OS THE TAMIL NADU Cay, AMBEDKAR LAW UNIVERSITY (State University Established by Act No. 43 of 1997) SCHOOL OF EXCELLENCE IN LAW ‘Perungudi Campus’, M.G.R. Salai, Perungudi, Chennai - 600 113. LEGAL METHODS STUDY MATERIAL By C, Elaiyaraja Assistant Professor School of Excellence in Law The Tamil Nadu Dr. Ambedkar Law University M1PREFACE This course material on legal methods is an outcome of the experience based on teaching the subject. Legal method is one of the most highly misinformed and misunderstood subjects, In reality it iga meaningful and purposeful exercise. Students who have participated in the learning process of the subject for sure have explicitly witnessed a massive change in their attitude towards learning law. They have developed a tendency to address the life of law from the perspective of fundamental views. They have been sensible in accommodating the views of others and maintaining a healthy correspondence with their colleagues and that of the learned trainers. They have been in comfort in adapting to various subjects and their learning methods, In nut shell their vision towards learning law as such has been empowered. It is towards expertise: Now to the so called problems akin to the subject, there exists no problem as such, It is only attitudinal frame, in most instances it tends to happen. It is not a crime however one should learn to take strides rather remain a passive or doubtful spectator. When explained, the subject poses an inherent challenge as it comprises legal philosophy and research at an introductory level. In expansion it is again not mere reference to nature of law, itattributes the skills of reasoning the classification of law, learning the art of interpretation and understanding the skills of approaching the judgements. In the context of research again it is not theoretical alone it introduces the framing of synopsis, which constitutes a research design. As it is taught to the beginners in law, the concept of delivering the subject itself requires good techniques and confidence, The group or the recipients, in case of the traditional five years scheme, may have different backgrounds such as Maths, Physics Chemistry and Biology; History, Commerce, Computer Science, Pure Science and that of Vocational etcetera. They may have less exposure in terms of specialization, In the case of Graduates (3 Year Courses) the difference is they have a branch of study such as Sociology, Political Science, Chemistry, Commerce so and so forth, but they may be varied. In either of the cases you do not have a particular group to rely and introduce a systematic approach. Importantly their learning methods in the past are of distinct nature. One must not forget this subject deals purely about techniques. Therefore activity or reasoning based learning will take certain amount of period, for example 3-4 weeks. Examples of common kind (day to day life activities) will be resorted. Home works or small assignments or self-learning modes will be periodically assigned. The Trainer is in a position to fine tune the skills. All this ensures fixation of chord and imparting the skills of learning the art of learning law as such. It involves reciprocal intellectual process. There is also widespread skepticism that it should be taught only after certain years of exposure. Make no mistake, mostly in all the national legal systems and their educational patterns, for several decades the subject is introduced for the first semester. As said above, it provides confidence to the students. It is a package designed to suit the beginners. Legal Methods is not to teachLegal Method but to use the methods to understand other law subjects or a lifelong tool in a reasonable manner, Legal methods is vocal about one factor, ‘how to study law and the ways to become one with law and society’. Logically one may take this example, first year students inclusive of both the streams (5 Years and that of 3 Years) study statutory subjects without even having a basic view of the schools of interpretation, they rely upon a good number of case laws or decisional materials, without being informed the methods to associate oneself with a judgement. They are introduced to public laws only in the later semesters; an introduction of public law is required to study all other laws. Ethics of being a student of law is signified, as it is more important for the beginners to inherit right attitude, for themselves and towards the society. Such kinds of examples are many. All of the examples indicate that it is learning law ina flash and defy any experience or internalization, which should not be the way forward. Legal methods ensures intactness, foreseeability and creating sound working culture in the class room environment. The key word used in legal methods is, it is only introductory in nature. It squarely removes the confusion of overlapping among the other subjects of law. The training period is divided in equal lengths to include the art of reading, writing, thinking, interpreting and that of reasoning the system of laws, The basic pattern relied is by introducing the texts of the law (verifiable data, for example statute laws and judgements). In this course material I have identified the useful core areas of learning the art of learning law. In essence, the definition of law, classification of law, schools of interpretation, fundamentals of legisprudence, judicial methods and introduction to legal research. I have given the basic substance of all the units. As the subject involves lot of illustrative examples, the course material must be used as an introductory content and again one has to develop the skills by working with the learned faculties, Legal method is equivalent to the formulae “knowledge adopts the methods and methods adapt to the knowledge”. As a tutor of this field of knowledge, I only wish that the students fraternity use this valuable opportunity, acquire the necessary training and blossom as an intellectual flower. Waiting for their fragrance! May Almighty (Glory Be Upon Him) increase their knowledge and guide them towards legal service. C. Elaiyaraja Assistant Professor School of Excellence in Law The Tamil Nadu Dr. Ambedkar Law UniversityCONTENTS 1. Introduction 1 1.1 Learn to Learn And Law and Society 1 1.2 Epistemological roots 1 1.3 Lawand Society 3 1.4 Nature and Scope of Legal Methods 3 15 __ Distinct Features 4 2. Definition of Law 5 2.1 Introduction 5 2.2 Classifications 5 2.2.1 Divine Law 5 2.2.2 Natural Law 6 2.23 Man-made Law 6 23. Publicand Private Laws 6 2.3.1. International Law 7 2.3.2 Constitutional Law 9 3. Legal Maxims and Legal Terms 10 3.1 Introduction 10 3.2 Utility of Legal Maxims 10 3.3. Select List of Maxims 10 3.4 Legal Terms 18 3.5 List of Terms 18 4. Principles of Interpretation 27 4.1 Introduction 2 4.2 Definition 77 43. Scopeand Development 27 44 Objectives 28 45 Schools 285. Fundamentals of Legislative Drafting 31 5.1 Introduction 31 5.2 Legisprudence 31 5.3 Scopeand Development 31 5.4 Characteristic Features of Drafting 32 5.5 Qualities of Drafters 33 5.6 Stages of Drafting 34 5.7 Source of Legislation 35 5.8 Significance of the General Clauses Act 35 5.9 Forms 37 5.10 Law Commission of India 37 6. Judicial Methods 40 61 Introduction 40 6.2 Principles governing the Judges 40 63 Judgement 4 64 — Whatconstitutesa speaking order or reasoned decision? 