LEGAL METHODS

Unit I (Meaning and Classification of Laws)

What is Legal Method?

Legal Method commonly refers to a set of techniques used to analyze and
apply the law; and to determine the appropriate weight that should be
accorded to different sources of law.
Definitions of law given by eminent jurists may be given as follows:

 Law is the command of sovereign backed by sanction. (Austin)

According to Austin, a law, in the strict sense is a general command of
the sovereign individual or the sovereign body. Issued to those in
subjectivity and enforced by the physical power of the state. According
to Austin “law is aggregate of rules set by men politically superior or
sovereign to men as politically subject.” Austin says, “A law is command
which obliges a person or persons to a course of conduct.

 "Law is that portion of the established thought and habit which has
gained distinct and formal recognition in the shape of uniform rules
backed by the authority and power of government." (Wilson).

 "Law is a general rule of external human action enforced by a sovereign

political authority." (T.E. Holland).

 "The law is a system of rights and obligations which the State

enforces."(Green)

 "The law is the body of principles recognized and applied by the State in
the administration of justice." (Salmond).

 "Law is the command of authorized public organ acting within the

sphere of its legal competence." (Gettell).

 According to Kelsen legal order is the hierarchy of the norms, every norm
derive its validity from the superior norm and finally there is highest
norm known as grundnorm.

 Pound defines law as a social institution to satisfy social wants. He says

law is a social engineering, which means that law is a instrument to
balance between the competing or conflicting interests.
  Ihering defines law as ‘the form of Guarantee of the conditions of life of
society, assured by state’s power of constrain. He says law is a means to
an end and end of the law is to serve its purpose which is social not
individual.

Functions: Justice, Stability and Peaceful Change

 Establishing Standards and Means of Attaining Justice
 Maintaining Order and Stability
 Resolving Disputes
 Protecting Liberties and Rights: A mechanism for peaceful transition.

Classification of Laws
1. Public and Private Law

 Public law is that part of law which governs relationships between

individuals and the government, and those relationships between
individuals which are of direct concern to the society. Areas of
Public laws are constitutional law, administrative law, tax law and
criminal law.
 Private law is that part of a civil law legal system which is part of
the jus commune that involves relationships between individuals,
such as the law of contracts or torts (as it is called in the common
law), and the law of obligations (as it is called in civil legal
systems). Areas of Private laws are civil law, contract law, law of
torts, Property law, family law, law of agency, Labour law,
Commercial law, Corporations law and Competition law.

2. Substantive and Procedural Law

 Substantive law is the statutory, or written law, that defines rights

and duties, such as crimes and punishments (in the criminal law),
civil rights and responsibilities in civil law. It is codified in legislated
statutes or can be enacted through the initiative process. For
Example: Indian Contract Act, 1872
 Procedural law stands in contrast to substantive law, which is the
"machinery" for enforcing those rights and duties. Procedural law
comprises the rules by which a court hears and determines what
happens in civil or criminal proceedings, as well as the method
and means by which substantive law is made and administered.
For Example: Code of Criminal Procedure, 1973
 3. Municipal and International law

 Municipal law is the national, domestic, or internal law of a

sovereign state defined in opposition to international law.
Municipal law includes not only law at the national level, but law
at the state, provincial, territorial, regional or local. While, as far as
the law of the state is concerned, these may be distinct categories
of law, international law is largely uninterested in this distinction
and treats them all as one.

 International law is the set of rules generally regarded and

accepted as binding in relations between states and between
nations. It serves as a framework for the practice of stable and
organized international relations. Much of international law is
consent-based governance. This means that a state member of the
international community is not obliged to abide by this type of
international law, unless it has expressly consented to a particular
course of conduct. This is an issue of state sovereignty.

