LEGAL METHODS NOTES

ABHINAV SINGH & MONISH KHAISHAGI

(2023-2028)
MODULE 1: IDEA AND PHILOSOPHY OF LAW

WHAT IS LAW
Law can be generally defined as a system of rules and principles established and
enforced by a government or authoritative body to regulate behaviour within a society.
It sets standards for conduct, defines rights and obligations, and provides mechanisms
for resolving disputes. The purpose of law is to maintain order, ensure justice, protect
individual rights, and promote the overall well-being of a community or society.

CONCEPTUAL ANALYSIS: BASIS OF 7 POINTS.

1. A rule: A rule serves as a guide for conduct, providing a general statement on
what is permissible or prohibited in specific situations. Essential for societal
order, rules can be enforced through various means such as social pressure or
legal sanctions. For example, the Indian Penal Code (IPC) delineates crimes
and punishments, serving as a set of rules enforced by the police and judiciary.
2. A rule of behaviour: A rule of behavior establishes normative principles
guiding human conduct. It sets standards expected in specific contexts, either
formalized in law or based on informal social norms. The Indian Constitution
exemplifies a formal rule of behavior, outlining fundamental rights and duties,
and its enforcement falls under the judiciary's jurisdiction.
3. The rules and regulations of a particular country: The rules and regulations
of a country are legal norms governing behavior within its borders, created by
the legislative arm and enforced by the executive and judiciary. Categorized
into criminal, civil, administrative, and constitutional law, they shape
various aspects of life. For instance, the Right to Information Act, 2005,
grants citizens access to information and is overseen by the Central
Information Commission.
4. The rules usually made by the legislative arm of government which order
the way persons, bodies, and society should behave: Rules made by the
legislative arm dictate behavior through a democratic process, reflecting
societal values. Enforced by legal sanctions, fines, or imprisonment, they
regulate actions of individuals, organizations, and society. The Motor Vehicles
Act, 1988, exemplifies such rules, overseeing motor vehicle use enforcement
by the police and judiciary.
 5. The whole system of rules of a country: The comprehensive framework of
rules within a country governs conduct and includes criminal, civil,
administrative, and constitutional law. Crafted by the legislative arm, this
system is upheld by the executive, judiciary, and various government agencies.
For instance, the Indian legal system, comprising laws like the Indian Penal
Code, is enforced by multiple entities.
6. Remedial justice administered by courts: Remedial justice, administered by
courts, is a legal process providing relief to individuals harmed by others.
Ensuring accountability, it compensates victims through civil litigation,
criminal prosecution, or administrative proceedings. The Bhopal gas
tragedy in 1984 saw the Indian government file a lawsuit against Union
Carbide India Limited, resulting in a $470 million settlement.
7. Branch of knowledge concerned with jurisprudence: Jurisprudence is a
branch of knowledge studying law and legal systems, exploring their nature,
reasoning, and institutions. An interdisciplinary field, it draws from
philosophy, sociology, political science, and history. Works by legal
philosophers like John Austin, H.L.A. Hart, and Ronald Dworkin contribute
to jurisprudential scholarship, shaping legal theory development.

Law is all of above and much more. Similar view is expressed by Lord Lloyd:
"Since much juristic ink has flowed in an endeavour to provide a universally
acceptable definition of law, but with little sign of attaining that objective”.
Lord Lloyd's statement beautifully aligns with this perspective, as he acknowledges
the extensive juristic efforts to provide a universally acceptable definition of law, yet
attaining this objective remains elusive. This concurrence underscores the complexity
and depth of law, reinforcing the idea that it encompasses diverse dimensions that
resist easy encapsulation, making it indeed "all of the above and much more."

NATURE AND SCOPE OF LAW

Normative: The normative aspect of law denotes its prescriptive role, setting
standards for acceptable behavior within society. Functioning as a moral guide, it
not only regulates individual conduct but also shapes the collective ethical framework.
By defining permissible and impermissible actions, law contributes to the
establishment of shared values and principles, fostering a cohesive societal moral
fabric.
Indian Penal Code (IPC) establishes a crucial standard by prohibiting practices such
as dowry harassment. This legal provision serves as a normative force, guiding
behavior and fostering a societal ethos that rejects discriminatory practices,
contributing to a more equitable and just India.
Authority and Enforcement: Law derives its authority from the institutions
responsible for its creation, manifested through enforcement mechanisms.
These mechanisms, executed by entities like law enforcement agencies and the
judiciary, ensure compliance. The presence of authoritative enforcement fosters a
sense of obligation among individuals to adhere to legal norms, maintaining societal
order and justice.
India's traffic regulations, the visible presence of law enforcement on Indian roads
ensures compliance with traffic rules, underscoring the authority vested in these
regulations and contributing to road safety and orderly traffic flow.
Social Order: Law serves as a foundational element in establishing and sustaining
social order. Through the definition of rights, responsibilities, and consequences, it
provides a structured framework that enhances predictability and coherence in human
interactions. Upholding social order involves resolving disputes and safeguarding
individual rights, contributing significantly to the stability and functionality of
societies without resorting to violence.
Transfer of Property Act, play a pivotal role in establishing and safeguarding property
rights. This legal framework ensures individuals in India can use, transfer, and enjoy
their property, contributing significantly to maintaining a structured and orderly
societal setup.
Ever-Evolving: The ever-evolving nature of law underscores its adaptability to
societal changes. Legal systems undergo continuous transformation to address
emerging challenges, technological advancements, and shifting values. This
adaptability ensures the ongoing relevance and effectiveness of the law, aligning it
with the dynamic nature of human societies. The evolution of law reflects a
commitment to justice, fairness, and the continuous improvement of the legal
framework in response to the evolving needs and aspirations of a changing society.
National Green Tribunal Act, vividly illustrate the ever-evolving nature of law. As
environmental concerns gain prominence, these laws adapt to address emerging
challenges, reflecting India's commitment to evolving legal frameworks that respond
to changing societal needs and environmental imperatives.

The Right to Information Act (RTI) of 2005 in India serves as a comprehensive

example of normative, authoritative, social order, and ever-evolving dimensions
in law.
Normative: Citizens employing the RTI Act to scrutinize government schemes
establish a normative standard, holding authorities accountable for transparency and
effective execution.
Authority and Enforcement: The Act's authority is evident in stringent enforcement
through Information Commissions, which penalize non-compliance, ensuring
accountability in the dissemination of information to citizens.
Social Order: Contributing to social order, the RTI Act empowers citizens to access
information, fostering an informed populace. Inquiries into pollution levels, for
instance, showcase its role in promoting accountability and responsible governance.
Ever-Evolving: The Act's ever-evolving nature is demonstrated through amendments
and extensions, such as its adaptation to the post-Article 370 abrogation scenario. This
showcases its responsiveness to geopolitical changes and its commitment to
addressing emerging challenges.
In essence, the RTI Act is a dynamic legal framework that not only sets standards and
ensures compliance but also empowers citizens, fosters social order, and evolves to
meet emerging challenges.

VARIOUS THINKERS AND SCHOOLS OF LAW

Morris writes: "To a zoologist, a horse suggests the genus mammalian quadruped,
to a traveller a means of transportation, to an average man the sports of kings, to
certain nations an article of food”.
Prof. Keeton rightly points out that "to attempt to establish a single satisfactory
definition of law is to seek to confine jurisprudence within a straitjacket from which
it is continually striving to escape".
In simpler terms, Morris compares how people see a horse differently, just like how
there are various definitions of law. Different folks have diverse opinions on what law
really is. Trying to come up with just one definition for law is like trying to squeeze
legal thinking into a tight box, and Prof. Keeton rightly points out that it's not a
good idea. It's because law changes with society, and if we stick it in a strict
definition, we might miss how it evolves to meet the changing needs of people. So,
just like a horse can mean different things to different people, the concept of law is
open to various interpretations.
Stand taken by various thinkers and subsequently different schools of
jurisprudence.
Jurists have approached the definition of law from various perspectives, resulting in
different terms and concepts across different legal systems. In Hindu jurisprudence,
law is referred to as 'Dharma,' capturing its moral and ethical dimensions. In
Islamic systems, the term used is 'Hukum,' emphasizing the divine and
authoritative nature of law. The Romans identified law as 'Jus,' reflecting its sense
of justice and fairness.
 In Germany, it is known as 'Richt,' and in France, it is called 'Driot,' highlighting
the cultural and linguistic variations in expressing legal concepts.

1.
John Austin:
• Statement: "Law is a command of sovereign backed by sanction."
• Analysis: Austin's legal positivism asserts the authoritative nature of
law, emphasizing the role of sovereign commands and associated
sanctions. This perspective focuses on the enforcement aspect of law
within a political framework.
• Example: The implementation of traffic laws, where the government
(sovereign) issues commands (traffic rules) backed by sanctions (fines
or penalties) for non-compliance.
2. Immanuel Kant:
• Statement: "Sum total of the conditions under which the personal
wishes of one man can be combined with the personal wishes of
another man in accordance with the general law of freedom."
• Analysis: Kant's emphasis on harmonizing personal wishes within a
framework of general freedom underscores the ethical and
individualistic dimensions of law, promoting coexistence within societal
norms.
• Example: Contract law, where individuals voluntarily enter agreements
based on mutual consent, aligning with the general law of freedom.
3. Professor Hart:
• Statement: "Law is a system of rules, a union of primary and
secondary rules."
• Analysis: Hart's distinction between primary and secondary rules
provides an analytical framework, highlighting the dual role of rules in
prescribing behavior and governing the creation of new rules within
legal systems.
• Example: Criminal law (primary rule) and legislative procedures
(secondary rule) demonstrate the union of rules in maintaining legal
order.
4. Marxist Theories:
 • Statement: “Marxist theories view law as a tool of oppression used by
capitalists to control the proletariat”
• Analysis: This perspective critically examines law's socio-economic
role, portraying it as a mechanism for maintaining existing power
structures and perpetuating societal inequalities.
• Example: The Patco Strike (1981):
• Background: The Professional Air Traffic Controllers Organization
(PATCO) strike involved air traffic controllers demanding better
working conditions and higher wages. The Reagan administration
responded by firing the striking workers, decertifying the union, and
imposing legal penalties.
Relevance to Marxist Theory: This case illustrates how legal actions,
in support of corporate interests, can undermine collective bargaining
rights and weaken labor movements.

5. St Thomas Aquinas:
• Statement: "Nothing else than an ordinance of reason for the common
good, made by him who has care of the community, and promulgated."
• Analysis: Aquinas grounds law in reason and the common good,
highlighting its ethical foundation and emphasizing its role in promoting
communal well-being and justice.
• Example: Environmental protection laws aimed at ensuring the common
good by preserving natural resources for future generations.
6. Thomas Hobbes:
• Statement: "Law is the formal glue that holds fundamentally
disorganised societies together."
• Analysis: Hobbes' pragmatic view emphasizes the stabilizing role of law
in preventing societal chaos, portraying it as a necessary binding force
for organized coexistence.
• Example: Constitutional law, providing a formal structure that holds
diverse societies together by defining the powers and limits of
government.
7. Glanville Williams:
 • Statement: "Law is the cement of society and also an essential medium
of change. Knowledge of law increases one’s understanding of public
affairs."
• Analysis: Williams recognizes law's dual function as a stabilizing force
and a dynamic instrument for societal change, highlighting its role in
maintaining cohesion and facilitating progressive transformations.
• Example: Civil rights legislation, such as the Civil Rights Act of 1964,
serves as both a cement of societal values and a medium for
transformative social change.