41 65 Partsofthe Judgement 2 6.6 Identification of ratio decidendior Operative part 42 67 Indian Scenario 43 6.8 List of Research Oriented Judgements 43 7. Introduction to Legal Research 45 7.1 Introduction 45 7.2 Legal Research Space 45 7.3 Defining Legal Research 45 74 — Objectives 46 75 Threshold 46 7.6 Checksand Balances 46 7.7 Forms of Research 47 7.8 Law Library 488. Qualities of Researcher 52 8.1 Introduction 52 82 — Good Qualities 52 9. Criterions to Select Research Topic 53 9.1 Introduction 53 9.2 Guiding Factors 53 i, Natural Instinct 53 ii, Availability of Literature 54 iii, Availability of Experts 54 iv. Societal Relevance 54 v. Effective Management of Time and Cost, 54 vi, Adaptability towards Research Methodology 54 vii, Utilisation of Computer Assisted Legal Research 55 viii, Trans-boundary in Knowledge 55 ix, Centred on Fundamentals 55 x Contemporary Relevance 56 xi, Possibility of Furure Expansion 56 xii, Career Opportunities 56 10. Synopsis 37 10.1 Introduction 57 10.2 Utility 57 10.3 Components 37 10.3.1 Introduction 58 10.3.2 Background of the Study 58 10.3.3 Review of Literature 58 10.3.4 Scopeand Objectives of the Study 58 10,35. Research Problem 58 10.3.6 Research Question 5910.3.7 Hypothesis 59 10.3.8 Research Methodology/Techniques 60 10.3.9 Tentative Chapterisation 60. 10.4 Structural Requirements 60 11, Model Questions 61 Select Bibliography 641. INTRODUCTION 1.1 Learn to Learn And Law and Society ‘The concept ofllearning asa process involves sincere efforts, participation, internalisation and contribution. The elementary criterion for learning is based on two attributes namely, to live asa student and learn the art of learning, that is, ‘How to learn determines what to learn’. As the notion of Law neither as a subject nor as research is independent in terms of epistemological values and societal roots the above said ‘understanding remains indispensable. 1.2 Epistemological roots ‘The term ‘knowledge’ derives its origin from the Greek term ‘episteme’. Epistemology signifies the study ofthe science of knowledge. The object of the school of epistemology is scholarship. Every department of education strives for the attainment of such objectives and law is no different. In the pursuit of such an order there are certain central criterions inter aliait includes: i, Transformation intoa Student; ii, Understanding the art of Learning; iii, Focalisation on the Fundamentals; iv. Obedience towards the Trainer and Methodology; y. Working with Team Spirit. “When explained, the Transformation concept can be understood by the example of conventional definition ofa student-a student who internalises every class as the last class. Learning the art of learnings basically two fold, Learn to Unlearn and Unlearn to Learn. Basically itis concentrating on useful lessons and removing, the irrelevant and preparing oneself to learn the relevance of scholarship. The Foundational aspects of knowledge are pivotal as they set the basic premise, composition or platform towards any set of application. In the context of Allegiance towards the trainer and methodology, the trainees must understand that the former belong to such category who have acquired time tested experience wherein they have to fix the chord (chords of communication, reciprocity, utilisation and that of selflessness in pursuit of societal service), As the major challenge of education is regulation of human behaviour, there is a tendency to question the methodology of learning, knowingly or unknowingly. The characteristic components of ‘knowingly’ would for example, include comparing o distinguishing the attributes, such as language, limited experience, equating the faculties, absence of working culture and in consequence ignorance, smart work, ill advice from senior, materialistic views, living for marks, expectancy to learn with direct notes or {guides for the purpose of scoring marks or avoiding analytical mode of teaching (lack of home work may lead to such stance), attitude to consider class room learning as inferior and to join profession as early as possible, impact of schooling, family background, personality traits etcetera, With reference to ‘unknowingly’ it may involve lack of confidence, expectancy of direct and simple materials to learn, fear factor, concerned about the concept of multiple task, lack of encouragement, late entry to the institution, alien environment, ‘method of learning, impact of schooling, confusion in participating, family background, personality traits etcetera.Knowingly is worse and lethal than unknowingly. As it isolates the student entirely from the learning environment, in final it also affects the ethical quotient. Ie will become a disease unless sorted out by the Participants, However it should be made clear that as a matter of truth every disease as a cure except old age as theological science as proved right. The preventive medicine is once again the virtue of focalising on learning the art of learning law and not directly learning law as such, In addition the fruits of such therapy can be achieved better and enhanced if there is an effective communication between the teacher and the taught (chord fixation). Further, years of experience has taught us the eternal fact that the real enemy is inside, one has to systematically regulate the soul. Itisa process for resourceful life. The fine virtues ofacknowledging the ‘human limitations, appreciating others, extending co-operation, remaining modest and humble in learning, understanding the life of teacher-taught, working without complaints, sharing respect with and for fellow: ‘human beings may ensure a balanced life fora student of law. The most common and powerful word used in law is sovereign’ in terms of authority. Itis grossly misused in the legal profession. In the contemporary times, ifone asks the general public, the only profession which is questioned with reference to arrogance is that of law. It is not the fault of the profession as such but that of the participants. You don’t hear Complaints as to, doctors or engineers being arrogant, unethical, create unnecessary problems, fear factors etcetera however it is echoed for us, the legal professionals. It is not the whole fraternity as such to be blamed: there are many great legal personalities who served the society. The message is the society expects standards of good conduct. Let us not forget that today’s student is tomorrow's hope. Knowledge is not useful unless one regulates himself or herself cowards finer qualities oFhuman values. A good human being isagood law professional. If one examines, no one is sovereign except Almighty or the Creator, a concept very few may disagree. Sovereignty is only to represent not to rule. Another noted obstacle in learning the discipline is the