Unit II (Ancient Legal Systems)

ROMAN LAW
Roman law has affected the development of law in most of Western civilization
as well as in parts of the East. It forms the basis for the law codes of most
countries of continental Europe and derivative systems elsewhere.
The legal institutions evolved by the Romans had influence on the laws of other
peoples in times long after the disappearance of the Roman Empire and in
countries that were never subject to Roman rule.

Development of the Jus Civile and Jus Gentium

In the great span of time during which the Roman Republic and Empire existed,
there were many phases of legalistic development.
 During the period of the republic (753–31 BCE), the jus civile (civil law)
developed. Based on custom or legislation, it applied exclusively to
Roman citizens.

 By the middle of the 3rd century BCE, however, another type of law, jus
gentium (law of nations), was developed by the Romans to be applied
both to themselves and to foreigners.
  Jus gentium was a development of the magistrates and governors
who were responsible for administering justice in cases in which
foreigners were involved.
 The jus gentium became, to a large extent, part of the massive
body of law that was applied by magistrates to citizens, as well as
to foreigners, as a flexible alternative to jus civile.
 Foreigners had no rights and, unless protected by some treaty
between their state and Rome, they could be seized like ownerless
pieces of property by any Roman.

The law that the magistrates applied probably consisted of three elements:
1. An existing mercantile law that was used by the Mediterranean traders;
2. Those institutions of the Roman law that, after being purged of their
formalistic elements, could be applied universally to any litigant, Roman
or foreigner; and
3. In the last resort, a magistrate’s own sense of what was fair and just

 This system of jus gentium was also adopted when Rome began to
acquire provinces so that provincial governors could administer justice to
the peregrini (foreigners).

In general, disputes between members of the same subject state were

settled by that state’s own courts according to its own law, whereas
disputes between provincials of different states or between provincials
and Romans were resolved by the governor’s court applying jus gentium.

By the 3rd century CE, when citizenship was extended throughout the
empire, the practical differences between jus civile and jus gentium
ceased to exist.
WRITTEN AND UNWRITTEN LAW
Jus scriptum (written law) and jus non scriptum (unwritten law). By “unwritten
law” they meant custom; by “written law” they meant not only the laws
derived from legislation but, laws based on any written source. There were
various types of written law, the first of which consisted of leges (singular lex),
or enactments of one of the assemblies of the whole Roman people.

Plebiscita
Although the wealthier classes, or patricians, dominated these assemblies, the
common people, or plebeians, had their own council in which they enacted
resolutions called plebiscita.
The earliest and most important legislation, or body of leges, was the Twelve
Tables, enacted in 451–450 BCE during the struggle of the plebeians for
political equality. From the fragments it is apparent that numerous matters
were treated, among them were family law, delict (tort, or offense against the
law), and legal procedure.

Edicta
A second type of written law consisted of the edicta (edicts), or proclamations
issued by a superior magistrate (praetor on judicial matters). The office of
praetor was created in 367 BCE to take over the expanding legal work involving
citizens; later, a separate praetor was created to deal with foreigners. During
the later stages of the republic, these praetorian and magisterial edicts became
an instrument of legal reform, and leges ceased to be a major source of private
law. The Roman system of procedure gave the magistrate great powers for
providing or refusing judicial remedies, as well as for determining the form that
such remedies should take. The result of this magisterial system was the
development of the jus honorarium, a new body of rules that existed
alongside, and often superseded, the civil law. The edicta remained a source of
law until about 131 CE, when the emperor commissioned their reorganization
and consolidation and declared the resulting set of laws to be unalterable,
except by the emperor himself.

Senatus Consulta
A third type of written law was the senatus consulta, or resolutions of the
Roman senate. Although these suggestions to various magistrates had no
legislative force during the republic, they could be given force by the
magistrates’ edicts.
In the early empire, as the power of the assemblies declined and the position
of the emperor increased, senatus consulta became resolutions that endorsed
the proposals of the emperor.

