LEGAL METHOD

• It is an introductory course for new students to help them lay a foundation

for proper understanding and application of the various substantive rules
and principles which they will come across.
• The phrase ‘ legal methods’ contains two words – “legal” and “method”.
• The word “legal” means something related to law, while the word
“method” means a way or procedure of doing something in an organised
and planned manner.
• Thus, legal method is defined as the way and manner of doing things
relating to law in the society.
• Malemi in his book Nigerian Legal Method defines it as the study of
law, and various methods, approaches, processes and procedures that can
effectively and beneficially be used to meet the needs of the individual
and the state.
 INTRODUCTION TO LAW
• Law is a term which does not have a universally accepted definition, but one
definition is that law is a system of rules and guidelines which are enforced
through social institutions to govern behavior.
• The corresponding word for the term ‘law’ in Hindu system is ‘Dharma’, in
Islamic system it is ‘Hukum’, in Roman it is ‘Jus’, in French it is ‘Droit’, and in
German it is ’Richt’.
• Laws are made by governments, specifically by their legislatures.
• The law shapes politics, economics and society in countless ways and serves as a
social mediator of relations between people.
 DEFINITION OF LAW
• Law is a rule of conduct developed by the government or society on a certain area. The
law follows certain practices and customs to deal with crime, trade, social relations,
property, finance, and more. The law is controlled and enforced by the governing
authority.
• The term law is commonly used for three things:
• At first it is used to make “legal orders”. It represents the rule of adjustments of relationship and order
conduct by systematic application of force of organized political society.
• Secondly, law means the entire legal body which exists in one politically organized society.
• Third, the use of law means official control of politically organized society. This gives rise to the real
administration of justice and official content to guide judicial action. Law at its narrowest or strict
sentiment is civil law or the law of the land.
• Many jurists attempted to define the term Law.
A. Idealistic definition -
• According to Salmond – “the law may be defined as the body of principles
recognizes and applied by the state in the administration of justice”.
• In other words, law consists of rules recognized and acted upon by the courts of Justice.
• John chipman Gray’s Definition of Law:- “the Law of the State or of any
organized body of men is composed of the rules which the courts, that is the
judicial organ of the body lays down for the determination of legal rights and
duties.”.
• B. POSITIVIST SCHOOL DEFINITION –
• According to Austin “law is aggregate of rules set by men politically
superior or sovereign to men as politically subject.”
• “A law is command which obliges a person or persons to a course of
conduct.”
• He says, laws are man-made rules by sovereign imposed upon the society
it governs. He equates a law to a “command” by a body which is
politically higher.
• HISTORICAL SCHOOL OF LAW -
• Savigny's definition of law: He says that law is not a body of rules
set by determinate authority but as rules consist partly of social
habitat and partly of experience. He says law is found in the
society, it is found in custom.
 FUNCTIONS OF LAW
• Laws protect individual rights and freedoms.
• The laws provide a framework and rules to help settle disputes between
individuals.
• Without law there will be no way to set the standard.
• Laws help societies to maintain order.
• To ensure maximum freedom of individuals; and
• To satisfy the basic needs of the people.
 NATURE OF LAW
• Law is a general rule of human behaviour in the state. It applies to all
people of the state. All are equally subject to the laws of the state.
• It is definite and it is formulated by the state. It is a rule made and
implemented by the state.
• State always acts through law. Laws are made and enforced by the
government of the state.
• It creates binding and authoritative values or decisions or rules for all the
people of the state
• Sovereignty of state is the basis of law and its binding character.
• The purpose of law is to provide peace protection and security to the people
and ensure conditions for their round development.
 CLASSIFICATION OF LAWS
1. Public and private law
2. Civil and Criminal law
3. National and International law
4. Statute and common law
5. General and special law
6. Natural and physical law
• PUBLIC LAW –
• It is concerned with the legal relation between the state and the
individuals. All laws relating to the distribution and exercise of power by
the state are the part of the public law.
• The aim of the public law is promotion of social objectives and the
protection of collective interest of individuals.
• Example – criminal law, constitutional law and administrative law
• PRIVATE LAW –
• It is that part of the law which determines relationship between
individuals in their ordinary private capabilities.
• The primary purpose of private law is the protection of private interests.