students concern over exams. It is unwanted and unwarranted. Knowledge based understanding will easily conquer any test. Strategy and smart work is unknown to the world of useful education. Learning law is to enhance the expertise and not to compete as such. On the other side, an exam when properly seen has good proportions. It develops memory, writing, Planning, analytical skills to an extent so on and so forth. However, extreme consideration or priority for exams may end in gross misuse of the system. Legal methods requires internalisation, focus, systematic following, ifitis directed towards obtaining marks, the methodology is questioned. In short, the very objet of the sacred places of education will be defeated. In consequence, the subject becomes. remote segment. Student is no more a learner. Trainer is no more than a magician without any guidance. It should never hhappen, as it isa research oriented subject, the benefits are innumerable. One should never restrict learning and adaptation. Patience and systematic study will unlock the doubts. As itis said ‘class is permanent and form is temporary’. Exams are temporary, understanding is permanent. Lastly, a student of law as one of the committed members of the learning fraternity, the display and application of the notion of Active Membership is the need of the hour. Selflessness isa beautiful fabric of its own. It performsa phenomenal role in creating a healthy learning environment; therefore students must appreciate and revere team spirit. t should be demonstrated by sharing the spirit of knowledge and working culture with one another in all possible modes. This virtue gains a crucial status in the field of law, as the student of law without iota of doubt at any level, Academician, Practitioner, Consultant, Judge, Public Servant or otherwise works with and for the cause of others. In particular, in promoting and protecting the conscience of law that is the development of the society at large. 21.3 Law and Society “The system of law in the literal sense originates from the society and also operates in the life of the society. To illustrate, the institution of marriage is regulated by Family Laws or Personal Laws. However, marriage assuch isa social phenomenon and not legal mission; itinvolves the credentials ofthe latter. The traditional ‘maxim ubi societas ibi jus (where there is society law exists) succinctly affirms that itis for the societal purpose law is relevant and not otherwise, The distinctive point is that Law is not colonised or occupied it adapts due toits nature and therefore the ‘dependency’ is inevitable. A point which is classified as ‘multi or inter disciplinary’ in the world of research. “The essence of studying law is to serve the society. Law plays a pivotal role in every one’s life. It provides guidance tothe societal actors It regulates the behavioural pattern ofthe participants, chiefly the general public. Lawactsasa mechanism to resolve dispute among the people, Itcircumyents violence in times of disagreement. Thus, basic understanding of the legal system is required to maintain orderliness in the society. Students of law by involving in the intellectual exercise of learning, act as ambassadors of law and justice. This purpose cannot be attained unless the student's fraternity hone the requisite skills. 1.4 Nature and Scope of Legal Methods ‘The phraseology of legal methods persereflects the composition of the subject. The term ‘Legal js derived from the Latin term ‘legalis' as to mean permitted by law; the concept ‘Methods’ stems from the Greek term 'methodos’ as to indicate purity. Methodology is wider and distinct from methods. Methodology may include varied techniques as tis the science of methods. Thus the conjunctive reading of the phrases (Legal and Methods) in the context of education reveals that legal method is a discipline which aims in imparting the requisite understanding of the foundational philosophy of law with popular and well established/testedtechniques. Law itself is based on context, legal education cannot be adverse. Legal ‘methods, asa primary measure involves in preparing the students to learn the art of learning law and the life ofits organs. The knowledge of legal philosophy along with methods remains the knife edge test in ‘understanding the nature of legal methods. In short, a legal method asa subject revolves solely under the tutelage of the Principle of Knowledge adopts Methods and Methods adapt ro Knowledge. ‘The content or the structure of the subject includes inter alia the following: i. Introduction to the concept of law and its distinction with legal, legislation, and Justice; ii, Definition of Law; iii, Significance of Principles of Law and Legislation; iv. Classification of Law; y, Introduction and Inter-linkages of Public and Private Laws; vi. Significance of Comparative Jurisprudence; vii. Principles of Interpretation; viii, Introduction to Judicial Methods; ix. Artof writing Judgements and Identification of ratio decidendi, x. Tatroduction to Research and Research in and about Law; Significance of Philosophy of Legal Research; 3Introduction to varied forms of Research; Introduction to Multi-disciplinary Approaches; xiv. Understanding Collection, Analysis and Interpretation of Data; xv. Utilisation of Law Library; xvi, Training towards compilation of Synopsis. The seminal objective of legal methods is to ensure that the students become one with law (oneness of law) and realise their respective crucial roles in the society. Oneness with law is so central, that a sense of belonging prevails. Only with such stancesa student may contribute tothe society. The schedule of training 'splanned in such a manner wherein the thesis is on appreciating the techniques to learn the legal philosophy as such. The very objective of learning and participation in the public life is in consonance with the Tequirement of expertise or specialisation, Further to prepare them to confidently apply them in the schools of law and that of the Courts and other relevant places and circumstances. In addition, the utility of learning legal methods is developing skills of analysis which in turn chiefly assists the trainee to realise the life of law for its useful application. The basic method of teaching legal methods is the traditional Socratic mode. Questioning and indulging in reasoning ensures effective Participation, The students ate exposed to verifiable data. Home works or small assignments are given on day to day basis. Review assures development of individual skills, At the end of the semester the trainees are well informed about the fundamental approaches to handle texts of the law and texts about the law. The legal profession either as.a subject or institution is always based on multiplicity of factors and actors, Tn matters of knowledge the quotient of involving and developing propositions isa necessary component. Itis not perpetual argument or conflicting views rather it is to convince by way of established reciprocal dialogues. Ethics of lawyering requires effective engagement of