UNIT 1: INTRODUCTION OF LAW

1. WHAT IS LAW?
Have you ever felt the necessity of ‘Law’ in your day-to-day life? Have you seen any one being
booked by the Traffic Police for Violating traffic rules? Dou you feel the necessity of a birth
certificate when a child is born? After death, do you know the importance of a death certificate?
In fact, Law affects all aspects of our life. It rules us from cradle to grave. It protects us right from
the mother’s womb to our education, service, marriage, and other important events of life. Law
plays an important role in our daily life, right from buying a newspaper or a bottle of milk or any
other big or small item necessary for our life. Law is so important for our life that it becomes
necessary to understand various aspects of law viz. What are the sources of Law, what are the
kinds of Law and finally its application for the best use of our society.

‘Law’ signifies a rule applied indiscriminately to all actions. It is a notional pattern of conduct to
which actions do or ought to conform. ‘Law’ is a large body of rules and regulations, based mainly
on general principles of justice, fair play, and convenience and which have been worked out by
governmental bodies to regulate human activities. In broader sense, ‘Law’ denotes the whole
process by which organized society, through government bodies and personnel (Law-makers,
Courts, Tribunals, Law Enforcement Agencies and Executive, Penal and corrective Institutions
etc.) attempt to apply rules and regulations to establish and maintain peaceful and orderly relations
amongst the people in the society.

The idea of ‘Law’ as guide to human conduct is as old as the existence of the civilized society.
The relevance of law to human behavior has become so intimate today that every person has his
or her own conception about its nature which is influenced, of course, by his/her own perspective.
Not surprisingly the search for an agreed definition of ‘Law’ has been an endless journey.

There have been conflicting and divergent views of jurists regarding the nature, concept, basis,
and functions of Law. ‘Law’ has been regarded as a divinely ordained rule or a tradition of the old
customs or recorded wisdom of the wise men or philosophically discovered system of principles
which expresses the nature of things or as a body of ascertainments and declaration of an eternal
and immutable moral code, or as a body of agreements of men/women in politically organized
society, or as a reflection of divine reason or as a body of commands of the sovereign, or as a body
of rules discovered by human experience, or a body of rules developed through juristic writings
and judicial decisions or as a body of rules imposed on men/women in society by the dominant
class, or as a body of rules in terms of economic and social goals of the individuals.

Therefore, Law can be defined firstly - by its basis in nature, reason, religion or ethics, secondly -
by its sources like customs, precedent and legislation, thirdly

– by its effect on the life of the society,

fourthly

– by the method of its formal expression or authoritative application,

Fifthly

– by the ends that it seeks to achieve.

Although, there is no general definition of Law which includes all the aspects of Law yet for a
general understanding, some of the important definitions are as follows:

Aristotle: It (perfect law) is inherent in the nature of man/woman and can be discovered through
reason. It is immutable, universal, and capable of growth.

Austin: Austin says “Law is the command of Sovereign.” Rules laid down by political superiors
to political inferiors. In other words, body of command by a sovereign member or members of an
independent society wherein the author of law is supreme.

Paton: According to Paton “Law consists of a body of rules which are seen to operate as binding
rules in the community by means of which sufficient compliance with the rules may be secured

to enable the set of rules to be seen as binding.”

A.V. Dicey: In the words of A. V. Dicey, “Law is the reflection of Public opinion.”

Ihearing: Ihreaing defines Law as “the form of the guarantee of the conditions of life, of society,
assured by State’s power of Constraints.”
Salmond: According to Salmond, “Law is body of Principles recognized and applied by the State
in the Administration of Justice” i.e., principles recognized and applied by the State in the
administration of justice.

Kelsen: Norms of human behavior or pure theory of law which provides that Law is pyramid of
norms which has its genesis from on ground norm e.g., Constitution of India.

Savigny: Law is a matter of unconscious growth within the community and can only be
understood in its historical perspective. [Savigny’s Volksgiest Theory of Law means will of the
people.]

Roscoe Pound: “Law is a social control through systematic application of force in a politically
organized society?” An instrument to satisfy the maximum wants in a society with the minimum
of friction and waste.

2. FUNCTIONS OF LAW
Jurists have expressed different views about the purpose and function of law. It is well known that
law is a dynamic concept, which keeps on changing with time and place. It must change with
changes in the society. Law, in the modern sense, is considered not as an end in itself, but is a
means to an end. The end is securing of social justice. Almost all theorists agree that law is an
instrument of securing justice.

According to Holland, the function of law is to ensure the well-being of the society. Thus, it is
something more than an institution for the protection of individuals’ rights.

