❖ RULES OF INTERPRETATION

An enacted law can be interpreted by the court through the following

rules:-
1. Grammatical interpretation: In Grammatical interpretation of law,
court only interprets the meaning of the words but court does not go
beyond legal meaning of the law.
2. Logical Interpretation: In logical interpretation, courts try to find
out the true intention of the legislatures. It is comparison of the
statute with other statute and study of circumstances in which statute
was passed.
3. Golden Rule: In golden rule, court goes beyond legal meaning of
the words when the words of the statute are not clear , in order to
avoid any kind of contradiction in result.
4. Casus Omissus Rule: According to this rule, it is the duty of
legislature to interpret the laws instead of court.
5. Mischief Rule: In mischief rule, court seeks to find out what was the
mischief that the legislature wanted to remedy.
6. Restrictive Interpretation : In restrictive interpretation, court
applies restrictive interpretation when court wants to get exact
meaning of a law.
7. Rule of Ejusdem Generis: According to this rule, when a court
refers to automobiles, trucks, tractors, motorcycles, and other
vehicles and uses the term ejusdem generis in support of other same
thing, and such vehicles would not include airplanes, because the list
included only land-based transportation.
❖ ADVANTAGES OF LEGISLATION:
1. Legislation brings new laws setting aside the old and outdated laws in
order to bring legal reforms.
2. Constitution has laid upon the duty of making law on legislatures.
3. Everyone is bound to obey the law, legislative act becomes law as soon
as it is passed and afterward published.
4. Legislation develops continuously and systematically as per the needs
of the society.
5. Legislation is brief, to the point, clear and easily accessible.
❖ PRECEDENTS
“Precedent signifies a judicial decision which establishes a legal rule for
subsequent similar cases.” These judicial decisions are either by supreme
or sub-ordinate. It may also be called as indirect legislation. There are two
kinds of precedents, as under:-
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 1) Original and Declaratory precedents: Original precedents are
those which tend to create new law. While declaratory preceden t is
an application of already existing rule of law. In this case, the rule is
applied because it is law.
2) Authoritative and Persuasive Precedents: An authoritative
precedent is one which judges must follow, whether they approve it
or not. Authoritative precedents are decisions of superior of superior
courts which bind hierarchy of courts in a country in particular order.
They are classified merely as legal sources of law. While A
persuasive precedent is one which the judges are under no ob ligation
to follow but they may take it into consideration. They are classified
merely as historical sources.
❖ How precedents are disregarded?
There are two ways in which precedents may be disregarded, (1)the court in
which it is cited may over-rule it or (2) may simply refuse to follow it.
Overruling is a function of superior jurisdiction, its effect is to make the
precedent devoid of any authority. There is the substitution of later authority
for the earlier. Refusal to follow a precedent is generally the act of co -
ordinate jurisdiction, its effect is to have both the authorities stand side by
side until it is solved by higher authority.
❖ Circumstances destroying or weakening the binding
force of precedent?
A precedent is loses its binding force, either partially or totally, in many ways
as under:-
1) A decision ceases to be binding if it is over-ruled by a higher court.
2) A precedent is not binding if it is made in ignorance of ant statute, law,
rule or legislation.
3) A precedent loses its value if it is inconsistent with the decision of a
higher court.
4) If there is inconsistence between two decision s of the same ranking
court then such decision is not binding.
5) Decisions being found on wrong principles or being in conflict with
fundamental principles of common law losses their value.

CUSTOM
Custom are the rules of conduct, which the people have
themselves evolved, developed and which they have agreed to practice,
observe and respect, knowingly or unknowingly.

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 ❖ Early importance of customary law:- Custom is the oldest
kind of law making. It is prior to Courts and Legislation, in legal theory
acceptance by the courts made them law proper. But as the states
established, custom lost its importance and legislation became the main
form of law making, and slowly custom became secondary source of law
while legislation took the top slot position from custom. Even now
custom has not wholly lost it law making efficiency.
❖ KINDS OF CUSTOM:- All customs which has the force of law are of
two kinds, (1) Conventional Custom and (2)Legal Custom.
1) A conventional custom is one whose authority is conditional, it may
be accepted or not such as agreement between the parties. It is only
binding because it has been expressed or implied in the agreement
between the parties.
2) A legal custom is one whose legal authority is absolu te and has
been legally accepted by the state. It is independent of any
agreement. Legal custom has two kinds: (a) General custom:
General customs are those customs which have been accepted by
the state and is prevalent in the country. (b) Local Custom: Local
customs are those customs which have been accepted by a particular
authority and is prevalent in a particular locality.