dialogues. Thus legal methods foster conclusive views 1.5 Distinct Features ‘Legal Methods as a discipline aims to reach the beginners or the first year students of law. It delivers the basic orientation required at this level, In addition the ethical values required for a student of law in imparted on systematic basis, The concepts such as how to study, write, think, understand and interpret law as such is introduced. The focal point is that of the skills aligned to the legal profession. Legal methods as a discipline is different from all other legal subjects taught. The principal distinction is it provides introduction to all other subjects by inducing critical analysis, It differs from jurisprudence majorly on the concept of developing reasoning skills otherwise it resembles the fabric of legal theory. It hasto be remained that one cannot substitute jurisprudence, In this regard legal method as such too follows the science of legal philosophy. It differs from all other subjects covering fundamentals of law as it is foundational plus imparting the qualities required for legal practitioners. It is unlike research as it includes esearch views with practical training for the under graduates. It is not exactly practice as court craft involves objectives ofthe clients or litigants. Legal methods, focalises on fostering the techniques of legal education at an introductory level. It is pointed towards expertise. In nutshell it can be said that it is a branch of epistemological insights in legal philosophy with activity based approach.2. DEFINITION OF LAW 2.1 Introduction ‘The process of attempting to define the concept of law is yet to attain completion and probably it will never, The reason is as a subject itis vast, complex, convergent, and composite and remains interpretive It can also be rightly remarked that the only consistent source of law is interpretation as a tool. One may ponder, with the fact that every discipline is composite and how law constitutes an exception, The answer is simple. The innate notion of emergence or emerging behavioural pattern is crucial in the case of law and society. A factor which is always open ended and finds indeterminate compositions. It can be explained. ‘This argument is bolstered by the fact that the academia has propounded many a conventional definition, a clear indicator that it is better to understand “what ought to be law rather what is’. In addition, the workability ofa definition has to be ascertained. As in the field of legal science definitions are structured in terms of lexical (etymological), stipulated (plain meaning), theoretical (tested, proven-disproven), operative (practical) and jurisprudential (philosophical). The conventional definitions in substance are lit in many perspectives namely, human conduct, nature, sovereign, justice, rights based approach, constitutional, international, religious, sociological, political, economic, morals, ethics, administration, sanctions, welfare, limitations, legality, etcetera. It again confirms that itis the element of subjectivity and objectivity is difficult to conceive, In minimum, lawincludes varied set of principles to be operated in the society by and for established actors, within a system. 2.2 Classifications Universally, there exists three major classifications in law, namely, (i) Divine law jus divinumyjus sacrum; (ii) Natural Law-jus naruralis; iii) Man-made Law-lex humanae, jus royale/jus nobilius. 2.2.1 Divine Law Divine laws reveal that the sole sovereign is Almighty or the Creator and the recipients are the Man kind orthe Creations as a whole. The readers or the representatives have a specific identity as Believers. The object of divine laws is twofold, When explained itis the firm demonstration of allegiance or obedience to the Almighty by acts of righteousness and worship. In addition, itis to servethe fellow human beingsand that of the other creations in all possible avenues. The source of divine law is basically found in sacred scriptures otherwise called as jus sacrum, In case of any doubt or ambiguity, again the scripture and modes prescribed therein remains the key to interpret, The merit of adhering divine law is itis universal. It more than the concept of religion, it is a way of life. It is based upon on moral and human values. It is non~ amendable in nature, hence provides the element of certainty. If properly understood it promotes communal harmony, a fact which will augur well for a plural society. The concept of unity in diversity is fostered. ‘The limitation on jus divinum is the non-availability of believers. In the sense, there is no de-meriting as such in the faith it has been imposed by human beings. In consequence absence of religion based governance has led to the loss of implementing the values of such laws. The mode of implementation is by way of organisational pattern.2.2,2 Natural Law Laws of Nature and Natural Law differ. One is Laws of Sciences another is Sciences of Law. The former involves human life. The latter regulates human conduct. Examples of laws of nature would include the aspect of breathing, consumption of food, gravity which is imposed, Natural law deals about independent rights and obligations centred on morals and justice, for example, Justice and Self-preservation. It has a universal effect (nomen universitatis). Another difference between the two is laws of nature mostly cannot be violated wherein natural laws can be. Natural laws are commanded by dictates of reason and self-evident values. The authors of natural laws are not humans though utilised by them. As the notion of justice may 4iffer from person to person, they cannot decide its life, Itis a research question whether natural law traces its origin from divine law or itis autonomous. The popular view is that it derives its life from the divine law. In cases of doubt it is interpreted by way of the science of reasoning (causa scientae or recta ratio), The merit of natural law isit limits the usage of power. It remains the source of written laws. It promotes human values. The de-meritis that itis subjugated by consent based law. It has a minimum content. It is ‘mostly applied by the judiciary and public laws provide a platform in this regard. 2.2.3 Man Made Law Manmade laws are the last in terms of the institution of creation of laws or making of law. It is based on the welfare of society. The authors and readers in a democratic society are the people. It depends extensively on reasoning. The mode of reasoning is based on the schools of interpretation, namely textualism and intentionalism. The merits of human laws are it is formal and reliable, The lethal limitation is that of the known phenomenon ‘to erroris human’. Knowledge is finite and Ignorance is infinite. Its rigid, Itinvolves behavioural pattern, The mode of implementation is through the agencies of the government. 