Roscoe Pound attributed four major functions of law, namely: –

Maintenance of law and order in society;

To maintain status quo in society;

To ensure maximum freedom of individuals; and

To satisfy the basic needs of the people. He treats law as a species of social engineering.
The Realist view about the purpose and function of law is that for the pursuit of highest good of
the individuals and the state as such controlling agency.

Salmond’s opinion about the act of law seems sound and logical. The term “law” refers to a wide
variety of rules and principles. Law is an instrument that regulates the human conduct. Law means
justice, morality, reason, order, and authority from the point of view of society. Law means laws,
acts, rules, regulations, orders, and ordinances from the point of view of the legislature.

Law means court decisions, decrees, judgments, orders of courts and injunctions from the point of
view of judges. Therefore, law is a broad term that includes acts, laws, rules, regulations, orders,
ordinances, justice, morality, reason, righteousness, rules of court, decrees, judgment, orders of
courts, injunctions, tort, jurisprudence, legal theory, etc. Since the fall of human civilization,
mankind has had some sort of rule or that they themselves ruled in societal laws, setting the
standard in which we must live if we want to be a part of society.

Law set up rules and regulations for society so that we can have freedom, gives justice to those
who were wronged, and it set up that it protects us from our own government. Most importantly,
the law also provides a mechanism to resolve disputes arising from those duties and rights and
allows the parties to enforce the promises in court (Corley and Reid 1986 PA).

Law is a body of rules of action or authority determined by governing, and a legal binding force.
Laws are made because it helps preventing chaos from occurring within the business environment
and society.

In business, the law sets out guidelines regarding employment regulatory, compliance, even inter-
office rules.

Laws fulfill many functions, but five main functions of laws are: –

1. Laws Protect Individual Rights and Freedoms: – The Bill at Rights was added to the
US Constitution to guarantee many important protections. These laws provide protection
to individuals, from other persons, from organizations and even from the government. The
First Amendment of the Bill of Rights prohibited government law which would interfere
with a person’s right to free speech.
 2. The Laws provide a Framework and Rules to Help Settle Disputes Between
Individuals: – The laws create a system where individuals can bring their dispute to an
impartial tactic, such as a judge or jury. There is also ore legal option where individuals
work together to find a solution, such as by using alternative dispute resolution (ADR).
There are courts at every level, stranded from local to federal. To decide who should win
in a dispute.

3. Without Law there will be no way to Set the Standard: – It is easy to see why murder
and theft are crimes, but laws also provide a framework for setting other types of standards.
Without the Federal Code of Regulation, it would be difficult for individuals or businesses
to conduct transactions using banks. Federal regulations provide enforceable rules and
protections regarding taxes, commercial transactions, and employment laws, insurance,
and other important areas.

4. Laws Help Societies to Maintain Order: – What will be the situation if there is no rule
of law? You may need to provide your protection as there will be no police force or army.
Disputes are un avoidable in the life of society and it is the role of the law to settle disputes.
Thus, disagreements that are justiciable will be resolved by law in court or out of court
using alternative dispute settlement mechanisms.

5. Social Change: – A number of scholars agree about the role of law in modern society as
instrument to social change. Law enables us to have purposive, planned, and directed social
change. Flexibility of law provides some measure of discretion in law to make it adaptable
to social conditions. If law is rigid and unalterable, it may not respond to changes
spontaneously which may lead to resentment and dissatisfaction among the subjects and
may even result into violence or revolution. Therefore, some amount of flexibility is
inevitable in law.

3. LAW AND MORALITY

Law and morality can be understood as concepts, but any attempt made to define them becomes
difficult. Laws are concerned with legal rights and duties which are protected and enforced by the
State. If one disobeys the laws of the State, they can be punished. Morality identifies human
behavior as right or wrong. If one does not conform to the moral standards of society, he cannot
be penalized by the law. So, while morality seeks to control both the internal external behavior of
people, the law seeks only to interfere with the external.

Before we look at why there is a necessary connection between law and morality, we must first
understand what our theorists (Hart and Fuller) think of law itself and how it relates to morality.

