LEGAL METHOD

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
Semester: FIRST Semester
LLB 101
Name of the Subject:
LEGAL METHOD
UNIT I
INTRODUCTION TO LEGAL
METHOD

Definition of Law:
Law is defined as Rules of Human action.
Blackstone defines law as “ It is a rule of action whether it be animate or inanimate or of nations. Thus law
of motion are as much law of nature or of nations.
Other jurists however restrict the meaning and scope of law only to norms necessary for regulation of
human conduct.
Salmond defines law as the “body of principles recognized and applied by the state in the administration
of justice.
Austin defines Law is the aggregate of rules set men as politically superior or sovereign to men as
politically subject.
Duguit defines Law as essentially and exclusively as social fact.
Roscoe Pound defines law as a social institution to satisfy social wants.
Another great sociological jurist is Ehrlich. He includes in his definion all the norms which govern social
life within a given society.

FUNCTIONS OF LAW
The law serves many purposes and functions in society. Four principal purposes and functions
are establishing standards, maintaining order, resolving disputes, and protecting liberties and rights.
Establishing Standards
The law is a guidepost for minimally acceptable behavior in society. Some activities, for instance, are crimes
because society (through a legislative body) has determined that it will not tolerate certain behaviors that
injure or damage persons or their property. For example, under a typical state law, it is a crime to cause
physical injury to another person without justification—doing so generally constitutes the crime of assault.
Maintaining Order
This is an offshoot of establishing standards. Some semblance of order is necessary in a civil society and is
therefore reflected in the law. The law—when enforced—provides order consistent with society’s guidelines.
Resolving Disputes
Disputes are unavoidable in a society made of persons with different needs, wants, values, and views. The
law provides a formal means for resolving disputes—the court system.
Protecting Liberties and Rights
The constitutions and of India provide for various liberties and rights.

A purpose and function of the law is to protect these various liberties and rights from violations or
unreasonable intrusions by persons, organizations, or government. For example, subject to certain
exceptions, the First Amendment to the Constitution prohibits the government from making a law that
prohibits the freedom of speech. Someone who believes that his free speech rights have been prohibited
by the government may pursue a remedy by bringing a case in the courts.
You have probably realized that laws may serve more than one principal function and there are obviously
more principal functions than the four that we have identified.
Law and Morality
In a society, people generally interact in a human way, cooperating and communicating with each
other. A strong social structure can be maintained if there are generally accepted rules of conduct. Many
believe that these rules need not be defined and enforced by any centralized agency. However, this
concept has caused the destabilization of many societies and has weakened social relations.
The defect lies not with the system of the centralized agency, but in the notion of prevailing social values.
In the so-called democratic society, state law does not follow the dictum of social institutions. But in
Islamic society, religious law guides the state laws.

There are contradicting ideas regarding the importance of natural law as positive law. According to Locke,
obedience to the state is the protection of the rights possessed by individuals under natural law. Some
philosophers have gone further and said if a rule is in conflict with natural law, it cannot be a positive law at
all. One origin for the doctrine of natural law is the idea that God stands in relation to mankind at large as in
the relation of a monarch to his subjects. From this developed the concept of the divine rights of kings.
In this era, with its plurality of conflicting moral beliefs, the doctrine of natural law has lost much of its
appeal. Political philosophers generally confuse moral values with religious doctrines. Natural law does not
mean that it has to have a religious sanction. There are innumerable contradictory religions, each defining
their own concept of ethical standards.
Natural law should not be considered as the law enacted by the clergy. Similarly, much importance has been
given today to positive law, the law enacted by the state. The concept of legal and illegal is considered only
on the basis of the penal code, as enacted by the political institution. Yet, so far there is no reason to believe
that state law has protected freedom and human values in the true sense of the term.