2.3 Public and Private Laws In general in any democratic society it is the man made laws which are interpreted, it has been further classified in to two segments, Public Laws and Private Laws, Public laws (jus publicum) are basically such laws which adhere by the principles of public good and welfare (pro bono public). Private laws (jus privatum) regulate the rights/duties and interest of individuals amongst themselves (pro private commado). The categorisation of public laws is seen from the subjects of International Law, Constitutional Law and that of Administrative Law all other laws come under the category of private laws, It is significant to note that although Public Laws are distinct in their nature, source, development, they are unified or monistic in terms of application. One of the best examples is that of the definition of human rightsavailable under the Indian Protection of Human Rights Act, 1993, Section 2(1) (d) “Human Rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India, The principles of international human rights are enforceable irrespective of the fact whether India is a party ornot. Though, the term InternationalCovenants is explained under the Protection of Human Rights Act as to include the International Covenant on Civil and Political Rights and that of the International Covenant on Economic, Social and Cultural Rights, itis based on the school of consensualism whereas principles are rooted on the school of naturalism.The principles are as follows: > Prohibition of Genocide, Crimes Against Humanity, War Crimes; > —— RighttoSelf-determination; > Prohibition of Apartheid or Right Against Racial Discrimination; > Prohibition of Resort to Threat or Use of Force to Settle International Disputes; > Prohibition of Torture; > Prohibition of Slavery; » Prohibition of Piracy; > Prohibition of Illicit Traffic in Narcotic Drugs; > Prohibition of Illicit Traffic in Flesh Trade. 2.3.1 International Law International Law or the laws of the nations (jus gentium) is a body of principles established by eternal power, represented by the State actors, in evolution by International Organisations, Civil Societies for the purpose of public good. In the contemporary times the United Nations Organisations has attained centrality by way ofthe principle of universal membership, The creation of the moder jus gentiumor new international lawis that of the birth of International Organisational Law. The principal distinction between International Law and International Law of Organisation is that the former is based on the allegiance of international community of States originated out of the Principle of Ordere International Public (itis pertinent to note that traditional international law was the product of Statist approach fuelled by the European and Western colonial regimes, and international law in its origin did not adhere to such schools and it was the product of jus divinum) and in the case of the latter itis the international community of Member States based on the Principle of Implied Powers. The fact that the United Nations receives universal solidarity (membership) makes it even more integral and foundational to the existing legal system. To understand this peculiar shift from classical to modern international law. It is also to be noted that in cases involving convergence, interplay or complications of these two Schools, recourse must be made to the trusted tool of principles of interpretation. Thus, in areas of application the Principle of Consensualism is relevant for modern international law and the Principle of Specificity acts as the rank principle. Thus the current state of law in international law indicates the existence of the Law of United Nations as an integral part of international law. The elementary understanding ofthe development of international law was discussed in his individual opinion by Judge Alejandro Alvarez in the Reparations Case, According to Alvarez J., there are three essential criterions to approach the concept, namely (i) General Principles of the New International Law; (Gi) Legal Conscience of the Peoples; ii) Exigencies of Contemporary International Life (Individual Opinion of Judge Alejandro Alvarez, Case Concerning the Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11" of April 1949). Importantly, the contemporary school of thought nthe international legal scholarship indicates a naturalistic approach. Consent based approach is no more the basis of modern international law. Thus it is based on the foundational pillars of the Principle of Humanity.The concept of institutionalisation of international law in the international life in theory and practice denotes inter alia the following: i ii, iii, iv, vii. viii identification of the international legal personalities, for example, the basis and operation of international community, international society and international actors; understanding the supremacy of international obligations, for example, identification of autonomous principles ofthe discipline and harmonisation in terms of the UN Charter obligations (Article 103); strengthening and streamlining the legisprudence, that is international legislation or international law making, for example, the determination of principles of international law vis-4-vis form and substance, another example is that of developing the legal formulae in understanding and utilising the works of the international law commission; evolving the definitional elements for terms of international legal concern, for example, international law, good faith, international dispute, jurisdiction, international legal entity, legal question (question of law), interpretation, international peace etcetera; exploring international litigation, for example, promoting mechanisms on peaceful settlement of international disputes in co-ordination with the national legal systems; working for the creation of prudential legal spaces for the complexities associated with the subject, for example, the inter play of the different species (involving people, states, international organisations, regional organisations and non-governmental organisations); developing new techniques to reconcile the difficulties arisen out of the convergence or over lapping of lex generalia and lex specialisin the subject, for example, in situations involving massive violations of human rights, to adopt principles of interpretation, suitable to apply international law along with international human rights law, international refugee law, international humanitarian law, international disarmament law, international environmental law and that of international criminal law; researching on the availability and functioning of international dispute settlement bodies, for ‘example, unlike forum shopping it isto create institutionalised expert judicial bodies in the requisite JExSpecialis, to illustrate, due to the increase of transnational labour disputes (international labour ‘migration, forced labour and illicit trafficking in child labour as some of the threatening contemporary issues) establishment of international labour court or tribunal; to search for solutions in line with the modern challenges and trends of the discipline which together represent the evolution and conceptualisation of the international legal system, for