DEFINATIONAL PROBLEMS:
Ambiguity: Ambiguity in legal language can create uncertainty and disputes.
Example: The Second Amendment to the U.S. Constitution protects the "right of the
people to keep and bear Arms." The term "arms" has been subject to interpretation,
leading to debates over whether it includes only firearms or extends to other weapons.
In cases like District of Columbia v. Heller (2008), the interpretation of "arms"
played a crucial role in the legal decision regarding gun control.
Cultural Relativism: Legal concepts may carry cultural meanings that vary across
societies.
Example: The concept of defamation varies globally. In some countries, criticizing
public figures might be protected as free speech, while in others, it can lead to legal
action. For instance, the legal treatment of satire or political cartoons in one country
may differ from how they are treated in another, reflecting cultural relativism in legal
interpretations.
Evolution of Legal Definitions: The dynamic nature of society challenges static legal
definitions.
Example: Privacy laws in the digital age face challenges in defining the scope of
privacy. In the case of Carpenter v. United States (2018), the U.S. Supreme Court
grappled with the definition of privacy concerning cell phone location data. The ruling
acknowledged the evolving nature of technology and its impact on privacy
expectations, highlighting the need for legal definitions to adapt.

ADDRESSING:
Suppose there’s a dispute over the definition of “wetlands” in a law designed to
protect such areas. Different parties might have different interpretations of what
constitutes a “wetland”. For instance, one party might argue that any area with water-
saturated soil should be considered a wetland, while another might contend that the
presence of certain plant species is also necessary.
Here’s how we might address this definitional problem:
1. Clarify the Terminology: We could start by consulting scientific literature or
experts to gain a clearer understanding of what “wetlands” typically refers to
in an ecological context.
2. Use Precise Language: Once we have a better understanding of the term, we
could propose a more precise definition. For example, we might define
“wetlands” as “areas where water covers the soil or is present either at or near
the surface of the soil all year or for varying periods of time during the year,
including during the growing season.”
3. Establish Common Ground: We could then present this definition to all
parties involved and see if they can agree on it.
4. Engage in Mediation: If there’s still disagreement, we might bring in a neutral
third party with expertise in environmental science and law to help mediate the
discussion.
5. Continuous Learning and Adaptation: As our understanding of wetlands
evolves, we might need to update the definition accordingly.
This is just one example, and the exact approach might vary depending on the specific
law and definitional problem at hand.

VARIOUS SCHOOLS OF JURISPRUDENCE

Jurists, across various times and places, approach the study of law from diverse
angles, defining its nature, sources, and discussing its purpose. These approaches
categorize jurists into different schools, aiding the comprehension of legal
philosophy's evolution. While not exhaustive or precise, this division facilitates the
understanding of differing perspectives within the realm of legal thought.
ANALYTICAL SCHOOL
Analytical School, also known as the Positive School or Austinian School, is
characterized by its focus on law as it currently exists, devoid of considerations for its
past or future. Founded by John Austin, it emphasizes the law's current state
("positum"). The central idea is that law is a general command of the sovereign,
enforceable with sanctions, emphasizing the separation of law from morals. The
analytical school, dominant in England, insists on studying law objectively,
irrespective of moral considerations or historical evolution.

Father : John Austin

Jurists : Salmond, Austin, Bentham
MAIN PROPONENTS:
JOHN AUSTIN:
John Austin's Analytical School:
Statement: John Austin, the founder of the Analytical School, defined law as the
command of the sovereign backed by sanctions. He asserted that law was an
expression of the sovereign's power, enforced through coercive methods, particularly
the threat of sanctions, to keep political inferiors under control.
Austin severed the connection between law and morality, emphasizing that law
derives authority from the sovereign's power rather than moral ideals.

Example of "Law as a Command of Sovereign Backed by Sanction":

Scenario: Speed Limit Enforcement
In many countries, the imposition of speed limits on roadways exemplifies the concept
of "law as a command of sovereign backed by sanction."
1. Law as a Command:
• Explanation: Governments enact speed limits, specifying the maximum
allowable speed for vehicles on different types of roads. For instance, a
sign indicating a speed limit of 60 kilometers per hour on a certain road
is a command from the sovereign (government) to drivers.
2. Backed by Sanction:
• Explanation: The sanction backing this command is the enforcement
mechanism in place to penalize those who violate the speed limit.
Common sanctions include fines, points on driving records, or, in severe
cases, license suspension.
• Example: If a driver exceeds the posted speed limit and is caught by law
enforcement, they may receive a speeding ticket (fine) or face additional
penalties such as points on their driving record. The sanction reinforces
compliance with the sovereign's command regarding speed limits.
3. Expression of Sovereign's Power:
• Explanation: The government, as the sovereign authority, has the
legislative power to establish traffic laws, including speed limits. These
laws express the authority of the government to regulate behavior on
public roads.
 • Example: The legislative body, representing the sovereign, enacts laws
that define speed limits. The government agencies responsible for traffic
management and law enforcement implement and enforce these laws.
4. Severance of Law from Morality:
• Explanation: Speed limits are not inherently moral or immoral; they are
regulatory measures designed to enhance public safety. Austin's concept
underscores that the legitimacy of such laws does not depend on moral
judgments.

Example: While individuals may have personal opinions on what

constitutes a reasonable speed, the law itself is concerned with
establishing a standard for public safety rather than moral judgments
about speeding behavior.
Merits:
1. Definite and Consistent Framework:
• Explanation: Austin's theory provided a clear and consistent framework
that separated law from morality, contributing to the clarity of
expression.
• Real-life Example: In criminal law, where sanctions such as
imprisonment are applied for unlawful acts, Austin's emphasis on the
coercive nature of law is evident.
2. Foundational Theory for Jurisprudence:
• Explanation: Austin's theory served as a foundational theory, sparking
the development of subsequent jurisprudential theories that either
supported or opposed it.
• Real-life Example: The Analytical School influenced legal thought
globally, shaping legal education and practice, illustrating its
foundational impact.
Neo-Austinian School (H.L.A. Hart):
H.L.A. Hart's modification of Analytical School ideas, known as the
Neo-Austinian School, introduced the concept of secondary rules and
refined the relationship between law and morality.
Recognition of legal principles alongside rules in judicial decisions
illustrates the impact of Neo-Austinian thought.
Legal Realism:
 A prominent school, critiqued the formalism of Analytical
Jurisprudence. Realists, such as Oliver Wendell Holmes Jr., argued that
legal decisions are influenced by judges' personal and subjective
considerations.
Demerits:
1. Limited View of Sanctions as the Sole Motivator:
• Explanation: The theory's assertion that the threat of sanctions alone
motivates obedience to laws is challenged by the role of social norms,
morality, and belief in the law.
• Real-life Example: In traffic regulations, individuals may comply with
speed limits not only due to the threat of fines (sanctions) but also for
safety concerns, questioning Austin's sole reliance on sanctions.

2. Exclusion of the Sovereign from Legal Constraints:

• Explanation: Austin's exclusion of the sovereign from following the law
becomes problematic in modern legal systems where laws are expected
to apply universally.
• Real-life Example: In democracies, leaders are subject to the same laws
as citizens, contradicting Austin's idea that the sovereign is exempt.
In-depth Analysis: John Austin's Analytical School, while influential, has limitations.
Its rigid focus on sanctions as the primary motivator oversimplifies human
behaviour, overlooking the nuanced reasons individuals obey laws. The exclusion of
the sovereign from legal constraints reflects an outdated view in contemporary legal
systems where the rule of law prevails. Despite these drawbacks, Austin's
contributions laid the groundwork for jurisprudential exploration and provided
valuable insights into legal theory.

1) Bentham's View on Analytical School: Jeremy Bentham, a key figure in the

Analytical School of jurisprudence, subscribed to legal positivism. According to him,
law is the expression of the sovereign's will and is divorced from moral
considerations. Bentham treated legal theory as a scientific investigation guided by
experimentation and reasoning. He introduced the concept of legal positivism,
emphasizing the sovereign's authority and the need for sanctions to enforce laws.
2) Two Main Merits of Bentham's View:
a) Limiting Sovereign Power:
 • Explanation: Bentham's approach recognizes the ability of external agencies,
such as international treaties, to limit the absolute power of the sovereign. This
pragmatic aspect aligns with the complexities of real-world governance.
• Real-life Examples:
1. International Treaties: Agreements between nations, like
environmental treaties limiting certain activities, showcase the practical
limitation of sovereign power beyond national borders.
2. Trade Agreements: Treaties regulating trade demonstrate how external
agreements influence a sovereign state's economic policies.

b) Utilitarianism and Majority Benefit:

• Explanation: Bentham's Principle of Utility, measuring laws based on
maximizing good for the majority, introduces a utilitarian perspective that
aligns with modern democratic ideals.
• Examples:
1. Public Welfare Policies: Laws promoting public welfare, such as
healthcare reforms or social security measures, reflect the utilitarian
influence by prioritizing benefits for the majority.
2. Infrastructure Development: Legal decisions favoring infrastructure
projects for the broader community, despite potential inconveniences to
a few, exemplify the utilitarian consideration of overall benefit.
c) Jeremy Bentham refers to the "scientific method of reasoning and
experimenting" in the context of legal positivism:

Empirical Observation and Legislative Reform:

• Explanation: Bentham emphasized the need for empirical observation of
legal systems, focusing on real-world facts rather than abstract theories.
He advocated studying how laws function in practice to identify
inefficiencies, inconsistencies, and injustices.
• Example: In the area of criminal law, Bentham conducted empirical
analyses of legal practices, including the examination of penal codes and
the actual outcomes of legal proceedings. His work "Rationale of
Judicial Evidence" critiqued existing legal practices, providing a basis
for legislative reforms such as changes in rules of evidence and
procedures in criminal trials.
 • Example: In recent times, empirical studies on the effectiveness of
criminal justice policies, such as the analysis of the impact of sentencing
guidelines on reducing recidivism rates, align with Bentham's emphasis
on empirical observation. These studies inform policymakers about the
practical outcomes of legal rules, contributing to evidence-based
reforms.
2. Utilitarian Calculus and Quantitative Analysis:
• Explanation: Bentham introduced a utilitarian calculus, urging the
quantitative assessment of legal rules based on their utility in
maximizing pleasure and minimizing pain. He sought to bring a
scientific and measurable dimension to legal analysis.
• Example: In the realm of legislative decision-making, Bentham
proposed the concept of "felicific calculus" to quantitatively evaluate
the consequences of laws. For instance, when considering criminal laws,
he argued that the severity of punishment should be proportionate to the
harm caused, as measured by the degree of pain or pleasure resulting
from the legal rules. This utilitarian approach aimed at making legal
analysis more objective and measurable.
• Example: Bentham's utilitarian calculus finds resonance in
contemporary cost-benefit analyses applied to legal regulations. For
example, policymakers may assess the economic and social impact of
environmental regulations to ensure a balance between ecological
conservation and economic development. This reflects a Benthamite
approach to quantifying the utility of legal rules.