HLA Harts’ view

Hart is a positivist, so he does not believe that there is a necessary connection between law and
morality. While he does acknowledge that there is a close relationship between law and morality,
and does not disagree that the development of the law has been immensely influenced by morality.
However, he does not believe that they are interdependent on each other. As such he feels that a
line should be drawn between what law should be, and what law ought to be. The fact of the matter
remains, that a law does not stop being law due to moral criticism of it. Hart believes that officials
should display truthfulness about the law by concentrating on what it says rather than focusing on
what one desires it to say. According to Hart the law consists of primary and secondary rules.
Primary rules art duty imposing rules on the citizens and have a legal sanction. Secondary rules
are power conferring laws that describe how laws should be recognized, adjudicated, or changed.
Hart says these rules form the heart of the legal system and the rule of recognition is the glue that
binds the legal system as a whole. So, Hart advocates that conformity to a certain moral standard
is not required for a legal system to exist. Hart acknowledges that law and morals are bound to
intersect at some point, for instance where a case comes up where the wording of the relevant
statute is not sufficient to give effect to the purpose of the law (professor hart refers to these as
problems of the penumbra), Hart says that such cases can be solved by way Judicial interpretation.
A decision can be made about what the law ought to be, and moral factors play a crucial role in
deciding such hard cases.

Fullers’ view

Fuller is a naturalist, and he sees laws as a way of achieving social order by regulating human
behavior through laws. He believes that our legal systems are derived from the norms of justice
which have a moral aspect. He argues that for a law to be valid, it must conform to a certain moral
function test.1 These are the eight desiderata set out by Fuller;

(i) Rules

(ii) published

(iii) prospective

(iv) intelligible

(v) not contradictory

(vi) possible to comply with

(vii) reasonably stable through time

(viii) followed by officials.

Fuller implores law makers to take into consideration each of the above before determining
whether a law is valid. Fuller goes further to explain morality by categorizing it in two; Morality
of aspiration and morality of duty. Morality of aspiration suggests a desired norm of human
conduct that promotes his/her best interest. Morality of duty describes the standards people follow
to ensure smooth functioning of society. Other forms of morality discussed by Fuller are “Internal
morality of law” and “External morality of law.” the former is concerned with procedure of law
making while the latter focuses more on substance rules of law which are applied in decision
making. fuller rejects the positivist approach to law and argues that society’s goals can be achieved
by other means rather than relying solely on law.

Upon examining both Hart and Fullers view on what the law is and how it relates to morality we
find that Fuller’s naturalist ideals offer the most solutions to the problems in the modern day legal
system. an example of this is where Hart says that we should identify what law is and what it
should be, this still leaves the question, ‘why do we obey the law?’ Is it because of the sanctions
behind it? or is it, because we accept it? As Hart believed. Would we refrain from committing rape
if there was no punishment? Or Perhaps law is obeyed because it is the most convenient and just
way of organizing our societies? All these questions will have a different answer depending on
one’s philosophical point of view. I on the other hand, believe that we may also obey law because
we believe that it is right or morally correct. This last suggestion leads me to my next point. Are
we obligated to obey the laws of a state if we deem the state immoral? examples of these states
are: the apartheid laws of South Africa or the Nazi laws of Germany. These were all legitimate
laws as they were passed by their relevant Parliaments. But did those laws have moral authority?
To answer this question, we are going to focus the Nazi laws and applying the above views of Hart
and Fuller so as to prove why I believe there is a link between law and morality.

A good example this point is that of the grudge informer case that was discussed in the Hart- Fuller
Debate Published in the Harvard law review because it demonstrates the differing views of
naturalism and positivism, particularly in the context of Nazi laws. Facts of the case are as follows:

“A German woman denounced her husband to the authorities in accordance with the anti-sedition
laws of 1934 & 1938. He had made derogatory remarks about Hitler. The husband was prosecuted
and convicted of slandering the Fuhrer, which carried the death penalty. Although sentenced to
death he was not executed but was sent as a soldier to the Eastern front. He survived the war and
upon his return instituted legal proceedings against his wife. The wife argued that she had not
committed a crime because a court had sentenced her husband in accordance with the relevant law
of the time. However, the wife was convicted of ‘illegally depriving another of his freedom’, a
crime under the Penal Code, 1871, which had remained in force throughout the Nazi period. The
court described the Nazi laws as “contrary to the sound conscience and sense of justice of all decent
human beings” (1951)”.

If we follow Hart’s positivist views, the decision given by the Court was wrong, because hart
believes that no matter how heinous the Nazi laws were, they were in accordance with the Enabling
Act passed by the Reichstag, and were valid. It satisfies Hart’s rule of recognition. I find this very
disturbing for many reasons. Fuller on the other hand recognized the Court’s decision because it
created respect for law and morality, and by using his 8 desiderata Fuller states that all Nazi laws
were illicit. This justifies the courts overlooking of the earlier 1934 act and upholding the wife’s
conviction. Without the courts applying a moral concept in the application of the law, the courts
would have had to acquit the wife and agreed with Hart, a decision I feel would have been wrong.
According to Hart, the Courts were left with only two options to preserve the integrity of the
judicial decisions, either to let the wife go free because the statute protected her, or make a
retrospective law repealing the statute under which she claimed protection, and declaring the acts
of the perpetrators of such atrocities as criminal. Even though Hart did not favor the retrospective
application of criminal statutes, he argued that the Nazi regime could have been considered an
exceptional circumstance for the application of retrospective of laws, if the Courts were afraid that
Hitler’s accomplices would be acquitted. Hart was strongly against the Court’s decision to
introduce a concept of morality and deciding the statute which protected the woman was no law at
all.