❖ REQUIREMENTS OF A LEGAL/ VALID CUSTOM:- A legal

custom is one that is effective as a source of law and legal rights.
Following are the essentials of a legal/ valid custom: -
1) Reasonable: A valid custom must obey the standards of justice
and public utility. Its continuance is more prosperous, progressive
and convenient for the community. If a custom is cause of
inconvenience such a custom will not be a valid. E.g:- Shoes and
chappals are used for convenience and safety.
2) Conformity with statute: - A custom should be in accordance
with the law of the land and not in disagreement of it. Courts have
declared many customs as invalid as they were opposed to statute
law. E.g: Basant has remained a trend and celebrated without any
gap, but since Honourable Supreme Court of Pakistan has termed it
illegal, it is no more a custom.
3) Observance as of rights:- A custom should not be followed
out of pressure, coercion or fear rather it should be followed out of
free will and as of right.

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 4) Immemorial (Qadeem): - The origin of a valid custom must be
beyond human memory. If a custom has remained in force for such a
length of time that no one doubts its age then its force of law is
recognized. E.g: Wearing a pair of jeans, long or short women shirts,
pencil heals etc may not be rega rded as custom as we know the time
of their origin. Whereas Mehendi, Red colour bridal dr esses,
jewellery, Shalwar Kameez may be called as custom as due to the
fact that we are unable to trace their origin.
5) Continuity:- A custom is valid if it has been in continuous practice
and it has been enjoyed without any kind of interruption. Long break
of practice of a custom raise doubts about the validity .
6) Certainty:- The custom must be certain and definite, and must not
be unclear and confusing. If it h as some confusing factors in it, it is
not a valid custom.
7) Consistency: - Customs must be consistent with one another. If I
have a right of view from my window, you cannot have a right to
obstruct it.
❖ CUSTOM AND PRESCRIPTION:- Custom and prescription are
regarded as species of the same thing. They both can be distinguished
as a custom is long practice operating as a source of law, while
prescription is long practice operating as a source of rights. For
example, on the death of an owner descendent to his youngest son is a
custom and is the source of rule of law of customary law, while on the
other hand the owner of certain farm and all his predecessor-in-title
from time have used a way over the adjoining the farm is a prescription
and a source of right.