Constitutiones Principum
A fourth type of written law consisted of the constitutiones principum, which
were, in effect, expressions of the legislative power of the emperor.
By the middle of the 2nd century CE, the emperor was, essentially, the sole
creator of the law. The chief forms of imperial legislation were:
1. Edicts or proclamations;
2. Instructions to subordinates, especially provincial governors;
3. Written answers to officials or others who consulted the emperor;
and
4. Decisions of the emperor sitting as a judge.
The last type of written law was the responsa prudentium, or answers to legal
questions given by learned lawyers to those who consulted them.
These legal advisers were not professionals as such but men of rank who
sought popularity and advancement in their public careers by giving free legal
advice. They interpreted statutes and points of law, especially unwritten law,
advised the praetor on the content of his edict, and assisted parties and judges
in litigation. Augustus empowered certain jurists to give responsa with the
emperor’s authority; this increased their prestige, but the practice lapsed as
early as 200 CE. During the early empire, numerous commentaries were
written by the great jurists on individual leges, on civil law, on the edict, and on
law as a whole.
In the 5th century a law was passed stipulating that only the works of certain
jurists could be cited. Legal scholarship declined.

THE LAW OF JUSTINIAN

By zantine emperor Justinian I assumed rule in 527 CE and found the law of the
Roman Empire in a state of great confusion.
The old law comprised:

1. All of the statutes passed underthe republic and early empire that had
not become obsolete;
2. The decrees of the Senate passed at the end of the republic and during
the first two centuries of the empire; and
3. The writings of jurists and, more particularly, of those jurists to whom
the emperors had given the right of declaring the law with their
authority. Of these numerous records and writings of old law, many had
become scarce or had been lost altogether, and some were of doubtful
authenticity.

 The entire mass of work was costly to produce.

 The public libraries did not contain complete collections.

The new law, which consisted of the ordinances of the emperors promulgated
during the middle and later stages of the empire, was in a similarly
disorganized condition. These ordinances or constitutions were extremely
numerous and contradictory.

Immediately after his accession, Justinian appointed a commission to deal with

the imperial constitutions. The 10 commissioners went through all of the
constitutions of which copies existed, selected those that had practical value,
cut all unnecessary matter, eliminated contradictions by omitting one or the
other of the conflicting passages, and adapted all the provisions to the
circumstances of Justinian’s own time. The resulting Codex Constitutionum was
formally promulgated and all imperial ordinances not included in it were
repealed.
This Codex has been lost, but a revised edition exists as part of the so- called
Corpus Juris Civilis. The success of this first experiment encouraged the
emperor to attempt the more difficult enterprise of simplifying and digesting
the writings of the jurists. Thus, in 530, a new commission of 16 eminent
lawyers set about this task of compiling, clarifying, simplifying, and ordering;
the results were published in 533 in 50 books that became known as the Digest
(Digesta) or Pandects (Pandectae). After enacting the Digest as a lawbook,
Justinian repealed all of the other law contained in the treatises of the jurists
and directed that those treatises should never be cited in the future. Between
534 and his death in 565, Justinian himself issued a great number of ordinances
and seriously altered the law on many points. These ordinances are called, by
way of distinction, new constitutions (Novellae Constitutiones Post Codicem);
in English they are referred to as the Novels. All of these books—the revised
Codex Constitutionum (the original work was revised four and a half years
later), the Digest, the Institutes, and the Novels—are collectively known as the
Corpus Juris Civilis. This Corpus Juris of Justinian, with a few additions from the
ordinances of succeeding emperors, continued to be the chief lawbook in what
remained of the Roman world. In the 9th century a new system known as the
Basilica was prepared by the emperor Leo VI the Wise. It was written in Greek
and consisted of parts of the Codex and parts of the Digest, joined and often
altered in expression, together with some material from the Novels and
imperial ordinances subsequent to those of Justinian. In the western provinces,
the law as settled by Justinian held its ground.

