courts; 7. Procedural law is Cr.P.C.; 8. Terminology- Complainant and Accused

Substantive law and procedural law.

Substantive law is that part of law which creates, defines the rights, duties, powers etc. The Procedural Law
(adjectival law) defines methods of enforcing of rights. In other words, a law regulating procedure, i.e. the law as to
pleading, practice, evidence etc.
Examples: Substantive laws: Indian Contract Act, Transfer of Property Act, Indian Penal Code, etc. Procedural
law: Civil Procedure Code, Criminal Procedural Code, Indian Evidence Act, etc. But it is not an easy task to state with
precision the exact nature of the distinction between them.
Substantive Law: 1. It lays down rights, duties, liberties and powers of people; 2. It is concerned with the ends which
the administration of justice seeks; 3. It defines the rights; 4. It relates not to the process of litigation, but to its purpose
and subject-matter; 5. It determines courts’ and litigants’ conduct and relations in respect of the matters litigated.
Procedural Law (adjectival law):1. It relates to the enforcement of rights and duties. In particular, it concerns procedure
and evidence; 2. It deals with the means and instruments by which those ends are to be attained; 3. It determines the
remedies; 4. It is that branch of law which governs the process of litigation. It is the law of actions. In wide sense it
includes all legal proceedings, civil or criminal; 5. It regulates the conduct and relations of courts and litigants in respect
of the litigation itself.
Thus, whether a person has a right to recover certain property is a question of substantive law, but in what courts
and within what time one must institute the proceedings are questions of procedural law. Similarly, what facts constitute
a wrong is determined by the substantive law; what facts constitute proof of wrong is a question of procedure. Here, the
first relates to the subject matter of litigation, the second relates to the process merely.

Courts with criminal jurisdiction in England and India.

In England: Indictable offences: Crown court- Court of Appeal (Criminal Division)- Supreme Court [Earlier House of
Lords]
Summary offences: Magistrate – Crown Court- Divisional Court- Supreme Court [Earlier House of Lords]
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In India: JMSC - JMFC - CJM- Sessions Court – High Court- Supreme Court-

Hierarchy of Civil Courts in England and India:

In England: County Court- High Court (Queens Bench Division, Chancery Division and Family Division)-
Court of Appeal (Civil Division)- Supreme Court [Earlier House of Lords].
In India: Court of a Civil Judge - Court of a Senior Civil judge- District Court- High Court- Supreme Court.

Types of civil wrongs

Civil wrongs have been classified into following categories.
1. Breach of Contract- According to Section 2 (h) of the Indian Contract Act, 1872, contract is an agreement enforceable
by law. Each party to the contract must perform his promise unless it is excused by law. If any party without any lawful
reason or justification fails to perform his promise, it amounts to breach of contract. Then, the party not in breach is
entitled to some remedies, such as, damages, rescission of contract, injunction, specific performance of contract etc. The
party, who is entitled to above said remedies, can file a suit in the civil court to get the remedies.
2. Tort- It is a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere
breach of contract or breach of trust. Exact definition of the word ‘Tort’ is a matter of great difficulty. It includes assault,
battery, false imprisonment, trespass, conversion, defamation, negligence, nuisance etc.
3. Breach of Trust- Trust is an obligation annexed to the ownership of property, arising out of a confidence reposed in,
and accepted by, the owner or declared and accepted by him for the benefit of another or another and the owner. Trust
occurs where a person, called technically ‘Settler’,or ‘Author of the Trust’ transfers property to another, called ‘Trustee’
for the benefit of another, called ‘Beneficiary’. Where a trust is created by Will the settler is also called ‘Testator’ (who
makes a Will). An alternative name for the Beneficiary is ‘Cestui que trust’(settee kee trust). BREACH OF TRUST-
Breach of any duty imposed on the trustee as what has been specified, by any law for the time being in force.
4. Quasi- contractual obligations- Sometimes persons are required to discharge certain obligations as if there were
contracts. Here, ‘Quasi’ means ‘as if’. I.C.Act 1872-1. Supply of Necessaries (Section 68), 2. Payment by an interested
person, due by another (Section 69), 3. Obligation to pay for non-gratuitous act (Section 70), 4. Responsibility of finder
of goods (Section 71) and 5. Liability of a person getting benefit under mistake or coercion (Section 72)

‘Ratio decidendi’ of a case. How to frame the Ratio decidendi?

The term ‘Ratio decidendi’ literally means ‘reason for the decision’. Ratio decidendi is the part of the case that is
said to posses authority, i.e. the rule of law upon which the decision is founded. It is the opinion given by the judge and
such opinion is necessary for the decision of a particular case.
According to Salmond, the concrete decision is binding between the parties, but it is the abstract ratio decidendi
which has the force of law as regards the world at large.
According to Prof. Keeton, Ratio decidendi is a principle of law which forms the basis of decision in a particular
case. Ratio can be described as the rule of law applied and acted upon by the court.
According to Goodhart- the ratio decidni of a case can be defined as the material facts of the case plus the
decision thereon.
Case: Wilkinson Vs. Downton (1897) 2 Q.B. 57. We may say that the essential facts were as follows: “The defendant by
way of what was meant to be a joke told the plaintiff that the latter’s husband had been smashed up in an accident. The
plaintiff, who had previously been of normal health, suffered a shock and serious illness. Wright J. held that the defendant
was liable, not perhaps for the tort of deceit but because the defendant had willfully done an act calculated to cause
physical harm to the plaintiff, and had in fact caused such harm”. The rule that “it is a tort to do any act with intent to
affect the plaintiff in body or mind” is wider rule.
Case: Bridges V. Hawkesworth (1851)-Facts- In this case, a customer found some money on the floor of a shop.
The court applied the rule of “Finders-keepers” and awarded possession of the money to him rather than to the shop
keeper. The ratio decidendi of this case is that ‘finder of goods is the keeper’ i.e. he has right of possession over it.
Case: South Staffordshire Water Company V. Sharman- (1896)2. Q.B. Facts: In this case the defendant found two gold
rings in a mud of pool owned and occupied by the plaintiffs. The court refused to apply the ‘finder-keepers’ rule
expressed in Bridges case on the ground that in that case money was found in a public place, i.e. on the floor of a shop,
but in this case it was found in a pool which was private. Other cases may be discussed.

Obiter dictum
It is an expression of opinion by a judge on a question immaterial to the ratio decidendi, and unnecessary for the
decision of the particular case. It is no way binding on any court, but may receive attention as being an opinion of high
authority. Judges often express legal opinion on issues which they are not asked to decide. In fact, these statements of law,
not necessary for the decision, are termed obiter dicta. Thus, it is a mere observation made by the court which is not
necessary to the case. Prof. Goodhart defined obiter dictum as a conclusion based on a fact the existence of which has not
been determined by the court. Obiter dicta are also described as “statements of law made by a judge in the course of a
decision, arising out of the circumstances of the case, but not necessary for the decision.
It is frequently said that a ruling based on hypothetical facts is obiter. Thus, if a judge says “ I decide for the
defendant, but if the facts had been properly pleaded, I should have found for the plaintiff. The latter part of the statement
is obiter. In India, usually obiter dictum of the Supreme Court is respected.

'Judgement is one of the important legal materials’.

Judgement: Generally, it means judicial determination or decision of a court. It is the determination of a court
declaring the rights to be recognized and the remedies to be awarded between the parties upon facts found by the court or
admitted by the parties or upon their default in the course of proceedings instituted for the redress of a legal injury. C.P.C.
 7
Section 2 (9)- "judgment" means the statement given by the judge of the grounds of a decree or order. A ‘judgment’
means the expression of the opinion of the court arrived at after a due consideration of the evidence and all the arguments.
Essential requirements: 1. Beginning of the judgement, 2. Opening of the judgement, 3. Issues and points for
determination, 4. Reference to the evidence; both oral and documentary, 5. Decision on issues framed or points
formulated, 6. Decretal / operative part, 7. Signature.
Article 141 of the Indian Constitution- Judicial precedent-“Like cases should be treated alike”- ‘Ratio decidendi’ -Kinds
of Precedents- 1. Original Precedents; 2. Declaratory Precedents; 3. Authoritative Precedents; 4. Persuasive Precedents;
5. Conditionally Authoritative Precedent.

Divergent Opinions –
When judges, while deciding a case, express different opinions, but give same decision, it is called divergent
opinions. The establishment of the ratio decidendi is more complicated when different members of a composite court
express different opinions. Where the opinions of different judges differ so greatly that there is no majority for any single
view. Then to ascertain the Ratio decidendi all that can be done is to add up the facts regarded as material by any group
of judges whose votes constitute a majority, and to base the ratio on those facts. The result is to confine the ratio to its
narrowest form. E.g. If Lords L and M hold that the material facts are A and B, while Lords N and O hold that they are
A,B and C, and Lord P dissents, the Ratio decidendi must require the presence of A, B and C. E.g. Where, of the
three majority Lords, Lord L holds that the material facts are A and B, Lord M holds that they are A and C and Lord N
holds that they are A and D, while Lords O and P dissent. It would be wholly artificial to say that the ratio requires the
presence of A,B,C and D, since this is not the view of any one of the lords. Further complication may arise when the
minority lords O and P may agree with lord L in thinking that if the facts were A and B the conclusion would be X, but
they may hold that there is insufficient evidence that fact B existed, and for this reason conclude that the answer in this
case is not X. So there is a majority of the House (Lords L, O and P) in favour of L’s view. But, strictly speaking the
opinions of O and P are obiter.

Explain the circumstances affecting the weight of a decision of a court.