• Example - The law of contracts, law of torts, law of property.
• CRIMINAL LAW –
• Means law relating to crime.
• It deals with offences and their punishments.
• One of the major objectives of the criminal law is to punish the wrongdoer
for action which is deemed to be contrary to the interests of the state and
its citizens.
• CIVIL LAW –
• It provides remedies to individual victims, which are recognized by
statutes or decided cases.
• The civil law creates a framework which delvers the rights and obligations
of individuals in their dealings with one another.
• NATIONAL LAW – refers to internal legal rules of the country.
• INTERNATIONAL LAW - body of rules which are regarded as legally
binding on their relationship with other nations.
• STATUTE LAW - law laid down in the acts of parliament. Bill proposed
in the parliament becomes acts.
• COMMON LAW – consists of those principles, usages and rules of
action applicable to the Govt., security of personas and property.
• Example – common law of Hindus regarding marriage, succession of
property.
• GENERAL LAW – those laws applicable to all persons and things in a
country.
• SPECIAL LAWS – applicable only to certain special circumstances.
 QUESTION OF LAW
• Questions which arise for determination before a Court of law are
considered either question of law or question of facts or a mixture of both,
known as mixed questions of law and fact.
• Question of law is that whose answer is already prescribed by rule of law.
Thus, the question as to what is reasonable and proper punishment for
murder is a question of law.
• Such a state of affairs may be a matter of common occurrence because the
language of the statute is often capable of assorted interpretations and it is
during this sphere that the lawyers play the foremost important role.
• For instance, A child under seven years of age does not have sufficient
mental capacity to understand the nature of the consequences of the act
done by him.
• This rule is prescribed by law, that a child under seven years of age is
incapable of committing a crime. The courts, therefore, have no option but
to answer the question of the criminal capacity of such a child in the
negative.
 QUESTION OF FACT
• Question of fact is a question which must be answered by reference to facts
and evidence and inference arising from those facts
• It is usually dependent on particular circumstances or factual situations
• Question of fact is that whose answer is not prescribed by law
• Question of fact means a question apart from a question of law. Thus,
• i). any question not answered by a fixed rule of law;
• ii). Any question is other than what the law on a particular point is;
• For instance, whether a child is under seven years of age or not, is a
question of fact. And whether he can be tried for an offence, is a question of
law.
 LAW AND ADMINISTRATION OF
JUSTICE – PRINCIPLES & REMEDIES
• Administration means management and justice means to right and equitable
implication.
• This phrase “administration of justice” means the maintenance of right within a
political community by means of the physical force of the state.
• There are two essential functions of the state – 1. war 2. administration of justice.
• the main function of administration of justice is the protection of individual’s rights,
enforcement of laws and punishment of criminals.
• There are three points to define administration of justice –
1. Political organised society
2. Physical force of the state
3. Maintenance of right as the object.
• ‘live well, and let live’ is the aim of justice.
• Law on the other hand is the instrument of justice. It is the principle which
enunciates and declares what is just and thus, law and justice are related.
 ORIGIN AND DEVELOPMENT OF THE
ADMINISTRATION OF JUSTICE
• Justice may be natural justice(moral justice) or positive justice (legal justice).
• Man, is by nature a fighting animal and needs teaching and discipline in order to
be right.
• According to Hobbes, “a common power is necessary to keep people within
control in the community”.
• First stage – in early stage when the society was primitive and private, vengeance
and self help were the only remedies available to the wronged person against the
wrongdoer. He could get his wrong addressed with the help of relative or friends.
• Second stage – the second stage of development of society was characterised by the state
coming into the existence in its rudimentary form when its function were only persuasive
in nature. It did not have enforcing power by which it could punish the wrongdoer.
• Third stage – wrongs could be redressed by payment of compensation by the wrongdoer
to the victim who was affected by the wrongful act. Thus upto this time, the justice
remained private in nature without the compulsive force of the state.
• In the fourth stage of the society the state became more organised and more
powerful. The state appointed people to adjudicate the rights and duties and secure
their protection and enforcement.
• In this way, courts came into existence.