HERBERT L.A HART’S

THE CONCEPT OF LAW
Prof. Herbert L.A Hart was a British philosopher and barrister, who
published his famous book “The Concept of Law” in 1961. The salient
features of Hart’s concept of law are:
❖ POSITIVISM APPLIED TO HUMAN CONDITIONS:- Hart views
the concept of legal system as a perspective of a positivist. Hart lists
the following characteristics of the human conditions which necessitate
positive laws to protect persons, property and promises :
1) Human Vulnerability: Each one of us can be subjected to
undesired physical violence; therefore, rules are required to counter
human vulnerability such as laws against murder, rape, assault, etc.
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 2) Approximate Equality: It means making necessary mutual
forbearance and compromise. Therefore, rules are required to
accommodate approximate equality such as law relating to contracts,
traffic, banking, etc.
3) Limited altruism: It means that people don’t always work
unselfishly and that people have tendencies of aggression which may
require control. Therefore, limited altruism necessitates laws
addressing human failing as corruption, monopolies black-marketing,
etc.
4) Limited Resources: We all need food, shelter, clothing etc. and
all of which are in limited supply. Therefore, rules are required to
take account of limited resources such as laws relating to theft,
property, wills, etc.
5) Limited understanding and strength of will:
Our
understanding of long term interest cannot be taken for granted.
Thus, we need to make rules which provide sanctions which address
long term interests, such as environmental protection, abortion and
family planning, pollution control, compulsory education, etc.
❖ Hart distinguished between law and rules of law:- The
elements of which laws are made up are not law, but rules of law. For
example, after 7 years, a missing person is presumed to be dead, is not
the law of Pakistan but a rule or principle of Pakistani law. Further,
according to Hart, a law means a statute or enactment and not specific
rules of law. E.g: Contract Act as a whole is a law but sec: 15 (coercion)
of it is a rule of law.
❖ LAW IS A SYSTEM OF RULES:- According to Hart, a static set of
unrelated rules combine to make a unified dynamic legal system. One
rule by itself is nothing. For example: In cricket we have various rules
such as No ball, Wide ball, L.B.W, Dead ball, Stumping, etc. wh ich all
combine together to make the laws of cricket. The rules are
interconnected and depend upon each other, thus there can be no
L.B.W. on a No ball.
Similarly, under a legal system we have various principles or rule
which make a particular statute (law) and these statutes combine with
other laws such as constitutional and procedural law to make up the
legal system.
❖ PRIMARY RULES + SECONDARY RULES = LEGAL SYATEM: -
Hart suggests a dual system if two types of rules in place of
Austin’s command model, Primary Rules and Secondary Rules.
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 Primary rules are rules that lay down standards of behavior and
rules of obligation. Primary rules impose duties e.g. Contract Act,
PPC, etc. While on the other hand, Secondary rules are specific
ways in which primary rules can be ascertained, introduces,
changed or enforced. E.g. Constitutional laws, procedural laws,
etc. Primary rules are static but these can be met by having
secondary rules providing power to change primary rules.
According to Hart there are 3 kinds of secondary rules:- (1) Rules
of Adjudication: These rules confer competence on officials to
pass judgment in case of alleged wrong and also to enforce the
law, for example, by ordering the payment of damages or by
depriving someone of his liberty. (2) Rules of Change: These
rules regulate the process of change by conferring the power to
enact legislation with specified procedures. E.g: Constitution of
Pakistan. Rules of change can also have a private dimension, e.g:
The power of a man to make a will is a rule of change whereby he
produces change in the legal, relationship he has with others.
(3)Rules of Recognition: This rule determines that rule which
governs the validity of the rules of the system. E.g. Constitution of
Pakistan will answer the question, whether a newly made primary
rule is constitutionally valid.
❖ REASONS DUE TO WHICH PEOPLE OBEY THE LAW :-
1) Non-optional character of law: This means that people are bound
to obey the law and disobedience to which gives them punishment.
However, it is not merely the fear of punishment which compels
people to obey the law.
2) An inner obligation to obey: Law is respected because people are
under obligation to obey it. Compliance to law is due to man’s inner
attitude of having duty to obey the law.
3) General application of law: This means that all the people residing
in a particular territory or state must obey the laws that pertain to
that state or territory.
4) Compulsory membership of the state: This means that there
cannot be a person without membership of the state. The
membership of state is compulsory and virtue of such membership
everyone has to obey the laws of the state.
5) Laws are obeyed because they are predeclared: To be under an
obligation to follow a law there must be a law in existence. Hart
therefore, was against the trial of the German War Criminals at
Nuremberg which he felt was retrospective application of a human
rights law, which did not exist when the war crimes were performed.
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 ❖ MERITS/ CONTRIBUTION OF HART’S CONCEPTS OF LAW :-
1) Hart’s concept of law as a system of rules is a brilliant notion, which
was hitherto ignored by jurists.
2) By rejecting the idea of command and substituting it with the idea of
obligation, one is able to understand as to why a statue applies to its
framers.
3) Hart has also very rightly distinguished between rules of law and other
types of rules (rules of clubs, etiquettes, etc).
4) The greatest contribution of Hart’s theory is that of internal acceptance
of legal rights that result in external observance.
5) Unlike other theories, Hart’s concept of law considers international law
as law proper.
❖ Objection/ Criticisms Against Hart’s Concepts Of Law:-
1) R.W.M. Dias has pointed out that Hart’s theory ignores the role played
by the Courts in law making.
2) Hart contends that laws are obeyed not due to coercion or fear but due
to self-imposed code of conduct. This notion though true to some extent
but is not universally accepted.

HANS KELSON
THE PURE THEORY OF LAW
Hans Kelsen was an Austrian jurist who gave “Kelsen’s Pure Theory of law” in
his famous book “General Theory of Law” in 1945.
Kelsen argued that the theory of law must be pure i.e. logically self -
supporting and independent of other social sciences. It is called pure theory
of law because its aim is to free the science of law from alien elements.
According to him, law is just if it is legal, one does not need to know the
reasons behind it.
Like Austin, Kelsen is a positivist but a more extreme one. Law is what
it is and the law does not depend upon any moral, ethical or divine norms but
norms setup by human in power.
❖ NORMS AND SANCTIONS: According to Kelsen, Law is a
normative science. A norm is a pattern or standard regarded as typical
of a specified society. To understand what is law, we have to look at
norms which have the character of legal norms, that make certain acts
legal or illegal. Norm is a rule forbidding or prescribing certain behaviour
and they are backed by physical compulsion or sanctions. Thus, if a
person commits a theft, he ought to be punished and it is the duty of
official i.e. police, judges etc, who are allowed to apply sanctions.

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 Like Austin, Kelson considers sanction as an essential element of law
but he prefers to call it “norm”.

Salient features of Pure Theory of Law:

1) The aim of the theory of law, as of any science is to reduce the chaos.
2) Legal theory is a science. It is the knowledge of what the law is and
what the Law ought to be.
3) Legal theory is a theory of norms.
4) Law is a normative science and not a natural science.
5) The theory of laws is formal and changes in a specific way.
6) It is formal theory confined to a particular system of positive law as
actually in operation.
Merits of Pure Theory of Law:
1) It described that the law must be free from extraneous influence a nd
guided only through the authority of the basic norm.
2) It has led to re-examination of many traditional doctrine of
jurisprudence.
3) The “pure” theory attempts to see law as systematic and unified
concept.
Criticism on Pure Theory of Law:
1) It disregards moral principles.
2) The “pure” theory does not touch the practical problem of society
through law.
3) It can be charged with weakening the jurisprudential imagination in the
face of social power.

