UNIT-1: INTRODUCTION TO LEGAL METHOD

Meaning of Law:
 Law is defined as Rules of Human action.

 there are different definition of the term law meaning that there are
many authors who have different definitions.

 law comprises of all principals, rules and enactments that are applied in
courts and enforced by the state .

 law is the body of rules whether proceeding from formal enactment or

from customs which a particular state or community recognizes . Law is
a body of principals recognized and applied by the states in the
administration of justice.

Different names : law

Law means

 Dharma in hindu jurisprudence

 Hukum in islamic system

 Jus in romans

 Germany – richt

 France -droit

DEFINITION

Blackstone defined “ law in its most general & comprehensive sense signifies
rule of action & it is applied indiscriminately to all kinds of actions whether
animate or inanimate ,rational or irrational. Thus law of motion are as much
law of nature or of nations.

 He says that law is a rule of civil conduct prescribed by the supreme

power in the state
  Salmond defines law as the “body of principles recognized and applied
by the state in the administration of justice.

The object of law is to achieve justice. SALMOND is relate to Analytical

school of jurisprudence

Austin defines Law is the aggregate of rules set men as politically superior or
sovereign to men as politically subject. He related to analytical school of
Jurisprudence. He give the command theory of law.

Duguit defines Law as essentially and exclusively as social fact.

Roscoe Pound defines law as a social institution to satisfy social wants.
Another great sociological jurist is Ehrlich. He includes in his definition all the
norms which govern social life within a given society

DUGUIT ,ROSCOE POUND ,EHRLICH – Relate to sociological school of

jurisprudence.

FUNCTIONS OF LAW
The law serves many purposes and functions in society. Four principal
purposes and functions
are establishing standards, maintaining order, resolving disputes, and
protecting liberties and rights.
Establishing Standards
The law is a guidepost for minimally acceptable behaviour in society. Some
activities, for instance, are crimes because society (through a legislative body)
has determined that it will not tolerate certain behaviours that injure or
damage persons or their property. For example, under a typical state law, it is
a crime to cause physical injury to another person without justification—doing
so generally constitutes the crime of assault.
Maintaining Order
This is an offshoot of establishing standards. Some semblance of order is
necessary in a civil society and is therefore reflected in the law. The law—when
enforced—provides order consistent with society’s guidelines.
Resolving Disputes
Disputes are unavoidable in a society made of persons with different needs,
wants, values, and views. The law provides a formal means for resolving
disputes—the court system.
Protecting Liberties and Rights
The constitutions and of India provide for various liberties and rights. A
purpose and function of the law is to protect these various liberties and rights
from violations or unreasonable intrusions by persons, organizations, or
government. For example, subject to certain exceptions, the First Amendment
to the Constitution prohibits the government from making a law that
prohibits the freedom of speech. Someone who believes that his free speech
rights have been prohibited by the government may pursue a remedy by
bringing a case in the courts.
You have probably realized that laws may serve more than one principal
function and there are obviously more principal functions than the four that
we have identified.

Law & justice

WHAT IS JUSTICE??

justice is an ideal representing something that is just and right. It basically

means being just, impartial, fair and right.

 H.L.A. HART
• Justice as a shared concept i.e. everybody wants justice seen and
done.

 Law supposed to be applied equally in all situation and to all person

without fear or favour - application of law without discrimination – best
embodiment of justice.
• BUT justice cannot simply mean that we can treat everyone
alike regardless of individual differences.

PRINCIPLE OF JUSTICE

According to John Rawls there are 5 principles of justice namely:

– Generality – belong to all
– Universality – gazetted
– Publicity – make it known to the public
– Adjudicatory – decide competing interest
– Finality – court must decided the cases
• Eg. In deciding a case, the judge must apply the similar legal principle for
similar cases, irregardless of place and time. (universal). The decision has to be
made public i.e. no secrecy and finalized (consistent and no unwanted
changes).

CLASSIFICATION OF JUSTICE

a) Roscoe Pound had divided justice into two categories:

(i) substantive justice

• The aim is to ensure that the law has been, and will be made justly.
• The legislator will ensure that laws promulgated uphold the idea of
justice.
• Thus, it is concerned with the body of law and its content (substance).
People’s legitimate claims and expectation will be reflected through
substantive justice.

(ii) procedural justice

• Formal procedures and formality used to make decisions.