Two Main Demerits of Bentham's Approach:

a) Absence of Definition for the Legal System:
• Explanation: One significant demerit of Bentham's approach is the lack of a
concrete definition for the legal system. His failure to establish a clear
connection between the concept of sovereignty and the contemporary legal
system leaves a theoretical gap that hinders a comprehensive understanding of
the legal framework.
• Real-life Examples:
1. Constitutional Ambiguities: In modern constitutional law, the absence
of a precise definition akin to Bentham's theoretical framework can lead
to interpretational ambiguities. Constitutional provisions may be subject
to diverse interpretations, creating legal debates and uncertainties.
 2. Legal Pluralism: The concept's limitation becomes apparent in
multicultural societies where legal systems may coexist, and Bentham's
approach offers limited guidance in navigating the complexities of legal
pluralism.
b) Majoritarian Tendency and Minority Rights:
• Explanation: Bentham's utility-based evaluation tends to legitimize
majoritarianism, potentially overlooking the protection of minority rights.
The consequentialist nature of his theory may not adequately address the need
to safeguard individual liberties against the will of the majority.
• Real-life Examples:
1. Civil Rights Movements: Instances where legal systems, influenced by
Benthamite principles, prioritize the preferences of the majority over
minority rights can be observed in historical civil rights movements.
Discriminatory laws and practices persisted despite their adverse impact
on minority communities.
2. LGBTQ+ Rights: Legal contexts where the rights of the LGBTQ+
community were subordinated to majority opinions exemplify the
limitations of Bentham's approach in ensuring equal protection for all
individuals.

Aspect Bentham's Legal Positivism Austin's Analytical School

Founder Jeremy Bentham, an English philosopher and John Austin, a legal theorist in the
jurist, pioneered legal positivism. His ideas early 19th century, is regarded as
significantly influenced the development of the founder of analytical
this school. jurisprudence. His work laid the
groundwork for legal positivism.
Definition of Bentham viewed law as the expression of Austin's definition emphasized that
Law sovereign will, a command to be followed. law is a command backed by
His focus was on the observable commands sanctions, emphasizing the
of those in power. coercive aspect of legal rules. He
concentrated on the sovereign's
authority.
Relation to Bentham's legal positivism separates law from Austin also asserted the separation
Morality morality. According to him, the legitimacy of of law and morality, believing that
law does not depend on its moral content. the law's validity is not contingent
on moral considerations. His focus
was on the sovereign's command.
Sanctions Bentham's legal positivism introduces the idea Austin's analytical school
of both positive and negative sanctions, predominantly emphasized
including rewards for compliance and negative sanctions, such as
 punishments for disobedience. This punishment for lawbreaking. His
expanded view provides a more nuanced focus was on the coercive nature of
understanding of legal enforcement. legal rules.
Sovereign's Bentham recognized that sovereign power Austin, in contrast, asserted the
Power could be limited through external factors like absolute nature of sovereign
international treaties. This acknowledgment power. His perspective did not
adds a layer of pragmatism, acknowledging delve into external limitations on
constraints on absolute power. the sovereign's authority.
Legal System Bentham's legal positivism lacked a precise Austin's analytical school did not
Definition definition for the legal system. Instead, the provide a comprehensive definition
emphasis was on identifying and analyzing the of the legal system but highlighted
observable commands of those in power. the coercive aspect of laws without
explicitly defining the system.
Utility Bentham introduced the "Principle of Austin did not incorporate a utility-
Principle Utility," evaluating laws based on their based principle into his analytical
contribution to the overall good. This school. His focus remained on the
utilitarian approach aimed to maximize sovereign's command and its
benefits for the majority. enforcement.
Majoritarian Bentham's legal positivism tends to legitimize Austin's analytical school, while not
Tendency majoritarianism, as the views of the explicitly majoritarian, places
majority are emphasized for the greater good. significant emphasis on the
This perspective aligns with utilitarian sovereign's command without
principles. direct consideration for majority
opinions.
Connection to Bentham's legal positivism has limited direct Austin's analytical school also has
Modern connection to modern democracy, as it limited applicability to modern
Democracy emphasizes the authority of the sovereign democracy, as it asserts the
rather than democratic principles. absolute power of the sovereign
without considerations for
democratic governance.
NATURAL LAW

Natural Law is a philosophical and ethical theory asserting that universal moral
principles, inherent in every human being, are either derived from a divine source or
discoverable through reason. It focuses on what the law "ought to be" and transcends
political or state-like entities, emphasizing a moral order inherent in human nature,
often attributed to a divine or godly origin. This concept suggests that fundamental
ethical principles are inherent in every individual and serve as a guide for shaping
laws and human conduct.
Real-life Specific Example: The abolition of apartheid in South Africa serves as a
real-life manifestation of Natural Law principles.
1. Divine or God:
• Explanation: The struggle against apartheid was often framed in moral
and religious terms, with many activists invoking divine principles of
justice and equality.
• Example: Religious leaders, such as Archbishop Desmond Tutu,
played a crucial role in the anti-apartheid movement, framing their
opposition to racial segregation as a moral imperative rooted in divine
principles.
2. Inherent in Every Human:
• Explanation: The fight against apartheid was grounded in the belief that
equality and human dignity are inherent rights possessed by every
individual, regardless of race.
• Example: The Universal Declaration of Human Rights, adopted by the
United Nations in 1948, reflects a global acknowledgment that certain
rights are inherent in every human being. The struggle against apartheid
drew upon these universal principles, asserting the inherent dignity and
equality of all individuals.
 3. What Law Ought to Be:
• Explanation: The anti-apartheid movement challenged the existing legal
framework of racial segregation, asserting that the law ought to reflect
principles of equality and justice.
• Example: The legal dismantling of apartheid in South Africa, marked by
the end of discriminatory laws and the establishment of a democratic,
non-racial state, exemplifies the transformation of law to align with the
moral principles of what law ought to be.

4. Goes Beyond Political or State-like Entity:

• Explanation: The struggle against apartheid went beyond challenging a
specific political regime; it aimed at dismantling a system that violated
fundamental moral principles.
• Example: International support for the anti-apartheid movement,
including economic sanctions and diplomatic pressure, demonstrated a
global recognition that the fight against apartheid transcended national
borders and political entities. The condemnation of apartheid reflected a
collective adherence to moral principles beyond the confines of state
authority.

St. Thomas Aquinas’s:

View on Natural Law: St. Aquinas considered natural law as a part of divine law,
emphasizing that laws are the means to achieve certain ends, and conforming to divine
law is essential for moral progress.
Merits:
Right to Rebel: Aquinas allows for the right to rebel in certain situations,
provided it leads to a better outcome. This flexibility in acknowledging
resistance as morally just is a merit, allowing for adaptation to changing
circumstances.
American Civil Rights Movement (1950s-1960s): The movement, led by
figures like Martin Luther King Jr., sought to rebel against racial
segregation and discrimination. This aligns with Aquinas's idea of justified
rebellion for a better outcome.
Idea of Perfection: St. Thomas Aquinas's concept of natural law is
intricately tied to the idea of perfection, and this notion gains significance
 when understood in the historical context of the time in which Aquinas
formulated his theories, particularly in the aftermath of the Dark Ages.
The Dark Ages, characterized by social and intellectual stagnation, marked
a period of decline in knowledge, education, and cultural advancement in
Europe.This era saw a decline in the influence of classical philosophy and a
dominance of religious dogma that often-hindered intellectual inquiry.
St. Thomas Aquinas, living in the 13th century, sought to reconcile faith
and reason. His works, especially "Summa Theologica," aimed to
harmonize Christian theology with the rational insights of classical
philosophy, particularly that of Aristotle.

Demerits:
• Not Conforming to Secular State Ideals: Aquinas's theory does not align with
modern ideals of a secular state, raising concerns about the separation of
religion from governance.
Indian Secularism: In India, the concept of secularism in governance aims to
maintain religious neutrality, diverging from Aquinas's approach, where
religious conformity is integral to legal principles.
• Relativity of Morality: Critics argue that goodness is not universally defined
by nature, making Aquinas's theory less analysable and applicable across
diverse belief systems. Views on LGBTQ+ rights vary globally, with some
societies embracing equality and acceptance, while others adhere to traditional
beliefs opposing such rights. This diversity challenges the notion of a
universally applicable natural law based on Aquinas's principles.

John Locke
According to Locke, before the conception of a State, humans lived in a peaceful
state of nature. In this state of nature, a man possessed all the rights nature could give
him. Men were born with the right to life and liberty. Men also had a right to property
but lacked the means and organization to protect this right. Thus, they entered into a
social contract to form a political society.
Merits:
Emphasis on Natural, Inalienable Rights:
 • Explanation: Locke's theory posits that individuals possess certain inherent
and inalienable rights, such as life, liberty, and property. These rights are not
granted by any authority but are a natural part of being human.
• Real-life example: The American Declaration of Independence draws heavily
from Locke's ideas. The phrase "Life, Liberty, and the pursuit of Happiness"
reflects Locke's emphasis on natural rights. The founders of the United States,
including Thomas Jefferson, were influenced by Locke's philosophy when
articulating the basis for their separation from British rule.
Discouraging Blind Faith in Authorities:
• Explanation: Locke's philosophy challenges unquestioning obedience to
authority, encouraging people to think critically and assert their rights against
oppressive powers.
• Real-life example: The Enlightenment era, during which Locke's ideas gained
prominence, saw a rise in skepticism toward absolute monarchies and religious
dogma. The French Revolution, influenced by Enlightenment ideals,
challenged the authority of the monarchy and the church, reflecting the
rejection of blind faith in traditional authorities.

Demerits of John Locke's Approach:

1. Exclusion of Women's Rights and Justification of Slavery:
• Locke's emphasis on individual rights appears to overlook women, and
his justification of slavery based on the forfeiture of freedom upon
capture is a subject of criticism.
• Implications: Locke's ideas on slavery influenced the transatlantic
slave trade, where slaveholders exploited similar notions to legitimize
the subjugation of Africans, resulting in a system that ignored
fundamental human rights, particularly related to race.
2. Overemphasis on Human Liberty and Potential for Anarchy:
• Locke's strong advocacy for individual liberty faces critique for
potential excess, with opponents arguing that an unrestrained focus on
freedom may lead to societal anarchy, necessitating certain restrictions
for social harmony.
• Example: Contemporary debates on gun control in the United States
highlight the clash between the assertion of the right to bear arms as an
expression of individual liberty and concerns that unregulated gun
ownership could compromise public safety.
3. Lack of Historical Evidence for the Social Contract:
• Critics question the historical basis of Locke's social contract theory,
asserting a lack of concrete evidence for explicit consent from
individuals in the past regarding the establishment of a governing state.
• Example: David Hume's contemporaneous critique underscores
skepticism, emphasizing the absence of observable historical evidence
supporting the collective agreement among individuals to form a
government, challenging the historical underpinnings of Locke's theory.