Circumstances: There are circumstances which either tend to increase or lessen the importance or authority of a
precedent.
I. Circumstances increasing the authority are as follows:
(a) the eminence of the particular judge or judges who decide it; (b)the number of judges constituting the Bench
or the large number of judges who took part in it; (c) the fact that the judgement was a ‘Reserved’ one, i.e. not delivered
on the spur of the moment; (d) if it has been frequently followed; (e) Unanimous decision; (f) affirmation, approval or
following by the other courts, especially, by a higher tribunal adds to the strength of the precedent; g) when an ‘Act’ is
passed embodying the law laid down in a precedent; h) eminence of the lawyers arguing the case to some extent
contributes.
II. Circumstances which destroy the binding force of the judicial precedent.
(a) the presence of strong dissenting judgement; b) the fact that the majority do not agree in their reasoning, but
only in their result; (c) the failure of counsel to cite an inconsistent case in argument; (d) ignorance of any statute or any
other rule having the force of statute; (e) court’s own earlier decisions which are conflicting with each other; (f) when
decision Sub silentio, i.e. when the point of law involved in it is not fully argued before the court.
These circumstances have no importance if the case is absolutely binding on the court before which it is
cited and if it is incapable of distinguished. But they are of great importance if the case is not absolutely binding, or if on
the facts of the later case it is capable of being distinguished.

‘Distinguishing’:
It means to point out an essential difference. To prove a case cited as applicable to be really inapplicable.
Sometimes a judge will lay down a rule that is narrower than is required by common sense, and a later court may then
say that the rule ought to be read more widely by abandoning some limitation unnecessarily expressed in it. It sometimes
happens that a judge will lay down a rule that is unnecessarily wide for the decision of the case before him. A later court
may say that it is too wide and needs to be cut down.
Kinds of Distinguishing : 1. Restrictive Distinguishing: It cuts down the expressed ratio decidendi of the earlier
case by treating as material to the earlier decision some fact, present in the earlier case, which the earlier court regarded as
immaterial or by introducing a qualification (exception) into the rule stated by the earlier court. [Bridges V. Hawkesworth
(1851) & South Staffordshire Water Company V. Sharman(1896)- “Finder-keeper” Rule]; 2. Non-Restrictive
Distinguishing: It occurs where a court accepts the expressed ratio decidendi of the earlier case, and does not seek to
curtail it. But finds that the case before it does not fall within this ratio decidendi because of some material difference of
fact.
This matter of distinguishing is most important in arguments of a case. If you are conducting a case in
court, and that the other side cites a case against you. Then, you have only two alternatives: one is to submit that the case
cited is wrongly decided, and so should not be followed. But this is possible only if the case is not binding on the court.
The other is to ‘distinguish’ it by suggesting that it contains or lacks some vital fact that is absent or present in your
client’s case.

How much of a case is to be remembered?

Beginner wants to know how much of the case is to be remembered – whether (1)- all the facts stated in the
report; or (2) selection of those facts; or (3) only those facts that are incorporated in the statement of the ratio decidendi.
– Refer Wilkinson V. Downton case- both (2) & (3) should be remembered. So far as (1) is concerned, it would be waste
 8
of effort to remember every minor circumstance that may be stated in the report. E.g. – Mr. Wilkinson was alleged to be
lying at The Elms At Leytonstone. So far as (3) is concerned, it is the pith and marrow of the law. So far as (2) is
concerned, it is debatable. A person may say that if he learns the rule of law there is no need for him to burden his
memory with the facts of the cases that as a matter of history gave rise to those rules.
There are some cases where nothing more than the simple ratio decidendi need be remembered. Because apart
from the facts stated in the ratio decidendi, the case contains no facts except the trivialities of date, amount, etc.
Case: Byrne V. Van Tienhoven- (1880): Facts: October 1.- The defendants in Cardiff by letter offered to sell to
the plaintiffs 1,000 boxes of Hensol Tinplates. October 11.- The plaintiffs received this letter. The plaintiffs wired to
defendants “Accept thousand Hensols”. But October 8.- The defendants posted a letter revoking their offer, ending “and
we must consider our offer to be cancelled from this date”. October 20.- The plaintiffs received second letter. It was held
that there was a good contract and that the defendant’s revocation of their offer was ineffective.
Here, the dates are mentioned in the case book to show the students how the legal question as to revocation of
offers is likely to arise in practice. All the facts of this case are immaterial except the fact that the offerors attempted to
revoke their offer by a letter that did not arrive until after the offerees had accepted.

Different types of legal materials.

1) Enactments: The expression ‘Enactment’ applies not only to the complete Act, but also to the various provisions in an
Act. A ‘Statute’ means a written law made or declared by the sovereign authority or a subordinate authority under the
delegated power from the sovereign.
2) Notifications: ‘Notification’ means the act of notifying or a formal pronouncement. A Notification is issued by the
Govt. (Central/state) to exercise the power of a legislative enactment. When the government is given power to make rules
under the statute (i.e. delegated legislation), it can, by notification, make rules to carry out the purposes of the statute.
Notification means publication of the rules in the manner prescribed by the Act, generally in the Official Gazette.
3) Judgements: Generally, it means judicial determination or decision of a court. It is the determination of a court
declaring the rights to be recognized and the remedies to be awarded between the parties upon facts found by the court or
admitted by the parties or upon their default in the course of proceedings instituted for the redress of a legal injury.
4) Law Reports: It is a general term for the published volumes narrating and recording the decisions of the courts. Law
reports are reports of the more important cases decided by the superior courts. Law report may relate to specific subject
such as Labour Law, Criminal Law, Income Tax etc. Examples: AIR, SCC, ILR, etc.
5) Reports of Commissions: The Law Commission from time to time makes reports in which it shall fully set forth the
result of its enquires and from time to time suggest such alterations as may, in its opinion, be beneficial made in the
existing law and procedure. Reports of other Commissions constituted for specific purpose can be referred.
6) Periodicals: A serial publication usually produced at regular intervals of less than a year and containing at least some
articles and/or news items, as distinct from legislation and case reports.
7) Text Books, Case Books, Commentaries.
8) Constitutional debates.
8) Research Papers, Dictionaries, Encyclopedias, etc.

Law Commission:
The Charter Act of 1833 made provision for the codification and consolidation of the Indian law. It made
provisions for the appointment of Law Commission in India. The Governor General –in-Council was empowered to
appoint a Law Commission. The Commission was to provide Code of laws common, as far as possible, to the whole
people of India. The Commission had to fully enquire into the jurisdiction, powers and rules of the courts of justice and
all existing forms of judicial procedures and into nature and operation of all laws in force in India. The Commission from
time to time makes reports in which it shall fully set forth the result of its enquires and from time to time suggest such
alterations as may, in its opinion, be beneficial made in the existing law and procedure. Before independence four law
Commissions were appointed. Fifth Law Commission - 1955 (after independence First Law Commission).
The Fourth Law Commission was the last Commission appointed by the British Govt. before the Indian Independence.
These Commissions must be admired for their contribution made to the codification of the Indian law. These
Commissions consisting of eminent English jurists gave to India a system of code dealing with important parts of
substantive and procedural laws civil and criminal laws.
The Law Commission of India functions within its terms of reference. Law Commissions are constituted by the
govt. from time to time and were empowered to recommend legislative reforms with a view to clarify, consolidate and
codify particular branches of law where the govt. felt necessary for it.
The Law Commission has been anxious to ensure that the widest section of people is consulted in formulating proposals
for law reforms. Seminars and workshops are organized in different parts of the country to elicit critical opinion on
proposed strategies for reform. Law Commission is a specialized body devoting itself to examine each law and find out
the defects in it with reference to case law that has grown around it and also by finding out whether it requires any
amendments in the context of changing society or it requires to be totally repealed and re-enacted in a different form. For
this purpose, Law Commission tours extensively collects evidence from a cross- section of the society and makes its
recommendations. Finally, Commission submits report to the government.

The lay-out of the law library.

, A law library contains highly specialized materials and this requires special skill to handle. A person who wishes
to use law library must know how to use it. A law library is not merely a collection of books. It is a collection of legal
literature properly housed and organized for service. Books in a law library are arranged subject wise, as in any other
library. Each book is assigned a subject number according to a particular classification scheme which the library uses.
Each book will have at least two catalogue cards in the catalogue cabinet- one arranged according to the subject or call
 9
number and the other in the alphabetical sequence of the authors and titles. Periodicals and law reports are generally
stacked separately in one sequence by the title.
When a student enters the library, he has to go directly to the card catalogue. At the entrance of the library, a shelf
contains the card catalogue in alphabetical order according to the first word on the card (in computerized library,
computer shows).
Students should explain about the lay-out of their college library.

The significance of "Lecture System" and "Text Books".

