LEGAL METHOD

What is Law and its Definitions?

Law is an official rule of a country or state that says about what the people
may or may not to do. Law is a set of rules decided by a Particular State
meant for the purpose of keeping the peace and security of Society.

The definition of law is a set of conduct rules established by an authority,

custom or agreement by a controlling authority and having binding legal force.
The law serves many purposes like maintaining order and discipline in society,
resolving disputes, protecting rights and liberties.

An activity becomes illegal if it breaks a law by not following it. This may deal
with things like police and courts of punishments. Law is required for the
smooth functioning of society and for the maintenance of order, peace and
justice which are being enforced by the State through its force and other
means.

The Law should be obeyed and followed by each and every citizens according
to the legal consequences. It is the cement of society and also an essential
medium of change.

Principles of Laws:
 Establishing standards,
 Maintaining Orders
 Resolving disputes
 Protecting liberties and Rights.

Many jurists, thinkers and scholars have tried to define the law, but no one is
able to find proper definition which has been acceptable to all.

1. Austin: He defines law as the command of the Sovereign obeyed by

the subjects because of fear of punishment.

2. Blackstone: He defines the law as a rule of action which applies in

any activity, whether related to animate or inanimate things.

3. Glanville Williams - Law is the cement of society and also an

essential medium of change
 4. Holland: He defines law as a general rule of external human action
(Conduct) which is enforced by a sovereign political authority

5. Salmond : He feels that law is those set of rules which the courts
recognise and apply in the administration of justice.

Essence of law:

Watson in his book 'The Nature of Law' discuss the various features of law
and ultimately argues that maintaining order is the only essential feature of
law.

He says that it is impossible to image a legal system without the process to

implement it. The process purpose being to institutionalise the dispute and to
validate / enforce the decision

Law has many characteristics.

 It is always accompanied and is felt through an institutionalised
process
 Most of the time it comes along with regulated sanction.
 It is made by recognized person or authority or body
 It channels behaviour
 It stands for liberty, freedom and justice.
 It maintains order in society.

Essential feature of law or legal rule is the existence of an appropriate

institutionalised process with the specific object of inhibiting further
unregulated conflict through validatory the decisions of the process it
becomes clear that law and legal process is all about order. If the process is
the sole essential feature of law, then the prime purpose of law is to make
preserve and restore order, and this purpose is an end in itself.

Hence, law need not to maintain order for the purpose of attaining something
else such as liberty or justice. The justice, liberty and channelling of behaviour
are also functions of law, but they are necessary only to the extent that,
absence of any one factor may cause the failure of the maintaining the order.
Thus, order alone is the essence of law. All other features were secondary
and subordinate to an order.

Law is there to guide the society towards happiness without bloodshed and in
peace and harmony. Law helps us to restrain ourselves in times of great thirst
for more money or power. It curbs our greed reminding us that there is
someone or rather something out there ready to punish us if necessary. It
helps to restore the balance in the society and bring justice to the victimized.
The greatest thing about law is that all are equal before it. No man is rich or
poor in the eyes of the law. No man is more powerful than the other in the
eyes of the law. Law helps to regulate the behavior of the people. It prevents
us from descending into anarchy.
Kinds / Types of Law
1. Customary Law
2. Common Law
3. Divine or Religious Law
4. Natural Law
5. Human or Positive Law

1. Customary law : based on patterns of behaviour (or customs) that have

come to be accepted as legal requirements or rules of conduct within a
particular country. The laws of customary legal systems are usually unwritten
and are often dispensed by elders, passed down through generations. As
such, customary law research depends greatly on the use of secondary
sources. Oftentimes, customary law practices can be found in mixed legal
system jurisdictions, where they've combined with civil or common law.

2. Common Law
The Common Law also known as case law or Judicial precedent or judge-
made law is a section of law which is derived from the judicial decision of
courts and similar tribunals. As the name suggests it is common to all. The
example set by higher courts is binding on cases tried in lower courts. Lower
courts can also choose to overturn the precedent, but this rarely occurs.

3. Religious / Divine Law - The morality, ethics, or laws that are prescribed by
a particular religious' tradition or teaching are known as religious law. Many
Islamic nations have legal systems based in whole or in part on the Quran.
Divine Law is referred to as laws made by a deity to govern the affairs of man.
A good example of divine law can be found in Islamic law as postulated in the
Q’uran. These laws are said to be given by God to the Prophet Muhammed in
order to guide the affairs of man.
The logic behind the use of divine law stems from the fact that God, accepted
as all knowing and all wise, is in the best position to make laws for the use of
mankind.

4. Natural Law: In the legal sense, natural law can be said to be law as
espoused by the natural law theorists. This law is said to be the law that is
innate in all mankind and can be deduced through the use of reason. For
example, it is accepted in all cultures that murder is wrong and should be
punished. Natural law is said to be the guide which positive law must follow in
order for it to be valid. If Positive Law is at variance with natural law, it could
lead to injustice in the society.