Aspect Natural Law School Analytical School

Nature of Law Law is an objective reality Law is a social artifact, a product of
grounded in universal moral human will, and lacks inherent moral
principles. content.
Source of Law Derives from a higher, Originates from the will and command
divine order, reason, and of the sovereign, with no necessary
objective moral principles. connection to morality.
Metaphysical Posits a metaphysical basis Rejects metaphysical claims and
Basis for law, often tied to a focuses on empirical, observable
transcendent moral order. aspects of law and its enforcement.
Relationship Law and morality are Seeks to separate law from morality;
with Morality intertwined; an unjust law is the validity of law is not contingent on
not considered valid. its moral justification.
Role of Judges Judges play a role in Judges are seen as applying the law as
interpreting and applying it is written, with a focus on legislative
moral principles to legal intent rather than moral considerations.
cases.
Flexibility and Flexibility in adapting to Generally rigid, changes through
Change evolving moral norms and legislative action rather than
principles. reinterpretation based on moral
evolution.
Critique of Criticizes legal positivism Emphasizes the importance of a clear,
Positivism for allowing potentially predictable legal system, regardless of
immoral laws to be valid. the moral content of laws.
Role of Morality Advocates for morality as a Rejects the necessity of moral
in Lawmaking guide in the creation of just considerations in lawmaking, focusing
laws. on the practicalities of governance.
Examples in Thomas Aquinas , John John Austin, H.L.A. Hart, and Jeremy
Legal Philosophy locke. Bentham.
Nuremberg Laws in Germany

Background: The Nuremberg Laws, established by Nazi Germany in 1935, were

discriminatory measures against Jews and non-Aryans. They played a significant role
in the persecution of minorities during the Holocaust.

Positivist Perspective: A legal positivist would argue that, during their enactment,
the Nuremberg Laws were legally valid under German law. Positivists stress that for a
law to be valid, it must follow established legal procedures. In this case, the laws were
passed by the Nazi government and, from a positivist standpoint, were legally valid
during that period.

Natural Law Perspective: From a natural law perspective, the Nuremberg Laws
would face strong condemnation. Natural law theorists assert that laws should align
with fundamental moral principles, and these laws were deeply immoral, promoting
discrimination and persecution. The violation of basic human rights under these laws
would be seen as inherently unjust and contrary to natural law principles.

Outcome: The Nuremberg Laws were later annulled after World War II. The
Nuremberg Trials, aimed at prosecuting war criminals, highlighted those certain laws,
even if legally enacted, can be morally reprehensible and subject to international
condemnation. This example underscores the tension between legal positivism and
natural law when assessing the morality and validity of historical legal enactments.
HISTORICAL SCHOOL
The Historical School of Jurisprudence posits that law is shaped by a society's
historical evolution and collective consciousness. It rejects the notion of artificially
creating laws and emphasizes their organic emergence from social customs and
traditions. According to this school, comprehending law requires a historical
perspective, as laws are discovered within the cultural and historical context of a
community.

Key Tenets of the Historical School:

1. Law as Reflective of the Spirit of the People:
• The Historical School, epitomized by Savigny, contends that law is not
an abstract set of rules but a living reflection of the "spirit of the
people" (Volksgeist). Legal systems, according to this tenet, evolve in
harmony with a community's historical experiences, cultural values, and
collective identity.
• Significance: This perspective rejects the notion that law is a product of
deliberate legislation detached from societal context. Instead, it sees law
as intimately connected to the ethos and traditions of the people it
governs.
• Example: The development of Scottish law, distinct from English law
due to Scotland's unique historical and cultural identity, exemplifies how
legal systems mirror the spirit of a specific community.
2. Evolutionary Nature of Legal Principles:
• The Historical School posits that legal principles do not emerge abruptly
or through revolutionary acts but undergo an evolutionary process.
Legal norms develop gradually over time, shaped by historical forces,
social customs, conventions, and economic relations.
 • Significance: This challenges the idea of law as a static and abstract set
of rules. Instead, it sees law as a dynamic and evolving entity that adapts
to the changing needs and values of a community.
• Example: The evolution of property rights in post-apartheid South
Africa, transitioning from a history of discriminatory land policies,
illustrates the adaptive nature of legal principles responding to societal
changes.
3. Laws Are Found, Not Made:
• In contrast to the belief that laws are artificially created through
legislation, the Historical School holds that laws are discovered within
the historical context of a society.
Legal rules are seen as emerging organically from the cultural, religious,
and economic fabric of a community.
• Significance: This view challenges the positivist notion that law is a
product of sovereign will. It suggests that laws have a deeper, intrinsic
connection to the historical and cultural roots of a society.
• Example: The unwritten constitution of the United Kingdom, deeply
rooted in historical documents, conventions, and traditions, exemplifies
the idea that laws are found within a nation's historical fabric.
4. Origins in Social Customs and Consciousness:
• The Historical School argues that law originates from the social
customs, conventions, religious principles, and economic needs of the
people. It sees the general consciousness of the population as the
foundation of legal principles.
• Significance: This aspect highlights the interconnectedness of law with
societal practices and beliefs, emphasizing that legal norms are deeply
embedded in the broader context of social life.
• Example: The customary legal systems in indigenous communities,
such as the Maori legal traditions in New Zealand, showcase legal
principles deeply rooted in social customs and communal consciousness.

Real-Life Example Illustrating Key Tenets of the Historical School:

Context: The development of the Magna Carta (1215) in medieval England serves
as another notable example illustrating the key tenets of the Historical School.
1. Law as Reflective of the Spirit of the People:
 • Example: The Magna Carta was a response to the perceived abuses of
King John's rule and reflected the spirit of English barons seeking to
limit royal authority. It symbolized a collective effort to address
grievances and protect the rights of feudal lords.
2. Evolutionary Nature of Legal Principles:
• Example: Over time, the Magna Carta underwent revisions and
reissues, such as the 1216 and 1225 versions. Each adaptation
responded to changing political circumstances, demonstrating an
evolutionary approach to legal principles in response to the shifting
dynamics of medieval England.

3. Laws Are Found, Not Made:

• Example: The Magna Carta drew upon established legal traditions and
customs that were seen as inherent rights. It did not create entirely new
laws but sought to reaffirm and codify existing norms, emphasizing the
notion that laws were discovered within the historical context.
4. Origins in Social Customs and Consciousness:
• Example: The clauses of the Magna Carta addressed issues deeply tied
to social and economic concerns of the time, such as inheritance,
taxation, and protection against arbitrary arrest. These provisions were
rooted in the social customs and consciousness of medieval England.
Significance: The Magna Carta exemplifies how legal principles can emerge
organically from historical circumstances, reflecting the collective spirit of a society. It
underscores the Historical School's perspective that laws are not arbitrary creations
but are deeply embedded in the historical and cultural fabric of a community.

• Friedrich Carl Van Savigny:

He believed that this popular consciousness was the most authentic expression
of the will of the people and it evolved with society. The legislation, according
to this theory, was valuable only if it respected social norms and customs.
Merits
Recognition of Popular Will and Evolution of Law:
• Savigny believed that law should reflect the popular will of the people
and evolve with the changes in society. This perspective recognizes the
dynamic nature of law and its responsiveness to societal needs.
 • Example: In the context of German law, Savigny argued that the
German legal system should be based on the historical development of
the German people, taking into account their customs and traditions. He
opposed the imposition of a codified system, such as the Napoleonic
Code, which he believed would not align with the historical
consciousness of the German people.

Emphasis on Social Norms and Customary Law:

• According to Savigny, the legislation is valuable only if it respects the
social norms and customs of a society. He stressed the importance of
customary law as an authentic expression of the people's will.
• Example: Savigny's ideas influenced the development of family law. In
the case of marriage, for instance, he argued that the legal institution of
marriage should be shaped by the historical development of family
relations and not be subject to arbitrary legislative changes. This
perspective contributed to the recognition of the significance of family
customs in the legal system.

DEMRITS:
1. Neglect of Social Issues and Change:
• Demerit: Savigny's emphasis on the historical development of law and
the national character may neglect pressing social issues and fail to
address the need for legal evolution in response to changing societal
values.
• Example: In the context of apartheid in South Africa, Savigny's
approach might struggle to provide a comprehensive understanding of
the legal challenges and social injustices faced by marginalized
communities. The legal system needed significant changes to address
racial discrimination, which were achieved through constitutional
reforms and the establishment of the Truth and Reconciliation
Commission.
• Savigny's focus on historical continuity might not adequately capture the
imperative for legal change in response to egregious social issues.
2. Ignoring Judge-Made Law:
• Demerit: Savigny's theory downplays the role of judges in making law,
which might limit the adaptability and creativity of the legal system in
responding to new challenges.
 • Example: In the United States, the development of constitutional rights
through landmark Supreme Court decisions, such as Brown v. Board of
Education (1954) regarding racial segregation in schools, illustrates
the importance of judge-made law. The legal system's ability to address
and rectify societal injustices relies on judicial interpretation and
decisions that can shape the legal landscape.
• Savigny's neglect of this aspect may hinder the understanding of how
the legal system evolves through dynamic judicial contributions.
These examples demonstrate situations where Savigny's theories might fall short in
explaining or addressing significant legal and social changes that required
interventions beyond the scope of historical continuity and popular consciousness.
VIEW OF MAINE: Sir Henry Maine introduced the 'Historical Comparative' or
'Anthropological Method' to study the evolution of law, tracing its progression from
kingly rule to the establishment of individual autonomy in progressive societies. His
approach emphasized the intrinsic connection between law and culture, critiqued
Savigny's theories, and underscored the gradual yet inevitable advancement of
societies.
TWO MAIN MERITS OF MAINE'S VIEW:
1. Correlation between Law and Culture:
• Explanation: Maine's theory posits a direct link between the evolution
of law and cultural dynamics. It suggests that the legal framework
adapts in response to changing cultural norms and values.
• Example: The legalization of marijuana in several Western countries,
like Canada and parts of the United States, aligns with Maine's
proposition. This specific legal evolution reflects the reciprocal
influence of law and evolving cultural values around recreational drug
use.
2. Balancing Sovereign and Popular Consciousness:
• Explanation: Maine advocated for a balance between sovereign
authority and collective public consciousness. In progressive societies,
legal transformations should encompass both governing bodies'
intentions and the shared sentiments of the populace.
• Example: The decriminalization of consensual homosexual acts in
India, exemplified by the Delhi High Court's decision in the Naz
Foundation case, reflects Maine's concept. The legal shift was a
response to changing societal attitudes and showcased the delicate
balance between sovereign authority and popular consciousness.
These examples underscore the applicability of Maine's theoretical framework,
portraying it as a valuable tool for comprehending the evolution of law within diverse
societal contexts.

DEMERTIS
1. Oversimplification of Evolutionary Stages:
• Explanation: Critics argue that Sir Henry Maine's theory faces scrutiny for
oversimplifying the intricate process of societal evolution into distinct stages.
The linear progression he proposes may not adequately capture the nuanced
dynamics and diverse trajectories that characterize the development of different
societies.
Example: The post-colonial experiences of African nations after gaining
independence serve as a real-life illustration. Each country followed a unique
trajectory with specific challenges, challenging the notion of a straightforward
evolution suggested by Maine.
2. Inapplicability to Totalitarian States:
• Explanation: Maine's theory is deemed inadequate when applied to
totalitarian states, especially in cases where movements towards freedom
coexist with a simultaneous regression marked by growing status disparities.
This limitation highlights a gap in Maine's conceptualization, particularly in
contexts where centralized power overrides individual liberties.
• Example: Consider the People's Republic of China, which, despite economic
liberalization, maintains stringent state control over political dissent and
individual freedoms. Maine's framework struggles to explain the complexities
of China's evolution, where economic progress coincides with political
authoritarianism, challenging the universality of Maine's proposed evolutionary
model.
These specific examples shed light on the criticisms levelled against Maine's theory,
illustrating its limitations in accommodating the diversity of societal trajectories and
its constrained applicability in contexts where authoritarianism and intricate power
dynamics defy the linear progression outlined by Maine.