Lecture System: In the middle ages lectures were necessary because of the shortage of books. Now is there any
need to continue lecture system? Generally, lectures maybe said to posses several merits as a means of instruction. They
can quicken interest. To listen to a competent lecturer makes a welcome change from the reading of books. The lecturer
can help students by giving the ‘basis and essentials’ of the subject, elucidating the broad principles what is matter of
detail. Lecturer can solve individual difficulties.
Some lecturers regard it as their sole function to stimulate and inspire; they do not particularly want
notes to be taken. Concentrate on the lecture and rely upon your books for acquisition of facts or form the habit of taking
notes. Another inestimable habit is of spending a part of each evening reading through all the notes taken in the day.
Some lecturers are blamed for saying too many valuable things in too short a time, making it difficult for the pens of their
audience to keep pace with them. To meet this, use abbreviations. E.g. H- husband, W- wife, L-landlord, T-tenant etc.
If you fail to catch or understand a particular sentence, no lecturer minds being asked to repeat or
amplify it. Some lecturers invite questions and arguments; in that case you see that you play your part. Discussions
on the legal problems in the class – attend and prepare for them.
Text Books: “Learning by study must be won. Never entailed from son to son”
While studying law one should have two aims: 1. Primary aim is to make himself a lawyer, 2. Secondary aim is to
pass law examination with credit. Understanding is important whether one’s object is to solve examination problems or
to give sound opinions on points of legal practice. There is difference between preparation for practice and preparation for
the examination. Learning of law through the medium of text books-
The more often a book is read, the easier and quicker it is to read and the more it repays the reading. When a
book on an unfamiliar subject is read for the first time, it is rather heavy going and one seems not to remember very much
of it. The second reading is both easier and more interesting and also more is remembered. If one reads the book third,
fourth and fifth time, he would have found that each successive reading came more easily. One can get more information
in the text book as author explains elaborately. To the student of modest means the high price of law books is
intimidating. But many are now available at reasonable prices in paperback. Money can be saved by buying second hand
books, but who does this should be careful never to buy anything but a latest edition, except on his teachers’ advice.

Case Books:
Using of a case book has two advantages. Firstly, the case book saves some of trouble of making his own note
book of cases. Secondly, it does something to eliminate immaterial facts, thus helping in search for the facts that are
legally material.
Sometimes it is not recommended the use of the Case Book. Because, the only way to become a proficient
lawyer is to sit down in the library and read cases, not contenting oneself with the head note or any other simplified
version of the case, but reading through the whole of the statement of facts and the whole of the judgments. But here the
point to be noted is amount of time actually available to a law student for his studies. In a semester, students may get four
to five months. In that time they have to cover four to five subjects. This means an average of between five to six weeks
for each subject. In this short space, they must fit attendance at lectures, the reading of the text book, wider reading in the
library, etc.
But it should be noted that the use of case books by no means dispenses with the need for reading the
original reports. Because, many of the more important cases in the case book can profitably be read in full in the law
reports, using the case book version only for revision. Keen student will come across and want to read many cases which
are not in his case book.

Legislation – Enactments- Statutes:

Statute is also known as legislation. Legislation is that source of law which consists in the declaration of legal
rules by a competent authority. In strict sense it is laying down of legal rules by a sovereign or subordinate legislator.
Thus, Legislation may be of following kinds:
I. Supreme Legislation: Legislation which proceeds from the supreme or sovereign power in the state. II.
Subordinate Legislation: It is that legislation which proceeds from any authority other than the sovereign power and is
therefore dependent for its continued existence and validity on some superior or supreme authority. Thus, legislation by
bodies inferior to the sovereign constitutes subordinate legislation. a) Colonial ,b) Executive, c) Judicial, d) Municipal.
Enactment – legislation or statute. It is a law made by a group of people who together have power to make laws.
The expression ‘Enactment’ applies not only to the complete Act or legislation, but also to the various provisions in an
Act. A legislation may be Supreme legislation or Subordinate legislation. A ‘Statute’ means a written law made or
declared by the sovereign authority or a subordinate authority under the delegated power from the sovereign. Parts of
Statute: 1. Title, 2. Preamble, 3. Definition Clause, 4. Headings- Each statute is divided into various parts and these
parts are known as section, sub-sections and clauses. Each section begins with a heading. 5. Marginal Notes- 6. Section or
Article, 7. Punctuation Marks, 8. Illustrations, 9. Proviso, 10. Exceptions 11. Explanation, 12. Saving clauses,
13.Schedules.
 10

Law Reports:
It is a general term for the published volumes narrating and recording the decisions of the courts. Law reports are reports
of the more important cases decided by the superior courts. Law report may relate to specific subject such as Labour Law,
Criminal Law, Income Tax etc. Supreme Court and High Courts are courts of records, decisions of the Supreme Court
shall be binding on all courts (Art. 141 of the Indian constitution) application of doctrine of ‘Stare decisis, have made the
report of the these courts’ decisions compulsory. Hence, decisions of these courts should be published. Law Reports have
become the backbone of the profession. It contains three parts- the Acts passed by the Parliament/State Legislature,
Articles on law and judgments. Indian Law Report Act, 1875- Official Reports & Non-official Reports. Examples: AIR,
SCC, ILR, Cr.LJ, etc.

‘Constituent Assembly Debates’

A constituent assembly or constitutional assembly is a body or assembly of popularly elected representatives
composed for the purpose of drafting and adopting a document called Constitution. Constituent assembly is usually set
up for its specific purpose, which it carries out in a relatively short time, after which the assembly is dissolved. The
constituent assembly creates a constitution through internally imposed actions, in that, members of the constituent
assembly are themselves citizens, but not necessarily the rulers of the country for which they are creating a constitution.
The Constituent Assembly of India: It was elected to frame Constitution of India. It was set as a result of negotiation
between the leaders of the Indian independent movement and members of the British Cabinet Mission. The members of
the Constituent Assembly were elected by the provincial assemblies. The Constituent Assembly (elected for an
undivided India) met for the first time on 9 December 1946.
The Constitution of India was formed through a process of formation of constituent assembly which drafted,
debated, deliberated, amended and finally formed a final Constitution of India. In August 1947, the Constituent
Assembly set up a Drafting Committee to prepare a Draft Constitution for India. Drafting Committee consisted of
Chairman: Dr. B R Ambedkar and members- N Gopalaswamy Ayyangar, Krishnaswamy Ayyar, Dr. K M Munshi, Syed
Mohammad Saadullah, B. L. Mitter, D. P. Khaitan.
The Draft Constitution was presented to the Constituent Assembly in November 1948 by the Drafting Committee.
The Constituent Assembly proceeded to take up, clause by clause, every part of the Draft Constitution for debate. The
draft constitution was discussed and many amendments were proposed. The assembly approved or adopted the
Constitution on November 26, 1949 and it came into force on 26th January 1950. These debates which are organized in
volumes (12) are an essential guide to study the creation of the Constitution of India.

The need of lecture system.

In the middle ages lectures were necessary because of the shortage of books. Now is there any need to continue
lecture system? Generally, lectures maybe said to posses several merits as a means of instruction. They can quicken
interest. To listen to a competent lecturer makes a welcome change from the reading of books. The lecturer can help
students by giving the ‘basis and essentials’ of the subject, elucidating the broad principles what is matter of detail.
Lecturer can solve individual difficulties.
Some lecturers regard it as their sole function to stimulate and inspire; they do not particularly want
notes to be taken. Concentrate on the lecture and rely upon your books for acquisition of facts or form the habit of taking
notes. Another inestimable habit is of spending a part of each evening reading through all the notes taken in the day.
Some lecturers are blamed for saying too many valuable things in too short a time, making it difficult for the pens of their
audience to keep pace with them. To meet this, use abbreviations. E.g. H- husband, W- wife, L-landlord, T-tenant etc. If
you fail to catch or understand a particular sentence, no lecturer minds being asked to repeat or amplify it. Some lecturers
invite questions and arguments; in that case you see that you play your part. Discussions on the legal problems in the
class – attend and prepare for them.
Class Lecture System may be said to posses several merits as a means of instruction.
1. It can quicken interest. 2. To listen to a competent lecturer makes a welcome change from the reading of books. 3. The
lecturer can help students by giving the ‘basis and essentials’ of the subject, elucidating the broad principles. 4. Lectures
can stimulate and inspire; 5. Lecturer does not mind to repeat or simplify the points. 6. Some lecturers invite questions
and arguments; in that case students see that they play their part. 7. Lecturer can solve individual difficulties.
Students can also explain other points.

Literal Rule of Interpretation:

Interpretation or Construction of statute means the determination of the meaning of a statute. It implies a process
by which the lawyers and judiciary explore the intention behind the statute and determine its meanings. According to
Salmond, ‘Interpretation is that process by which the courts seek to ascertain the meaning of the legislature through the
medium of the authoritative forms in which it is expressed’.
'Literal Rule of interpretation’: The words of the statute are first understood in their natural, ordinary or popular
sense and phrases and sentences are construed according to their grammatical meaning unless that leads to some
absurdity or unless there is something in the context or in the object of the statute to suggest the contrary. The natural and
ordinary meaning of words should not be departed from unless it can be shown that the legal context in which the words
are used requires a different meaning. Literal interpretation is that which regards exclusively the verbal expression of the
law. This is litera legis, i.e. literal construction of the law. Thus, the general rule remains that the judges regard themselves
as bound by the words of a statute when these words clearly govern the situation before the court. The words must be
applied with nothing added and nothing taken away. Case: Ramavatar Budhaiprasad Vs. Asst. Sales Tax Officer- AIR
1961 SC-. Whether “Vegetables” included ‘Betel Leaves’ or not? - [Other cases may be discussed]
 11
Intention of the legislature has always to be gathered by words used by it, giving to the words their plain,
normal, grammatical meaning. It is essential for a court to give effect to the natural meaning of the words used therein, if
those words are clear enough. A departure from the rule of literal construction outside the recognized limits in the guise of
liberal or strict construction leads to unwarranted expansion or restriction of the meaning of words and gives rise to
serious errors.
Exact meaning preferred to loose meaning- There is a presumption that the words are used in an Act of Parliament
correctly and exactly and not loosely. E.g. the word ‘Contiguous’, its exact meaning, i.e.’ touching’ in preference to its
loose meaning, i.e. ‘neighbouring’. [Students may discuss other cases].

Golden Rule of interpretation.