Morality
Morality should not be confused with religious ethics that enforce certain do’s and don’ts on people by
some centralised agency. Morality must have a universal foundation; it is a dynamic principle that guides
human expression towards benevolence. The principles of non-violence, truthfulness, non-stealing in a
wider sense, non-indulgence and universal attitude infuse the spirit of benevolence, humanness, justice
and fairness. These universal moral principles should be the guiding factor in framing laws.
The “protection of human values in all the three spheres life” and the concept of “Human society is one
and indivisible”, are two cardinal principles of PROUT. We are firstly human beings and secondly social
beings. Human value precedes social value. If anybody does a crime, measures for reforming his or her
character should be taken instead of punishment. However, until the person is rehabilitated, social
responsibility should not be given to them. Capital punishment should be abolished from all parts of
society.
Classification of Law
Public and Private Law

Public Law
1.Govern the relationship between state and individuals.2.Public law includes constitutional
law,administrative law,criminal law(criminal law is enforced on behalf of or in the name of the
state),international law,municipal law
3.The objective of public law is mentioned in the Preamblei.e to achieve the objective of the state
4.Sources-Natural law, Magna Carta, Bill of Rights, Indian Independence Act. The Government of India
Act,constitutions of other countries
5.Remedies-Writs,PIL,etc
6.Case-Brown v Board Of Education
Private Law
1.Governs the relationship between individuals.
2.Private law includes Law of contract,Law of tort,Law of property,Law of succession, family laws
3.The objective of private laws is to regularise and control the behaviour of individuals when they meet
with other individuals
4.Sources- Customs,traditions,precedents,conventions and treaties
5.Remedies- Suits,intention,declaration
6.Case- Carvajal v Hillstone Restaurant Group

Procedural law consists of the set of rules that govern the proceedings of the court in criminal lawsuits
as well as civil and administrative proceedings. The court needs to conform to the standards setup by
procedural law, while during the proceedings. These rules ensure fair practice and consistency in the
"due process".
Substantive law is a statutory law that deals with the legal relationship between people or the people
and the state. Therefore, substantive law defines the rights and duties of the people, but procedural law
lays down the rules with the help of which they are enforced. The differences between the two need to be
studied in greater detail, for better understanding.
International Law and Municipal laws
International law, a term coined around 1800 by philosopher Jeremy Bentham[1], refers to the body of
legal decisions, rules, and customs that regulate the discourse between nations (e.g., human rights,
military intervention, and global concerns such as climate change). Conversely, municipal law governs
the actions of individuals and commercial entities within the borders of sovereign states (e.g., civil codes
and criminal statutes).
Define municipal law. In common usage, especially in the United States, municipal or municipality,
refers to a city or town. However, in the realm of international law, municipal refers to any sovereign
entity, including countries, states, counties, provinces, cities, and towns.

INTERNATIONALLAWMUNICIPAL LAW
International Law is the law of nations, regulating the relations between the member States of the family
of nations. Municipal Law is the law of State regulating the conduct of individuals and deal with
the relation between individual and the State.
International Law is concerned mainly with foreign affairs or inter-state affairs. Municipal Law is infra-
state affairs concerned with domestic affairs.
International Law is a nature of consent and consensus. Municipal Law is of command and sanction.
International Law is a decentralized system acting vertically. Municipal Law is a centralized acting
horizontally.
CIVIL LAW
The law enforced by the State is called Civil Law.
The force of the state is the sanction behind the law.
It is derived from the Roman word Jus Civile.
It is territorial in nature as it applies within the territory of the State.
Austin prefers to call civil law a positive law because it is enforced by the sovereign political authority.

UNIT-II
SOURCES OF LAW

Custom:
Custom has been one of the oldest sources of law. In ancient times, social relations gave
rise to several usages, traditions and customs. These were used to settle and decide
disputes among the people. Customs were practiced habitually and violations of customs
were disapproved and punished by the society. Initially social institutions began working on
the basis of several accepted customs.
Gradually, the State emerged as the organized political institution of the people having the
responsibility to maintain peace, law and order; naturally, it also began acting by making
and enforcing rules based upon customs and traditions. In fact, most of the laws had their
birth when the State began converting the customs into authoritative and binding rules.
Custom has been indeed a rich source of Law.