Aspect Historical School Analytical School

Focus of Concentrates on the primitive legal Confines itself to mature legal
Attention institutions of society, exploring the systems, emphasizing the current
historical development of legal structure and functioning of
systems. established legal frameworks.
 Origin of Law Views law as found and self- Regards law as an arbitrary
existent, antecedent to the State, and command of the sovereign, a
existing even before the State comes deliberate product of legislation, and
into existence. contingent on political authority.
Source of Legal Considers typical law as custom, Views typical law as statutes, giving
Rules with the belief that human nature prominence to written laws enacted by
remains relatively constant, and law the sovereign, emphasizing legislative
derives from enduring customs. authority.
Validity and Holds that custom is the formal Asserts that custom is not law until its
Authority source of law, and other legal validity is established by judicial
evolution methods derive their decision or legislative act, with
authority from custom. statutory laws as the primary source.
Judicial Advocates considering the history of Encourages judges to confine
Interpretation a statute while interpreting it, themselves to a purely syllogistic
recognizing the importance of method, focusing on the text and logic
understanding its evolution. of the statute rather than its historical
context.

Consider the evolution of property rights in the context of the English feudal
system as a real-life example:
Historical School Perspective:
The Historical School would look at how property rights evolved from the customs
and practices of the feudal era. For instance, during the feudal period, land was the
primary form of property, and it was held in return for service, which could include
military duties1. The rights to these lands were often based on customs and traditions
that had been established over time. For example, if a tenant died without heirs, the
feudal lord had the right to take the tenant’s land2. These customs and traditions
formed the basis of property laws during the feudal era.
Analytical School Perspective:
On the other hand, the Analytical School would focus on the current laws governing
property rights, which have been enacted by the sovereign state. For example, in
modern England, property laws have been codified into statutes and legal codes.
These laws define the rights and responsibilities of property owners in a much more
detailed and specific way than the customs and traditions of the feudal era. The
Analytical School would argue that these laws are the product of deliberate legislation
and are enforced by the state

SOCIOLOGICAL SCHOOL OF LAW:

The Sociological School of Law is a legal perspective that views law as a social
phenomenon, emphasizing its close connection to the interests, values, and needs of
society. This school stresses the importance of harmony between the law and the
people's interests, focusing more on the practical and functional aspects of law rather
than its abstract content. According to this school, the state doesn't create laws but
formulates them to maintain social unity and satisfy societal needs.
1. Law as a Social Phenomenon:
• Explanation: The Sociological School perceives law not as an isolated
set of rules but as a dynamic social phenomenon deeply rooted in the
collective life of a community. It recognizes that legal systems evolve in
tandem with societal experiences, cultural values, and the overall ethos
of the people.
2. Harmony Between Law and People's Interests:
• Explanation: This tenet underscores the necessity of aligning legal
principles with the wishes and aspirations of the people.
• An apt example is the evolution of LGBTQ+ rights. Legal
advancements, such as the legalization of same-sex marriage in various
countries, reflect a harmonization of laws with changing societal norms
and values.
3. Focus on the Functional Aspect of Law:
• Explanation: The Sociological School emphasizes the practical
functions of law over its abstract contents. Consider environmental laws
aimed at regulating emissions. Legislation like the Paris Agreement
addresses the functional need for global environmental protection,
showcasing law as a tool to address real-world challenges.
4. State as a Formulator, Not Creator, of Laws:
• Explanation: According to this tenet, laws emerge from society, and the
state formulates rather than creates them. A pertinent example is the rise
of open-source legal initiatives. Projects like Creative Commons
involve collaborative efforts outside traditional legislative channels,
challenging the idea that laws are solely the product of state authority.

Pound's View: Roscoe Pound viewed the law as a method of 'social engineering,'
wherein the law serves as a tool to balance competing interests in society. He
categorized these interests into individual, public, and social interests.
Merits:
1. Holistic Understanding of Society-Law Relationship:
• Explanation: Pound's significant contribution lies in establishing a
crucial link between society, laws, and the administration of laws. His
 approach recognizes the intricate interplay between legal systems and
societal dynamics. For instance, consider the Clean Air Act in the
United States. This law addresses environmental concerns, balancing
individual interests in a healthy environment, the public interest in air
quality, and the broader social interest in sustainable ecosystems.
2. Balancing Competing Interests:
• Explanation: Pound highlighted the importance of acknowledging and
addressing various competing interests in society. An example is found
in the realm of intellectual property law. Copyright laws strike a balance
between individual creators' interests in protecting their work, the public
interest in access to creative content, and the social interest in fostering
innovation and artistic expression.

DEMERITS:
Subjectivity and Ambiguity in Interest Classification:
• Explanation: Pound's classification of individual, public, and social interests
lacks a standardized criterion, leading to subjective interpretations. This
ambiguity poses challenges in practical application. For instance, in debates
about welfare policies, providing financial aid to individuals may be viewed as
an individual interest by some and a social interest by others. The lack of clear
criteria can contribute to ongoing disputes and inconsistent legal
interpretations.
EXAMPLE:
Healthcare Policies - Affordable Care Act (ACA) in the United States: The
ACA demonstrates subjectivity and ambiguity in interest classification. Some
view it as addressing individual interests by providing affordable healthcare
coverage, while others argue it serves public health, benefiting society as a
whole through disease reduction and improved health outcomes.
Idealistic Assumption and Potential Political Bias:
• Explanation: Pound's emphasis on balancing conflicting interests assumes an
idealistic society where such a balance is achievable. Critics argue that in real-
world scenarios, achieving a perfect middle ground is challenging.
Furthermore, the theory has been criticized for potentially favouring libertarian
thought due to its assertion that individual interests are paramount.
EXAMPLE:
Environmental Regulations - Keystone XL Oil Pipeline in the United States:
 The Keystone XL pipeline debate illustrates the challenge of balancing
individual property rights and broader social interests. Proponents, often
leaning libertarian, emphasize job creation and economic growth as individual
and public benefits. Critics highlight environmental risks, framing them as
social concerns. This case underscores how political ideologies shape
perceptions of a fair balance between conflicting interests in the U.S.

Leon Duguit's View: Leon Duguit viewed the law as a 'social fact,' an inherent
aspect of human society, existing to maintain social solidarity. He rejected the idea of
an all-powerful State, considering it merely an institution codifying pre-existing
societal facts.
Emphasis on Social Solidarity:
Neighborhood Watch Programs: Duguit's emphasis on social solidarity finds
practical expression in initiatives like Neighborhood Watch Programs in US.
These programs illustrate how community members collaborate to enhance local
safety. Through collective action, they report suspicious activities, patrol
neighborhoods, and work in tandem with law enforcement agencies, showcasing a
tangible manifestation of social solidarity.
Rejection of All-Powerful State:
Duguit's rejection of an all-powerful state is observable in the emergence of
decentralized governance models, exemplified by the Zapatista autonomous
municipalities in Mexico. In these regions, local communities wield significant power
and autonomy, managing their affairs independently of the central government. This
governance model aligns with Duguit's vision of the state as an institution codifying
pre-existing societal facts rather than an omnipotent entity.

Demerits:
1. Ambiguity and Subjectivity in Defining Social Solidarity:
• Example: The concept of "social solidarity" lacks a clear and
universally accepted definition. This ambiguity is evident in debates
over laws affecting minority rights.
Example in India: Consider debates on the Uniform Civil Code.
Advocates argue it fosters national integration, promoting social
solidarity. Opponents assert it undermines cultural diversity, showcasing
the subjective nature of defining social solidarity in the Indian context.
2. Potential for Authoritarian Exploitation:
 • Leon's theory, emphasizing social solidarity over individual interests, has been
criticized for its susceptibility to authoritarian exploitation.
Fascist Regimes: Authoritarian regimes led by Adolf Hitler in Germany and
Benito Mussolini in Italy exploited the concept of social solidarity. They used
it to suppress dissent, concentrating power in the hands of a single leader or a
small elite.

Totalitarian Regimes: Totalitarian regimes, including the Cambodian regime

of Pol Pot and Soviet-dominated regimes in Eastern Europe during the Cold
War, also exploited the concept of social solidarity. State institutions were used
to indoctrinate citizens, fostering unwavering loyalty to the regime and its
leader.

2. Repackaging Natural Law: Duguit's theory, while claiming to reject Natural

Law, has been criticized for essentially repackaging the same idea. Critics
argue that the concept of 'social solidarity as a natural fact' echoes the
foundational principles of Natural Law, suggesting that the theory may not
represent a significant departure.

Aspect Historical School Sociological School

View of Law Sees law as a product of historical Perceives law as a dynamic social
evolution, deeply rooted in phenomenon, evolving to meet the
traditions and cultural heritage. changing needs and values of society.
Approach to Change is gradual, occurring Acknowledges and adapts to
Change organically over time as a result of contemporary societal changes,
historical forces and traditions. embracing a more flexible approach to
legal evolution.
Connection to Values legal traditions, customs, Values the harmony between law and
Tradition and and cultural heritage as the current societal values, placing
Customs foundation of legal principles. importance on adapting to present
customs and needs.
Source of Draws from historical customs, Derives legal norms from present
Legal conventions, and experiences of societal needs, interests, and the current
Principles the community. consciousness of the population.
and Norms

Difference through marriage law example:

Aspect Historical School Sociological School

 Approach Examines the historical Analyses contemporary marriage
development of marriage customs, customs, e.g., studying how digital
e.g., tracing the evolution of technologies impact modern dating
dowries and arranged marriages in practices
ancient cultures

Evolutionary Traces the evolution of marriage Emphasizes the societal functions of

Nature norms, e.g., showcasing how marriage laws, e.g., exploring how
dowries evolved into modern divorce laws accommodate changing
property rights within marriage attitudes toward marriage
dissolution

Laws Are Believes marriage laws emerge Explores how marriage laws respond
Found, Not organically, e.g., evolving from to current needs, e.g., adapting
Made cultural and religious practices over spousal rights to reflect evolving
centuries gender roles
Origin of Legal Roots legal principles in historical Sees legal principles as dynamic,
Principles practices, e.g., understanding e.g., examining how marriage laws
inheritance laws based on historical reflect shifts in values, gender roles,
family structures and family structures

These examples illustrate how the Historical School looks at the historical evolution
of marriage customs, while the Sociological School focuses on the present societal
functions and dynamics of marriage laws.
LEGAL REALISM:

Legal Realism is a contemporary branch of the Sociological School that prioritizes

judicial interpretation, focusing on the practical and pragmatic aspects of law. It
considers customary practices and contextual circumstances, aiming for a nuanced
understanding of legal principles through real-world applications and the impact of
judicial decisions. This approach diverges from abstract theories, offering a dynamic
and context-aware perspective within sociological jurisprudence.
Delve deeper into the tenets of Legal Realism:
1. Judicial Interpretation and Contextual Analysis: Legal realists believe that
judges should interpret laws in light of the societal context and changes. For
instance, in the landmark case of Brown v. Board of Education (1954), the
U.S. Supreme Court interpreted the Equal Protection Clause of the 14th
Amendment in a way that acknowledged the societal changes and the real-
world impact of racial segregation in schools. The court ruled that “separate
but equal” public schools for blacks and whites were inherently unequal,
marking a significant shift in the interpretation of the law.
2. Practical Pragmatism: Legal realists argue that legal decisions should be
grounded in practical consequences rather than abstract principles. A classic
example is the case of Palsgraf v. Long Island Railroad Co. (1928), where the
court ruled on a negligence claim based on the foreseeability of harm. The
court held that a defendant owes a duty of care only to those who are in the
reasonably foreseeable zone of danger, emphasizing practical outcomes over
abstract principles.
 3. Consideration of Customary Practices: Legal realists also consider
customary practices in their legal decisions. This can be observed in the
evolution of contract law, where courts have recognized industry customs as
legally binding. In the case of Huron Portland Cement Co. v. City of Detroit
(1960), the court took into account the customary practices of the cement
industry in its decision, showcasing the realist approach to legal norms.
4. Contextual Circumstances: Legal realists emphasize the importance of
considering the individual circumstances of each case, particularly in criminal
law. The case of Terry v. Ohio (1968) is a prime example, where the U.S.
Supreme Court allowed for stop-and-frisk practices based on reasonable
suspicion, taking into account the specific context of the situation.