5. Positive or Human Law: Positive Law can also be regarded as human law.
These are laws made by man in order to guide the conduct of members of the
society. They are laws made by persons given the authority to do so either
directly or indirectly by the society. Legal positivism doesn’t concern itself with
morals. Once a law has been enacted by persons in authority, it is valid.

Is Law is Necessary:

The question whether Law is necessary has attracted the attention of jurists
and other scholars for thousands of years. We cannot ignore the question
because there is always a doubt whether we can simply get rid of law since it
is not required for creating a justice (fair) to Society or that law is dangerous
obstruction which prevents man to live his life happily in society.

Many famous thinkers from the ancient to the modern times beginning from
Plato to Karl Marx have rejected the necessity of law for many different
reasons from time to time. Some religious systems such as Christianity have
also rejected the necessity of law in society instead they considered the
Father at Church as superior to judge.

According to some of the jurists, scholars and thinkers and Legists argued
that man was initially greedy, selfish with evil activities and later good ways
were influenced by the social environment such as teachings, rituals,
restraints, and penal laws and which made the society in order.

From ancient times, now and then, some groups of people always taken out
fights and demonstrations against the organised authority and control (law
and Govt) in the hope that their fights would result in a better life for humans.
But such acts haven not succeeded in improving the lives of people.

To understand why so many scholars from generation to generation all over

the world, from different regions and different cultures spent their time and
energy to either totally reject law or to justify its requirement, at least as a
necessary evil, and at least in imperfectly developed societies (if not in fully
developed societies) requires a deeper study than understanding the same
groups of people are generally unhappy with organised exercise of authority
over them.

Law is essential in the society. Law is there to guide the society towards
happiness without bloodshed and in peace and harmony. Law helps us to
restrain ourselves in times of great thirst for more money or power. It curbs
our greed reminding us that there is someone or rather something out there
ready to punish us if necessary. It helps to restore the balance in the society
and bring justice to the victimized. The greatest thing about law is that all are
equal before it. No man is rich or poor in the eyes of the law. No man is more
powerful than the other in the eyes of the law. Law helps to regulate the
behaviour of the people. It prevents us from descending into anarchy.

Law is dynamic. It is constantly adapting to the changing times so as to close

all the loopholes that may be left due to human error. Our Preamble states the
ideals of JUSTICE, LIBERTY, SOVEREIGNITY, FRATERNITY and EQUALITY
which constitute the basic foundation of Our Constitution. However, without
law these ideals will be constantly shattered. There will be nothing to protect
these ideals.

In a world where ‘survival of the fittest’ is prevalent, and looking at the size of
human population we can say only one thing. Law is needed for survival. We
cannot go against each other as it will definitely lead to destruction. Law
plants an element of fear which may prevents in killing of fellow human beings.
It gives each one his or her own share, what they deserve.
Explain Classifications of Law?

Law may be classified in various different ways but the most important
classifications of law are as described as follows: –

I. Procedural Law and Substantive Law

II. Public Law and Private Law
III. Civil law and Criminal Law
IV. International Law and Municipal Law

I. Procedural Law and Substantive Law

Procedure Law:
It is also called as adjective Law. It deals with the procedure and evidence in
court. It tells about the procedure to be followed in criminal and civil courts
under its respective procedure codes. The particular cases starts with its
pleadings like a Plaint filed by a Plaintiff, written statement of the defendants,
and followed with evidences. Copies of the plaint and written statement given
to each other.

The matter between the each parties called as Issues which is framed by the
Court. Confession if it is admitted or arguments / evidence if it is not
accepted by the Defendant. Hon'ble Judge will remain neutral until and unless
the guilty is proved with evidences between the lawyers of both the parties.
Substantive law:
Substantive law refers to the rules and principles defining the rights, powers
and privileges possessed by person whose status is recognised by law and
the corresponding duties liabilities and disabilities to which others are subject
under the law. It included the rules of law, civil or criminal, defining whether it
is wrong or offence.

It relates to the purposes and subjects of the matter and not to the process of
the litigation, such as Hindu Marriage Act, Indian Contract Act, Law of Torts,
Transfer of Property Act and Indian Penal Code etc. are comes under the
substantive laws.

Substantive law is the law which governs the original rights and obligations of
individuals. It may derive from the common law, statutes, or a constitution.

For example, a claim to recover for breach of contract or negligence or fraud

would be a common law under substantive rights. This law refers to the body
of rules that determine the rights and obligations of individuals and collective
bodies.

II. Public Law and Private Law

Public law is the part of law that governs relations between legal persons and
a government bodies.

Further, Public Law is the branch of law which deals with the state.
Organization of the various organs of states in their sovereign and political
functions. It also determines the relationship of the state with its subjects. In
all cases of public law one of the parties will be the state. In public law the
objective is the promote collective interest rather than individual interests.
Constitutional Law, Administrative Law and Criminal Law were the further
classifications under Public law that are being determined with inter-
relationship.