• It is a psychological concept i.e. people’s perception of the idea of
fairness of procedures used in making decisions.
• No one should be above the law and those who administer the law
should do so without prejudice.
• Procedural justice is the technical part of the law which provides rules,
principles, guidelines on how to apply the substantive law.
• The Judiciary and Enforcers will ensure that laws are carried out in
accordance with fair and proper procedures.
• Its main aims are on the need to be accurate in carrying out the law
and to avoid abuse of power because procedures come in a set of
standard.
Eg. Criminal Procedure Code, Rules of High Court, Subordinate Courts
Rules

b) Aristotle had divided justice into two categories:

  (i) Distributive justice
(ii) Corrective justice

 Distributive justice
• It is the duty of the State to distribute resources among its people.
• One of the justice theory that which emphasize on the fairness of
outcome allocation (income, wealth, job, opportunities, welfare).
• Perceived fairness of how rewards and costs are shared by (distributed
across) group members
• In modern societies, the application of distributive theory can be
expanded into the business organisation , employment benefit, policy
position etc.
• Distributive justice can occur whether on economic or social exchanges
(Social norms) – if you help someone in need, they should reciprocate in
some way by acknowledging your help and helping you when you are in
need - the fairness of interpersonal treatment.

 Corrective Justice
• It is the duty of the Court to maintain fairness in the distribution
process and provide remedies for the injured party/victim.
Eg. reparation : sentencing the guilty party to prison for their
wrongdoing.

AIM OF JUSTICE

JUSTICE AND EQUALITY

Justice as equality means that all people should be treated equally unless
there is some significant differences between their cases.
Thus, justice and equality require rules to set out how classes of people
should be treated. E.g:-
1. All murderers will be hung
2. All citizens should be given right to vote.
3. All children should be given proper education.
4. Insane adult can plead the defence of unsoundness of mind in criminal case.
5. A contract entered by minor is void.

 JUSTICE AS DESERT
It means people ought to get what they justly deserved,
 positively or negatively.
every person must obtain that which he deserves and must not be given
anything including punishment which a person does not deserve.
EX. “an eye for an eye, a tooth for a tooth”.

JUSTICE AS MORAL ENTITLEMENT

• The theory of justice as moral or natural entitlement was
introduced by Aristotle.
• A just system of law is one which distribute ‘good things’ so that good things
are in the hands of those who:
(i) are entitled to receive;
(ii) have the best claim; or
(iii) have rights over the good things
Eg. The rich giving out to the poor.
• Thus, it concerns with everything that is morally right and
good.

Relationship Law & Justice –

1) law & justice Synonymous

2) Law Maybe Just Or Unjust

3) Justice according to law

PRINCIPLE OF NATURAL JUSTICE

Natural justice is procedural safeguard against improper exercise of power by a

public authority. In the modern era of welfare states the administration plays a
pervasive role and enjoys drastic powers to interfere with the rights of the
person and property of individuals.
• NJ has two main components:
(i) the rule of hearing or audi alteram partem, i.e. the rule that no one is to be
condemned unheard; and
(ii) the rule against bias i.e. nemo judex in causa sua, meaning that no one
may be a judge in his own cause.
 1. AUDI ALTERAM PARTEM

The rule requiring fair hearing ( audi alteram partem) has two important
components:

(a) Notice
•before initiating adjudication proceedings, the party concerned should
be given notice of the case against him to enable him to defend himself
•Notice is regarded as sine qua non (condition precedent) of the right of
hearing
(b) Hearing
Reasonable opportunity of being heard includes the following elements:
(i) the adjudicating authority should disclose all information, evidence or
material which the authority wishes to use against the individual
concern in arriving at its decision;
(ii) the authority should receive the evidence and all relevant material
which the party concerned may wish to produce before in its defence;
(iii) the authority should give to the individual concerned an opportunity
to rebut the material against him;
(iv) the adjudicator must hear both sides. He must not hear only one side
and in the absence of the other side.

2) NEMO JUDEX IN CAUSA SUA

• The adjudicator should be impartial and neutral and be in a position to apply

his mind objectively to the issue he has to decide

• The principle that bias disqualifies an individual from acting as an adjudicator

flows from two fundamental maxims:
§ a man should not be a judge in his own cause
§ justice must not only be done but be seen to be done.
Rule of Law
• Mean in achieving justice.
• The concept of the rule of law may refers to as the government of law,
not men.
• No one is above the law.
• To make a rule of law as reality we have developed institutions and
procedures. These institutions and procedures have
contributed to the definition of what makes up the rule of law
and what is necessary to achieve it.