Jerome Frank's View:

Jerome Frank, a proponent of the American school of Realism, asserted that judges
should evolve existing law rather than rigidly adhere to legal rules and precedents. He
challenged the notion of legal certainty, considering it a "legal myth," and argued that
law only becomes certain through judicial interpretation.
MERITS:
Focus on Descriptive Law: In the case of Roe v. Wade (1973), the U.S. Supreme
Court’s decision to legalize abortion was a significant shift from existing laws and
societal norms. The court’s ruling was based on the interpretation of the Constitution’s
right to privacy, demonstrating Frank’s view that law becomes certain through judicial
interpretation.
Contextual Understanding and Objectivity: The landmark case of Miranda v.
Arizona (1966) is another example where Frank’s emphasis on context and objectivity
can be seen. The U.S. Supreme Court ruled that detained criminal suspects, prior to
police questioning, must be informed of their constitutional right to an attorney and
against self-incrimination. This ruling acknowledged the context of police
interrogations and the potential for abuse, leading to a more nuanced and context-
aware legal interpretation.

DEMERITS
Promotion of Judicial Overreach:
Example: The case of Lochner v. New York (1905) illustrates the potential for
judicial overreach. In this case, the U.S. Supreme Court struck down a state law that
regulated the working hours of bakers, claiming it violated the freedom of contract.
The decision reflected a judicial interpretation that went against the legislative intent
to protect workers' rights, showcasing how Frank's emphasis on judicial discretion
can lead to outcomes that may not align with broader societal goals.
Lack of Accountability and Backward Evolution of Rights:
Example: The recent controversy surrounding the potential overturning of Roe v.
Wade (1973) in 2022 exemplifies the concern about backward evolution and political
influence. If the U.S. Supreme Court were to overturn this landmark decision on
abortion rights, it could be seen as a result of judicial discretion influenced by political
forces. This instance underscores the challenges associated with giving judges
significant leeway, as decisions on fundamental rights might be subject to political
shifts rather than a consistent interpretation of the law.

Karl Olivecrona's View:

Karl Olivecrona, a key figure in Scandinavian Realism, approached legal theories
philosophically. He emphasized the practical workings of the law, asserting that
judges possess the freedom to creatively interpret and shape it. According to
Olivecrona, law is a "social fact" with persuasive influence on judicial decisions. He
challenged the notion of a binding force, arguing that law's coercive impact is on
individuals' minds. Olivecrona contended that law, rather than morality, informs
individuals' sense of right and wrong, with morality subsequently influencing
behavior.
Social Fact by Example:
In Olivecrona's view, a traffic regulation gains significance not from inherent
authority but as a social fact. If people in a community collectively acknowledge and
follow the rule, it becomes binding. The law's coercive force operates on the minds of
individuals, shaping behavior through shared recognition and adherence. This
illustrates how, for Olivecrona, the law's persuasive value is derived from its
acceptance as a social fact rather than an intrinsic, binding force.

MERITS:
Psychological Pressures and Law Binding:
Olivecrona's insight that the law relies on individuals' psychological pressures is
reflected in the effectiveness of community-based crime prevention programs. For
instance, neighborhood watch initiatives leverage the psychological pressure of
community surveillance to deter criminal activities, showcasing how the law's
influence extends beyond legal consequences.
Practical Applicability through Analysis:
Olivecrona's approach of analyzing existing laws rather than providing rigid
definitions is exemplified in the adaptation of privacy laws to emerging technologies.
As technology evolves, legal analysis becomes essential to apply existing laws
effectively in contexts like digital privacy, demonstrating the practical applicability of
Olivecrona's approach.
DEMERITS:
1. Lack of Consistency: Critics argue that Olivecrona’s theory treats law as a set
of unconnected judgments, allowing for no consistency. This criticism can be
seen in real-life situations where judges need to refer to previous judgments
(precedents) to ensure consistency in their rulings. If each judgment were an
isolated event, as Olivecrona’s theory might suggest, this could lead to
unpredictable and inconsistent legal outcomes.
2. Ignoring Unenforced Laws: Olivecrona’s theory is criticized for ignoring
laws that do not come to court but are still enforceable.
For instance, many traffic rules or local ordinances may never be litigated in
court, but they still have a significant impact on people’s behavior and societal
order.
3. Realism as a Branch, not a School: Some critics argue that realism is not an
actual school of thought, but simply a branch of the Sociological school or the
“left-wing of the Functional school”. This criticism suggests that Olivecrona’s
legal realism does not offer a comprehensive framework for understanding law
but is merely a subset of broader sociological perspectives.

Aspect Sociological School Legal Realism

Primary Focus Emphasizes law as a Concentrates on the practical consequences of
social product, studying legal decisions, with a focus on judges' impact
its role in society on law

Methodology Analyzes societal context, Advocates for a pragmatic approach,

historical evolution of considering actual outcomes of legal decisions
legal norms and their real-world implications

Role of Judges Seen as interpreters of Judges play a central role in shaping the law
law in the broader through their decisions, recognizing the
societal context impact of personal backgrounds on legal
outcomes
View on Legal Considers broader Emphasizes the real-world impact and
Decision Making societal implications of consequences of legal decisions, examining
legal decisions how they affect individuals and societal
dynamics
Real-World Example: Workplace Discrimination

1. Sociological School: Suppose there's a case involving workplace discrimination

based on gender. Sociological jurists would examine the historical development of
anti-discrimination laws, considering their societal functions in addressing gender
inequalities. They might focus on how these laws evolved to reflect changing social
norms and promote equality in the workplace.

2. Legal Realism: Legal realists, on the other hand, would concentrate on how judges
interpret and apply gender discrimination laws in actual cases. They might analyse
specific court decisions, evaluating the practical consequences of legal rulings. For
instance, they could assess whether judicial decisions effectively address gender
discrimination issues in real-world work environments and how judges' perspectives
influence outcomes.

SPELUNCEAN EXPLORERS
IN THE SUPREME COURT OF NEWGARTH, 4300
The defendants, convicted and sentenced to hang by the Court of General
Instances of the County of Stowfield for the crime of murder, present a petition of
error before this Court. The Chief Justice Truepenny's opinion provides the
pertinent facts.
Brief Facts of the Case:
Five explorers, including Roger Whetmore, became trapped in a cave due to a
landslide obstructing the entrance. Despite prompt efforts by a rescue team, ten
workmen were killed in subsequent landslides. The explorers carried scant
provisions, and with no available sustenance within the cave, anxiety grew.
On the twentieth day, they discovered a portable wireless machine capable of
communication. Contacting the rescue team, they learned that rescue would take at
least ten more days. Consulting medical experts, they inquired about the possibility
of survival without food for the additional time, receiving a bleak response.
After eight hours of silence, the explorers proposed the idea of resorting to
cannibalism, asking for advice. When no guidance came from the rescue team,
Whetmore suggested casting lots to determine the victim. With no response,
Whetmore proposed using dice, which initially faced reluctance but eventually
gained agreement, given the prior wireless conversation.
However, as the dice were about to be cast, Whetmore withdrew. Accused of
breach of faith, the others proceeded with the casting, and Whetmore lost. He was
subsequently eaten by the group.
On the thirty-second day, the rescue team successfully reached the explorers,
discovering Whetmore's fate. After hospital treatment for malnutrition and shock,
the four survivors faced murder charges for the death of Roger Whetmore.
Procedural History of the Case:
The defendants, indicted and convicted for murder, received a sentence of hanging
from the Court of General Instances of the County of Stowfield. Seeking redress,
they bring a petition of error before the Supreme Court of Newgarth.
Basic Statute (Law) used in the case:
Whoever shall willfully take the life of another shall be punished by death.
Jury involved in Judgment of the case:
• Chief Justice Truepenny
• Justice Foster
• Justice Tatting
• Justice Keen
• Justice Handy

C.J TRUEPENNY: Guilty

“If this is done, then justice will be accomplished without impairing either the
letter or spirit of our statutes and without offering any encouragement for the
disregard of law”
Chief Justice Truepenny upholds the conviction of the four accused explorers. In
his opinion, the trial that led to their initial conviction was a fair and just one that
simply followed the route of law. He begins stating his reasons for holding the
accused guilty by reiterating what the basic statute states, which is “Whosoever
shall willfully take the life of another shall be punished by death”. Justice
Truepenny takes the viewpoint of an exclusionary legal positivist and plainly states
that law is to be considered as law and the language of the statute is such that it
does not permit any exceptions whatsoever. So, he believed there was no choice
but to uphold the conviction. In this way, he, as a positivist, shows complete and
utmost regard for the law. That said, he was sympathetic towards the accused and
states that, unlike the judges, the Chief Executive is not bound by the law and has
complete power to pardon. So, he suggests that the Chief Executive can be
instructed to exercise clemency given the circumstances of this case to mitigate the
rigours of the law. Clemency is essentially an act of mercy towards a criminal by
someone in an authoritative position at their own discretion. It is the process by
which a Governor, President, or in this case, Chief Executive reduces the
defendant’s sentence or grants a pardon considering the specifics of the case at
hand.

In the case of the Speluncean Explorers, Justice Truepenny strictly adheres to the
letter of the law, interpreting it in a literal and strict manner. He believes that the
law, as written, provides no exceptions and must be applied as such. This approach
is characteristic of the Analytical School, which distinguishes between law as it is
and law as it ought to be.

Justice Truepenny’s view in the case of the Speluncean Explorers can be critically
evaluated from several perspectives:
1. Strict Adherence to Law: Truepenny’s strict interpretation and application of
the law is commendable in maintaining the integrity of the legal system.
His approach ensures that the law is applied consistently, regardless of the
circumstances. This can be seen as a strength, as it upholds the principle of
equality before the law.
2. Lack of Flexibility: On the other hand, Truepenny’s strict interpretation of the
law can also be seen as a weakness. His refusal to consider the unique
circumstances of the case (the explorers were trapped in a cave and resorted to
cannibalism to survive) may be seen as a lack of compassion and flexibility.
This raises questions about whether the law should be applied rigidly in all
cases, or whether there should be room for interpretation and discretion.
3. Reliance on Executive Clemency: Truepenny’s suggestion that the Chief
Executive should pardon the explorers can be seen as an abdication of judicial
responsibility. It could be argued that it is the role of the judiciary to interpret
the law and apply it to individual cases, and that it is inappropriate to pass this
responsibility onto the executive branch. This reliance on executive clemency
could potentially undermine the separation of powers.
4. Legal Positivism: From a philosophical perspective, Truepenny’s approach
aligns with legal positivism, which holds that law and morality are separate.
However, this view can be critiqued on the grounds that it fails to consider the
moral implications of legal decisions. In the case of the Speluncean Explorers,
many would argue that the explorers’ actions were morally justifiable, even if
they were legally wrong.