Private law is the branch of law that deals with the rights and duties of private
individuals and the relationship between them. Private law deals with the
rights and obligations of individuals, families, businesses and small groups
and exists to assist citizens in disputes involving private matters.

Further classification of private laws are

 Law of the person
 Property law
 Law of liability conflict of laws

The law of liability further divided into 3 classes: –

 The contracts
 Quasi-contract
 Torts

III. Civil law and Criminal Law:

Civil Law may be defined as all the body of enactments, rules judicial
interpretations and decisions based on enactment and customs, principle of
injustice, equity, good conscience and grace, supplement the law.

Civil law deals with the disputes between individuals, organizations, or

between the two, in which compensation is awarded to the victim. According
to civil law, the wrongdoer has to pay compensation to the affected
organization or person. Civil law deals with property, money, housing, divorce,
custody of a child in the event of a divorce, etc.

Civil law is initiated by a person or organization or also known as the plaintiff.

In the case of civil law, there is no punishment like criminal law, but the
aggrieved party receives compensation and the dispute is resolved
Examples of Civil law are Law of Contract, law of succession, marriage and
divorce law, specific performance against breach of contract, partition suit
between families. The case will be filed at Civil Court, under Civil Law the case
is called as suit, complaining person is called as plaintiff and the opposite
party is called as defendant. The court adopts civil procedure code for the
trial and the final decision of the court is called as decree.

Criminal Law declares certain acts as offences and also prescribes

punishment for the person who commits offences that is considered as crime.
The police and the government advocate (Public Prosecutor) files the case
against the accused (the person who has committed the crime) in the
Magistrate Court. The case is title as State Vs Accused. The magistrate uses
criminal procedure code. If accused is found guilty, he is convicted and
punished accordingly. If the guilt is not proved, the accused is acquitted. The
major criminal law in India is the Indian Penal Code.

Criminal law deals with crimes that are committed against society. Criminal
law is the body of law that deals with crime and the legal punishment of
criminal offenses. It serves different degrees of punishment for the crime
committed. Criminal law deals with serious crimes like murder, rape, arson,
robbery, assault etc. The government files a petition in a criminal law case. As
a matter of criminal law, the punishment is done according to the severity of
the offense or a fine can be imposed. “Beyond a reasonable doubt”: Burden of
proof is always on the state/government.

IV. International Law and Municipal Law

International law: The law that regulates the relationship between nations. it
is of two types i.e., Public International Law and Private International Law or
Conflict of Laws.

Public International Law deals with rules regulating the relationship between
nations, international organisations and the people. Private International Law
or Conflict of Laws deals with the choice of law when two foreigners have a
dispute between them.

International law is a set of rules which are binding between countries and
aims to ensure security and peace among various nations. It is an
independent system of law existing outside the legal framework of a particular
state. International law has been incorporated into national law by various
countries such that the United States has declared that all international law
will be part of the nation’s law.

Even the UK has incorporated in its municipal laws and whenever there is a
conflict between international law and municipal law courts, decisions have to
be taken keeping in mind the harmonious construction between them.

International law can be classified into four: –

 Customary International law: – These are rules that have been in force since
ancient times between countries such as the law of the sea.
 Treaty law: – These are rules made by treaties between two or more
countries.
 Public International law: – These are the rules that govern the conduct and
relations of the state with others.
 Private International law: – It contains rules and principles according to
which cases with foreign elements are decided.

Municipal Law :
It is also called as State Law or Local law which is nothing but national law. It
regulates the affairs of a nation and its subject internally.

Municipal law is a domestic law that governs the subjects of the state.
Municipal Law regulates the relations between the individuals under the
influence of the respective State and the relations between the State and the
respective individuals. State approves the law. It is generally regional in nature
as it is applied within the territory of the country itself.

Legal Process. Functions of Legal System.

Legal process is the law in action and the juristic acts (functions and
procedures of courts). The Legal process focuses on deciding an actual
or potential disputes. But, more specifically there are six possible
functions.

The point of the legal process is the resolution of the dispute, actual or
occasionally potential, by means of decision, to find the essential
function we must be more specific.

Legal process is a set of inter related procedures and rules for deciding
disputes by an authoritative person or persons whose decisions are
regularly obeyed.

Functions of a legal process are as follows:

1. to resolve the dispute by doing or in order to do justice;
2. to resolve the dispute by establishing the facts and applying the
relevant rules of law to them;
3. to resolve the dispute in the interest of the immediately involved
parties;
4. to resolve the dispute in the best economic interests of society at
large;
5. to resolve the dispute in the best economic, social or political
interests of the ruling class.
6. to resolve the dispute with the specific object of inhibiting (prevent)
further unregulated conflict.

The First two Functions are described by examining the trial by battle
(dual) method of settling disputes.

In the olden days, people used to settle their property disputes by

physically fighting each other and it was an acceptable method. One
good e.g. is of Nyal's Saga case, in which a small dispute corrupts into a
serious of bloodshed for over 50 years.