Golden Rule: Interpretation to avoid absurdity. The rule that a statute may be construed to avoid absurdity is
called the Golden Rule. Lord Wensleydale regarded it as Golden rule in the case of Grey Vs. Pearson- 1857 HL.The
general statement of the Golden rule is that the literal (primary) meaning must be adopted unless this results in absurdity.
This application of the Golden rule does not contradict the literal rule, provided that the absurdity of the particular
proposed application of the statute is conceded to be a reason for finding an ambiguity in it.
According to Salmond, literal interpretation should be accepted and applied as a general rule but very carefully.
If the statute has ambiguity, absurdity, inconsistency, then the court may go beyond the words of the statute. The courts
may imply into statutes saving clauses that have not been expressed, to avoid what the courts regard as absurdity.
This Golden Rule seems to apply only in three types of cases: 1. This golden rule allows the court to prefer a
sensible meaning to an absurd meaning, where both are linguistically possible. It does not matter that the absurd meaning
is the more natural and obvious meaning of the words. 2. The Judge may read in words which he considers to be
necessarily implied by words which are already in the statute, and he has a limited power to add to, alter or ignore
statutory words in order to prevent a provision from being unintelligible (can not be understood) or absurd or totally
unreasonable, unworkable or totally irreconcilable (Inconsistent) with the rest of the statute. 3. In interpreting statutes,
various presumptions may be applied. They are the background of legal principles against which the Act is viewed. E.g. a
statute is presumed not to be retrospective except in procedural matters, the presumption against the taking of property
without compensation, no one is entitled to profit from his own wrong. Case: Re Sigsworth – 1935 Ch. 89 - A son had
murdered his mother. The Court held that he was not entitled to her estate, because no one is entitled to profit from his
own wrong. Case: Adler Vs. George – (1964) 2 Q.B. 7- The Official Secrets Act, 1920, section 3 prohibits persons “in the
vicinity of” any prohibited place from impeding sentries. The statute was to be read as if it were “in or in the vicinity of
any prohibited place. [Other cases may be discussed].

Mischief Rule- Rule in Heydon's case.

It is also known as ‘Mischief Rule’. It is originated for the first time in Heydon’s case. When ‘sententia legis’ or
the true intention of the legislature can not be determined by the language of the statute in question, the court may
consider the historical background underlying the statute, i.e. the circumstances under which the Bill was introduced and
it became finally law. The Act is to be interpreted in such a way so that mischief is suppressed and remedy is advanced.
The Rule enables consideration of four matters in construing ac Act.
1. What was the law before making of the Act?
2. What was the mischief or defect for which the law did not provide?
3. What is the remedy that the Act has provided? and
4. What is the reason of the remedy?
Case: Gorris Vs. Scott- A newly enacted statute provided that animals carried on board a ship should be kept in pens. The
defendant shipping company had failed to enclose the plaintiff’s sheep in pens and sheep had been washed overboard
during a storm. If the sheep had been penned, the mishap would not have occurred. However, the court rejected the
plaintiff’s suit for breach of statutory duty. Because, this Act was passed to prevent infection from spreading from one
owner’s animals to those of another, and therefore, can not be used to provide a remedy for a totally different mischief.
Case: Smith V. Hughes .[Other cases may be discussed]

Ejusdem Generis:
Ejusdem generis- (of the same kind)- When particular words pertaining to a class, category are followed by
general words, then general words are construed as limited to things of the same kind as those specified.
Case: A.G. Vs. Brown- (1920)- Section 43 of the Customs (Consolidation) Act 1876 empowered His Majesty by order in
Council to prohibit the importation of “arms, ammunition, or gun powder or any other goods”. The words “any other
goods” were construed as referring to goods similar to “arms, ammunition, or gun powder”.
Case: Ashbury Railway Carriage & Iron Co. Ltd. Vs. Riche-1875- A company was incorporated or formed – 1. to
manufacture and sell or lend on hire railway carriages and wagons etc. 2. to carry on business of mechanical engineers
and general contracts.
The company entered into a contract with Riche to finance the construction of the railway line in Belgium. After company
repudiated the contract on the ground of ultra-vires. Riche brought an action for damages for breach of contract and his
contention was that the contract fell within the meaning of the words “general contracts’. But court held that here the
words “general contracts” must be taken to indicate the making generally of such contracts as are connected with the
business of mechanical engineer. If the terms “general contracts” are not so interpreted it may include all the contracts.
Court applied the principle of “ejusdem generis”.
 12

Internal aid to construction

Following are the internal aids to construction of statute:
1. Long Title, 2. Preamble, 3. Definition Clause, 4. Headings- Each statute is divided into various parts and these parts
are known as section, sub-sections and clauses. Each section begins with a heading. 5. Marginal Notes- 6. Section or
Article, 7. Punctuation Marks, 8. Illustrations, 9. Proviso, 10. Exceptions 11. Explanation, 12. Saving clauses,
13.Schedules.
Beneficial rule of Interpretation or construction.
Interpretation of various types of statutes- Welfare enactments- When welfare statutes are
enacted, like, Minimum Wages Act, Workmen Compensation Act, Provident Fund Act, etc., they should be interpreted in
such a manner that it must serve its purpose in a most suitable manner. Courts should adopt what is sometimes described
as ‘beneficent rule of construction’.
If a section in a remedial statute is reasonably capable of two constructions that constructions should be preferred
which furthers the policy of the Act and is more beneficial to those in whose interest the Act might have been passed.
Remedial statutes are also known as welfare, beneficient, or social justice oriented legislation. Remedial statues receive
liberal construction. In case of remedial statutes, the doubt is resolved in favour of the class of persons for whose benefit
the statute is enacted. In the field of labour and welfare legislation, which have to be broadly and liberally construed, the
court ought to be more concerned with the colour, the content and the context of the statute rather than with its literal
import and it must have due regard to the Directive Principles of State Policy and any international convention on the
subject and a technological approach and social perspective.

Objectives of legal research:

‘Legal Research’ means research in that branch of knowledge which deals with the principles of law and legal
institution. The aim of the law is to regulate the human behaviour in the present day society. Hence, legal research must
be directed to the study of relationship between the world of the law and the world that the law purports to govern.
Objectives:
1. To find out the area where there is need of law. E.g. Cyber Law, Patent and Copy Right etc.
2. Where there is law, but there are lacunas or deficiencies in the existing laws, in those areas legal researcher can help in
finding suitable measures to eliminate them.
3. the purpose of research is utilitarian in nature. E.g. study about the causes of increasing dowry death in spite of legal
provisions. A close study may reveal its causes.
4.Other objects: i) to discover new facts, ii) to test and verify old facts, iii) to examine the nature and scope of new laws
or legal institutions, iv) to develop new legal concepts, v) to critically analyze the law, vi) to examine the consequences of
new facts or new principles of law or judicial decisions, vii) to ascertain merits and demerits of old law or
institution and to give suggestion for a new law or institution in the place of old one viii) to ascertain the relationship
between legislature and judiciary and to give suggestion as to how one can assist the other in the discharge of one’s duties
and responsibilities.

Legal Research. The different types of legal research.

‘Legal Research’ means research in that branch of knowledge which deals with the principles of law and legal
institution. It must be directed to the study of relationship between the world of the law and the world that the law
purports to govern. Advanced Learner’s Dictionary – Research is a careful investigation or inquiry especially through
search for new facts in any branch of knowledge. According to Encyclopedia- “Research is an act of searching into a
matter closely and carefully, inquire directly to the discovery of truth and in particular the trained scientific investigation
of the principles and facts of any subject, bases on original and firsthand study of authorities and experiments.
Kinds: Mainly two -
1. Doctrinal or Traditional Research: It involves analysis of case law, arranging, ordering and systematizing legal
propositions and study of legal institutions through legal reasoning or rational deduction. It is based on analysis of case
laws, statutes by applying logic and reasoning power. This kind of research is carried on by the judges, lawyers and law
teachers.
Characteristics: (a) Propositions based study; (b) Conventional legal theory, and report of appellate courts’ decisions are
the sources; (c) It studies law as it is existing.
2. Non-doctrinal or empirical Research: It is carried on by collecting or gathering information by first hand study of the
subject. It relies on experience or observation without due regard to any theory or system. It is also called as experimental
type of research. In this type of research, the researcher attempts to investigate effect of impact by actual examination or
observation of the functioning of law and legal institutions in the society.
Features: (a) Lesser emphasis on doctrine. It is not based on any legal proposition. It is concerned with people, social
value and social institutions; (b) It is not exclusively confined to appellate courts’ decisions and other traditional legal
resources for its data; (c) The factual study or the examination of actual functioning of law in society is extremely useful
for ascertaining the acceptance of a new law or ascertaining the course of law reform; (d) Field work is most important
part of this research.
Legal research may also be divided into- 1. Pure Research: It is undertaken for the sake of knowledge without any
intention to apply it in practice. 2. Applied Research: It aims at finding a solution for an immediate problem facing by a
society. It is problem and action oriented; 3. Descriptive Research: It is a fact finding investigation. It attempts to
describe systematically a situation , problem, behaviour etc. ; 4. Analytical Research: Critical evaluation of the existing
state of affairs after analysis. E.g. Whether the laws prohibiting dowry are sufficient or need to be amended; 5.
Quantitative – It involves generation of data in quantitative form which can be subjected to vigorous quantitative analysis
in a formal and rigid fashion; 6. Qualitative - It is concerned with the subjective assessment of the attitude, opinion and
 13
behaviour. This type of research is important where the aim is to discover the underlying motives of human behaviour;
7. Experimental research: In this method, two identical groups are selected. These should be identical in terms of
characteristics of phenomenon. One of the groups is used as experimental group and the other as control group; 8.
Survey: It is a fact-finding research. It involves collection of data directly from a population or a sample thereof at a
particular time, etc.