JUSTICE FOSTER: Not Guilty

overturns the initial judgement and acquits the accused. He was a natural law
theorist and hence takes that approach to justify his decision. Justice Foster was
critical of Chief Justice Truepenny’s logical positivist approach as he believed in
the maxim “cessante ratione legis, cessat et ipsa lex” which translates to ‘When
the reason for a law ceases to exist, the law itself ceases’. This essentially means
that we have the law for a reason and once the reason disappears, the law
disappears as well. This justification behind the law’s existence is contrary to the
positivist view which states that law is self-contained. Justice Foster believed that
since the reason for the law to exist doesn’t hold good in this case, the four
accused can be considered to be outside normal functioning society and in the state
of nature. He shed some light on the irony of ten rescue workers losing their lives
in an effort to save that of five explorers being deemed as right and saving the lives
of four explorers at the cost of one being deemed as wrong. Saying so, Justice
Foster stated that the value of life, in this case, is overrated. The rescuers knew
what they were getting into and the associated risks. He was of the opinion that if
ten lives were expendable to save five, saving four lives at the expense of one
should be allowed too.
He referred to this case as one of self-preservation and stated that the same logic
used while dealing with cases of self-defense applies here. So, he believed that
much like killing in self-defense, killing in self-preservation does not constitute
murder. Justice Foster’s purposive interpretation would be the closest to Fuller’s
opinion given his work and general thought process.

Cases cited by him:

Commonwealth v. Staymore: This case emphasizes the importance of considering

the circumstances surrounding an alleged violation of a statute. Despite the
defendant’s violation of the parking statute, the court recognized that the
defendant’s inability to move his car due to an ongoing political demonstration
was beyond his control. Therefore, his conviction was set aside.

Fehlar V. Neegas: This case underscores the importance of the intent and purpose
of a statute in its interpretation. Even though there was an error in the statute’s
language, the court rectified it because its literal interpretation was contrary to the
object of the preamble. The statute has never been applied literally, and it was
established centuries ago that killing in self-defence is excused, even though there
is nothing in the statute that suggests the same.

Justice Foster is a proponent of the Natural Law school of thought. This

perspective posits that laws are not merely rules created by humans, but are
inherently tied to morality and ethics, derived from a higher, often divine, order.

Justice Foster’s perspective, rooted in the Natural Law theory, offers a unique and
morally nuanced approach to the case at hand. Here’s a critical analysis of his
views:
1. Cessation of Law’s Reason: Justice Foster’s reliance on the maxim “cessante
ratione legis, cessat et ipsa lex” underscores his belief that laws should serve a
purpose and cease to apply when their reason is no longer relevant. This
approach allows for flexibility and adaptability in law, which can be beneficial
in unique or unprecedented cases. However, it also opens up the potential for
subjective interpretation and inconsistency in legal decisions, as what
constitutes the “reason” for a law can vary greatly depending on one’s
perspective.

2. State of Nature: Justice Foster’s argument that the accused were in a state of
nature, and therefore outside the purview of societal laws, is an interesting
philosophical stance. It acknowledges the extreme circumstances faced by the
accused and the impossibility of their adherence to societal norms in such a
situation. However, this argument could potentially be misused to justify
unlawful actions in less clear-cut situations, thereby undermining the rule of
law.

3. Value of Life: Justice Foster’s critique of the overvaluation of life in this case
brings attention to the irony and inconsistency in societal attitudes towards life
preservation. His argument that if ten lives can be risked to save five, then one
life can be sacrificed to save four, is logically sound. However, it raises ethical
questions about the quantification of human life and the justification of
sacrifice for the greater good.

4. Self-Preservation vs. Self-Defense: By equating self-preservation with self-

defense, Justice Foster expands the scope of justifiable killing beyond the
traditional confines of self-defence. While this interpretation may be applicable
in this extreme case, it could potentially blur the lines between self-
preservation and selfishness in other contexts, leading to a slippery slope of
justifications for harmful actions.

JUSTICE TATTING:

recuses himself from the matter stating that there is no way to distinguish the
principles according to which the case can be decided in a free and rational
manner. That said, he does criticize Justice Foster’s natural law position. He
argued that if the defendants were right to kill Whetmore, then in a situation
wherein Whetmore kills them in self-defense, pleading the same wouldn’t get him
acquitted. That, however, is inconsistent with the self-defense theory which is a
legitimate ground for acquittal when self-defense is exercised proportionally and
within limits. So, the theory of self-preservation being similar to self-defense and
being a valid ground for acquittal must be wrong. He also pointed out that Justice
Foster fails to consider Whetmore’s withdrawal which took place even before the
dice was rolled. He points out that another reason for the failure of the self-defense
point of view would be that murder requires a willful act whereas self-defense is
an impulse. In this scenario, the accused acted in a wilful manner after prolonged
deliberation and not impulsively. To further substantiate his stance on Justice
Foster’s reason for acquittal being flawed, Justice Tatting cited the case
of Commonwealth vs Valjean (4291) wherein the Court rejected hunger as a valid
justification for stealing food and convicted the thief. He questions the basis for
convicting one man for stealing due to starvation and acquitting four men for
murder and cannibalism for the very same reason. Anguished by the moral and
legal dilemma, Justice Tatting finds the case undecided and withdraws from the
decision of the case entirely.

Justice Tatting’s view in this case presents a thoughtful critique of Justice Foster’s
position and highlights several key issues:
1. Contradiction in Self-Defense Theory: Justice Tatting argues that equating
self-preservation with self-defense could lead to contradictions. If the
defendants were justified in killing Whetmore for self-preservation, then
logically, Whetmore should also be justified in killing them in self-defense.
However, this contradicts the legal principle of self-defense, which requires the
act to be proportional and within limits.
2. Wilful Act vs Impulse: Justice Tatting points out that murder requires a wilful
act, whereas self-defense is typically an impulsive reaction to an immediate
threat. In this case, the defendants’ actions were premeditated and deliberate,
not impulsive, which challenges the application of the self-defense theory.
3. Inconsistency in Legal Treatment: By citing the case of Commonwealth vs
Valjean, Justice Tatting questions the inconsistency in the legal treatment of
survival-based crimes. If hunger cannot justify theft, then how can it justify
murder and cannibalism?
4. Whetmore’s Withdrawal: Justice Tatting also criticizes Justice Foster for
failing to consider Whetmore’s withdrawal from the agreement, which raises
questions about consent and the validity of the agreement.

However, Justice Tatting’s decision to recuse himself from the case due to the
moral and legal dilemma it presents could also be critiqued. While it acknowledges
the complexity of the case, it also avoids making a difficult decision. This could
potentially set a precedent for judges to abstain from ruling on complex cases,
which could undermine the judicial process.

JUSTICE KEEN: Guilty

He favoured the death penalty and convicted the accused explorers. According to
him, the role of a judge is limited to applying the law. The approach he employed
was termed as ‘positive textualism’. He was critical of the opinion of both Justice
Foster and Chief Justice Truepenny even though like him, the latter upheld the
conviction too. He stated that the powers of the Chief Justice and the Chief
Executive are separated and the former cannot give directions to the latter.
According to him, Chief Justice Truepenny requesting the Chief Executive to
exercise clemency and pardon the accused is a violation of the judicial process.
That said, he sides with Chief Justice Trupenny’s opinion on this case not being
one of self-defense as he is of the opinion that the scope of self-defense is
applicable only when the party is resisting an existential threat to their own life.
Whetmore posed no threat to the lives of the accused and hence applying that
theory here is a flawed approach.

Justice Keen’s perspective in this case is rooted in a strict interpretation of the law,
an approach known as ‘positive textualism’. This approach emphasizes the literal
meaning of the law and leaves little room for interpretation or discretion. Here are
some critical points to consider:

1. Separation of Powers: Justice Keen strongly believes in the separation of

powers. He criticizes Chief Justice Truepenny’s request to the Chief Executive
for clemency, viewing it as a violation of the judicial process. This stance
underscores his belief in the independence of the judiciary and its role in
upholding the law.
2. Role of the Judiciary: According to Justice Keen, the role of a judge is limited
to applying the law as it is written. He argues against the idea of judges
interpreting the law based on the circumstances of a case. This perspective can
be seen as rigid, as it doesn’t allow for flexibility in unique or unprecedented
situations.
3. Death Penalty and Conviction: Justice Keen’s strict interpretation of the law
leads him to uphold the death penalty for the accused explorers. His decision is
based on the letter of the law, without considering the extraordinary
circumstances that led to their actions.
4. Self-Defense: Justice Keen agrees with Chief Justice Truepenny that this case
does not fall under self-defense, as Whetmore posed no existential threat to the
lives of the accused. This interpretation aligns with his textualist approach, as it
strictly adheres to the legal definition of self-defense.

While Justice Keen’s views are consistent with a strict interpretation of the law,
they can be criticized for their lack of flexibility and compassion. His approach
does not consider the unique circumstances of the case, potentially leading to harsh
outcomes that may not serve justice in the broader sense. However, his emphasis
on the separation of powers and the role of the judiciary highlights important
principles in the functioning of a democratic system.

JUSTICE HANDY: Not Guilty

Justice Handy acquitted the accused explorers and followed the approach of legal
realism which was connected to common sense. He appeals to public opinion and
believes that the defendants should be pardoned. Justice Handy, through indirect
means, learned that if the accused were found guilty, the Chief Executive would
not commute the sentence. In contrast, various public polls suggested that over
90% of the voters believed that the explorers ought to be pardoned and left off
with a kind token as a punishment. He believed that common sense dictated
acquittal and used the poll results to justify the same. In his opinion, this matter
required practical wisdom to be exercised with respect to human realities and not
abstract theories. He also brought up the fact that no one was paying heed to the
fact that, Whetmore’s withdrawal was a revocation of the offer prior to action.

Justice Handy’s approach in the case of the explorers is a fascinating study in legal
realism, a school of thought that emphasizes the practical outcomes of legal
decisions over abstract principles. Here’s a detailed critical analysis of his views:
1. Reliance on Public Opinion: Justice Handy heavily relies on public opinion,
as evidenced by his reference to public polls suggesting that over 90% of voters
believed the explorers should be pardoned. This approach can be seen as
democratic, as it takes into account the will of the people. However, it also
raises questions about the role of the judiciary. Courts are supposed to interpret
and apply the law, not necessarily reflect popular sentiment.
This reliance on public opinion could potentially undermine the rule of law and
lead to inconsistent rulings.

2. Pragmatism over Principle: Justice Handy prioritizes practical wisdom and

human realities over abstract theories. This pragmatic approach can be
beneficial in cases where rigid adherence to the law would lead to unjust
outcomes. However, it also risks creating a system where decisions are made
based on the whims of the judge rather than established legal principles. This
could lead to unpredictability and inconsistency in the law.