Njal’s Saga: A Dowry Dispute Gone Wrong : A dispute over a dowry i.e.,
one Hrutur marries Unnr, but due to a curse the couples are incompatible,
leading to an ugly divorce but does not return dowry. When Unnr's father
demands the return of the dowry, instead of returning it, Hrutur
challenges. Unnr's father requests Mord Fiddle to fight for settling the
dispute of returning the dowry but he refuses because he knew that
Hrutur was strong and if they fought he would be hurt. Thus, they didnot
fight Hurtur won although justice was in favour of Mord.

Later in the story, when Hrutur has become older and weaker another
person Gunner challenges Hurtur for a fight. But Hrutur refuses to take
part in the fight since he know that Gunner was stronger. Thus, Gunner
wins although justice was in favour of Hrutur.

Thus, even though the dispute is settled neither justice is done nor the
settlement is done after establishing facts and applying the law to the
facts. Hence it is considered that the first two functions are not
essential functions of Legal process.

Legal Aid:
Money buys good lawyers. Good lawyers are expensive. In the case of
legal aid provided by the state, the opposite party may not be able to
have good lawyers, when the government provides a good lawyer and
other party looses the case. Then also the dispute is resolved but here
also neither justice is done nor the facts and law are the deciding factors,
not the decision is settled in the interest of the parties. Hence all the 3
functions fails.

Absence of Reconciliation mechanism

Now a days, there is an adversarial litigation system, wherein one party
wins and the other party looses. So that they will remain enemies forever.
There is no possibility of reconciliation between the parties. Hence the
dispute is resolved in favour of only one party and is not in the interest of
all the parties involved in the case. Hence function 3 also files to be
considered as essential functions.
Cost of Litigation to the society (i.e., to the Govt.)
The cost of litigation (conducting cases) is very high. Especially in
criminal cases the Government has to bear this high cost. But the
government gets in return is very little. For e.g., if a man is accused of
drunkness and disorderly behaviour, the process of police arresting him
and bringing him before the court and other procedures involve a lot of
expenses. But, what the government gets in return is a very small
amount as fine. Ultimately the person may never change his behaviour
even after paying fine. This proves that resolving the dispute in the
economic interest of society is not the essential function of legal
process. Hence the function 4 is also not an essential function.

Cases against State Govt., Ministers and Officials:

In many countries ordinary people are allowed to file a case against the
Government, ministers and government officials. The courts will not
refuse to resolve the disputes merely because the case is against
government. The court will decide the dispute just like any other cases.
Hence, resolving the dispute in the best, economic, social and political
interest of the ruling class is not an essential function of the legal
process. Hence we can say that function number 5 is also not an
essential function of legal process.

Since all the five functions have failed to attain the status of essential
functions and only the sixth one is left. It must be an essential function.

To Resolve the Dispute to inhibit further unregulated conflicts :

 When the case is decided by the court, it resolves the dispute once
for all. The decision is authoritative the parties to the case have to
avoid by the decision even though they dislike it. Because the
court will take coercive action if its order is not obeyed.

 If the dispute is not resolved, it will continue and further fester like
wound, poison the minds of the parties and erupt into violence.
Other persons may also be drawn into it and thus create mass
hysteria.

 If the dispute is resolved, then people involved in similar situations

(i.e., having similar disputes) will be able to predict the outcome of
their cases. The persons likely to win that will gain confidence
press on with their cases, and persons likely to lose will desist
 from precipitate other.

 Further Resolution of the dispute (especially in criminal cases)

may serve as a warning to others that certain types of behaviour
will not be tolerated.

 And finally in criminal cases when the case is decided, the accused
is imprisoned such that he is prevented from committing further
crimes and thereby increasing the number of conflicts.

Thus for all these five reasons, resolution dispute to inhibit further
conflicts can be said to be the true essential function of the legal
process.

The law serves many purposes like establishing standards, maintaining

order and discipline in society, resolving disputes, protecting rights and
liberties.

An activity becomes illegal if it breaks a law by not following it. This may
deal with things like police and courts of punishments.

Law is required for the smooth functioning of society and for the
maintenance of order, peace and justice which are being enforced by
the State through its force and other means.

The Law and legal process with legal system should be obeyed and
followed by each and every citizens according to the legal consequences.
It is the cement of society and also an essential medium of change.
Wrong doers and culprits should be punished and should not flee from
the eye of law thereby giving a justice and equity to the innocent.
Assignment Writing

Assignment performs an invaluable function in promoting the students to

thing independently about issues and subjects. Students also learn how to
access, select and evaluate information from different sources and for
formulate ideas.

Obtaining the Topic: Student has to receive or accept the topic given the
superior and should have the basic knowledge of the topic assigned.

Planning the Assignment:

The First task is to define and to understand the time limit. A major allocation
of time should be for in obtaining the source material and collecting
information.

Limiting the problem: A common mistake with undergraduate assignments is

to be too ambitious and to attempt the topics that are far too broad. Time
should be spent for limiting the problem. Problem should not be limited by
omitting important information and leaving out essential details or presenting
only part of it.