The major steps involved in doing legal research.

Research work is not something which can be completed in one stroke or one step. It consists of a number of
closely related steps and activities. Following are the some major steps: 1. Formulation of Research Problem: Researcher
must choose the area in which he wants to carry on research. In the field of law the researcher has a wide scope. He can
select any area such as, Constitutional Law, Criminal Law, International Law, Labour Law, etc.
2. Extensive survey of literature: Once a problem is formulated, a brief summary of it should be prepared. For this, the
researcher must undertake an extensive survey of the available literature on the subject.
3. Formulation of Hypothesis: Researcher should state in clear terms the hypothesis. It is the tentative assumption made in
order to draw out and test its logical consequences.
4. Collection of materials: To examine the materials, researcher should collect relevant materials. They are -Primary
Materials: which are found in the original documents, such as Reports of Parliament, Report of Commission, and
Secondary Materials: which are found in those documents which are prepared on the basis of primary documents. E.g.
Comments of jurists on the judgments, writings, textbooks etc.
5. Analysis of materials: Once the required materials are collected, the researcher undertakes to analyze them. In case of
empirical research, analysis of data is conducted through coding, tabulation and then drawing statistical references.
6. Testing of Hypothesis: After analysis of materials or data, the researcher becomes confident enough to test his
hypothesis which he had already formulated.
7. Generalization and Interpretation: Generalization means making a general or broad statement based on a case. The
purpose of generalization and interpretation is to build up a theory to be applicable in future to adjudicate upon similar
and identical problems.
8. Preparation of Report: It should be prepared with great care and caution, because, it is this report that gives credit to the
researcher.

Research Problem:
The formulation of the research problem is the first and the most important step of the research process. It is like the
identification of the destination before undertaking the journey. In the absence of a clear research problem, a clear and
economic plan is not possible. It is like a foundation of the building. A problem, in simple words, is some difficulty
experienced by the researcher in a theoretical or practical situation. 1. Problem must be worth studying; 2. It must have
social and legal relevance; 3. There must be facts needed for the research; etc. ‘Good and Hatt’ gives the following
criteria for the selection of a problem: 1. Researcher’s interest, intellectual curiosity and drive; 2. Practicability; 3. The
urgency of the problem; 4.Anticipated or expected outcomes, their importance for the field; 5. Resources, training and
personal qualification of the personnel, availability of special equipments, data, methods, time and sponsorship and
administrator’s cooperation. Advantages:1. It gives an enlightened picture of problems at every stage; 2. It paves the way
to complete the project within the stipulated time and cost will be moderate; 3. It boosts the morale (confidence) of the
researcher.

Primary and secondary data.

Collection of data is regarded as fascinating phase of research. A researcher can either collect the data himself or
rely on others for their collected data or information available with them. In both the cases, there is a great need for data
of high quality. This requires great skill experience. The methods are data collection are: (i) Observation, (ii) Interview,
(iii) Questionnaires, (iv) participation or Project techniques and case study methods.
Primary data collection: It is original information collected for the first time. It is also called as internal source of
data as the data is collected directly from the subjects. It includes (i) Direct primary sources- Here researcher personally
goes and observes events, things, behaviour, activities and so on. (ii) Secondary primary source- Here researcher cannot
observe things which occurred long back, he needs to contact those persons who have made observations relevant to his
research. This can be done through interviews or questionnaires etc.
Secondary data: This information is obtained from outside, either published source or someone else who has already
worked on the project. They save a researcher the labour of collecting data again and prevent unnecessary expenditure.
They can be broadly divided into – (a) personal documents and (b) published documents. Personal documents consist of
life histories, diaries, letters and memories. Public documents come from public bodies, Govt. and private organizations.
Apart from books available in libraries, this category includes records, published statistics, reports of newspapers and
journals and special reports, film or T.V. programmes, etc. Documentary sources are very important because past events
can be known only through them. They may reveal certain secrets. But researcher should verify the contents with the help
of other sources.

Hypothesis and its various kinds.

Hypothesis is a tentative supposition (assumption) or provisional guess which seems to explain the position
under observation. A tentative statement about something, the validity of which is usually unknown. According to
Goode and Hatt, ‘Hypothesis looks forward. It is a proposition which can be put to a test to determine its validity. It may
seem contrary to, or in accord with, commonsense. It may prove to be correct or incorrect. In any event it leads to an
empirical test. Fundamental need of a hypothesis is to guide sound research. It is necessary link between theory and
investigation which leads to the discovery of additions to knowledge. The formulation of the hypothesis is a central step
 14
in good research, and it is important to give it a great deal of thought. Making hypothesis is a creative act’. Hypotheses,
though important, are not essential for a study. Because, study can be conducted without constructing a hypothesis.
Importance: 1. It provides study with focus, what specific problem to be investigated.
2. It provides direction to research - it tells what data to be collected and what not. Thus, prevents collection of useless
data, consequently saves time and money.
3. It may enable the researcher to add to the formulation of theory.
Hypotheses, though important, are not essential for a study. Because study can be conducted without
constructing a hypothesis.
Characteristics: 1. Hypothesis should be capable of verification. 2. Hypothesis should be simple, specific and
conceptually clear. To develop good hypothesis, one must be familiar with the subject area. There should not be any
ambiguity in the construction of the hypothesis. E.g. Number of yellow fruits in a bucket is more than that of green fruits.
3. Hypothesis should be related to the body of knowledge. 4. It should be operationalisable- It can be expressed in terms
that can be measured. If it can not be measured and tested , no conclusion can be drawn.
Kinds or Types of Hypotheses: 1. Uniform hypothesis: Uniform hypotheses relate to the existence of empirical
uniformities. E.g. In an urban market like Bombay, the determinants (factors) of demand for T.V. sets are identical for all
the prominent makes, say, Onida, L.G., Sony, etc.
2. Analytic hypothesis: Analytic hypothesis deals with the relationship of analytic variables. They are aimed at finding
out the relationship between changes in one property leading to changes in another. E.g. Demand for T.V. sets depends on
various factors like, programme, standard of inhabitant, promotional budget of the company etc.
3. Null hypothesis: When a hypothesis is construed stipulating that there is no difference between the two situations,
groups, on the prevalence of a condition or phenomenon, this is called Null hypothesis. E.g. There is no significant
difference in the proportion of male and female smokers in the study population.
4. Hypothesis of Difference: A hypothesis in which a researcher stipulates that there will be a difference but does not
specify its magnitude is called a hypothesis of difference. E.g. A greater proportion of males than females are smokers in
study population.
5. Hypothesis of point- prevalence: A researcher may have enough knowledge about the smoking behaviour of the
community. Suppose researcher knows that proportion of male and female smokers is sixty and thirty percent
respectively. This type of hypothesis is known as a hypothesis of point-prevalence.

Various stages of analysis of data.

After the data have been collected, the researcher has to give attention to analyze them. Analysis of the data may
be considered as having a reference to the process of viewing the data in the light of hypothesis or research questions, as
also the prevailing theories and drawing conclusions that will make some contribution in the matter of theory formulation
or modification. According to John Galtung, analysis of data involves a number of closely related operations that are
performed with the purpose of summarizing the data obtained, and organizing them in such a manner that they will yield
answers to the research questions.
Analysis of Data includes- 1. Classification of Data: if a large number of different kinds of responses are to be
organized so that they can be used in answering the research questions or drawing generalizations, they must be grouped
into a limited number of categories or classes; 2. Coding: Coding is a technical procedure by which the data are
categorized; 3. Tabulation: it is the summarization of results in the form of statistical tables; 4. Statistical analyses of
data: e.g. ratios, propositions etc. After analysis of materials or data, the researcher becomes confident enough to test his
hypothesis which he had already formulated.

The use of library in legal research.

According to Goode and Hatt, an important part of the preparation for the research work consists in learning how
to use the resources of libraries. It is important because all research inevitably involves the use of the book, pamphlet,
periodical and documentary materials. There the need for using certain basic kinds of published materials. Thus, the
researcher should know how to use library with knowledge of basic bibliographic and reference materials. He should
understand the ways in which the libraries organize their collections. I Library And Card Catalogue, II. Legal Periodicals,
Articles, III. Subject Bibliographies, IV Reference Books, V Recording source material in Libraries: VI. Use of
Computers: The influence of computers on law has already effected significant changes and there is likelihood of many
more changes with the increase sophistication of equipment and techniques. Nowadays we find computers on the desks of
the lawyers. Internet facility brought the whole knowledge of the world into a lap-top computer. Information technology
has developed a lot and e-mail facility helps the researcher in communication. The researcher can get information
through websites and he can get the national and international statutes, agreements and details of case laws relating to a
particular issue. Nowadays use of computer is a must to any legal practitioner.

The tools of research.