Fuller contended that Hitler’s regime was so harmful to morality, that there was nothing in the
system that could qualify to be called a law as they did not comply with his desiderata. He stated
that the Nazi laws lacked the necessary internal morality required in the process of law making,
which gives laws respect and makes them obligatory to be followed by citizens. Fuller believed
that unless the Nazi laws were treated as non-laws, the perpetrators of evils under the Nazi regime
would go unpunished. A result I feel it is unjust.

I agree with fuller and I think that hart is mistaken because Hart’s arguments fail in my opinion on
the grounds that hart himself becomes inconsistent when he concedes to the fact that his rule of
recognition requires a minimum morality of law. Impartiality in application of a rule is a moral
standard which is necessary in any legal system. Fuller believes that Hart is aware of the internal
morality of law, but refers to it justice in the administration of laws. which in my opinion indicates
that there is indeed a connection between law and morality. To Harts credit he tries to justify his
position that morality is not always necessary in the application of the rule of law, Hart, presents
us with a hypothetical illustration.

Supposing a law forbade the taking of a vehicle into a park, and is not specific as to which type of
vehicle. An apparent meaning of the term ‘vehicle’ would imply that cars are prohibited from
entering the park. However, in absence of any clear definition of the term vehicle, would toy cars
or airplanes qualify as vehicles? And, would the rule of prohibition be equally applicable on them?
Hart emphasizes that interconnection between what the law is and what the law ought to be in the
penumbra does not depict how the law actually functions at the core. I find harts arguments here
to be weak because I believe that language does not determine the core of legal rules. this is because
it is not possible to determine what the wording of a statute in this case the term ‘vehicle’ without
first looking at the purpose behind the rule. Fuller also argues that it is not possible to determine if
a rule applies to a given situation, without understanding the purpose that the rule was supposed
to serve by referring to the objectives of entire provisions of law rather than seeking to find
meaning of individual words. He identifies the problem as one of interpretation of words and not
an issue of core and penumbra as claimed by Hart. Fuller emphasizes that fidelity to law can be
only achieved if the law is in accordance with morals at all stages, be it at the time of making of
the law or its application by the court. People will comply with the law only if they are convinced
that the law is based on strong moral foundations enacted for their common good. Fuller further
criticizes Hart’s definition of law which insists that law and morality needs to be separated. Fuller
contends that there cannot be a specific definition of law. Likewise, even morality cannot be
defined accurately. Therefore, Fuller argues that because there is no precise definition for law and
morality, it is pointless to argue that both of them are separate. and I believe that this offers a much
more compelling argument than any of Harts positivist claims.

Onto my final point, the issue with principles of morality is that various societies will have
different moral principles. So, in pluralistic societies such as ours, there will be conflicting ideas
of what is, or not moral. For example, in Muslim countries it is considered immoral for a woman
to walk outside without a hijab, whereas in the west this is not considered immoral. There is also
the issue that morals tend to change over time, so what was deemed immoral 50 years ago may no
longer be immoral. An example of this same sex marriage, this was perceived as being so immoral
that it was illegal. It was not until the Marriage (Same Sex Couples) Act 2013 was passed by the
UK Parliament that it became legal and somewhat morally acceptable in the UK. Personally, I
disagree with same sex marriage, but it does aid my case that the law reflects what society deems
as moral as such there is a connection between law and morality. In Forsythe v DPP and the AG
of Jamaica the courts said “That a law is valuable not because it is ‘the law’ but because there is
‘right’ in it and laws should be like clothes; the Laws should be tailored to fit the people they are
meant to serve.”
4. CLASSIFICATION OF LAW

For a proper and logical understanding of Law, its classification becomes necessary. It helps in
understanding the principles and logical structure of the legal order. It makes clear the inter-relation
of rules and their effect on each other and it also helps in arranging the rules in a concise and
systematic way.

Primarily, ‘Law’ may broadly be divided into two classes:

1. International Law: International Law is a branch of law which consists of rules which regulate
relations between States or Nations inter se. In other words, International Law is a body of
customary and conventional rules which are considered to be legally binding by civilized Nations
in their intercourse with each other. International Law is mainly based on Treaties between
civilized Nations. International law may be divided as follows:

(a) Public International Law It is that body of rules which governs the conduct and relations of
State with other States. For example, the extradition treaty between two states to bring back the
fugitives.