Custom and usage is the earliest sources of law. When there was no state, the people faced problem. They
reacted to them in different ways. Slowly and gradually there emerged a kind of uniformity in these
reactions. These were called customs and traditions. For example, there are still certain customs, which are
observed by the people so for as their marriage, family relations, and inheritance are concerned. After the
emergence of the state such customs and traditions were formally adopted and these were given the name
of laws. These laws which are derived from customs are called customary laws. The best example of such
law is the English Common Law.
Custom in law is the established pattern of behavior that can be objectively verified within a particular
social setting. A claim can be carried out in defense of "what has always been done and accepted by law."
Related is the idea of prescription; a right enjoyed through long custom rather than positive law.
Customary law (also, consuetudinary or unofficial law) exists where:
a certain legal practice is observed and the relevant actors consider it to be law (opinio juris).
Essentials of Custom
1. Antiquity
2. Continunance

Plot No. OCF, Sector A-8, Narela, New s
3. Peaceful enjoyment
4. Obligatory Force.
5. Certainty
6. Consistency
7. Reasonableness
8 Conformity with statute law.
Classification of Custom
The custom in their wider sense may be divided into two classes.
1, Customs without sanction.
2. Custom having sanction.
Custom having sanction are further divided into two parts namely
1. Legal and Conventional Customs

Legislation It is the prime source of law. and consists in the declaration of legal rules by a
competent authority. Legislation can have many purposes: to regulate, to authorize, to enable,
to proscribe, to provide funds, to sanction, to grant, to declare or to restrict.
 A parliamentary legislature frames new laws, such as Acts of Parliament and amends or
repeals old laws. The legislature may delegate law-making powers to lower bodies.
In the UK such delegated legislation includes Statutory Instruments, Orders in Council,
& Bye-laws. Delegated legislation may be open to challenge for irregularity of process; and the
legislature usually has the right to withdraw delegated powers if it sees fit.
Most legislatures have their powers restricted by the nation's Constitution, and Montesquieu’s
theory of the separation of powers typically restricts a legislature's powers to
legislation. Although the legislature has the power to legislate

It is the courts who have the power to interpret statutes. treaties and
regulations. Similarly, although parliaments have the power to legislate.
It is usually the executive[ who decides on the legislative programme.
The procedure is usually that a bill is introduced to Parliament, and after the
required number of readings, committee stages and amendments, the bill
gains approval and becomes an Act.
Legislation is one of the most important instruments of government in
organising society and protecting citizens. It determines amongst others the
rights and responsibilities of individuals and authorities to whom
the legislation applies.
The common meaning of Legislation is the making of the law.
It may be defined as the promulgation of legal rules by any law made by any
source, such as precedents

Difference between Legislation and Custom
1. The existence and authority of legislation is dejure whereas the existence of custom is de facto.
2. Legislation is considered to be superior and more authoritative source of law than customs.
3. Generally customs deals with the relationship between man and man. Legislation always bring into
picture, the state.
4. The authority of legislation lies in express will of the state. Customs are generally based on the will
of the people. They have only an implied authority of the state.
5. Legislation is an advanced method of legal development and is characteristic mark of mature legal
systems. Customs have their way mainly in a primitive society.

Precedent :-
 In common law legal systems a precedent, or authority, is a principle or rule established
in a previous legal case that is either binding on or persuasive for a court or other tribunal
 when deciding subsequent cases with similar issues or facts Common law legal systems
place great value on deciding cases according to consistent principled rules so that similar
facts will yield similar and predictable outcomes, and observance of precedent is the
mechanism by which that goal is attained.
 The principle by which judges are bound to precedents is known as stare decisis.
Black’’s Law Dictionary defines "precedent" as a "rule of law established for the first
time by a court for a particular type of case and thereafter referred to in deciding similar
cases“.
 executive branch agencies).

Common law precedent is a third kind of law, on equal footing with statutory law (statutes and
codes enacted by legislative bodies), and delegated legislation (in U.K. parlance) or regulatory law (in
U.S. parlance) (regulations promulgated by exective wing of the state.
Stare decisis is a legal principle by which judges are obligated to respect the precedent established
by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare
decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed".
In a legal context, this means that courts should abide by precedent and not disturb settled
matters. The principle can be divided into two components:
A decision made by a superior court, or by the same court in an earlier decision, is binding
precedent that the court itself and all its inferior courts must follow.
A court may overturn its own precedent, but should do so only if there is a strong reason to do so,
and even in that case, should be guided by principles from superior, lateral and inferior courts.
The second principle, regarding persuasive precedent reflects the broad precedent guidance a
court may draw upon in reaching all of its decisions..