Library: A law library contains highly specialized materials and this requires special skill to handle. A person
who wishes to use law library must know how to use it. A law library is not merely a collection of books. It is a collection
of legal literature properly housed and organized for service. Books in a law library are arranged subject wise, as in any
other library. Each book is assigned a subject number according to a particular classification scheme which the library
uses. Periodicals and law reports are generally stacked separately in one sequence by the title. When a student enters the
library, he has to go directly to the card catalogue. At the entrance of the library, a shelf contains the card catalogue in
alphabetical order according to the first word on the card (in computerized library, computer shows).
Observation: According to Goode & Hatt, science begins with observation and must ultimately return to
observation for its final validation. Observation, as defined in the Oxford Advanced Learner’s Dictionary, is an act of
watching something carefully for a period of time, especially to learn something. Young says, “Observation may be
 15
defined as systematic viewing, coupled with consideration of the seen phenomenon”. It is a deliberate study through the
eye.
Questionnaire: This method is one of the most suitable methods for the investigation of socio-legal problems.
We use the tools of questionnaire for collecting data from large, diverse, varied and scattered persons from different
places. Questionnaire is a list of questions to be answered by group of people. It is used to obtain knowledge about facts
known to the informant. According to Goode & Hatt, questionnaire is a device for securing answers to questions by using
a form which the respondent fills in himself.
Interview: It is a conversation with a purpose. It is a face to face interpersonal role situation in which one person
(the interviewer) asks the person being interviewed (the respondent) questions designed to obtain answers pertinent to the
research problem. It consists of verbal responses between two or several persons. According to Goode & Hatt,
interviewing is fundamentally a process of social interaction. Interview is a method of data collection mainly through the
verbal interaction between the respondent and the interviewer.
Sampling: For the collection of data there are two methods, i.e. Census method and sampling method. When the
whole are or population of persons is contacted, the method is known as Census method. When a small group is selected
as representative of the whole, it is known as sampling method. Goode & Hatt defined a sample as a smaller
representation of a larger whole. To analyze large quantities of material is wasteful when a smaller amount would suffice.
The whole group from which the sample has been drawn is known as ‘universe’ or ‘population’ and the group selected for
study is known as ‘sample’. The size of a sample is an important issue as it has a direct bearing upon accuracy.
Case study: Case study method is more suitable for the study of fewer persons and to find out the root cause for
a particular problem. According to Goode and Hatt, case study is a way of organizing social data so as to preserve the
utility character of the social object being studied. Expressed somewhat differently, it is an approach which views any
social unit as a whole. Case study takes into consideration comparatively fewer cases and aims at more intensive study.
Information to be gathered in this method is more comprehensive in nature.

Methods of collection of data in research.

A researcher can either collect the data himself or rely on others for their collected data or information available
with them. In both the cases, there is a great need for data of high quality. This requires great skill experience. Primary
and secondary sources of data collection: It is original information collected for the first time. It is also called as internal
source of data as the data is collected directly from the subjects. Secondary or external source of data: This information is
obtained from outside, either published source or someone else who has already worked on the project.
The methods of data collection are: (i) Observation: According to Goode & Hatt, science begins with observation and
must ultimately return to observation for its final validation. Observation, as defined in the Oxford Advanced Learner’s
Dictionary, is an act of watching something carefully for a period of time, especially to learn something. Young says,
“Observation may be defined as systematic viewing, coupled with consideration of the seen phenomenon”. It is a
deliberate study through the eye.
(ii) Interview: It is a conversation with a purpose. It is a face to face interpersonal role situation in which one
person (the interviewer) asks the person being interviewed (the respondent) questions designed to obtain answers
pertinent to the research problem. It consists of verbal responses between two or several persons. According to Goode &
Hatt, interviewing is fundamentally a process of social interaction. Interview is a method of data collection mainly
through the verbal interaction between the respondent and the interviewer.
(iii) Questionnaire: Questionnaire is a list of questions to be answered by group of people. It is used to obtain
knowledge about facts known to the informant. According to Goode & Hatt, questionnaire is a device for securing
answers to questions by using a form which the respondent fills in himself. The questionnaire has to be enclosed with the
self-addressed envelope duly stamped so that the respondents can easily send back the filled in questionnaire.
(iv) Case study method: Case study method is more suitable for the study of fewer persons and to find out the
root cause for a particular problem. According to Goode and Hatt, case study is a way of organizing social data so as to
preserve the utility character of the social object being studied. Expressed somewhat differently, it is an approach which
views any social unit as a whole. Case study takes into consideration comparatively fewer cases and aims at more
intensive study. Information to be gathered in this method is more comprehensive in nature.
v) Sampling: For the collection of data there are two methods, i.e. Census method and sampling method. When
the whole are or population of persons is contacted, the method is known as Census method. When a small group is
selected as representative of the whole, it is known as sampling method. Goode & Hatt defined a sample as a smaller
representation of a larger whole. To analyze large quantities of material is wasteful when a smaller amount would suffice.
When the whole group from which the sample has been drawn is known as ‘universe’ or ‘population’ and the group
selected for study is known as ‘sample’. The size of a sample is an important issue as it has a direct bearing upon
accuracy.
vi) Use of Library: A law library contains highly specialized materials and this requires special skill to handle. A
person who wishes to use law library must know how to use it. A law library is not merely a collection of books.

Use of Library.
According to Goode and Hatt, an important part of the preparation for the research work consists in learning how
to use the resources of libraries. It is important because all research inevitably involves the use of the book, pamphlet,
periodical and documentary materials. There the need for using certain basic kinds of published materials. Thus, the
researcher should know how to use library with knowledge of basic bibliographic and reference materials. He should
understand the ways in which the libraries organize their collections. I Library And Card Catalogue, II. Legal Periodicals,
Articles, III. Subject Bibliographies, IV Reference Books, V Recording source material in Libraries: VI. Use of
Computers: The influence of computers on law has already effected significant changes and there is likelihood of many
more changes with the increase sophistication of equipment and techniques. Nowadays we find computers on the desks of
 16
the lawyers. Internet facility brought the whole knowledge of the world into a lap-top computer. Information technology
has developed a lot and e-mail facility helps the researcher in communication. The researcher can get information through
websites and he can get the national and international statutes, agreements and details of case laws relating to a particular
issue. Nowadays use of computer is a must to any legal practitioner.

'Interview method' in research'.

Interview is a conversation with a purpose. It is a face to face interpersonal role situation in which one person
(the interviewer) asks the person being interviewed ( the respondent) questions designed to obtain answers pertinent to
the research problem. It consists of verbal responses between two or several persons. According to Goode & Hatt,
interviewing is fundamentally a process of social interaction. Interview is a method of data collection mainly through the
verbal interaction between the respondent and the interviewer. Types of Interview: 1. Structured interview, 2.
Unstructured Interview, 3. Focused Interview, 4. Repetitive Interview, 5. Non-directive Interview, In this type of
interview, the interviewer’s function is simply to record and to encourage the respondent to talk about the given topic. 7.
Depth Interview: It is generally a lengthy procedure designed to encourage free expression of effectively charged
situation.
Steps - Preparation for an Interview: Understanding the problem, Preparation of Interview Guide, Selection of
cases, Preparation of Schedule, Training the Interviewers, Prior Appointment etc. Technique of Interview: 1. Rapport
building or Establishing contact, 2. Starting an Interview, 3. Recording, 4.Closing the Interview, 6. Filling in the
Schedules. Advantages of Interview: 1. The percentage of response is much higher than in case of mailed questionnaire as
the interviewer is personally present; 2.The interviewer can create an atmosphere for proper response;3. The schedule is
filled in by the interviewer himself; 4. Personal contact with the respondent enables the interviewer to probe more deeply
into the character, living conditions and the general life pattern of the respondent; 5. It is highly flexible tool, etc.
Disadvantages:1. In terms of cost, it is uneconomical as it requires a number of interviewers; 2. Data may be inaccurate or
incomplete, if interviewer is less skilled; 3. Personal interview usually takes more time, etc.

Observation:
According to Goode & Hatt, science begins with observation and must ultimately return to observation for its
final validation. Observation, as defined in the Oxford Advanced Learner’s Dictionary, is an act of watching something
carefully for a period of time, especially to learn something. Young says, “Observation may be defined as systematic
viewing, coupled with consideration of the seen phenomenon”. It is a deliberate study through the eye. Kinds of
Observation: 1. Uncontrolled Observation: (simple or unaided or non-controlled observation)- In this kind, observation is
made in the natural surroundings and the activities are performed in their usual course without being influenced or guided
by an external force. The observer visits the place of occurrence of phenomena in order to observe. 2.Controlled
Observation: in this technique, controls are imposed on the observation or on the object. In socio-legal research,
generally, the imposition of controls on the object is difficult and controls are imposed on the observer. Following are a
few control devices: a) Preparation of a detailed observation plan; b) Use of observational schedules;c) Use of mechanical
appliances like the camera, tape-recorders etc.;d) Use of control groups, etc. 3. Participant Observation: In this type, the
investigator actually participates in the activities of the group under investigation. In this, researcher is free to participate
as a member of the group and he is not subjected to any controls and restrictions. Observer must gain the confidence of
the participant group and he should not acquire any special status in the group. If he acquires, he loses his identity as an
observer and he acquires bias. 4. Non- Participant Observation:When the observer does not actually participate in the
activities of the group, but simply observes them from a distance, it is known as non-participant observation. 5. Structured
Observation-In this type of observation, the units to be observed are carefully defined, information to be collected is
recorded, the source of data is selected and the conditions of observation are standardized. 6. Unstructured
Observation- In this type of observation, the observer does not know in advance which aspects of the situation will prove
relevant. The observer’s understanding of the situation is likely to change as he proceeds. 7. Direct and Indirect
observations( use of cameras, tape-recorder etc. in indirect observation)
Advantages: 1. The group can be observed in its natural behaviour; 2. The observer can talk with the group and
understand the significance of the problem; 3. He studies the problem in real situation; 4. He can check truth of the
statements made by the members of the group; 5. He can gather more and relevant information as a member of the
group; 6. The information is collected from the primary source by direct observation. 7. It helps him to observe even
minute things, etc.
Disadvantages:1.Observation by an outsider is uncomfortable to the members of the group and their behaviour
may get altered; 2. Range of experience is narrower; 3. He can observe only those activities that take place before him,
but they form only a small part of the whole range; 4. In some cases active participation is not possible. E.g. One can not
become a criminal to study criminal gang; 5. By active participation, he creates a status for himself in the group, etc.