example, comprehensive negation of the concept of negative vote (veto), to reform the UN in the path of rule of law; revisiting the avenues of research in developing the futurological perspectives on the subject, for example, fixation of the real (who is) sovereign phenomenon, Almighty, People or State (jus gentium was rooted with jus divinum, Almighty through jus sacrum (laws of the scripture);development of appropriate schools to revive the subject for survival and pragmatic application, for example, humanisation; xii, promoting international academic legal scholarship as the major source of modern international Jaw, for example the third world approaches to international law blended with multi-disciplinary approaches to counter the problems caused by the Statist international legal philosophy; xiii, working towards the realisation of international justice, that is protecting and promoting the ‘welfare of the victims of international crimes (delictum juris gentium), importantly concentrating on progressively developing the subject towards the prevention of such crimes. 2.3.2 Constitutional Law Constitutional Law in general in a democratic society constitutes the basic law of the land representing the will of the people. Constitutional Law also generates from the concept of Constitutionalism. It is based on the concept of rule of life. It is also addressed as the living or organic law, as itis relevant for the present and that of the future generations. Constitution acts asa touch stone for the legality and operation of all other statutes. Besides, there are Constitutions which are not solely based on will of the people and attribute allegiance to theological or religious laws. Thus Constitution indicates the basic fabric of system of governance. In terms of interpreting the Constitution, the principles emanate from it. In the case of the Indian Constitution, the pass port to study, understand and interpret it, is that of the Freedom Movement. The term ‘Constitution’ as such indicates a designation, establishment, organisation, association etcetera. However, when it adds the suffix ‘of India’ then it gains supremacy. Itis formulation of the Government. It is to the whole of India. The General Clauses Act under Section 3 (15) defines the term Constitution to mean the Constitution of India, ‘When explained the Constitution of India isa research oriented documented drafted by the drafting committee headed by the legendry patriot Dr.B.R.Ambedkar, The Constitution attests that itis built upon the strong. foundations of social justice and public policy. Nevertheless, as Dr, B.R Ambedkar remarked, howsoever it is drafted, if itis ruled by bad lot it will turn as. bad instrument. Perhaps, the challenge lies in preserving the balance between the rule of life and that of the rule of law. Rule of power shall never be allowed to occupy the mainstream. The preamble of the Constitution is the key to study and understand the intensity of the instrument. Understandably, the freedom movement of India remains the basic source ofthe Constitution. The preamble affirms that people are the authors as well as the recipients. The notion of Sovereign, Socialist, Secular, Democratic and Republic is characterised. Importantly, the concept of Secularism based on the Principle of Unity in Diversiey bolsters the life of a plural society in a harmonious manner. In short Constitution of India is the touch stone for all other laws in India.3, LEGAL MAXIMS AND LEGAL TERMS 3.1 Introduction ‘The fields of human knowledge stem from the roots of society. The social set up through its evolution sets the phase of knowledge of different sciences including the legal science. The history of legal system although propounded and developed by all nations, the modern legal system is traced to the established practices of the Greco-Roman legal system. Law emerged from those countries were Latin and Greek flourished. Asa consequential effect, the principles of law emanated from such societies in the form of maxims. Maxims are similar to legal formulae. Maxims contain propositions of law. In terms of collection they are rooted with European legal system. Initially maxims were tested in terms of utility and social relevance, subsequently the experience acquired by way of its application ensured they are operative 3.2 Utility of Legal Maxims ‘The advantages of relying upon the maxims are as follows: . Evidence of Principles of Law (un written law/jus non scriprum); Uniform practice throughout all legal systems; Integral part in the life of organs of law; Promotes conceptual clarity; Source of principles of interpretation; Adaptability of comparative jurisprudence; Jurisprudential values. 3.3 Select List of Maxims 1 2 3 * now ge 10. a verbis legis non est recedendum (there shall be no departure from the words of law); absoluta sentential expositore non indigen (an absolute judgement needs no expositor); ab identitate rationis (by identity of reason); a contrario sensu (in the opposite sense or view); actus curiae neminem gravabit (act of the court shall prejudice none); actus deinemini facit injuriam (act of Almighty does not injure); actus non facitreum, nisi mens sit rea (act does not constitute guilt unless done with a guilty intention); action personalis moritur cum persona (a personal right of action dies with the person); actus legis nemini est damnosus (act of legislation shall prejudice none); actus legitimus (a legal act); 10H. 12, 13. 14, 15, 16. 17, 18, 19. 21, 22. 23, 24, 25, 26, 7, 28. 29. 31. 32. 34, actus me invite factus, non est meus actus (an act done against my will is not my act); ad similes casus (to like cases); aequitas legem sequitur (equity follows the law); affirmanti non neganti incumbit probatio (burden of proof is upon him who affirms, not upon him who denies); alterum non laedere (to injure no one); allegans contraria non est audiendus (he is not to be heard who alleges things contradictory of each other); ambiguitas latens et ambuigitas patens (latent and obvious ambiguity); amicus curiae (friend of the court); animus hominis est anima scripti (intention is the soul of an instrument); arma in armatos sumere jura sinunt (law permits to take arms against the armed); argumentum a simili valet in lege (an argument from analogy is good in law); audi alteram partem (hear both the sides); beneficium competentiae (the benefit of competence); benedictaestexpositioquando res redimitur a descructione(that exposition isto be commended by which the matter is rescued from destruction); bona fide possessor facit fructus consumptossuos(a possessor in good faith makes the fruits consumed his own); brevitatis causa (for the sake of brevity); casus omissus et oblivioni datus disposition communis juris relinquitur (a case of omissions can in no case be supplied by a court of law, for that would be to make laws); causa proxima et non remota spectatur (the near and not the remote cause is regarded); causa scintiae (cause or means of knowledge); capax doli (capable of wrong doing); cessante ratione legis, cessatipsalex (when the reason for law ceases, the law itself ceases): cursus curiae estlex curiae (practice of the court is the law of the court); consensus ficit jus (consent makes law); contomporanea est optima et fortissima in lege (contemporaneous exposition of law is the best exposition of law); 1135. 