(b) Private International Law It means those rules and principles according to which the cases
having foreign elements are decided. For example, if a contract is entered into in India between an
Indian and a Pakistan citizen, which is to be performed in Ceylon, then the rules and regulations
on which the rights and liabilities of the parties would be determined is known as ‘Private
International Law’

2. Municipal Law or National Law: Municipal Law is that branch of Law, which is applied
within a State. It can be divided into two classes.

(a) Public Law: It regulates the organization and functioning of the State and determines the
relations of the State with its subjects. It may be divided into three classes:

i. Constitutional Law: Constitutional Law is the basic or fundamental law of the State. It is a law
which determines the nature of State and the structure of the Government. It is superior to the
ordinary law of the land because ordinary law derives its authority and force from the
Constitutional Law.

ii. Administrative Law: This law deals with the structure, powers, and functions of the organs of
administration; the limits of their power; the methods and procedure followed by them in exercise
of their power; the methods by which their powers are controlled, including remedies available to
a person against them when his/her rights are infringed by their operation.

iii. Criminal Law: It defines offences and prescribes punishment for them. Its aim is the
prevention of and punishment for offences because in civilized societies, ‘crime’ is considered to
be a wrong not against the individual but against the society.

(b) Private Law: This branch of law regulates and governs the relations of citizens with each
other. It includes Personal Law e.g., Hindu Law and Muslim Law. Apart from these kinds of law,
there are some other varieties of law as follows:

Natural or Moral Law

Natural Law is based upon the principle of right and wrong. It embodies the principles of Natural
Justice.

Conventional Law

Conventional Law means any rule or system of rules agreed upon by persons for regulation of their
conduct towards each other. For example, Indian Contract Act, 1872 deals with the rules on making
agreements.
Customary Law

Any rule of action which is actually observed by men/women when a Custom is firmly established,
is enforced by the State as law because of its general approval by the people.

Civil Law

The Law enforced by the State is called Civil Law. The force of State is the sanction behind this
Law. Civil Law is essentially territorial in nature as it applies within the territory of the State
concerned.

Substantive Law

Substantive Law deals with rights and obligations of the individuals against the State and
prescribes the offences and punishments for the commission of such offences. For example, India
Penal Code, 1860 contains 511 Sections on various offences and corresponding punishments for
those offences.

Procedural Law

It deals with the practice and procedure having its objective to facilitate the administration of
justice. It is a process necessary to be undertaken for enforcement of the legal rights and liabilities
of the litigating parties by a Court of Law. For example, the Criminal Procedure Code, 1973
enshrines the procedures to be followed to inflict punishment on the wrongdoer.

5. LANGUAGE OF LAW

There are insurmountable objections to Bentham’s idea that a law is an assemblage of signs. Law
(in the sense that is relevant here) is the systematic regulation of the life of a community by
standards treated as binding the members of the community and its institutions. A law is a standard
that is part of such a systematic form of regulation. Many such standards have no canonical
linguistic formulation (that is, no form of words which, according to law, determines the content
of the standard). Lawyers in common law systems are familiar with such norms: murder may be a
criminal offence (or slander may be a tort, or certain agreements may be enforceable as
contracts…), not because of the expression by any person or institution of a rule that it should be
so, but because the institutions of the legal system customarily treat murder as an offence (or
slander as a tort...). Moreover, common law systems cannot be distinguished from legal systems
consisting only of linguistic acts, because no legal system consists only of linguistic acts. A civil
law system with a civil code and a criminal code may make murder an offence (and slander a
tort…) by a written act, and it may be a written constitution that gives legal force to the civil code
and to the criminal code. But the validity of the written constitution will depend on a norm which
is not created by the use of signs: the rule that the constitution makers’ act of using that text to set
out the constitution is to be treated as authoritative.[2]

Bentham and John Austin knew that there are rules of law that were not laid down in language.
Preserving their view of law as signification of volition, they accounted for such laws
as tacit commands of the sovereign. That convoluted device cannot provide the resources needed
to explain the existence of a norm. In the right circumstances, it is certainly possible to
communicate without using signs (and in particular, it is possible to convey a volition, backed by
a threat of force, just by saying or writing nothing). But silence can only be a means of
communication when the circumstances give it a meaning. We can say that a tacit command has
been issued only if it is possible to identify features of the situation that distinguish the tacit
communication from mere inaction communicating nothing (see Hart 2012, 45–48). Those
features do not generally accompany customary rules (in fact, they generally do not accompany
customary rules).