UNIT-III
BASIC CONCEPTS OF
INDIAN LEGAL SYSTEM

RULE OF LAW:-
The term “Rule of Law" is derived from the French phrase 'La Principe de Legality' (the
principle of legality) which refers to a government based on principles of law and not of
men.
 In a broader sense Rule of Law means that Law is supreme and is above every
individual. No individual whether if he is rich, poor, rulers or ruled etc are above law and
they should obey it.
In a narrower sense the rule of law implies that government authority may only be
exercised in accordance with the written laws, which were adopted through an established
procedure. The principle of Rule of Law is intended to be a safeguard against arbitrary
actions of the government authorities.

The principle of Rule of Law is intended to be a safeguard against arbitrary actions of the government
authorities.
The rule of law has been described as a “rare and protean principle of our political tradition
The rule of law centrally comprises “the values of regularity and restraint, embodied in the slogan of “‘a
government of laws, not men’". The term Rule of Law does not provide any thing about how the laws are
to be made, or anything specific like the Fundamental Rights or the Directive principles or equality etc.
but it provides for two basic concepts that is Law must be obeyed by the people and that the law must be
made in such a way that it is able to guide the behaviour of its subjects

Edward Coke is said to be the originator of concept of Rule of Law when he said that the king must be
under God and law and thus vindicated the supremacy of law over the pretensions of the executives.
In India, the concept of Rule of Law can be traced back to the Upanishad. It provides that Law is the
King of Kings.
 It is more powerful and higher than the Kings and there is nothing higher than law.
By its powers the weak shall prevail over the strong and justice shall triumph.
This establishes the fact that law is absolutely supreme and it excludes the existence of arbitrariness in
any form. According to Diecy where there is scope discretion there is room for arbitrariness.

DICEY'S THEORY of Rule of Law consists of three main principles: [
1. Absence of Arbitrary Power or Supremacy of Law: :
A As per Dicey Rule of law means the absolute supremacy of law and 'no man is punishable or can
lawfully be made to suffer in body or goods except for a distinct breach of law established in the
ordinary legal manner before the courts of the land.
B Dicey was of the view that all individuals whether if he is a common man or government authority are
bound to obey the law..
C He is of the view that no man can be punished for any thing else than a breach of law which is already
established. And also that the alleged offence is required to be proved before the ordinary courts in
accordance with ordinary procedure.
2. Equality before Law: As per Dicey Rule of law, in the second principle, means the equality of law or
equal subjection of all classes of people to the ordinary law of the land which is administered by the
ordinary law courts. In this sense rule of law conveys that no man is above the law.

Even the Government Officials are under a duty to obey the same law and there can be no other
special courts for dealing specifically with their matters.
3. Constitution is the result of the ordinary law of the land: As per Dicey , in many countries rights such
as right to personal liberty, freedom, arrest etc are provided by the written Constitution of a Country.
In England these rights are a result of the judicial decisions that have arisen due to the conflict
between the parties.
The constitution is not the source but the consequence of the rights of the individuals..
But this principle of Dicey is not applicable in India as in India we consider the Constitution to be the
basic ground work of laws from which all other laws are derived.

 The rule of law has been described as a “rare and protean principle of our political
tradition“.
 The rule of law centrally comprises “the values of regularity and restraint, embodied in the
slogan of “‘a government of laws, not men’".
The term Rule of Law does not provide any thing about how the laws are to be made, or
anything specific like the Fundamental Rights or the Directive principles or equality etc.
 it provides two basic concepts that is Law must be obeyed by the people and that the law
must be made in such a way that it is able to guide the behavior of its subjects.
The concept of Rule of Law is very old. In the thirteenth century Bracton, a judge in the
reign of Henry III in a way introduced the concept of Rule of Law without naming it as Rule
of Law