 ADVANTAGES & DISADVANTAGES
OF ADMINISTRATION OF JUSTICE
• Uniformity and certainty
• Impartiality
• Collective wisdom
• Provides stability
• Security
• DISADVANTAGES –
• Rigidity
• Technicalities
• Complexity
NECESSITY FOR ADMINISTRATION OF
JUSTICE
• For protection of rights
• For peace and stability
• For integration of society
• To check injustice
• To promote welfare
• To promote equity
• To educate people
 KINDS OF JUSTICE
• Administration of justice can be broadly defined under two categories – civil
and criminal.
• They differ from each other in various ways –
1. They are administered by different set of courts
2. Procedures with administration of these two kinds are different.
3. Results of the proceedings are also different.
4. The difference between these two depends upon two different types of wrongs.
 ADMINISTRATION OF CIVIL
JUSTICE
• The wrongs which are the subject matter of civil proceedings are called civil wrongs.
• The rights enforced by civil proceedings are of two kinds – 1. primary rights 2.
sanctioning or remedial rights.
• Primary rights are those rights which exist as such and do not have their source in some
wrong.
• Primary rights are those rights which exist as such. It arises our of a conduct. All
fundamental rights are primary rights. A primary right may be enforced by specific
enforcement.
• Sanctioning rights are those which come into existence when primary rights are violated.
• Sanctioning rights are enforced in two situations –
1. When it is not possible to enforce a primary right.
2. When even though the law can enforce the primary right, it odes not enforce it as
a matter of policy and awards damages only.
• The aim of sanctioning rights are to impose pecuniary penalty for loss or to award
compensation.
• The object of civil administration of justice is to ascertain the rights of the parties and
the party who suffers from the breach of such rights is to be helped by way of paying
damages or getting injunction, restitution and specific performance of contracts etc.
 CRIMINAL ADMINISTRATION OF
JUSTICE
• Administration of criminal justice deals with public wrongs. all offenses included in Indian
Penal Code(IPC) are public wrongs.
• The administration of criminal justice is to punish the offender. Punishment may be
described as the infliction by State Authority, of a consequence normally regarded as an evil
(for example imprisonment or death) on an individual found to be legally guilty of a crime.
• It is the State which punishes the Criminal. Punishment necessarily implies some kinds of
pain inflicted upon the offender or loss caused to him for his criminal act which may either
be intended to deter him from repeating the crime or maybe an expression of society
disapprobation for his Anti Social conduct or it may also be directed to reform and
regenerate him and at the time ported the society from criminals.
• Therefore the two main statues which deals with administration of
criminal cases in our country are criminal procedure code i.e. Crpc and
Indian penal code .
• The procedure of administration of criminal justice in our country is
divided into three stages namely investigation, inquiry and trial. The
Criminal procedure code 1973 provides for the procedure to be followed
in investigation, inquiry and trial, for every offence under the Indian Penal
Code or under any other law.
 THEORIES OF PUNISHMENT
• Punishment is a term which is inherent to criminal justice.
• RETRIBUTIVE THEORY - The Retributive Theory of Punishment, or
the ‘Theory of Vengeance’, as many people in the society would perceive
it as, is the most basic, yet inconsiderate theory of inflicting a penal
sentence over a perpetrator.
• It is based on a very small doctrine, namely the doctrine of Lex
talionis, which if translated, means ‘an eye for an eye’.
• DETERRENT THEORY – the term ‘deter’ means to abstain from doing
an act. The main purpose of this theory is to prevent criminals from doing
the crime or repeating the same crime in future.
• Under the theory, severe punishments are inflicted upon the offender so
that he abstains from committing a crime in future and it would also be a
lesson to the other members of the society as to what can be the
consequences of committing a crime.
• PREVENTIVE THEORY – Salmond and Holmes are the supporters of this
theory. According to this theory, the punishment is for the purpose of
disabling or preventing the criminal from committing the offense again.
• Preventive mode of punishment works in three ways –
1. By inspiring all prospective wrong doers with the fear of punishment
2. By disabling the wrong doer
3. By transforming the wrong doer so that he would not commit the act again.
• REFORMATIVE THEORY – the main objective is to reform the
character of the criminal so that he will desire to do what is right instead
of fearing to do what is wrong.
• The theory points out that the crime is a disease so proper care should be
taken of those who have committed a crime instead of awarding a severe
punishment.
• The theory takes into account the factor which compels the criminal to
commit crime – his family, education, socio-economic background.