Consulting source materials: Reference should be consulted initially.

Time Schedule: Time allocation for different stages of writing should be

followed i.e., 60% of time should be sent for defining, limiting problem,
specifying limitations, consulting source material and collecting information,
then 20% for drafting and for refining the final draft and the rest 20% for
Revising, footnoting, referencing, writing the final draft proof reading.

Assignment consist of three parts., i.e. Preliminaries, the text and the
reference

Preliminaries are – Title Page, Abstract, Declaration, Acknowledgement, Table

of Contents, List of Tables and Figures or illustrations.

The Text: Introduction, main body of the report (features, uses, merits and
demerits in chapters and sections), conclusion.

Reference Materials – Reference, appendix or index.

Footnotes – Suitable and applicable footnotes along with the page numbers.

Distinguishing:

It means to point out an essential difference. The matter of distinguishing is

most important in argument of a case. The main objective of the
distinguishing is to note a significant difference or dissimilarity (usually
between cases); to make a distinction.
If the case is conducting in the court and the looser of the case has two
alternatives, either to submit that the case cited is wrongly decided and so
should not be followed or to distinguish it by suggesting that it contains or
lacks some vital fact that is absent or present in the case.
Kinds of distinguishing:

1. Restrictive Distinguishing.
 It cuts down the expressed ratio Decidendi of the earlier case.

2. Non restrictive Distinguishing.

It occurs where a court accepts the express ratio Decidendi of the

earlier case.

Footnotes

The conventional procedure of writing the information at the bottom of the

page of a thesis or text books with making using of superscript numbers and
figures or symbols of that particular aspects and subject in the main text.

It provide the readers the sufficient information to consult various sources

independently. It is found at the foot of a page.

Footnotes are commonly separated from the text by short solid line called
separator. The separator is drawn from the left hand margin and one double
space below the last line of the text.

Sometimes, Footnotes can be distracting if they are so numerous and

frequent that they persistently impinge (negative effect) upon the reader’s
attention.

The footnotes information includes

 Source of information

 Date of publication

 Title of the source

 Publisher and place of publication

 Exact page number of the source of reference.

 Citations in certain styles

 asterisk (*) or number (¹) are the characters used.

Golden Rule of Interpretation
it is also called as Interpretation to avoid absurdity. The rule was first
used by Justice Parke in the case of Becke v/s Smith and later
elaboration in the case of Grey V/s Pearson.
The golden rule of interpretation is a modification of literal rule of
interpretation. It interprets the words in such a way that the absurdities
and anomalies of literal interpretations are avoided. It modifies the
language as well as the grammar of the words used in statutes and
other documents thus providing the actual meaning of the words.
It must be kept in mind that the golden rule of interpretation can only be
used when there is no correct grammatical construction possible. The
judge of the courts must be aware of the consequences of interpreting
the statues using the golden rule and it must be used only where it is
absolutely necessary.
New India Sugar Mills Ltd., V/s. Commissioner of Income Tax Dept.
Golden Rule: "Do not impose on others what you do not wish for
yourself." and Do not use the lift in case of fire.
In the case of notice which says Do not use the lift in case of fire literally
means that lift cannot be used at all at any time because there is fire
burning somewhere or the other all the time.
Adler v/s George 1964
In this case, the officials secrets act provided punishment for
obstructing the guard in the vicinity of a prohibited area. The court
interpreted the word Vicinity to include the inside of prohibited area
Lee v/s Knap 1967
Lee v. Knapp (1967) In this case, interpretation of the world 'stop' was
involved. Under section 77(1) of the road traffic Act, 1960 a driver
causing an accident shall stop after the accident. In this case, the driver
stopped for a moment after causing an accident and then moved away.
The court held that stop means stop and wait until someone comes to
help the victim.
Re-sigsworth v/s Bedford - 1935
The court stated that the person who killed his mother did not get the
property. The literal rule should not apply and the golden rule was used
to prevent the repugnant situation. If the son inherits the estate that
would amount to profiting from a crime.
Law library.

A Library contains highly specialized materials and requires special skill to

handle. A person who wishes to use law library must know how to use it. A
law library is not merely a collection of books.

A Library is not only a walled structure but also a collection of resources,

opportunities, knowledge and learning of experiences and place of
contemplation.

Being a backbone of a law school, a good law library must fulfil many X-
factors like quality staff, strong services and collection of combination of
print and digital collection as well.

Basically library contains legal material comprising of statutory laws and

reports of decided cases.

A law library is a collection of legal information resources, historically

consisting of treatises, statutory codes, case reporters, and perhaps early
form books. However a law librarian has a number of specialized tasks viz.
researching, analyzing, and evaluating the quality, accuracy, and validity of
sources; teaching and training; writing; managing; and procuring and
classifying library materials.

It is a collection of legal literature properly housed, and organized for legal

service."

A person who wishes to use a law library and wants to make best use of it
must know how to use it. He should have a general idea of the types of books
a law library usually contains. He should know where to look for the materials
for research and also about the guides and aids which would facilitate to
locate the materials.