SEPARATION OF POWERS
The term "trias politica" or "separation of powers" was coined by Charles-Louis de Secondat, baron de
La Brède et de Montesquieu, an 18th century French social and political philosopher.
His publication, Spirit of the Laws, is considered one of the great works in the history of political theory
and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United
States.
Separation of powers, therefore, refers to the division of government responsibilities into distinct branches
to limit any one branch from exercising the core functions of another. The intent is to prevent the
concentration of power and provide for checks and balances.
‘
The traditional characterizations of the powers of the branches of American government are:
•The legislative branch is responsible for enacting the laws of the state and appropriating the money
necessary to operate the government.
•The executive branch is responsible for implementing and administering the public policy enacted and
funded by the legislative branch.
* The judicial branch is responsible for interpreting the constitution and laws and applying their
interpretations to controversies brought before it.

Forty state constitutions specify that government be divided into three branches: legislative, executive
and judicial.
California illustrates this approach; "The powers of state government are legislative, executive, and
judicial.
Persons charged with the exercise of one power may not exercise either of the others except as
permitted by this Constitution.
While separation of powers is key to the workings of American government, no democratic system exists
with an absolute separation of powers or an absolute lack of separation of powers.
Governmental powers and responsibilities intentionally overlap; they are too complex and interrelated to
be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among
the branches of government.
Throughout American history, there also has been an ebb and flow of preeminence among the
governmental branches. Such experiences suggest that where power resides is part of an evolutionary
process.

UNIT-IV
Legal Writing and
Research

Statute is a formal written enactment of a legislative authority that governs a city, state, or country.
Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by
legislative bodies; they are distinguished from case law or precedent, which is decided by courts,
and regulations issued by government agencies.
The term statute is also used to refer to an International treaty that establishes an institution such as the
Statute of the European Central Bank a protocol to the international courts as well, such as the Statute of
the International Court of Justice and the Rome Statute of the International Criminal Court Statute is also
another word for law. The term was adapted from England in about the 18th century.
Definition of STATUTE
1: a law enacted by the legislative branch of a government
2: an act of a corporation or of its founder intended as a permanent rule
3: an international instrument setting up an agency and regulating its scope or authority

Definition of Bill
A formal statement of a planned new law that is discussed before being voted on:
Draft of a proposed statute (Act Of Parliament) which must be approved by both houses of the
legislature and signed by the Head Of State (such as a President) to become a law.
LAW REPORTS:-
The United States Reports the official reporter of the Supreme Court of the United States
Law reports or reporters are series of books that contain judicial opinions from a selection of case
law decided by courts When a particular judicial opinion is referenced, the law report series in which the
opinion is printed will determine the case citation format.
The term reporter was originally used to refer to the individual persons who actually compile, edit, and
publish such opinions. For example, the Reporter of Decisions for the U.S. Supreme Court is the person
authorized to publish the Court's cases in the bound volumes of the United States Reports. In American
English reporter also denotes the books themselves. In the Commonwealth these are described by the
plural term law reports, the title that usually appears on the covers of the periodical parts and the
individual volumes.

Official law reports or reporters are those authorized for publication by statute or other governmental
ruling.
Governments designate law reports as official to provide an authoritative, consistent, and authentic
statement of a jurisdiction's primary law.
Official case law publishing may be carried out by a government agency, or by a commercial entity.
Unofficial law reports, on the other hand, are not officially sanctioned and are published as a
commercial enterprise

For the publishers of unofficial reports to maintain a competitive advantage over the official ones, unofficial
reports usually provide helpful research aids (e.g., summaries, indexes), like the editorial enhancements used
in the West American Digest System.
Some commercial publishers also provide court opinions in searchable online databases that are part of
larger fee-based, online legal research systems, such as Westlaw, Lexis-Nexis or Justis.
Contents of a good law report
The headnote from the leading English case Wilkinson v. Downton [1897] 2 QB 57.
A good printed law report in traditional form usually contains the following items:
The citation reference.
The name of the case (usually the parties' names).
Catchwords (for information retrieval purposes).
The headnote (a brief summary of the case, the holding, and any significant case law considered). However,
a headnote is not part of the decision rendered. Headnotes occasionally contain misinterpretations of the law
in judgments of lower courts, and are not regarded as part of an official judgment or precedent.

