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Download legal method ppt for asignments and stuff and more Lecture notes Law in PDF only on Docsity! Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Semester: FIRST Semester LLB 101 Name of the Subject: LEGAL METHOD UNIT I INTRODUCTION TO LEGAL METHOD Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Definition of Law: Law is defined as Rules of Human action. Blackstone defines law as “ It is a rule of action whether it be animate or inanimate or of nations. Thus law of motion are as much law of nature or of nations. Other jurists however restrict the meaning and scope of law only to norms necessary for regulation of human conduct. Salmond defines law as the “body of principles recognized and applied by the state in the administration of justice. Austin defines Law is the aggregate of rules set men as politically superior or sovereign to men as politically subject. 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 definion all the norms which govern social life within a given society. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) 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. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Morality Morality should not be confused with religious ethics that enforce certain do’s and don’ts on people by some centralised agency. Morality must have a universal foundation; it is a dynamic principle that guides human expression towards benevolence. The principles of non-violence, truthfulness, non-stealing in a wider sense, non-indulgence and universal attitude infuse the spirit of benevolence, humanness, justice and fairness. These universal moral principles should be the guiding factor in framing laws. The “protection of human values in all the three spheres life” and the concept of “Human society is one and indivisible”, are two cardinal principles of PROUT. We are firstly human beings and secondly social beings. Human value precedes social value. If anybody does a crime, measures for reforming his or her character should be taken instead of punishment. However, until the person is rehabilitated, social responsibility should not be given to them. Capital punishment should be abolished from all parts of society. Classification of Law Public and Private Law Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Public Law 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 Preamblei.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 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 Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-II SOURCES OF LAW Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Custom: Custom has been one of the oldest sources of law. In ancient times, social relations gave rise to several usages, traditions and customs. These were used to settle and decide disputes among the people. Customs were practiced habitually and violations of customs were disapproved and punished by the society. Initially social institutions began working on the basis of several accepted customs. Gradually, the State emerged as the organized political institution of the people having the responsibility to maintain peace, law and order; naturally, it also began acting by making and enforcing rules based upon customs and traditions. In fact, most of the laws had their birth when the State began converting the customs into authoritative and binding rules. Custom has been indeed a rich source of Law. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Custom and usage is the earliest sources of law. When there was no state, the people faced problem. They reacted to them in different ways. Slowly and gradually there emerged a kind of uniformity in these reactions. These were called customs and traditions. For example, there are still certain customs, which are observed by the people so for as their marriage, family relations, and inheritance are concerned. After the emergence of the state such customs and traditions were formally adopted and these were given the name of laws. These laws which are derived from customs are called customary laws. The best example of such law is the English Common Law. Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Related is the idea of prescription; a right enjoyed through long custom rather than positive law. Customary law (also, consuetudinary or unofficial law) exists where: a certain legal practice is observed and the relevant actors consider it to be law (opinio juris). Essentials of Custom 1. Antiquity 2. Continunance Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) It is the courts who have the power to interpret statutes. treaties and regulations. Similarly, although parliaments have the power to legislate. It is usually the executive[ who decides on the legislative programme. The procedure is usually that a bill is introduced to Parliament, and after the required number of readings, committee stages and amendments, the bill gains approval and becomes an Act. Legislation is one of the most important instruments of government in organising society and protecting citizens. It determines amongst others the rights and responsibilities of individuals and authorities to whom the legislation applies. The common meaning of Legislation is the making of the law. It may be defined as the promulgation of legal rules by any law made by any source, such as precedents Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Difference between Legislation and Custom 1. The existence and authority of legislation is dejure whereas the existence of custom is de facto. 2. Legislation is considered to be superior and more authoritative source of law than customs. 3. Generally customs deals with the relationship between man and man. Legislation always bring into picture, the state. 