WHAT IS MORALITY

 • Relate to the concepts of what is right or wrong in a particular society -

what is acceptable or unacceptable conduct in the society – known as
moral attitudes.

 • As rules of conduct that are associated with certain distinctive

psychological and social attributes. Those who obey the moral rule will
tend to feel the sentiment known as virtue and if he disobeys the
morality rules he tend to feel guilty.
• It is a code of behaviour that is innate and classified by a higher being
• Does not only refer to sexual morality or violence acts. It goes beyond
that and encompasses beliefs, principles, standard or behaviour or codes
in the society.

 Standard of morality may sometimes differ among

subgroup of population.

TYPES OF MORALITY

 a) RELIGIOUS MORALITY
– God revealed to human beings on how to be a good believers.
– The sanction by the God is in the form of sin/good deeds.
– Concern the relationship between human and the God.
b) MORALITY AND NATURE
– Relationship between the human & nature.
 c) INDIVIDUAL MORALITY
– Individual-centred. The person himself choose to believe something is
immoral or not and not being dictated or told by the society. For e.g. a
Hindu believers can choose to be vegetarian.
d) SOCIAL MORALITY
– Relates the relationship between the members of the society as a
whole. Most significant aspect of morality that cut across all of the other
aspects and is found in more ethical systems than any of the others.

RELATIONSHIP BETWEEN LAW AND MORALITY

• The relation between law to morals is sometimes describe as two

intersecting circles, the part inside the intersection representing the
common ground between law and moral.
• The part outside representing the distinctive realms that each other holds
(exclusive sway).
• Law and morality reinforce each other - misappropriate something belong to
other – there can be no security in life.
• By having moral code human are ought to refrain themselves from doing
something that is against the code - supplement with law.
• Morality is the basis of law – In a primitive society, there was no difference
between law and moral rules as they share the same sources (custom,
religion).

Law and Morality

In a society, people generally interact in a human way, cooperating and
communicating with each other. A strong social structure can be maintained if
there are generally accepted rules of conduct. Many believe that these rules
need not be defined and enforced by any centralized agency. However, this
concept has caused the destabilization of many societies and has weakened
social relations.
The defect lies not with the system of the centralized agency, but in the notion
of prevailing social values.
In the so-called democratic society, state law does not follow the dictum of
social institutions. But in Islamic society, religious law guides the state laws.
There are contradicting ideas regarding the importance of natural law as
positive law. According to Locke, obedience to the state is the protection of
the rights possessed by individuals under natural law. Some
philosophers have gone further and said if a rule is in conflict with natural law,
it cannot be a positive law at all. One origin for the doctrine of natural law is
the idea that God stands in relation to mankind at large as in the relation of a
monarch to his subjects. From this developed the concept of the divine rights
of kings.
In this era, with its plurality of conflicting moral beliefs, the doctrine of natural
law has lost much of its appeal. Political philosophers generally confuse moral
values with religious doctrines. Natural law does not mean that it has to have a
religious sanction. There are innumerable contradictory religions, each defining
their own concept of ethical standards.
Natural law should not be considered as the law enacted by the clergy.
Similarly, much importance has been given today to positive law, the law
enacted by the state. The concept of legal and illegal is considered only
on the basis of the penal code, as enacted by the political institution. Yet, so
far there is no reason to believe that state law has protected freedom and
human values in the true sense of the term.

Classification of Law
 Public and Private Law
 Substantive and Procedural Law
 Municipal and International Law
 Civil Law and Criminal Law
 Public and Private Law
Public Law
Public law is law governing the relationship between individuals (such as
citizens and companies) and the state. Public Law refers to the “general
standards of behaviour expected in society”
1.Govern the relationship between state and individuals.2.Public law
includes constitutional law,administrative law,criminal law(criminal law
is enforced on behalf of or in the name of the state),international
law,municipal law
3.The objective of public law is mentioned in the Preamble i.e to achieve
the objective of the state
4.Sources-Natural law, Magna Carta, Bill of Rights, Indian Independence
Act. The Government of India Act,constitutions of other countries
5.Remedies-Writs,PIL,etc
6.Case-Brown v Board Of Education