A recital of the facts of the case (unless appearing in the judgment).
A note of the arguments of counsel before the judge. (This is often omitted in modern reports.)
The judgment (a verbatim transcript of the words used by the judge to explain his or her reasoning).
A student brief is a short summary and analysis of the case prepared for use in classroom discussion. It
is a set of notes, presented in a systematic way, in order to sort out the parties, identify the issues,
ascertain what was decided, and analyze the reasoning behind decisions made by the courts.
Although student briefs always include the same items of information, the form in which these items are
set out can vary. Before committing yourself to a particular form for briefing cases, check with your
instructor to ensure that the form you have chosen is acceptable.
The parties and how to keep track of them
Beginning students often have difficulty identifying relationships between the parties involved in court
cases.

The following definitions may help:
Plaintiffs sue defendants in civil suits in trial courts.
The government (state or federal) prosecutes defendants in criminal cases in trial courts.
The losing party in a criminal prosecution or a civil action may ask a higher (appellate) court to review the
case on the ground that the trial court judge made a mistake.
If the law gives the loser the right to a higher court review, his or her lawyers will appeal. If the loser does
not have this right, his or her lawyers may ask the court for a writ of certiorari.
Under this procedure, the appellate court is being asked to exercise its lawful discretion in granting the
cases a hearing for review.
For example, a defendant convicted in a federal district court has the right to appeal this decision in the
Court of Appeals of the circuit and this court cannot refuse to hear it.
The party losing in this appellate court can request that the case be reviewed by the Supreme Court, but,
unless certain special circumstances apply, has no right to a hearing

Research can be classified in many different ways on the basis of the methodology of research, the
knowledge it creates, the user group, the research problem it investigates etc.
Basic research
This research is conducted largely for the enhancement of knowledge, and is research which does not
have immediate commercial potential.
The research which is done for human welfare, animal welfare and plant kingdom welfare.
It is called basic, pure, fundamental research. The main motivation here is to expand man's knowledge,
not to create or invent something.
According to Travers, “Basic Research is designed to add to an organized body of scientific knowledge
and does not necessarily produce results of immediate practical value.”
Such a research is time and cost intensive. (Example: A experimental research that may not be or will be
helpful in the human progress.)

Research means repeated search for something, to find out some different new things or something
special knowledge in the existing facts.
Legal research is any systematic study or research of legal theories, concept, doctrine, cases, principles,
rules and regulations etc. methodology, in the sense of O+M+V i.e. way/method/approach and verified
facts.
Simply, method is the way of doing something and Methodology is the science or study of a particular
subject.
The main objectives of legal research are to ascertain the nature, purpose and policy – objectives of legal
rules and principles that govern a specific situation and determine their current relevance, utility,
adequacy or efficacy.
, Doctrinal research which is sometimes also referred to as armchair research2which is essential for
a library base study as the material needed by a researcher may be available in libraries, archives and
other data bases.

Doctrinal research is a research of legal preposition by way of analyzing of the existing statutory provision
along with the present case laws by applying the reasoning power of researcher.
In doctrinal research, researcher mainly uses different judgments, treaties, statutes texts, legal journals,
magazines etc., and from these he tries to collect all relevant material on the topic and then with reasoning
power, researcher tries to find out gap, problem and draws out final conclusion. Dr. S.N. Jain observed that
doctrinal research involver’s analysis of case law is arranging, ordering and systematizing legal preposition
and study of legal institution through legal reasoning or rational deduction.
Non-doctrinal research is also known as social-legal research.
In non-doctrinal research, researchers make efforts to collect knowledge and information from first hand
study or primary data related to his particular matter or topic.
It aims to organizing society in systematic and peaceful manner. It is a type of research that employs methods
taken from other discipline to generate empirical data that answers research questions. It can be problem,
policy or modification of the existing law.
A non-doctrinal research can be qualitative or quantitative and dogmatic. It can be part of a large-scale project
in the law.

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LEGAL METHOD

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