ANGLO SAXON JURISPRUDENCE

Anglo-Saxon law, is the body of legal principles that prevailed in England from
the 6th century until the Norman Conquest (1066). Anglo-Saxon law was
written in the vernacular and was relatively free of the Roman influence found
in continental laws that were written in Latin. Roman influence on Anglo-Saxon
law was indirect and exerted primarily through the church.

Anglo-Saxon law was made up of three components:

 The laws and collections promulgated by the king,
 Authoritative statements of custom; and
  Private compilations of legal rules and enactments.

The primary emphasis was on criminal law rather than on private law, although
certain material dealt with problems of public administration, public order, and
ecclesiastical matters. By the 10th century a new penal system had evolved
based on outlawry (declaring a criminal an outlaw), confiscation, and corporal
and capital punishment. There also had been an increased development of the
law relating to administrative and police functions.
The Anglo-Saxon legal system rested on the fundamental opposition between
folkright and privilege.

Folkright is the aggregate of rules, whether formulated or not, that can be

appealed to as an expression of the juridical consciousness of the people at
large or of the communities of which it is composed. It is tribal in origin and is
differentiated on highly localized bases. These folkright divisions persisted even
after the tribal kingdoms disappeared in the 8th and 9th centuries. The
responsibility for the formulation and application of the folkright rested, in the
10th and 11th centuries, with the local shire moots (assemblies); The older
laws of real property, succession, contracts, and compositions were mainly
regulated by folkright; the law had to be declared and applied by the people
themselves in their communities. Folkright could, however, be broken or
modified by special enactment or grant, and the foundation of such privileges
was royal power, especially once England became a single kingdom in the 10th
century. In this manner a privileged land tenure was created; the rules
pertaining to the succession of kinsmen were replaced by concessions of
testamentary power and confirmations of grants and wills, and special
privileges as to levying fines were conferred. In time, the rights originating in
the royal grants of privilege came to outweigh folkright in many respects and
were the starting point for the feudal system. Personal protection and revenge,
oaths, marriage, wardship, and succession were all regulated by the law of
kinship. In the period before the Norman Conquest, much regulation was
formalized by the king’s legislation in order to protect the individual. The
preservation of peace was an important feature of Anglo-Saxon law. Peace was
thought of as the rule of an authority within a specific region. Because the
ultimate authority was the king, there was a gradual evolution of stringent
rules and regulations against violating the king’s peace.

ANCIENT INDIAN LEGAL SYSTEM

History of Indian judicial system takes us to the hoary past when Manu and
Brihaspati gave us Dharam Shastras, Narada the Smritis, and Kautilya the
Arthshastra.
Some of the most prominent Smriti includes
 Manusmriti (200BC-200CE);
 Yajnavalkya Smriti (200-500CE);
 Naradasmriti (100BC- 400CE);
 Visnusmriti (700-1000CE);
 Brhaspatismriti (200-400CE); and
 Katyayanasmriti (300-600CE).

These texts were often used for legal judgments and opinion. The
jurisprudence of Ancient India was shaped by the concept of `Dharma’, or rules
of right conduct, as outlined in the various manuals explaining the Vedic
scriptures such as `Puranas’ and `Smritis’. Shrutis stands for universal, eternal
principles and Smritis stands for a group of values derived from these
principles.

The King had no independent authority but derived his powers from `Dharma’,
which he was expected to uphold. From King to his last servant everyone was
bound by Dharma. The word Dharma is derived from "dhr" to mean to uphold,
sustain or nourish.

Manusmriti written by the ancient sage Manu prescribes ten essential rules for
the observance of Dharma:
 Patience (dhriti), forgiveness (kshama),
 piety or self-control (dama), honesty (asteya),
 sanctity (shauch), control of senses (indraiya-nigrah),
 reason (dhi), knowledge or learning (vidya),
 truthfulness (satya) and absence of anger (krodha).