Participatory Observation:
According to Goode & Hatt, science begins with observation and must ultimately return to observation for its
final validation. Observation, as defined in the Oxford Advanced Learner’s Dictionary, is an act of watching something
carefully for a period of time, especially to learn something. Young says, “Observation may be defined as systematic
viewing, coupled with consideration of the seen phenomenon”. It is a deliberate study through the eye.
Participatory Observation: In this type, the investigator actually participates in the activities of the group under
investigation. In this, researcher is free to participate as a member of the group and he is not subjected to any controls and
restrictions. Observer must gain the confidence of the participant group and he should not acquire any special status in the
group. If he acquires, he loses his identity as an observer and he acquires bias.
 17
Advantages: 1. The group can be observed in its natural behaviour; 2. Participant observer is much more closer
to the group; 3. The observer can talk with the group and understand the significance of the problem; 4. He studies the
problem in real situation; 5. He can check truth of the statements made by the members of the group; 6. He can gather
more and relevant information as a member of the group than from outside; 7. The information is collected from the
primary source by direct observation, etc.
Disadvantages: 1. The presence of an outsider may change the behaviour of the group; 2. Observer may lose
his impartiality and develop bias with the participation in the activities; 3. By active participation, he creates a status
for himself in the group; 4. In some cases active participation is not possible. E.g. One cannot become a criminal to study
criminal gang; 5. Range of experience is narrower, 6. He may develop familiarity and may fail to observe thinking that
they are common things, etc.

Case study method.

According to Goode and Hatt, case study is a way of organizing social data so as to preserve the utility character of
the social object being studied. Expressed somewhat differently, it is an approach which views any social unit as a whole.
According to P.V. Young, case study is a method of exploring and analyzing the life of a social unit, be that a person, a
family, an institution, cultural group or even entire community.
Characteristics: 1. Unit of study; 2. It aims at deep and detailed study of the unit; 3. It covers a sufficiently wide
cycle of time; 4. The number of units should be small; 5. It is mainly qualitative in character; 6. It intends to find out the
factors that account for the behaviour patterns of the given unit and its relationship with the environment.
Sources: 1. Personal documents; 2. Life history documents.
Importance of Case study method: 1. It helps to secure a wealth of details about the unit of study which may provide
clues and ideas for further improvement. 2. It provides a wealth of data, clues and ideas for further research. It helps in
formulating valid hypothesis. 3. Case data are the means by which we are able to arrive at the actual human experience
and attitudes which constitute the full and actual social reality. 4. Case study is the suitable method when the problem
under study forms a process rather than one incident, e.g. courtship process, clique formation, etc. 5. Case study method
is the actual scientific method as the study is made on the basis of facts and evidences.
Limitations:- 1. Over confidence of the researcher, as he studies in detail, may lead to false sense of confidence which is
detrimental to any scientific outlook; 2. Generalizations are drawn from too few cases and we cannot universalize them;
3. This method is quite loose and unsystematic; 4.There is enough scope for errors due to inaccurate observation and
faulty inference; 5. More time and money needed; 6. The researcher develop a tendency towards ad hoc theorizing,
etc.
Thus, case study takes into consideration comparatively fewer cases and aims at more intensive study.
Information to be gathered in this method is more comprehensive in nature.

Kinds of Sampling:
For the collection of data there are two methods, i.e. Census method and sampling method. When the whole are or
population of persons is contacted, the method is known as Census method. When a small group is selected as
representative of the whole, it is known as sampling method. Goode & Hatt defined a sample as a smaller representation
of a larger whole. To analyze large quantities of material is wasteful when a smaller amount would suffice. When the
whole group from which the sample has been drawn is known as ‘universe’ or ‘population’ and the group selected for
study is known as ‘sample’.
Main kinds of Sampling: 1. Probability Sampling: In this method, it is possible to state in advance the
probability that any given unit will be included in the sample. Following are the probability sampling methods: a)
Random Sampling-[ Lottery Method- Random number- Selection from sequential list- Grid System]: b) Systematic
Sampling: It requires that the population be accurately listed in such a way that each element of the population can
uniquely identified by its order. c) Stratified Random Sampling: In this method, the population is first divided into a
number of strata (levels or classes of society) based on some characteristic, such as age, sex, educational level, etc. Then
sample is taken from each stratum and such samples are brought together to form the total sample. 2. Non-Probability
Sampling: It is not based on the probability with which a unit can enter the sample but by other consideration such as
common sense, experience etc. it may include- a) Judgement sampling- the researcher selects the units to form his sample
on his judgement, b) Accident sampling- the researcher selects any case he comes across. 3. Area sampling: small areas
are designated as sampling units and the households to be interviewed will be selected if they are found in a canvass of
these designed small areas.

The Questionnaire method of research

Questionnaire Method: This method is one of the most suitable methods for the investigation of socio-legal
problems. We use the tools of questionnaire from collecting data from large, diverse, varied and scattered persons from
different places. Questionnaire is a list of questions to be answered by group of people. It is used to obtain knowledge
about facts known to the informant. According to Goode & Hatt, questionnaire is a device for securing answers to
questions by using a form which the respondent fills in himself. The questionnaire has to be enclosed with the self-
addressed envelope duly stamped so that the respondents can easily send back the filled in questionnaire. When the rate
of arrival has fallen considerably, the reminders have to be sent. Kinds: Structured Questionnaire, Unstructured
Questionnaire, Types of questions: Open-end questions, close questions, Dichotomous questions, Multiple choice
questions. Advantages: 1. Wide population can be covered; 2. More economical in terms of money, when the resources
are limited; 3. Survey can be conducted quickly by mailing questionnaires and rapidity may be achieved in a much
smaller time; 4. It places less pressure on the respondents for immediate response; 5. There is no need to go and see the
respondents;6. It puts less emotional burden and caused less fatigue (tiredness) to the respondent. It provides ample
freedom and time to the respondent; 7. It provides valid information, etc. Disadvantages: 1. It cannot elicit replies from
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people who are illiterate and less educated; 2. Many respondents may fail to respond; 3. Information given may not be
reliable one; 4. There will be no personal contact with the respondent, etc.

Interpretation of Data-
It helps one to understand what the given research finding really means and what the underlying abstract
principles. Importance: 1. It is through interpretation that the researcher can well understand the abstract principle that
works beneath his findings. 2. Interpretation leads to the establishment of explanatory concepts that can serve as a
guide for future research studies.3. Researcher can better appreciate only through interpretation why his findings are,
what they are, and can make others to understand the real significance of his research findings.
Techniques of Interpretation: It involves- 1. Researcher must give reasonable explanations of the relation which
he has found. 2. Before embarking the final interpretation, it is advisable to consult someone having insight into the
study. 3. Researcher must accomplish the task of interpretation only after considering all relevant factors affecting the
problem to avoid generalization. 4.He must be in no hurry in interpreting result. Pre-cautions: 1. The data are appropriate,
adequate and reflect good homogeneity. 2. Researchers must be cautious about the errors that can possibly arise in the
process of interpreting results. 3. The researcher must remember that ideally in the course of research study, there should
be constant interaction between initial hypothesis, empirical observations and the theoretical conceptions.

Research report writing:

This is the most important part of research work. It includes the purpose, the importance, the limitations, the
procedure, the findings and the conclusions.
General structure of the Report: Mainly three parts- I. The Preliminary matters; II. The Main text
and III. The End matter.
I. The Preliminary Matters: It contains the following - 1. Title Page- It contains - title of the thesis or work-researcher’s
name- the date of submitting it - name of the institution where it is presented- the name of the guide or supervisor- When
the thesis is published, the name of the institution is replaced by the name of the publishers and the place and year of
publication. 2. Acknowledgement Page; 3. Preface or Foreword; 4. Table of contents; 5. Table of Cases; 6. List of tables
or figures; 7. List of abbreviations (optional).
II. The Main Text:
This part of the thesis is divided into Chapters and is produced as follows: 1. Introduction; 2. The Problem;
3. Survey of related Literature; 4. Procedure; 5. Presentation of Data; 6. Conclusion;
III. The End Matter:The end matter contains the following items:1. Footnote; 2. Bibliography; 3. Appendix.

Write a note on- Bibliography:

It includes all references to related materials. It furnishes a clue to the quality of the report. It helps
those interested in developing the problem further or in studying another angle of the problem. The references in
bibliography are arranged alphabetically sometimes by topic, by geographical locations or by some other plans. Quite
often, it is divided into books, periodicals, reports and bulletins, etc. It differs from footnote. It is not given on each page
of the thesis, but at the end, after the Chapter, i.e. Conclusion and before index. In bibliography author’s name, title,
place of publication, publisher, year of publication are given. In bibliography total number of pages of the book or the
article is given as “615 PP”. But in footnote only the relevant page is given. E.g. “ Page 30”. Bibliography is produced
alphabetically by last name or surname of the first author. E.g. Krishna Iyer V.R., Law versus Justice, New Delhi: Deep &
Deep Publications, 1983, 236 PP.