❖ Common law and Equity:

Common Law is more popularly known as case law, precedent
law or judge-made law. It is made through the decisions of the courts.
At the time of Norman governance, judges were appointed by the king to
solve the disputes and judges used customs to decide the matter. But
gradually judges selected the best customs to be used by all judges and
they become “common law”.
Equity means “fairness” developed due to the problem and gap
existed in common law. Common law being technical could not
safeguard the right of people even if they were declared or proved to be
victimized. Another problem with common law was that the King Courts
only gave damages as compensation to the aggrieved person instead of
any other legal remedy. For Example: If Ali has illegally occupied the
plot of Ahmed, King Common as per common law could only order
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 Ahmed to compensate Ali instead of vacating plot of Ali. Therefore
deprived people directly approached king, who were then sent to Lord
Chancellor (King of Chief Justice) and thereafter case was then
transferred to “Court of Chancery” who decided the matter on the basis
of fairness and natural justice instead of common law.
❖ CONFLICT BETWEEN COMMON LAW & EQUITY:
The two systems of common law and equity and their tow courts
i.e. King Court and Chancery Court operated separately, so this
overlapping of two systems led to conflict between them.
One of the main problems was that the King Court i.e. Common
Law Court would make an order on favour of one party while Chancery
Court i.e. Equity Court would make an order in favour of another party.
This conflict between both was finally resolved U/S: 25 of the Judicature
Act 1873, whereby it was held that in case of conflict between common
law and equity, the decision of Equity Court i.e. Chancery Court would
prevail. This made the position of equity very strong.
❖ IMPORTANCE OF EQUITY:
Equitable rules are used even now in England as well as in
Pakistan. Pakistan’s civil law system is mainly based on equitable
principles, however, it is incorporated by the parliament in their acts and
now is known as Legislation. Principles of injunctions, Specific
Performance, Trusts, Mortgages etc are all part of equity but have been
passed by the Parliament in forms of different acts.
Similarly, when legislation and precedents are not present on any
point of law, then equity automatically comes in order to resolve the
matter.
❖ IMPERATIVE/ ANALYTICAL THEORY OF LAW:
This theory known as Austin’s theory of imperative law is presented by
John Austin and thus supported by many jurists . According to this theory
“Law is the command of sovereign or state back by sanction”. This theory
undoubtedly is the most influential theory of all. Jurist in this theory only
looks at present while completely overlook past.
Salmond opines that civil law is an imperative law and enforced through
courts of law by physical force.
Austin defined sovereign as “a person or body of persons, whom the
bulk of society habitually obeys and who does not himself obey any
other person or persons”.
Austin believes that law has following characteristics:-

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 1) Declaratory: That, law is a direction by human superior or authority
who posses power and authority towards members of state.
2) Imperative: That, law is a command, i.e. if the direction is not followed,
punishment shall be inflicted.
3) General: That, laws are the directions over the things which are to be
done and also those things which are not to be done.
Objections:
1) In ancient times, there were laws follow ed by people but there was no
state to enforce them.
2) Austin claimed that law is the command of the sovereign, but law of
Contract and wills are developed and prepared by people not states.
3) It is not the fear of punishment that makes a person to obey law bu t
rather once own free will.
4) This theory claimed that law is has only been obeyed through the force
of sovereign then the sovereign would not have been bound by law, but
in actual Governments, Legislatures and Kings are not above the law
and they have to act according to law.
5) Punishment is not only sufficient remedy because it does not give
sufficient remedy to the injured party.
6) Austin’s theory excludes international law from the domain of law as
there is no sovereign nation to inflict punishments for wro ngs to other
nations.
7) Some rules inflict no punishment to the person i.e. rules of procedure
and rules of evidence.
8) Austin’s theory clearly ignores ethical and moral elements of law.
Salmond’s defense: “If there are any rules prior to and independent of the
state they may greatly resemble law, they may be historical source from
which law is developed and proceeds but they are not themselves law”.
❖ ADMINISTRATION OF CIVIL JUSTICE:
Civil justice is administered through civil proceedings. Its purpose is to
determine and uphold the rights of people.
Purpose of civil justice: The two rights connected with civil rights are:
1) Primary Rights: All rights available to an individual including
fundamental rights, Human rights or even rights arising out of contract
are primary rights. Moreover, freedom to speech, movement and
association are primary rights.
2) Secondary Rights: In case primary right is violated, then he has the
right to approach Court of Law for redressing his grievances and
enforcement of rights are known as secondary rights.

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