LEGAL METHODS
OS ODEWALE
DO ADETORO
LAW AND SOME OTHER RELATED
CONCEPTS
Functions and importance of law
Law and order
Law and morality
Law and justice
Law and freedom
Law and customs
Law and conventions
Law, the State and sovereignty
Law and legitimacy
LAW AND OTHER CONCEPTS
Order
Morality Legitimacy
Justice
LAW Sovereignty
Customs State
Conventions
Classification of Law
Common law and Equity
Common law and Civil law
Public law and Private law
Civil law and Criminal law
Substantive and Procedural/Adjectival law
Islamic law and Indigenous Customary law
Municipal/Domestic law and International law
Common Law and Equity
Pre Common law Norman period
Period between 560 – Norman conquest of
1066 1066 brought new
Organized in small culture and language
kingdoms Organized counties to
Written laws influenced administer law and set
by Roman law (codes) up local courts
and created buy Kings King’s court
Shire courts and hundred Local courts
courts Feudal courts
Ecclesiastical courts
Common Law contd.
Local courts were integrated
Henry I
Started sending his court judges into a nationwide system of
procedural reforms
to preside over local disputes
Records were not kept and there
Centralization and consistency
was no precedent
emerged
Main source of law was the King
Henry II
(King’s council)
Trial by ordeal and battle were
Court system emerged
discontinued
Privy Council
Established a permanent court
Courts of Assizes
in Westminster Court of Common Pleas
Principles of Westminster court
King’s Bench
was based on common customs Matters were instituted by writs
Local cases were decided based
Real matters (title)
on principles operating in Personal matters (damages)
Westminster court Mixed (subject matter and
damages)
Equity
Organization of CL system Chancellor’s Procedure
created complexities Good conscience
Inadequate remedy Just and fair
No remedy Not bound by precedent
Rigid Maxims of jurisprudence
Exchequer based on canon and civil law
Heard petitions to the King Conflicts between common
Chancery law courts and Chancery
King’s Chancellor Earl of Oxford’s case
Custodian of seal Conflict came to fore
Issued writs King James intervened
Assisted the King with Decree favored Chancery
petitions
Common Law and Equity Contd.
Common law and Courts Maxims of Equity
of equity merged Equity acts in personam
England – Judicature Act
Equity aids the vigilant
1875
He who seeks equity must do
equity
US Federal Courts Equity acts on the conscience
(merged around 1875) Equity will not suffer a wrong
US States (Absent in NE without remedy
but present in SE States) Equity looks as that done
Delaware which ought to be done
Mississippi Equity looks at the intent and
Alaska not the form
Tennessee Equality is equity
He who comes to equity must
come with clean hands
Common Law and Civil Law
Common Law Civil Law
English origin Roman origin
English customs and Codes
tradition Deductive reasoning
Inductive reasoning Rote application of law
Inquisitorial trial
Stare decisis
Adversarial trial
Private Law and Public Law
.
Private Law Public Law
Relationship Relationship
between among
government individuals
and and legal
individuals entities
Civil Law and Criminal Law
.
Criminal Law Civil Law
Public Private
• Constitutional • Tort
Law • Contract
• Administrative • Family
Law • Company
• Criminal Law
Substantive Law and Procedural Law
.
Substantive Law Procedural Law
Public Private Procedure of
Law Law enforcement
Courts
International Law and Municipal Law
International Municipal
Law Law
Relationship
Relationship
between a State
between States
and Individuals
Public Law Public Law Private Law
Private Law
• Constitutional
• Tort
Law
• Contract
• Administrative
• Family
Law
• Company
• Criminal Law
USE OF SOURCE MATERIALS OUTLINE
Law Library
Library Organization
Library Catalog
Library Materials (Print and Electronic)
LAW LIBRARY
Description
Features
Staffing
LIBRARY ORGANIZATION
Acquisition department
Cataloguing department
Circulation department
Reference department
Classification
LIBRARY CATALOG
Cataloging
Access points
Author
Subject
Title
Others
Functions
KP
65
.M3
2012 Malemi, Ese
The Nigerian Legal Method/by Abiola Sanni.-
1st ed.- Lagos: Princeton Publishing, 2012
Xvii, 390p
ISBN: 978-6798980976
Includes illustrations, bibliography and tables
1. Introduction to law 2. Legal Methods I. Title
LIBRARY MATERIALS
Print Materials
Books
Journals
Law Reports
Magazines and other serials
Reference materials: dictionaries, etc
Electronic Materials - CRAC
Currency/Recency
Relevance
Authority
Reliability
LEGAL REASONING AND APPROACH TO LEGAL
PROBLEMS
Language and the law
Legal reasoning
Precision and ambiguity
Problems of archaic words
Distinctive legal language
Approach to legal problems
LANGUAGE AND THE LAW
Language is the structured means of human
communication consisting of words.