37. 39. 41 42, 45. 47. 49, 50. 51. 52, 53. 54, 55. 56. 57. 59. constructio legis non facit injuriam (legal construction inflicts no wrong); contra bonos mores (against good morals): corpus delicti (the gist of crime); comitas legum (comity of laws); commodum ex injuria sua nemo habere debet (no one should take advantage by his own wrongful act); consuetudo loci est observanda (the custom or usage of a place is to be observed); coram non judice (before one who is not a competent judge); confession facta in judicio omni probatione major est (judicial admission is stronger than any proof); crimen falsi(the crime of falsehood); cursus curiae est lex curiae (the course or procedure of the court is the law of the court); damnum absque injuria (damage inflicted without legal wrong); de jure communi (according to the provision of the common law); delegate potestas non potest delegari a delegated power cannot be delegated); de minimis non curatlex (the law cares not for trifles); dolus praesumieur contra versantem in illicito (fraud is presumed against one engaged in an illegal act or transaction); enumeration unius est exclusion alterius (the special mention on one thing implies the exclusion ofanother); ex captio res judicata (one suit one decision); ex debitio justitiae (out of debt to justice); ex debito naturali arising from natural obligation); ex dolo malo non oritur actio (no right of action can have its origin in fraud); executio juris non haber injuriam (the carrying out of the law inflicts no wrong); ex gratia (out of kindness); ex post facto (by reason of a subsequent fact); ex turpi causa non oritur actio (an illegal contract cannot be enforced); ex nudo pacto non oritur actio (no right of action arises from a contract entered into without consideration); 12£3 Ra&RBR SB 70. 71. 72, 73. 74, 76. ex sua natura (in its own nature or character); ex proprio motu (of his own accord); ex jure representations (according to the law of representation); ex jure naturae (according to the law of nature); ex justa causa (for a just cause or sufficient reason); ex justitia (according to justice); Fiat justitia ruat caelum (let justice prevail, though heavens fall); falsam in uno falsum in omnibus (false in onething, false in all); frausest celare fraudem (it is fraud to conceal fraud); fictio juris (fiction of law); fides servanda est (good faith is to be preserved); generalia specialibus non derogant (general things do not derogate from special things); grammatica falsa non-vitiat chartam (grammatical error does not vitiate a writing); haeres legitimus est quem nuptiae demonstrant (he isthe lawful heir whom the marriage indicates); honeste vivere (to lead an honourable life); ignorantia juris non excusat (ignorance of law has no excuse); ‘impossibilium nulla obligation est (there is no obligation to perform what is impossible); ‘impotentia excusat legem (inability excuses the non-observance of the law); in jure non remota causa sed proxima spectatur (in law, the direct cause is regarded and not the remote cause); in detrimentum animi (to the injury of the soul); index animi sermo (language is the index of the purpose); in dubio sequendum quod tutius est (in a doubtful case that course is to be followed which is the safer); in essentialibus (in the essential parts); in integrum (entirely, to the fullest extent); in imine (at the outset); in propria causa nemo judex (no one can bea judge in his own cause); in situ (in its place); 1387. interest reipublicae ut sit finis licium (itis for the interest of the State that there should be an end of law suits); 88, imporentia excusat legum (impossibility isan excuse in the law); 89. in majorem evidentiam (for more sure evidence); 90. ipsum corpus (the thing itself); 91. ipso jure (by the law itself); 92. in rigore juris (according to strict law); 93. _judexest lex loquens (judge speaks law); 94, judicia posterior sunt in lege fortiora (later judgements are stronger in law); 95. judicium est quasi jutis dictum (judgement is a declaration of law); 96. judiciis est jus dicere, non dare (duty of the judge is only to adjudicate and not to legislate); 8 jura naturalis sunt immutbalia (laws of nature remain unchangeable); & {jus ex injuria non oritur(a right does not arise out ofa wrong); 99, jus gentium (law of the nations); 100. jus publicum privatorum pactis mutari non potest (a public law or right cannot be altered by bargain or agreements of private persons); 101. jus respicita equitatem (the law pays regard to equity); 102. justitia non est neganda, non differenda (justice is neither to be denied nor delayed); 103. legis interpretatio legis vim obtinet (interpretation of law obtains the force of law; 104, legis constructio non-facit injuriam (legal construction inflicts no wrong); 105. lex est dictamen rationis (law is the dictate of reason); 106, lex neminem cogit ad vana sen inutilia peragenda (the law compels no man to do that which is futile or fruitless); 107. lex est normarecti (law is a rule of right); 108, lex injusta non estlex (an unjust law isnot a law); 109. lex posterior derogate priori a later statute derogates from a prior); 110. lex prospicit, non respicic law prescribes rule for the future, not for the past); 111. lex semper intendit quod convenit rationi (the intendment of a law is always in accordance with reason); 112, lex vigilantibus, non dormientibus, subvenit (aw assists the wakeful, not the sleeping); 14413, 14. 115. 116. 17. 118. 119. 121. 122, 123. 124, 125, 126, 427. 128. 129. 130. 131, 132, 133, 134. 135. 136. 137. 138. Jonga possession jus parit (long possession begets right); Joco parentis (in the place ofa parent); Jocus regitactum (the place governs the act); majori minus inest (the greater includes the less); manifesta probatione non-indigent (what is manifest needs no proof); major continet in se mimus (the greater contains the less); malo animo (with evil intent); malus usus est abolendus (bad custom or usage is to be abolished); _medius est jus deficiens quam jus incertum (law thatis deficient is better than law that is uncertain); minor tenetur in quantum locupletoir factus(a minor is bound to the extent to which he has been enriched or benefited); ‘misera est servitus ubi jus est vagum aut incertum (obedience to law becomes a hardship when that law is unsettled or doubtful); necessitas non habet legem (necessity knows no law); necessitas publica major est quam privata (public necessity is greater than private); necessitate juris (by necessity of law); nemo debet esse judex in propria causa (no one ought to be a judge in his own cause); nemo potestre nunciare juri publico (no one can renounce a public right); nemo agit in seipsum (no one acts against himself); nemo dat quod non habet (no one can give what he has not got); nemo debet bis puniri pro uno delicto (no one should be punished twice for the same offence); non est informatus(he is not informed); non videntur qui errant consentire (those who are mistaken are not deemed to consent); non compus mentis (of unsound mind); obedientia est legis essential legis (obedience is the essence of law); ob publica mutilitatem (on account of public utility or for the public advantage); omnis interpretation vel dectavat, vel extendit, vel restringit (every interpretation either declares, extends, or restrains); optima legume interpres est consuetude (custom is the best interpreter of the law); 15139, 140. 