Manu further writes, "Nonviolence, truth, non-coveting, purity of body and

mind, control of senses are the essence of Dharma". Therefore, dharmic laws
govern not only the individual but all in society. Dharma advocates we must,
without fail; perform our duties to him as well as to the world. It is these duties
that constitute what is called dharma. If we tried to create a new dharma for
ourselves it might mean trouble and all the time we would be torn by doubts as
to whether it would bring us good or whether it would give rise to evil. It is best
for us to follow the dharma practiced by the great men of the past, the dharma
of our forefathers. There must be no break with social heredity, but the new
anxieties, clashes and disarrays should be confronted and overcome; Dharma is
unique blend of rigidity and flexibility. It protects eternal principles and accepts
continued valid traditions.
RULE OF LAW IN ANCIENT INDIA

In the Mahabharata, it was laid down "A King who after having sworn that he
shall protect his subjects fails to protect them should be executed like a mad
dog”. Kautilya describes the duties of a king in the Arth-shastra thus: "In the
happiness of his subjects lies the King’s happiness; in their welfare his welfare;
whatever pleases him he shall not consider as good, but whether pleases his
people he shall consider to be good”. In India, the concept of Rule of law can be
traced to Upanishad. It provides that the law is the king of kings.

JUDICIARY IN ANCIENT INDIA

Sacred law (Dharma), evidence (Vyavahára), history (Charitra), and edicts of

kings (Rájasásana) are the four legs of Law. Dharma is eternal truth holding its
sway over the world; Vyavahára, evidence, is in witnesses; Charitra, history, is
to be found in the tradition (sangraha), of the people; and the order of kings is
what is called sásana (legislations).

Village elders acted as judges at that time and punishment was awarded
according to the nature of the offence in accordance with local usage and
customs. The local village councils or Kulani, similar to modern panchayat,
consisted of a board of five or more members to dispense justice to villagers. At
higher level in towns and districts the Courts were presided over by the
government officer under the authority of King to administer the justice.

There was a hierarchy of Courts in Ancient India beginning with the family
Courts and ending with the King.

 The lowest was the family arbitrator.

 The next higher Court was that of the judge;
 The next of the Chief Justice who was called Praadivivaka, or adhyaksha;
 At the top was the King’s Court.

MEANING OF SOURCE OF LAW

The fact from where the rules of human conduct come into existence and
derive legal force of binding character. It also refers to the sovereign or the
state from which the law derives its force or validity. All jurists agree that there
are three main sources of law i.e., custom, legislation and judicial precedent.
CUSTOM AS A SOURCE OF LAW

A custom is a rule which in a particular family or in a particular district or in a

particular section, classes or tribes, has from long usage obtained the force of
law. The dictionary of English law defines custom as a law not written, which
being established by long use and consent of our ancestors has been and daily
is put into practice. It is an exemption to the ordinary law of the land, and
every custom is limited in its application. They are practices that have to be
repeated
for a period of time.

Essentials of a Valid Custom

Antiquity: The custom must be ancient, immemorial and of long standing

demonstrably to establish that by common consent they have been accepted
as law governing a particular family, caste or locality as the case may be.

Continuity: A custom, however, old it may be, in absence of a clear

proof of its continuous observance without any variation it would not
obtain legal existence.

Reasonableness: A custom must be reasonable, although it is not necessarily

founded on reason. But an unreasonable custom is void and no amount of
reasoning would make it valid.

Customs differ from place to place. The reasonableness is, therefore, to be

determined in context of society in which it exists. There may be certain
customs, which are to be held unreasonable in all times and in all societies.

Unambiguous: Customs must be certain and unambiguous. It must also be

established by clear evidence, because it is only by the force of such evidence
that the courts can be assumed of its existence.

Any recognition to its legal effect can be extended only when its certainty is
proved. Where the existence of the custom itself becomes doubtful and
uncertain the courts will not extend recognition to it.