There is another conclusive objection to the idea that a law is an assemblage of signs. When a
lawmaking authority does use language to make a law (as when a legislature uses a lawful process
to pass an enactment that is within its powers), the resulting law is not an assemblage of signs.
When I write you an email message to make a request, the message is an assemblage of signs, but
the request is not an assemblage of signs; I used the assemblage of signs to make it. The law that
results from the use of language in an enactment is a norm or norms whose existence and content
are determined by the legal effect that the law ascribes to that use of an assemblage of signs (see
Von Wright 1963, Chapter VI, on the distinction between norm formulations and norms).

A law, therefore, is not an assemblage of signs, and law is not necessarily made using language,
and every legal system has norms that were not made using language. Laws are not linguistic acts.
Laws, you may say, are standards of behavior that can be communicated (and some of which are
made) by using language. But even this is controversial among writers on legal interpretation.

As an instance of controversy over the effect of the use of language in law, consider the case
of Garner v Burr [1951] 1 KB 31. The legislature had made it an offence to use a ‘vehicle’ on a
road without pneumatic tires. Lawrence Burr fitted iron wheels to his chicken coop, and pulled it
down the road behind his tractor. Burr was prosecuted under the statute. The magistrates acquitted
him, apparently on the ground that a chicken coop is not a ‘vehicle’. The appeal court reversed
that decision. The Lord Chief Justice wrote,

The regulations are designed for a variety of reasons, among them the protection of road surfaces;
and, as this vehicle had ordinary iron tyres, not pneumatic tyres, it was liable to damage the roads.
[The magistrates] have put what is in my opinion too narrow an interpretation on the word ‘vehicle’
for the purposes of this Act. It is true that, according to the dictionary definition, a ‘vehicle’ is
primarily to be regarded as a means of conveyance provided with wheels or runners and used for
the carriage of persons or goods. It is true that the [magistrates] do not find that anything was
carried in the vehicle at the time; but I think that the Act is clearly aimed at anything which will
run on wheels which is being drawn by a tractor or another motor vehicle. Accordingly, an offence
was committed here. It follows that [the magistrates] ought to have found that this poultry shed
was a vehicle within the meaning of s. 1 of the Road Traffic Act of 1930. ([1951] 1 KB 31 at 33)

The magistrates and the appeal court seem to have disagreed over the effect of two principles: a
principle that statutes should only be read as imposing criminal liability if they do so
unequivocally, and a principle that the purposes for which Parliament passed the statute should be
pursued. Assume that those principles are legal principles, in the sense that a decision in
accordance with the law must respect them. The apparent tension between the principles might be
resolved in one of the following two ways. We do not have the magistrates’ reasons, but let’s
presume that they resolved the tension in the first way; the appeal court resolved it in the second
way:

1. by concluding that Parliament’s purposes can be respected appropriately while still construing
the prohibition narrowly (so that it is no offence to pull a chicken coop down the road on iron
wheels, because the chicken coop is not undeniably a vehicle), or
2. by concluding that Parliament’s purpose is sufficiently clear that it can be pursued by convicting
Mr. Burr, without jeopardizing the principle that criminal liabilities ought to be clearly spelled out,
even if someone might reasonably claim that a chicken coop on wheels is not a ‘vehicle’.

It may seem that this common sort of disagreement tells us nothing about language, except perhaps
that language is of no particular importance in law. It may seem that the two courts did not disagree
over any question of language (after all, everyone involved was competent in English), but only
over whether they ought to give effect to Parliament’s evident purpose of protecting roads by
convicting Mr.Burr, or whether that would be unfair to him.

One explanation of the decision would be that the appeal court ignored the word ‘vehicle’, and
treated the pneumatic tires rule as if it applied to anything that moves on wheels (instead of
applying to vehicles, which is what the legislation said). But the Lord Chief Justice did not explain
his decision that way. He did not hold that, because Parliament aimed to protect roads from iron
wheels, Burr should be convicted regardless of the meaning of the word ‘vehicle’. He held that the
magistrates ought to have found that the chicken coop was a vehicle, ‘for the purposes’ of the Road
Traffic Act. Presumably the magistrates, too, considered themselves to be giving effect to the
language of the Act, rather than ignoring (in the interests of fairness) what Parliament had enacted.