‘Methods of citation’.
Footnotes: Footnotes are conventional procedure used in scholarly writing to validate or to explain certain aspects in the
main text. Footnotes should appear only in the body of a paper or thesis, never in an abstract.
Referencing: There is a need to refer to the work of other researchers in a field. There is a method of referencing in
bibliographies of assignments and thesis. There are different referencing systems, Vancouver, Harvard and APA
(American Psychological Association). Reference system is used to embrace the conventions or rules for specifying
details such as author, date, publisher, and so on, of sources of information to which reference may be made in an
assignment or thesis. Spacing: Single spaced entries for references with double spacing between entries, give a readable
format. Names of the authors stand out more clearly if references are entered using what is called a hanging indent.
Bibliography: It is, strictly speaking, a list of published works, although by common usage both published and
unpublished materials are listed in a bibliography.
Abbreviations: ed. , eds.-edition, editions; col., Cols.- column, columns; fig., figs.- figure, figures; Infra- below; supra-
above; Illus. Illustrated, etc.
Alphabetical and Chronological order.

Write an explanatory note on the assignment writing.

Assignments perform an invaluable function in promoting students to think independently about issues and
subjects. Students also learn how to access, select and evaluate information from different sources and to formulate ideas.
Planning the assignment: When topic is given, the first task is to define and limit the problem. Further tasks in planning
are to acknowledge any limitations and to determine a time schedule. A major allocation of time will be for consulting
source material and collecting information. Limiting the problem: A common mistake with undergraduate assignments is
to be too ambitious and to attempt topics that are far too broad. Time should be spent for limiting the problem. Problem
should not be limited by omitting important information and leaving out essential details or presenting only part of it.
A time schedule: The failure to schedule time appropriately usually results in an inferior piece of writing. Time allocation
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for different stages of writing be as follows: 1. Defining and limiting problem, specifying limitations, consulting source
material and collecting information – 60%; 2. First Draft- 20%; 3. Revising, footnoting, referencing, writing the final
draft, proofreading- 20%. Consulting source materials: References should be consulted first. Reference books themselves
contain further references. Preparing a working Bibliography: A bibliography for a written assignment is an alphabetic list
of all source material to which reference has been made. There are difference ways of referencing books, journal articles
and other documents. In presenting an assignment, certain format specifications should be followed. These specifications
are not to stifle writers but rather to allow them to encompass their individual contributions within a conventional
framework that is both logical and sequential. By following stringent format requirements, writers cannot only
systematize and structure their thinking in terms of theme, unity and clarity, but they can also facilitate the reading and
interpretation of the work by others.
By convention, a paper (assignments) consists of three parts: 1. The preliminaries; 2. The text and 3. The reference
materials. The length of these three parts is conditional on the extent of the study. In a long paper, each of the main parts
may consist of several subsections.
Generally accepted sequence: 1.The Preliminaries: a)Title page, b) Abstract, c) Declaration, d) Acknowledgment
e) Table of contents, f) List of Tables, g) List of figures or illustrations.
2. The Text: a) The Introduction (introductory chapter or chapters), b) Main body of the report (usually divided into
chapters and sections), c) Conclusion (summary chapter or chapters)
3. The Reference materials: a) References, b) Appendix (or appendices), c) index (if any)
Conclusion: The conclusion serves the important function of tying together the whole assignment. In summary form the
development of the previous chapters should be succinctly restated, important findings discussed and conclusions drawn
from the whole study. In addition, you may list unanswered questions that have occurred during the study, which
require further research beyond limits of the project being reported. In a small assignment, the conclusion need not be a
separate chapter or section.

What are the points to be noted while answering questions in the exam?
1. First read the question paper: Before starting to write, read through the whole of the exam question paper and jot
down the names of the case or section or any other details that are required when you are going to write the answers; 2.
Every question in the paper that the student is expected to answer and can answer should be answered; 3. A candidate
should not spend the entire time on only a few of the questions. It is important to divide available time, as far as possible,
equally among all the questions; 4. When question contains two or more distinct parts – marks allotted to each part. Then,
answer to one part can maximum earn only the marks allotted to that part; 5. Read the questions meticulously- it is
important to search for all the possible angles to a question; 6. Choice of questions: candidate should prefer the problem.
Because they are usually shorter to answer and so save time. Examiner may not give good marks for essay questions
where the answer does not display the application of much detailed knowledge in answering. But there is risk in the
problem- if the point of the problem is completely missed, the result may be a disaster. But in legal matters, there is
usually certain room for difference of opinion; 7. Names of cases: Students face the problem of remembering the cases.
There is an expectation that cases are to be quoted, where relevant, in the answers. Never refrain from referring to a case
in the exam merely because you have forgotten the case name. The name is least important. Most important is the rule of
law contained in the case; next important is facts of the case. If the name of the case is imperfectly remembered, the
approximate name can be given with a question mark in a bracket; 8. Handwriting, Orthography and Grammer: You may
be penalised if your handwriting is not legible to an examiner. If your handwriting is not legible, you cannot communicate
to the examiner what you write. Some people cannot spell and do not care about it. But if you want to make a good
impression on examiners, mastery over orthography is necessary; 9. The pressure of time: Student should be very
cautious about the time. Allocation of time for each question is important. If you find that time has run short for the last
answer, the best course is to reduce the answer to bare note form. Some students write ‘no time to finish’. This practice
has no mark getting capacity. Time can be saved by omitting to insert irrelevant materials to the answers; 10. Self-
contradiction: The candidate will start with one version of the law and then gradually veer (change direction suddenly)
round to a contradictory version. If you engage in such a practice you get the worst; 11. If you find yourself changing
your mind in the course of an answer, cross out what you have written and start fresh; 12. Answering Essay type
questions: It becomes a good practice when student will, well in advance of the examination itself, look at the
examination papers for the past few years and will write out the answers to some questions in order to gain practice in self
expression; 13. Subdivided questions: If question is divided into several sub-questions, answer each sub-question
separately; 14. Ponder the question carefully. Try to understand what does this question mean? If it conveys no clear
meaning to you, avoid it, provided that you have options to answer other questions; 15. Introducing cases in to an answer:
Introduce cases into your answer. But try to avoid making your answer book like a mere bundle of cases. It is a good
habit to underline the proper names of the parties. For the student it helps in revising
answer script and it makes the examination script easier for the examiner to read; 16. The way of stating cases:
If time allows- each case should be dealt with fully, giving in due order the principle involved in the case, its name, its
facts, possibly the argument of counsel, the court before which the case came, the decision, possilbly the ratio decidendi
and the obiter dicta. If time does not allow-State the rule of law contained in the case, name of the case, the court decided,
outstanding fact or facts; 17. Criticism: When a question quotes a statement and asks for a discussion of it, do not hesitate
to criticize the statement itself if you think it is open to criticism. 18.The arrangement and wording of the answer: Try to
make your answer attractive. Within limit it is permissible to divide up the answer into numbered points with sub-
headings underlined. But there should not be too many subdivisions, because they may give an unpleasant impression that
the candidate has simply learned by heart.
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Foot notes.
Footnotes are conventional procedure used in scholarly writing to validate or to explain certain aspects in the
main text. Footnotes should appear in the body of a paper or thesis. Footnotes can be distracting if they are so numerous
and frequent that they persistently impinge (negative effect) upon the reader’s attention. Footnotes provide readers
sufficient information to consult various sources independently. Footnotes are found at the foot of a page. Information in
footnotes includes: 1. the source of information; 2. the date of publication; 3. the title of the source; 4. the publisher and
place of publication; 5. the exact page(s) of the source of reference, etc.
Reference to footnotes is made using superscripts in the body of the text where the particular reference is given.
The superscript appears without any punctuation and without any space intervening between it and preceding word of
punctuation mark. When footnotes are placed at the foot of the page, no heading is used. They are commonly separated
from the text by a short solid line called a separator. The separator is drawn from the left-hand margin and one double
space below the last line of the text.

Working out of problems:

It is not easy for a student in the examination to show the judgement that answering a problem question requires.
Therefore, it is most important to train oneself in problem answering well in advance.
Read every word of the problem carefully-Facts stated in the problem are conclusive-Sometimes in order to test
the candidate, a problem may deliberately omit something that is important. Some examiners conclude the statement of
facts in a problem with a direction to discuss it. Others may require you to advise one of the parties.
Rules and authorities: The students should argue in terms of legal rules and authorities. If the law is clear, first
state the law and then give the authorities for your statement. If the law is not clear, first pose the legal question and then
set out the authorities bearing on it. When citing cases, the mere giving of the name is of limited use. What is wanted is
not only the name, but a statement of legal points involved in the decision. Doubt: If the answer to the problem is
doubtful, then suggest what the answer ought to be. Don’t come to weak conclusion, like ‘A is perhaps liable’. Your
conclusion may be that if the facts are so and so , he is liable. If they are such and such, he is not liable.
Problem on statute: A problem may be set on a statute as well as on a case. Then, you must recall the words of a
statute as best you can and apply them to the problem. When problem is based on a rule, for example, rule in Rylands v.
Fletcher, it is advisable to state the whole rule in a sentence or two even though some parts of the rule are not material to
the problem. Answering problems in criminal law: Following four points to be remembered while solving the problem.
1. the name of the offence; 2. the actus reus of the offence; 3. Mens rea; and 4. possible defences. Answering problems in
tort: Look for all the possible torts and consider whether their essentials have been satisfied.
Students may use FILAC method -[Facts, Issue, Law, Analysis, Conclusion]

Application of Law to Facts:

Applying law will resolve the most pressing issues. Applying law explains whether and how the facts satisfy the
law. Not much skill is required when the law is so clear and the facts are so simple. But true skill at applying law is
needed with vague law or complex facts. For instance, the law requires most people to act “reasonably prudent person”.
What is reasonable or prudent is a moving target as people and situations change. Methods of application of law to facts:
In case of applying rules or statutes, reaching the correct conclusion depends on applying and interpreting statutory
language. Read carefully: Refer to related rules of sections: Connect the facts to the rule; Applying existing law to facts.
………..……..