4. The authority of legislation lies in express will of the state. Customs are generally based on the will of the people. They have only an implied authority of the state. 5. Legislation is an advanced method of legal development and is characteristic mark of mature legal systems. Customs have their way mainly in a primitive society. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Precedent :-  In common law legal systems a precedent, or authority, is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal  when deciding subsequent cases with similar issues or facts Common law legal systems place great value on deciding cases according to consistent principled rules so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained.  The principle by which judges are bound to precedents is known as stare decisis. Black’’s Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases“.  executive branch agencies). Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) RULE OF LAW:- The term “Rule of Law" is derived from the French phrase 'La Principe de Legality' (the principle of legality) which refers to a government based on principles of law and not of men.  In a broader sense Rule of Law means that Law is supreme and is above every individual. No individual whether if he is rich, poor, rulers or ruled etc are above law and they should obey it. In a narrower sense the rule of law implies that government authority may only be exercised in accordance with the written laws, which were adopted through an established procedure. The principle of Rule of Law is intended to be a safeguard against arbitrary actions of the government authorities. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) The principle of Rule of Law is intended to be a safeguard against arbitrary actions of the government authorities. The rule of law has been described as a “rare and protean principle of our political tradition The rule of law centrally comprises “the values of regularity and restraint, embodied in the slogan of “‘a government of laws, not men’". The term Rule of Law does not provide any thing about how the laws are to be made, or anything specific like the Fundamental Rights or the Directive principles or equality etc. but it provides for two basic concepts that is Law must be obeyed by the people and that the law must be made in such a way that it is able to guide the behaviour of its subjects Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Edward Coke is said to be the originator of concept of Rule of Law when he said that the king must be under God and law and thus vindicated the supremacy of law over the pretensions of the executives. In India, the concept of Rule of Law can be traced back to the Upanishad. It provides that Law is the King of Kings.  It is more powerful and higher than the Kings and there is nothing higher than law. By its powers the weak shall prevail over the strong and justice shall triumph. This establishes the fact that law is absolutely supreme and it excludes the existence of arbitrariness in any form. According to Diecy where there is scope discretion there is room for arbitrariness. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)  The rule of law has been described as a “rare and protean principle of our political tradition“.  The rule of law centrally comprises “the values of regularity and restraint, embodied in the slogan of “‘a government of laws, not men’". The term Rule of Law does not provide any thing about how the laws are to be made, or anything specific like the Fundamental Rights or the Directive principles or equality etc.  it provides two basic concepts that is Law must be obeyed by the people and that the law must be made in such a way that it is able to guide the behavior of its subjects. The concept of Rule of Law is very old. In the thirteenth century Bracton, a judge in the reign of Henry III in a way introduced the concept of Rule of Law without naming it as Rule of Law Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) SEPARATION OF POWERS The term "trias politica" or "separation of powers" was coined by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an 18th century French social and political philosopher. His publication, Spirit of the Laws, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United States. Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances. ‘ The traditional characterizations of the powers of the branches of American government are: •The legislative branch is responsible for enacting the laws of the state and appropriating the money necessary to operate the government. •The executive branch is responsible for implementing and administering the public policy enacted and funded by the legislative branch. * The judicial branch is responsible for interpreting the constitution and laws and applying their interpretations to controversies brought before it. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Forty state constitutions specify that government be divided into three branches: legislative, executive and judicial. California illustrates this approach; "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution. While separation of powers is key to the workings of American government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap; they are too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government. Throughout American history, there also has been an ebb and flow of preeminence among the governmental branches. Such experiences suggest that where power resides is part of an evolutionary process. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Definition of Bill A formal statement of a planned new law that is discussed before being voted on: Draft of a proposed statute (Act Of Parliament) which must be approved by both houses of the legislature and signed by the Head Of State (such as a President) to become a law. LAW REPORTS:- The United States Reports the official reporter of the Supreme Court of the United States Law reports or reporters are series of books that contain judicial opinions from a selection of case law decided by courts When a particular judicial opinion is referenced, the law report series in which the opinion is printed will determine the case citation format. The term reporter was originally used to refer to the individual persons who actually compile, edit, and publish such opinions. For example, the Reporter of Decisions for the U.S. Supreme Court is the person authorized to publish the Court's cases in the bound volumes of the United States Reports. In American English reporter also denotes the books themselves. In the Commonwealth these are described by the plural term law reports, the title that usually appears on the covers of the periodical parts and the individual volumes. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Official law reports or reporters are those authorized for publication by statute or other governmental ruling. Governments designate law reports as official to provide an authoritative, consistent, and authentic statement of a jurisdiction's primary law. Official case law publishing may be carried out by a government agency, or by a commercial entity. Unofficial law reports, on the other hand, are not officially sanctioned and are published as a commercial enterprise Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) For the publishers of unofficial reports to maintain a competitive advantage over the official ones, unofficial reports usually provide helpful research aids (e.g., summaries, indexes), like the editorial enhancements used in the West American Digest System. Some commercial publishers also provide court opinions in searchable online databases that are part of larger fee-based, online legal research systems, such as Westlaw, Lexis-Nexis or Justis. Contents of a good law report The headnote from the leading English case Wilkinson v. Downton [1897] 2 QB 57. A good printed law report in traditional form usually contains the following items: The citation reference. The name of the case (usually the parties' names). Catchwords (for information retrieval purposes). The headnote (a brief summary of the case, the holding, and any significant case law considered). However, a headnote is not part of the decision rendered. Headnotes occasionally contain misinterpretations of the law in judgments of lower courts, and are not regarded as part of an official judgment or precedent. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Research can be classified in many different ways on the basis of the methodology of research, the knowledge it creates, the user group, the research problem it investigates etc. Basic research This research is conducted largely for the enhancement of knowledge, and is research which does not have immediate commercial potential. The research which is done for human welfare, animal welfare and plant kingdom welfare. It is called basic, pure, fundamental research. The main motivation here is to expand man's knowledge, not to create or invent something. According to Travers, “Basic Research is designed to add to an organized body of scientific knowledge and does not necessarily produce results of immediate practical value.” Such a research is time and cost intensive. (Example: A experimental research that may not be or will be helpful in the human progress.) Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Research means repeated search for something, to find out some different new things or something special knowledge in the existing facts. Legal research is any systematic study or research of legal theories, concept, doctrine, cases, principles, rules and regulations etc. methodology, in the sense of O+M+V i.e. way/method/approach and verified facts. Simply, method is the way of doing something and Methodology is the science or study of a particular subject. The main objectives of legal research are to ascertain the nature, purpose and policy – objectives of legal rules and principles that govern a specific situation and determine their current relevance, utility, adequacy or efficacy. , Doctrinal research which is sometimes also referred to as armchair research2which is essential for a library base study as the material needed by a researcher may be available in libraries, archives and other data bases. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Doctrinal research is a research of legal preposition by way of analyzing of the existing statutory provision along with the present case laws by applying the reasoning power of researcher. In doctrinal research, researcher mainly uses different judgments, treaties, statutes texts, legal journals, magazines etc., and from these he tries to collect all relevant material on the topic and then with reasoning power, researcher tries to find out gap, problem and draws out final conclusion. Dr. S.N. Jain observed that doctrinal research involver’s analysis of case law is arranging, ordering and systematizing legal preposition and study of legal institution through legal reasoning or rational deduction. Non-doctrinal research is also known as social-legal research. In non-doctrinal research, researchers make efforts to collect knowledge and information from first hand study or primary data related to his particular matter or topic. It aims to organizing society in systematic and peaceful manner. It is a type of research that employs methods taken from other discipline to generate empirical data that answers research questions. It can be problem, policy or modification of the existing law. A non-doctrinal research can be qualitative or quantitative and dogmatic. It can be part of a large-scale project in the law.