No doubt, legal decisionmakers sometimes depart from what the legislature provided in a valid
enactment (or a testator provided in a valid will...). They may do so corruptly, or in the exercise of
an equitable jurisdiction to depart from the law, or because they consider that justice demands it
even if the law accords them no power to depart from the enactment or the will. But in Garner v
Burr, the magistrates and the appeal judges evidently saw themselves as giving effect to the Road
Traffic Act. And the sort of disagreement that arose in that case (disagreement over the legal effect
of the use of a word) is so common that we seem to find a paradox:

The apparent paradox of legislative language:

Competent speakers of the English language share a knowledge of the meaning of the word
‘vehicle’, and the law that is made by legislation using the word must be determined by the
meaning of the word, yet English speakers disagree—apparently sincerely—over the effect of
legislation using the word.
To resolve the apparent paradox of legislative language, we can say that what speakers of the
English language share, in virtue of their grasp of the meaning of a word like ‘vehicle’, is an ability
to use the word in a way that depends on the context. The question of whether a chicken coop on
wheels counts as a ‘vehicle’ would be a different question (and might have a different answer), if
another statute or regulation imposed a tax on ‘vehicles’. The relevant considerations might be
different again if a statute or regulation required ‘vehicles’ to keep to the left-hand side of the road.
The Lord Chief Justice was right that a dictionary definition of ‘vehicle’ could not conclude the
question of whether the chicken coop was a vehicle in Garner v Burr, because the purpose of a
dictionary definition is to point the reader to features of the use of the word that can be more-or-
less important in a variety of more-or-less analogical ways in various contexts. A definition of
‘vehicle’ as a mode of conveyance offers the reader one central strand in the use of that word, but
does not tell the reader whether a more-or-less analogical extension of the word to a chicken coop
on wheels is warranted or unwarranted by the meaning of the word. Another way of stating this
resolution of the apparent paradox of legislative language is by distinguishing between the
meaning of a word (which the magistrates and the appeal judges all knew) and the way in which a
communicative act using the word ought to be understood (over which they disagreed). The judges
and magistrates in Garner v Burr shared a knowledge of the meaning of the word ‘vehicle’; they
could all share mastery of that word, while disagreeing over the effect of the legislature’s use of
the word. The evident good sense of that proposition has led some philosophers to theories that
state or imply that law is not made by the use of language; see section 3 below.

Rules of Interpretation

Literal or Grammatical Rule

It is the first rule of interpretation. According to this rule, the words used in this text are to be given
or interpreted in their natural or ordinary meaning. After the interpretation, if the meaning is
completely clear and unambiguous then the effect shall be given to a provision of a statute
regardless of what may be the consequences.

The basic rule is that whatever the intention legislature had while making any provision it has been
expressed through words and thus, are to be interpreted according to the rules of grammar. It is the
safest rule of interpretation of statutes because the intention of the legislature is deduced from the
words and the language used.

According to this rule, the only duty of the court is to give effect if the language of the statute is
plain and has no business to look into the consequences which might arise. The only obligation of
the court is to expound the law as it is and if any harsh consequences arise then the remedy for it
shall be sought and looked out by the legislature.

Case Laws

Maqbool Hussain v. State of Bombay, In this case, the appellant, a citizen of India after arriving
at the airport did not declare that he was carrying gold with him. During his search was carried on,
gold was found in his possession as it was against the notification of the government and was
confiscated under section 167(8) of Sea Customs Act.

Later on, he was also charged under section 8 of the Foreign Exchange Regulations Act,
1947. The appellant challenged this trial to be violative under Article 20(2) of the Indian
Constitution. According to this article, no person shall be punished or prosecuted more than once
for the same offence. This is considered as double jeopardy.

It was held by the court that the Seas Act neither a court nor any judicial tribunal. Thus,
accordingly, he was not prosecuted earlier. Hence, his trial was held to be valid.

Manmohan Das versus Bishan Das, AIR 1967 SC 643

The issue in the case was regarding the interpretation of section 3(1)(c) of U.P Control of Rent and
Eviction Act, 1947. In this case, a tenant was liable for evidence if he has made addition and
alternate in the building without proper authority and unauthorized perception as materially altered
the accommodation or is likely to diminish its value. The appellant stated that only the constitution
can be covered, which diminishes the value of the property and the word ‘or’ should be read as
land.

It was held that as per the rule of literal interpretation, the word ‘or’ should be given the meaning
that a prudent man understands the grounds of the event are alternative and not combined.

State of Kerala v. Mathai Verghese and others, 1987 AIR 33 SCR(1) 317, in this case a person
was caught along with the counterfeit currency “dollars” and he was charged under section 120B,
498A, 498C and 420 read with section 511 and 34 of Indian Penal Code for possessing
counterfeit currency. The accused contended before the court that a charge under section 498A and
498B of Indian Penal Code can only be levied in the case of counterfeiting of Indian currency
notes and not in the case of counterfeiting of foreign currency notes. The court held that the word
currency notes or bank note cannot be prefixed. The person was held liable to be charge-sheeted.