141. 142. 143, 144, 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159, 160. 161. 162. 163. 164. 165. 166. ‘pacta sunt servanda (pacts must be respected); ‘pater est quem nuptiae demonstrant (he is the father whom the marriage indicates); ‘pari passu (on an equal footing or equal grade); pari in parem non habet imperium (one sovereign cannot subjugate another); praesumendumest pro libertate (the presumption is in favour of liberty); praesumptio juris(a legal presumption); pro bono publico (for the public good); probatio prout de jure (a proof according to law); pro gravitate admissi (according to the gravity of the offence); proprietas verborum servande sunt (proprieties of words are to be preserved); ro private commado (for private convenience); provisione legis (by provision of the law); publica vindicta (the defence or protection of the public interest); quaestio voluntatis (a question of intention); quid pro quo (something given in return for something else); guid juris (what is the law); qui facit per alium facit per se (one who acts through another acts himself); qui tacet consentire videtur (he who is silent is supposed to consent); qui bene distinguit bene docet (he who distinguishes well, teaches well); ratihabitio mandato comparatur (ratification is equivalent to mandate); ‘ratio legis est anima legis (reason of law is the soul of law); ratio scintiae (reason of knowledge); reddendo singular singulis (by applying or assigning each to each); ‘rebus ipsis et factis (by the facts and circumstances themselves); res communes (common things); res gestae (things done); respondeat superior (let the master answer or be responsible); restitutio in integrum (entire restitution); 16167. 168. 169. 170. ii. 172. 173. 174, 175. 176. 17. 178. 179, 180. 181. 182. 183. 184, 185. 186. 187. 188. 189. 190, 191. 192, 193. res integra (a matter untouched, by decision); res inter alios acta alteri nocere non debet (a transaction between others does not prejudice one who was nota party to it); res ipsa loquitor (thing itself speaks); ssalus populi est suprema lex (welfare of the people is the supreme law); scintilla juris (spark of law); sic utere tuo ut non alienum laedas (use your property in such a nature not to injure others); semper in dubiis benigniora praeferenda (in doubtful matters the more liberal view is always to bepreferred). semper pro legitimatione praesumitur (the presumption is always in favour of legitimacy); ‘sine quo non (without whom nothing can be effectually done); socius criminis (an associate or accomplice in the commission of a crime); spes successionis (the hope or expectancy of a succession); stare decisis et quieta non movere (do not disturb the settled things); strictissimae interpretationis according to the strictest interpretation); suppression veri (suppression of truth); suum cuique tribuere (to give to everyone that which is his own); suppression very expression falsi(a suppression of truth is equivalent to an expression of falsehood); testimonia ponderanda sunt, non numeranda (testimonies are to be weighed not numbered); tutius erratur ex parte mitiore (it is safer to err on the side of mercy); uberrima fides (good faith of the most full character); ubi onus ibi emolumentum (where the burden is, there is the profit or advantage); bi jus ibi idem remediem (where there is aright, there isa remedy); ubi jus incertum, ibi jus nullum (where the law is uncertain, there is no law); ultra valorem (beyond the value); ultra vires (beyond the power); usus fi ex iteratis actibus (usage arises from repeated acts); ut res magis valeat quam pereat (better to make law operative rather null and void); uti posseditis juris (you may have the territory as per law lt194, veritas est justitiate mater (truth is the mother of justice); 195, verbis standum ubi nulla ambiguitas (one must abide by the words where there is no ambiguity); 196. vinculum juris (bond of law); 197. vis major (a greater or superior power); 198. viperina est expositie qua corropit viscera textus (it is a poisonous exposition which destroys the vitals of the text); 199. volenti non fit injuria (to a willing person injury is not done); 200. vox emissa volat-litera scripta manet (a word spoken flies away-a writing remains). 3.4 Legal Terms Legal methods also introduce legal terms or jargons. Medicine involves the regime of human body as for as law in concerned it is the world of words. In every walk of legal life, the vocabulary of law regains high reverence. When explained the legal organs and that of the participatory actors systematically rely upon legal terms and phrases which also includes greek and latin terms. It has been institutionalised. Law as such does not have a language but in practise it has been evolved. The language of law is attributed as legalese. The experts in such field of knowledge are addressed as juri linguist. It has to be reminded that language in the legal education isa means and not the substance of it. The substance as such is the societal requirements. ‘Thus, a student of law has to be well acquainted in terms of learning and using such terms. Therefore itis advisable that students take use of legal dictionaries and other related books on legal maxims. The legal adjectives are also addressed as popular, industrious or technical terms. This attribute also differentiates law student from other disciplines. 3.5 List of Salient Legal Terms 1. Absurdity 14, Affirmative 2. Aberration 15. Affidavit 3. Abrogate 16. Agency 4, Abridgement 17. Agreement 5. Acknowledgement 18. Alibi 6. Acceptance 19. Alternative 7. Accomplice 20. Alimony 8 Accused 21. Amicable 9. Acquiescence 22. Ambit 10, Acquittal 23. Admonition 11. actusreus 24. Ambiguous 12, Adoption 25, Amendment 13, Administrative 26. Amicus curiae 1827. 28. 29. 30. 31. 32. 33, 35. 37. 38. 39, 41. 42. 43. 45. 47. 48, 49. 50. 51. 52. 53. 55. 56. 57. 58. Antedate Analogy Ancillary Apostasy Appeal ‘Appellate a priori Arbitrary Autopsy Award Bar Bailable Bailment Barrister Bicameral Bias Binding Breach Bye-laws Capital Causal Casual Causation Case Law 19 59. 60. 61. 62, Camage Cession Civil Citation Circumstantial Classification Clemency Code Codicil Colourable Legislation Codification Cognate Cognizance Common Law Comity Comparative Competency Commencement Compliance Compromise ‘Compound Conclusive Cont Conflict Connivance ation Conscience Conscious Consent Consultation Construction Consideration Concession