Not opposed to morality or public policy: A custom should be neither immoral

nor opposed to public policy. Immoral custom is void.
It should not be immoral or opposed to public interests. The immorality of a
custom is to be tested in context of consensus of the whole community not of a
part of it.

Consistent with the laws: Custom should be in conformity with statute law. A
legislative enactment can abrogate a custom. In case of inconsistency between
custom and statutory provision, former must give way to the latter. Thus,
customs yield legislative enactment.

Onus: The burden of proving the existence of a custom lies on the

person who alleges it.

A custom which has been judicially recognized needs no further proof. The
Supreme Court has observed that when a custom was repeatedly brought to
the notice of the court of a country, the court might hold that the custom had
been introduced into the law without the necessity of its proof in each
individual case.
Judicial notice of a custom: If a custom is so clearly established that no further
evidence of its existence is necessary, a court takes judicial notice thereof.

LEGISLATION AS A SOURCE OF LAW

Legislation refers to the rules or laws enacted by the legislative organ of the
government.

The word legislation is derived from the words legis and latum, where legis
means law and latum means making.

Two obvious reasons for legislations being regarded as one of the most
effective sources of law:

1. it involves laying down of legal rules by the legislature which the state
recognizes as law.

2. it has the force and authority of the state.

Legislation mostly becomes the exclusive source of new law with the advancing
civilization.
The power of supreme legislation like parliament or congress is defined under a
written constitution.

TYPES OF LEGISLATION

According to Salmond, legislation can be classified into two types

 Supreme Legislation and

 Subordinate Legislation.

SUPREME LEGISLATION

Legislation is said to be supreme when it is enacted by a supreme or sovereign

law-making body.

The body must be powerful to the extent that the rules or laws enacted by it
cannot be annulled or modified by another body.

Indian Parliament cannot be said to be a sovereign law-making body as the

laws passed by the parliament can be challenged in the courts.

SUBORDINATE LEGISLATION

Legislation enacted by a subordinate law-making body is said to be subordinate

legislation.

The subordinate body must have derived its law-making authority from a
sovereign law-making body. It is subject to the control of the supreme
legislative body.

Delegated Legislation: the exercise of power of rulemaking by the executive

under the authority delegated to it by the legislature. Delegated legislation is in
the form of rules, regulations, bye-laws, orders, schemes, directions, circulars
or notifications etc.

PRECEDENT

The term ‘Precedent’ is derived from the word ‘precedence’ which means ‘to
be deemed important or prior to other things.’ The judgments passed by some
of the learned jurists became another significant source of law.
When there is no legislation on a particular point which arises in changing
conditions, the judges depend on their own sense of right and wrong and
decide the disputes.

Such decisions become authority or guide for subsequent cases of a similar

nature and they are called precedents.

THE DOCTRINE OF STARE DECISIS

The authority of judicial precedents is based on the doctrine of stare decisis.

The term stare decisis means to not disturb the undisturbed. In other words,
precedents that have been valid for a long time must not be disturbed.

As per Article 141 of the Constitution of India, the Supreme Court’s decisions
are binding on all the courts across the country.

However, the Supreme Court’s decisions are not binding on itself. In

subsequent cases where there are sufficient reasons to deviate from the earlier
decision, the Supreme Court can do so.

RATIO DECIDENDI

Ratio decidendi (Latin plural rationes decidendi) is a Latin phrase meaning "the
reason" or "the rationale for the decision". The ratio decidendi is "the point in a
case which determines the judgment" or "the principle which the case
establishes". It is a justification given for reaching a judgment on a matter.
Result of a legal dispute. Must have been debated and decided after careful
deliberation.

OBITER-DICTA

A judge's expression of opinion uttered in court or in a written judgment, but

not essential to the decision and therefore not legally binding as a precedent.

The subject matter of obiter dicta varies greatly and can include discussions of
hypothetical facts, cases, or laws or even condemnations of other opinions.