The Mischief Rule

Mischief Rule was originated in Heydon’s case in 1584. It is the rule of purposive construction
because the purpose of this statute is most important while applying this rule. It is known as
Heydon’s rule because it was given by Lord Poke in Heydon’s case in 1584. It is called as mischief
rule because the focus is on curing the mischief.

In the Heydon’s case, it was held that there are four things which have to be followed for true and
sure interpretation of all the statutes in general, which are as follows-

1. What was the common law before the making of an act.

2. What was the mischief for which the present statute was enacted.

3. What remedy did the Parliament sought or had resolved and appointed to cure the disease
of the commonwealth.

4. The true reason of the remedy.

The purpose of this rule is to suppress the mischief and advance the remedy.

Case laws

Smith v. Huges, 1960 WLR 830, in this case around the 1960s, the prostitutes were soliciting in
the streets of London and it was creating a huge problem in London. This was causing a great
problem in maintaining law and order. To prevent this problem, Street Offences Act, 1959 was
enacted. After the enactment of this act, the prostitutes started soliciting from windows and
balconies.

Further, the prostitutes who were carrying on to solicit from the streets and balconies were charged
under section 1(1) of the said Act. But the prostitutes pleaded that they were not solicited from the
streets.
The court held that although they were not soliciting from the streets yet the mischief rule must
be applied to prevent the soliciting by prostitutes and shall look into this issue. Thus, by applying
this rule, the court held that the windows and balconies were taken to be an extension of the word
street and charge sheet was held to be correct.

Pyare Lal v. Ram Chandra, the accused in this case, was prosecuted for selling the sweeten supari
which was sweetened with the help of an artificial sweetener. He was prosecuted under the Food
Adulteration Act. It was contended by Pyare Lal that supari is not a food item. The court held that
the dictionary meaning is not always the correct meaning, thereby, the mischief rule must be
applicable, and the interpretation which advances the remedy shall be taken into consideration.
Therefore, the court held that the word ‘food’ is consumable by mouth and orally. Thus, his
prosecution was held to be valid.

Kanwar Singh v. Delhi Administration, AIR 1965 SC 871.

Issues of the case were as follows- section 418 of Delhi Corporation Act, 1902 authorised the
corporation to round up the cattle grazing on the government land. The MCD rounded up the cattle
belonging to Kanwar Singh. The words used in the statute authorised the corporation to round up
the abandoned cattle. It was contended by Kanwar Singh that the word abandoned means the loss
of ownership and those cattle which were round up belonged to him and hence, was not abandoned.
The court held that the mischief rule had to be applied and the word abandoned must be interpreted
to mean let loose or left unattended and even the temporary loss of ownership would be
covered as abandoned.

Regional Provident Fund Commissioner v. Sri Krishna Manufacturing Company, AIR 1962
SC 1526, Issue, in this Case, was that the respondent concerned was running a factory where four
units were for manufacturing. Out of these four units one was for paddy mill, other three consisted
of flour mill, saw mill and copper sheet units. The number of employees there were more than 50.
The RPFC applied the provisions of Employees Provident Fund Act, 1952 thereby directing the
factory to give the benefits to the employees.

The person concerned segregated the entire factory into four separate units wherein the number of
employees had fallen below 50, and he argued that the provisions were not applicable to him
because the number is more than 50 in each unit. It was held by the court that the mischief rule has
to be applied and all the four units must be taken to be one industry, and therefore, the applicability
of PFA was upheld.

The Golden Rule

It is known as the golden rule because it solves all the problems of interpretation. The rule says
that to start with we shall go by the literal rule, however, if the interpretation given through the
literal rule leads to some or any kind of ambiguity, injustice, inconvenience, hardship, inequity,
then in all such events the literal meaning shall be discarded and interpretation shall be done in
such a manner that the purpose of the legislation is fulfilled.

The literal rule follows the concept of interpreting the natural meaning of the words used in the
statute. But if interpreting natural meaning leads to any sought of repugnance, absurdity, or
hardship, then the court must modify the meaning to the extent of injustice or absurdity caused and
no further to prevent the consequence.

This rule suggests that the consequences and effects of interpretation deserve a lot more important
because they are the clues of the true meaning of the words used by the legislature and its intention.
At times, while applying this rule, the interpretation done may entirely be opposite of the literal
rule, but it shall be justified because of the golden rule. The presumption here is that the legislature
does not intend certain objects. Thus, any such interpretation which leads to unintended objects
shall be rejected.