Private Law
Private law governs relationships between individuals, such as contracts
and the law of obligations. ...
1.Governs the relationship between individuals.
2.Private law includes Law of contract,Law of tort,Law of property,Law
of succession, family laws
3.The objective of private laws is to regularise and control the behaviour
of individuals when they meet with other individuals
4.Sources- Customs,traditions,precedents,conventions and treaties
5.Remedies- Suits,intention,declaration
6.Case- Carvajal v Hillstone Restaurant Group
 Substantive and Procedural Law

 Substantive law- is a statutory law that deals with the legal

relationship between people or the people and the state. Therefore,
substantive law defines the rights and duties of the people, but
procedural law lays down the rules with the help of which they are
enforced. The differences between the two need to be studied in
greater detail, for better understanding. Substantive law is used to mean
the written law that states the rights, duties and liabilities of the citizens
and collective bodies. It is the system of rules that regulate the
behaviour of the citizens of the country. It is generally codified in
statutes but can also be found in common law.

 Substantive law is concerned with the substance of the case. It either

helps in suing someone or defending a person from legal proceedings.

 It is that part of the legal system which differentiates between right and
wrong conduct and personifies the idea that committing the crime will
lead to penalty or punishment or both (as the case may be) to the
wrongdoer.

 Procedural law- consists of the set of rules that govern the

proceedings of the court in criminal lawsuits as well as civil and
administrative proceedings. The court needs to conform to the
standards setup by procedural law, while during the proceedings. These
rules ensure fair practice and consistency in the
"due process".
The procedural law can be defined as the law which governs the way in
which court proceedings are undertaken. Simply put, it explains the
methods and practices, that are followed in the court for a case, i.e. the
gradual phases of the lawsuit that will take place and the way in which
 case is managed in the court. So, it describes the series of steps taken in
civil, criminal and administrative cases.

 As procedural law determines the procedure of all lawsuits, it complies

with the due process. Due process pertains to the person’s legitimate
right to have legal proceedings if he/she is sued.

 The procedural law determines the means of imposing rights and

providing remedies to wrong. It consists of rules concerning jurisdiction,
pleading, appealing, presenting evidence, executing judgement, cost and
the like.

 Municipal and International Law

Define municipal law. In common usage, especially in the United

States, municipal or municipality, refers to a city or town. However, in
the realm of international law, municipal refers to any sovereign
entity, including countries, states, counties, provinces, cities, and towns.

“Municipal Law” as:

"The ordinances and other laws applicable within a city, town or

other local government entity".

Thus Municipal Law is the acts made by the legislature or the Law
making authority of a state, applicable to that state alone.

International law, a term coined around 1800 by philosopher

Jeremy Bentham, refers to the body of legal decisions, rules, and
customs that regulate the discourse between nations (e.g., human
rights,military intervention, and global concerns such as climate change).
Conversely, municipal law governs the actions of individuals and
 commercial entities within the borders of sovereign states (e.g., civil
codes and criminal statutes).

OPPENHEIM defines International Law as, "Law of Nation

or International Law is the name for the body of customary and
conventional rules which are considered legally binding by civilized states
in their relation with each other, within a community which by common
consent of this community shall be enforced by external power".

INTERNATIONAL LAW & MUNICIPAL LAW

International Law is the law of nations, regulating the relations between the
member States of the family
of nations. Municipal Law is the law of State regulating the conduct of
individuals and deal with
the relation between individual and the State.
International Law is concerned mainly with foreign affairs or inter-state
affairs. Municipal Law is infrastate affairs concerned with domestic affairs.
International Law is a nature of consent and consensus. Municipal Law is of
command and sanction.
International Law is a decentralized system acting vertically. Municipal Law is
a centralized acting horizontally.

 Civil Law and Criminal Law

CIVIL LAW- Civil law deals with the disputes between individuals,
organizations, or between the two, in which compensation is awarded to
the victim.
The law enforced by the State is called Civil Law.
The force of the state is the sanction behind the law.
It is derived from the Roman word Jus Civile.
It is territorial in nature as it applies within the territory of the State.
Austin prefers to call civil law a positive law because it is enforced by
the sovereign political authority
Criminal law- is the body of law that deals with crime and the legal
punishment of criminal offenses.
Criminal Law deals with offences that are committed against the society.
It mets out varying degrees of punishment commensurate with the
crime committed. Criminal Law will deal with serious crimes such as
murder, rapes, arson, robbery, assault etc.

The purpose of Criminal Law is to punish the wrongdoers and protect

society, maintain law and order. In the case of Criminal Law, the powers
of the court are charging a fine, imprisonment to the guilty of a crime, or
discharge of the defendant