One should know how to use the library with knowledge of basic bibliography,
index and reference materials. Should understand the ways in which the
libraries organize their collections such as;

 Library and card catalogues.

 Legal periodicals and articles
 Subject Bibliographies
 Reference Books,
  Recording Source materials
 Use of Computers

The influence of computers on law has already effected significant changes.

We find computers on desk of the lawyers. Internet facility brought the whole
knowledge of the world into a lap-top computers. IT has developed a lot and e-
mail facility helps the researchers in communication. Nowadays use of
computer is a must to any legal practitioners.

In simple sense, a modern law library has a hybrid collection of print as well as
digital information conveniently referring case laws whether national or
international courts, legislations whether central or local or international
bodies, law reform reports of international bodies, central bodies,
commissions or committees set up under the rule of law, treaties either
bilateral or multinational, legal journals and scholarships including academic
journals, academic repositories and finally monographs, treaties,
commentaries of specific nature of laws

Legal Materials and kinds of legal materials:

Legal materials are documents that tell you what the law is, or which
explain, discuss and comment on the law.
They are two types of legal materials, they are:
• Primary legal materials represent the law itself. Statute Law / Legislation
Law, constitution of India and case law, Indian High and Supreme Court
Reports. Further, these are other significant types of primary legal material,
such as Enactments, Judgments, Law Reports, Reports of Commission,
etc.,
• Secondary legal materials such as journals, textbooks, explain, discuss
and comment on the law. Further, layout of Library, Statues, Periodicals,
Gazettes, Manuals, Digests, Dictionaries of Encyclopaedias, Notifications.
Secondary legal materials also consists of sources that explain, criticize,
discuss, or help locate primary law
Judgment:
Mean the expression of the opinion of the court arrived at after a due
consideration of the evidence and all the arguments. It is the statement
given by the judge of the grounds of a decree or order.
Law Reports:
Law reports are the important judgment of supreme / high courts and other
tribunals being published monthly and paginated yearly. Supreme Court
cases as SCC, Indian Law reports as ILR, All India Reporter (AIR), and so on.
Separate Sections been kept for reporting the judgment of courts.
Statutes:
Law made by the legislature is the Statutes and they are not arranged in
rational basis because a single matter may be provided by several statutes
or a single statue may contain bits of several subjects matters.
Periodicals:
It contains articles which are important for lawyers and law students that
are written by eminent jurists and experts in their field. It contains the
summary of the contents.
Gazettes:
These are the official publications of Government which contains the
enforcement of statutes, rules and regulations, bye-laws, notifications, etc.,
of the respective departments.
Manuals / Digests / Dictionaries / Research Papers / Constitutional
Debates.
Shows how to write, read and understand the practice of law, which
contains short summaries, meanings of legal words, idioms and phrases.
Encyclopaedia : contains information on all the aspects of law. It provides
an extent of information about a particular topic, time period or person in the
form of entries arranged in alphabetical order.

Mischief rule of interpretation.

It is originated for the first time in Heydon's Case. The mischief rule was
established in Heydon's Case in 1584 that is all about the lease hold
right of Heydon's case that has been considered as void given by the
Ottery College and considered the Copyhold rights given by the Ottery
College to Ware and his won on tenancy.

Its main aim is to determine the “mischief and defect of the case". The
purpose of this rule is to suppress the mischief and advance the remedy

This rule was initially set out in Heydon’s case when applying this rule,
the courts are obliged to consider the following -

1) What was the law before the statue was passed.

2) What was the mischief that the law did not remedy?
3) What was the remedy of the parliament / statue intended to provide?
4) What was the reason for the remedy?

This rule gives the court a justification for going behind the actual
wording of a statue in order to consider the problem that the particular
statue was aimed at resolving.

Crockery V/s Carpenter 1951 - riding the bicycle under the influence of
alcohol, wherein The court applied the mischief rule holding that a riding
a bicycle was within the mischief of the Act as the defendant
represented a danger to himself and other road users

Smith V/s Hughes (1960), the defendants were charged under the street
offences act (1959) with soliciting in a public place. The prostitutes were
soliciting from windows, technically not a public place. The Mischief
Rule was applied to interpret that the prostitutes were doing what the
statute was trying to abolish so they were convicted.

The main advantage of The Mischief Rule is that it closes loopholes in

the law and allows laws to develop. The main disadvantage is that it
creates a crime after the event has taken place, which can be seen in the
Smith v Hughes (1960) case above. It allows judges to apply their
opinions and prejudices - an infringement on the separation of powers.