‘The law is a profession of words’
David Mellinkoff
Law is ‘an assemblage of signs’
Jeremy Bentham
Law + Language = Context
FEATURES OF LEGAL LANGUAGE
Specialized vocabulary and unusual sentence structure
(lexicon and grammar)
Metaphor and legal fictions (abstract terms) e.g. a
broken promise, a binding agreement, meeting of
the minds, legal personality, attractive nuisance, rule
of law, etc.
Expression in general language
Common words with uncommon meanings e.g.
battery.
Use of foreign words e.g. res ipsa loquitor, ultra vires,
quic quid plantatur solo solo cedit.
FEATURES OF LEGAL LANGUAGE CONTD.
Use of archaic words e.g. hereinafter.
Use of legal jargons e.g. with due respect, I am
speaking from the bar.
Repeated use of clear formal words e.g. the truth, the
whole truth and nothing but the truth.
LEGAL REASONING
The logical and coordinated manner of presenting an
argument and issues in law.
Develop argumentative strategies to apply law and
facts to a legal problem.
The skill of argument is the core of legal profession.
Argument is a series of statement (either backed by
evidence or not) presented in a logical manner to
prove or disprove a position.
Task – Distinguish between general argument and
legal argument.
APPROACH TO LEGAL PROBLEMS
Key to good scores in examination is the knowledge
of structuring your argument and effective
presentation of information
Approach to problem questions requires analysis of
question coupled with strong, effective, persuasive
and well structured essay.
Approach to problem question is the IRAC/CLEO
method.
Issue, Rulings, Application, Conclusion/ Claim, Law,
Evaluation, Outcome.
APPROACH TO LEGAL PROBLEMS CONTD.
Issues/Claims
Legal problem for discussion/debate
Rules/Principles/Law
Established and clear legal proposition that cannot be
contradicted unless by a stronger and clearer proposition.
Forms the basis for development of law.
Application/Evaluation
Consideration or assessment of law to a given legal problem
(issue).
Conclusion/Outcome
Likely decision based on the 3 above. Must emanate from the 3
abovementioned.
PRECISION AND AMBIGUITY
A word capable of more than one meaning - the
context of use matters.
Use simple words where appropriate.
Avoid use of archaic words.
Legal language cannot be avoided in some instances
but use them appropriately.
VK Bhatia ‘Language of the Law’ (1987) 20(4) Language Teaching 227.
Exercise
Mr A, 10 years old, has a crush on Miss B, 14 years old. On a cold
afternoon on 14 December 2016, Miss B decided to take her bath
and, seeing Mr A as a young boy, went about the house naked. Mr
A couldn’t control himself and decided to peep while Miss B was
in the bathroom. After her bath, Miss B decided to have a cup of
tea and instructed Mr A to make the tea for her. Mr A eventually
forcefully had carnal knowledge of Miss B after putting sleeping
tablet in her tea. Miss B is accusing Mr A of raping her. Mr A
claims he was seduced by Miss B. Advise the parties.
Law:
- A person of 7 years and below is not capable of committing an offence.
- A male of 12 years and below is not capable of having carnal knowledge.
- Rape is the unlawful carnal knowledge of a girl or woman without her consent.
- Any person who has unlawful carnal knowledge of another is guilty of rape and upon
conviction shall be sentenced to life imprisonment.
LEGAL REASONING IN JUDICIAL PROCESS
Fact finding
Shifting of fact and law in civil cases
Shifting of fact and law in criminal cases
Ratio decidendi
Stare decisis
Obiter dicta