Nature of Man
Human nature refers to the characteristics of mankind. This means ways of
thinking, feeling and acting which humans have naturally.
It is a source of advice on how to live well, but it also puts limits and
obstacles on living a good life.
According to Aristotle and Plat Man is a Conjugal animal means living
together, building a house and forming a village. He is a political animal with
able to develop communities and the size of the city or town and law-making.
Man’s nature is intrinsically evil and no social progress could be attained
without the restraints of penal laws. Man was originally created good by
nature, due to sin, corruption or greed for wealth, the nature of man become
distorted and thus required of its control the rigours of a punitive system of
law.
Man’s nature might be corrupt and sinful but he still possessed a natural
virtue which was capable of development. The evils of society arose not from
man’s corrupt or sinful nature but from the effects of oppressive human
institutions.
Jean Bodin, Thomes Hobbes, Godwin and David Hume have given their own
views and concepts about the Nature of man in their books.

OBITER DICTA

The Latin term of the obiter dicta is ‘things said by the Way’.
It is an expression of opinion by a judge on a question immaterial to the ratio
Decidendi and unnecessary for the decision of the particular case. It is no way
binding to any court, but may receive attention as being an option of high
authority.
It is also described as statements of law made by a judge in course of a
decision, arising out of the circumstances of the case, but not necessary for
the decision. It is a mere observation made by the court which is not
necessary to the case. Obiter dicta translates to “by the way,” and refers to
information that a person says, “in passing.”
Prof. Goodhart defined obiter dictum as a conclusion based on a fact.
Example
Julia v/s. Acme Company
For Washer and drying machine case for not acknowledging the terms and
conditions for warranty service.
Lost Dog complaint in paper and reward of $1000 in paper publication.

RATIO DECIDENDI

The Latin phrase of the Ratio Decidendi means ‘The Reason’ or ‘The Rationale’
for the decision. It is the legal rule used by the Judge to determine the final
decision of the case.

At the end of every case a judgment is given by the Judge by giving his
decision and the reasoning for that decision and the same is being recorded in
the law reports. Ratio Decidendi is necessary for awarding the decision of a
particular case.
The ratio Decidendi of the superior court is binding on the subordinate courts.
It is a well considered statement in reference to the matched facts of the case.
The ratio decidendi refers to the facts of the case, those things that no one
can debate and the ratio Decidendi is binding in its fact of precedent.

According to
Salmond – It is a concrete decision binding between the parties.
Prof. Keeton – It is a principle of law forms a basis of decision
Goodhart – It is a material facts of the case plus the decision thereon.

Example:
Wilkinson V/s. Downton 1897 –
Joke told by the Defendant – Wilkinson to Downton that her husband met with
an accident and lost his 2 legs, which made the Plaintiff to get a mental shock
and illness. Here the defendant was held liable for his wilfully done an act to
cause physical arm to plaintiff. The rule that ‘the tort to do any act with intent
to affect the plaintiff in body or mind is wider rule’.

Social Engineering
Since the man is a social animal and needs a society for his leaving, working
and enjoying the life and by forming the group of individual forms which led to
creation of Society. Society has become essential condition for human life to
develop one’s personality. Therefore society and human life always go
together.
Every human has born with some desires and expectations which are inherent
in nature. From childhood to old age, every human being expects that his
desire to be fulfilled but it is impossible to fulfil all the desires of a human
being. So to fulfil the desires of maximum, the concept of social engineering
came into existence by the Great Scholar – Roscoe Pound.
Social engineering is based on the notion that laws are used as a means to
shape the society and regulate the people’s behaviour. It is an attempt to
control the human conduct through the help of Law. According to Pound, Law
is social engineering which means a balance between the competing interests
in society in which applied science are used for resolving individual and social
problems.

Sources of Law
The word source means ‘Origin’. Many jurists have given their different
opinion regarding the origin of law. The phrase ‘Sources of law’ is being used
in three senses.
In the 1st Sense
The person who has the authority to make law
Legislature, Customs, Curt of Precedents & Executive (delegated legislation).

In the 2nd Sense

The documents which contains the law.
The code of Manu, Code of Justinian and Yajnavalkya

In the 3rd sense

The causes which led to the making of law
Legislation, Custom and Equity.

Legislation: It is the law making by the political Sovereign legis-law, latum-

making. The political sovereign may be the king or parliament comprising of
elected representatives. It is most powerful as compared to other sources. It
is called as Supreme Legislation.
Precedents:
A previous instance or case which is, or may be taken as an example of rule
for subsequent cases, or by which some similar act or circumstances may be
supported or justified. The decision of the supreme court is binding on all
other courts.
Customs:
It is a usage or practice in existence for a very long time and observed by the
people from generation to generation. When it is universally approved and
practiced by the people, it gives recognition as a law. Custom has to be
practices from very long time by the whole community, believing it be
compulsory and should not be opposed to any law e.g., marrying sisters
daughter in Hinduism.
Before British rule in India: people were governed by the personal laws i.e., for
example, For Hindus, the sources of law are Sruti, Smruthi, Purans,
Dharmasutra, Dharmashastras, one’s own conscience and conduct of virtuous
persons. For Muslims, the sources of law are Quran, Sunnah and Ahad’s, Ijma
and analogical deductions (Qiyas).
What is Statue ? Explain Parts of Statue?

Statute is also known as Legislation. Statute is made by a group of people

who together have power to make laws. A Statute means 'written law made or
declared by the sovereign authority or a subordinate authority under the
delegated power from the sovereign.

In every country there will be an authority called legislature. The law made by
the legislature is called as legislation or enacted law or written law or
enactment or a Statute. An act of legislature is written with Capital 'A' for e.g.,
The Information Technology Act, 2000.

Depending upon the nature and purpose of the Act, it may be called differently,
when a law is made on subject matter for the first time it is called as
declaratory Act. If an Act is made to modify (amend) an already existing law
then it is called as an amending Act. Eg., The Karnataka Stamp Act, 2007
amends the definition of the word family to include brother and sisters for the
purpose of stamp duty reduction.

Another example is the criminal Amendment Act 2013. Sometimes some laws
are enacted to bring together a number of declared rules in one place, such
law is called as Consolidating Statute. The companies Act, 2013 is an
example of consolidation Law. At time, various matters on the same subject
matters, may lie distributed in many places, when it is brought together in one
statue is called as Codifying Act. For eg., the Hindu Marriage Act, 1955
codifies the whole law on Hindu Marriage.

The law is enforceable by the government. A statute, is a law that has been
enacted by a legislature, which is the body that has been granted the power by
a constitution to enact legislation, or laws. When a statute is passed, it
becomes law and therefore part of statutory law. The federal legislature of the
United States is the United States Congress. Each state has its own legislature,
which enacts laws for that state.

Once it is enacted by the legislature, statutes are signed into law by the chief
member of the executive branch - the president for federal statutes and the
governor for state statutes. Statutes are drawn together and organized by
subject in what are called codes.

Simply put, a statute is a specific statement of the law on a particular issue.

For example, a state statute might state that a dog owner is liable for any
injury caused if his or her dog bites someone if the owner already knew about
the dog's dangerous biting propensity. This state statute would be binding for
all citizens of that state.

Parts of Statute:
There is no uniformity in structure between the different statutes. But
generally the following will be the order and contents.

Some of the parts of the Statutes are described below:

1. Title (Long Title and Short Title)
2. Preamble
3. Definition Clause
4. Headings - Sections, sub-headings and clauses
5. Marginal Notes
6. Section or Article
7. Punctuation Marks
8. Illustration
9. Proviso
10.Exceptions
11.Explanations
12.Saving Clauses
13.Schedules
14.Appendix

1. Title - Long / Short Title

Long Title - It is given in the very beginning and indicates the purpose of
the act. The Long Title of a Statute is an internal part of the statute and
is admissible as an aid to its construction as it gives the description
about the object of an Act.

Short Title - The short title starts with 'this may be called....' the law will
be cited by everyone in the name. The short title of an Act is for the
purpose of reference & for its identification.

2. Preamble - The preamble is the introduction to the Act. The main

objective and purpose of the Act are found in the Preamble of the
Statute. Preamble is actually the Act in a nutshell. Preamble is called as
key to open the mind of law makers. Preamble can be amended but
without affecting the basic structure.

3. Definition Clause
For easy interpretation the statue law down the meaning of certain
words and phrases as to in which sense they are used in the Act.

4. Headings and sub-headings

Headings are prefixed to sections or a group or set of sections.
These headings have been treated by courts as preambles to those
sections or sets of sections. The rule of interpretation is that the
heading can't control the plain words of the provision but if after the
plain reading of the section more than one meaning is possible, only
then the court may seek guidance from the headings.

5. Marginal Notes: Marginal notes are those notes which are inserted at
 the side of the sections in the Act and express the effect of the
sections. These are also known as side notes

6. Explanations:
The explanations are inserted with the purpose of explaining the
meaning of a particular provision and to remove doubts which might
creep up if the explanation had not been inserted. The purpose of
explanations are to explain the meaning and intention of act, to clarify in
case of obscurity or vagueness and to provide additional support to the
object of the act.

7. Proviso
The proviso to a section has the natural presumption that enacting part
of the section would have included the subject matter of the proviso.
The proviso serve four different purposes- qualify or exempt certain
provision, provide mandatory condition to be fulfilled by to make
enactment workable, act as optional addenda and become integral part
of the enactment.

The rule of interpretation of proviso is that it can neither nullify the

implication of main enactment nor can enlarge the scope of main
enactment and can only be referred in case of ambiguity in the section.

In case of conflict between main enactment and proviso, it must be

harmoniously construct or in the view of many jurist proviso will prevail
as it is the last intention of the legislature.

8. Sections
This is the Heart of the statue which lays down the actual subject
matter of the law. This forms the major party of the text.
9. Procedural Provisions
This part actually lays down the procedure to be followed by the officers
and courts while implementing the law.

10.Exceptions Clause
This part declares as to whom the law is not applicable. Either explains
or exempts or puts conditions for operation of sections.

11.Punctuation - It is a minor element used for construction of Statute

carefully to be punctuated which helps in determining the meaning of
statute and an order. Only when a statute is carefully punctuated and
there is no doubt about its meaning can weight be given to punctuation