3. Ignoring Legal Formalities: Justice Handy seems to dismiss the importance of

legal formalities, such as the fact that Whetmore’s withdrawal was a revocation
of the offer prior to action. While this may seem like a minor detail, legal
formalities play a crucial role in ensuring fairness and consistency in the legal
system. Ignoring these formalities could potentially lead to arbitrary decision-
making.

4. Influence of External Factors: Justice Handy’s decision appears to be

influenced by external factors, such as the knowledge that the Chief Executive
would not commute the sentence if the accused were found guilty. This raises
ethical questions about the independence of the judiciary and the potential for
external influences to affect judicial decision-making.

In conclusion, while Justice Handy’s approach may seem appealing due to its
focus on practical outcomes and public sentiment, it also raises significant
concerns about the rule of law, the role of the judiciary, and the potential for
arbitrary and inconsistent decision-making. It’s a reminder of the delicate balance
that must be struck between adhering to legal principles and considering the
practical implications of judicial decisions.
Personal perspective: I find Justice Handy’s approach in the Speluncean
Explorers case compelling. His emphasis on practical implications over abstract
principles resonates with me. His reliance on public opinion reflects that law is
part of society and should mirror its values. This brings necessary flexibility to the
legal system, allowing it to adapt to unique situations. His dismissal of certain
legal formalities shows a focus on the bigger picture rather than technicalities. This
pragmatic approach seems more just and fairer in this case. Justice Handy’s views
inspire me to approach law with an open mind, considering the human realities at
the heart of each case.

PURPOSE OF LAW:

1. Uniformity: Laws provide a consistent framework that applies to everyone

within a jurisdiction. For example, the Uniform Civil Code in India is a proposal
to formulate and implement personal laws that apply to all citizens equally
regardless of their religion, gender, and sexual orientation. Currently, personal
laws of various communities are governed by their religious scriptures. The
Indian state of Goa is the only state in India with a uniform civil code till date.

2. Maintaining Order: Laws prevent chaos by setting rules for behavior. For
instance, the Indian Penal Code (IPC) is a comprehensive code intended to
cover all substantive aspects of criminal law. It defines offenses and prescribes
punishments for the same.

3. Protecting Individual Rights and Freedoms: Laws safeguard personal

liberties. For instance, the Constitution of India guarantees fundamental rights to
all its citizens, such as the right to equality (Article 14), the right to freedom of
speech and expression (Article 19), and the right to life and personal liberty
(Article 21)

Right to Equality (Article 14):

a. Example: The Right to Information (RTI) Act, 2005 in India ensures
transparency and accountability in governance. Citizens can request
information from public authorities, promoting equal access to
information and preventing discrimination.

Right to Freedom of Speech and Expression (Article 19):

 b. Example: The landmark case of Shreya Singhal v. Union of India (2015)
upheld the right to freedom of speech and expression on the internet. The
Supreme Court struck down Section 66A of the Information Technology
Act, deeming it unconstitutional and a violation of free speech.

Right to Life and Personal Liberty (Article 21):

c. Example: In the case of K.S. Puttaswamy v. Union of India (2017), the

Supreme Court recognized the right to privacy as a fundamental right
under Article 21. This decision ensures the protection of an individual's
personal autonomy and freedom from unwarranted state intrusion.

4. Resolving Disputes: Laws provide mechanisms for resolving conflicts. For

example, the Arbitration and Conciliation Act, 1996 in India provides a legal
framework for conciliation of domestic and international disputes.
It consolidates and amends the law relating to domestic arbitration, international
commercial arbitration, and enforcement of foreign arbitral awards.

5. Promoting Social Justice: Laws can address social inequalities. For example,
the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 in India
prohibits discrimination and violence against socially disadvantaged groups.
Another example is the decriminalization of homosexuality in India by the
Supreme Court in 2018, which is a significant step towards social justice.

FUNCTIONS OF LAW

1. Normative Function:
The normative function of law involves establishing norms and standards for acceptable
behaviour within a society. It creates a shared understanding of right and wrong,
fostering social cohesion. In the UK, the Equality Act 2010 exemplifies this function
by setting norms against discrimination based on various characteristics, promoting a
society that values equality. Similarly, in India, the Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 establishes norms to
prevent sex-selective practices, contributing to gender equality.

2. Protective Function: The protective function of law aims to safeguard individuals,

businesses, and the environment from harm. It sets standards for safety and regulates
activities that may cause harm. In India, the Environmental Protection Act, 1986,
exemplifies this by regulating activities that may impact the environment adversely. In
the UK, the Consumer Protection Act 1987 protects consumers by holding producers
liable for defective products, ensuring safety standards.

3. Corrective Function: The corrective function of law provides remedies and

mechanisms for addressing wrongs and injustices. Civil and criminal law offer ways to
compensate victims and punish wrongdoers. In India, the Indian Penal Code serves
this function by providing remedies through criminal punishment. In the UK, the
Human Rights Act 1998 corrects injustices by allowing individuals to seek redress for
human rights violations.

4. Facilitative Function: The facilitative function of law involves facilitating business

transactions, contractual agreements, and economic activities. It provides a stable legal
framework for the smooth functioning of commerce and trade. In India, the Goods and
Services Tax (GST) Act exemplifies this by streamlining taxation processes, facilitating
economic activities. In the UK, the Companies Act 2006 provides a legal framework
for business operations, enabling smooth functioning.

6. Social Engineering Function: The social engineering function of law is about

using legal tools to shape societal behavior and influence cultural norms. In
India, the Right to Education Act, 2009, reflects this function by mandating free
and compulsory education, influencing societal norms around education.
In the UK, the Marriage (Same-Sex Couples) Act 2013 exemplifies social
engineering by recognizing and legalizing same-sex marriages.

6. Dispute Resolution Function: The dispute resolution function involves providing

formal mechanisms for resolving conflicts peacefully and fairly. Courts and alternative
dispute resolution methods play a pivotal role in this. In India, the Arbitration and
Conciliation Act, 1996, serves this function by providing a legal framework for
resolving disputes outside of traditional courts. In the UK, the Civil Procedure Rules
guide the dispute resolution process, emphasizing fairness and efficiency.

LAW AND MORALITY

Law: Law is a system of rules and regulations established and enforced by a

governing authority. It provides a framework for maintaining order, resolving
disputes, and promoting justice in society. Laws are typically codified and backed
by the authority of the government, with mechanisms in place for enforcement.

Example: Consider traffic regulations, such as the requirement to stop at a red traffic
light. This rule is a legal mandate established by traffic laws to regulate the
behaviour of drivers and ensure the orderly flow of traffic. Violating this law may
result in legal consequences, such as fines or citations. The existence of traffic
regulations illustrates how law governs specific behaviours to promote public safety
and order on the roads.

Morality: Morality refers to a system of values and principles that guide individual
and social conduct. It involves subjective concepts of right and wrong, virtue and
vice, and ethical decision-making. Morality is often influenced by cultural, religious,
and personal beliefs.

Example: Consider honesty, if an individual finds a lost wallet on the street

containing identification and money, the decision to return the wallet to its rightful
owner with all contents intact is often guided by the moral value of honesty. This
action is based on the belief that honesty is inherently good and that treating others
with integrity and fairness is a virtuous behaviour, reflecting a moral stance
irrespective of any legal obligation to return the wallet.

HISTORY:

In ancient India, Hindu jurists initially didn't distinguish between law and morals.
The Mimansa later classified rules into obligatory and recommendatory; with the
development of commentaries, a theoretical and practical separation between law
and morals emerged. The doctrine of "factum valet" allowed acts against moral
injunctions to be valid if accomplished.
The Privy Council and the Supreme Court of India recognized this legal-moral
distinction in their decisions. In ancient Greece and Rome, law was rooted in natural
rights and moral principles, influenced by Christian morals in the Middle Ages.
After the European Reformation, a separation between law and morals emerged,
asserting law's authority from the State and morals from religion or conscience. In
the 17th and 18th centuries, natural law theories linked law and morals, but by the
19th century, John Austin argued for their separation, defining law as the sovereign's
command without inherent moral connections in jurisprudence.

DIFFERENCE

Point Law Morals

Nature of Man Considers man as a person Concerned with determining
with free will. the will towards the good.

Social Context Considers man in the Provides guidance even if the

context of community life. individual is alone.
Focus on Actions Concerned with external Looks to the intention and inner
vs. Intentions acts. determination of the will.
Governance Governs the will through Seeks free self-determination
Mechanism external coercion. towards the good.

(i) Law and Free Will vs. Morals and Good Will:

• Example: In legal contexts, the freedom of choice is recognized through

contracts. If an individual freely enters into a contract but later violates its terms,
the law intervenes to enforce the agreement. Morally, this aligns with the
 principle of keeping one's word, emphasizing that individuals should use their
free will to make choices that honor commitments.

(ii) Law and Community vs. Morals and Individuality:

• Example: In legal systems, property laws regulate how individuals interact
within a community. For instance, zoning regulations guide land use for the
collective benefit. Morally, an individual's responsibility to care for their
property, even when alone, reflects a personal commitment to ethical conduct
irrespective of communal influence.

(iii) Law and External Acts vs. Morals and Intentions:

• Example: In criminal law, theft is punishable based on the external act of taking
someone else's property. Conversely, moral considerations may lead to a more
lenient judgment if the intention behind the act was driven by necessity or
desperation, demonstrating that morality looks beyond the external act to
understand the underlying motivations.

(iv) Law and Coercion vs. Morals and Self-Determination:

• Example: Contract law exemplifies external coercion. If a party breaches a
contract, legal consequences such as fines or compensation are imposed. In
contrast, moral principles encourage individuals to fulfil contractual obligations
voluntarily, emphasizing the self-determined choice to act ethically without the
need for external coercion.

H.L.A. Hart identifies four cardinal features

1. Importance: Consider the moral rule of honesty. It’s seen as important because
it builds trust within a society and maintains social harmony. For instance, if
people start lying frequently, it could lead to mistrust and conflicts. On the other
hand, a legal rule like traffic laws, while important for safety, may not hold the
same level of significance. If a traffic law changes (e.g., speed limit increases or
decreases), it doesn’t fundamentally alter the fabric of society.

2. Immunity from deliberate change: Moral rules, such as treating others with
respect, are generally stable and immune to deliberate changes. They are deeply
ingrained in our societal fabric and passed down through generations. In contrast,
legal rules can be deliberately changed. For example, laws around data privacy
have evolved significantly with the advent of the internet and social media.

3. Voluntary character of moral offenses: Moral offenses are often voluntary.

For instance, if someone knowingly steals from another person, they are
voluntarily committing a moral offense. In contrast, legal offenses can be both
voluntary and involuntary. For example, someone might unknowingly break a
law (like a city ordinance) simply because they weren’t aware of its existence.
 4. Form of moral pressure: Moral rules exert a form of social pressure. For
example, societal norms and expectations often discourage behaviors like lying
or stealing. This pressure is often internalized and becomes a part of our
conscience. Legal rules, on the other hand, exert a more external form of pressure
through the threat of legal consequences like fines or imprisonment.

Remember, these distinctions are not absolute and there can be overlaps and exceptions.
The relationship between law and morality is complex and varies across different
societies and cultures.

3 ANGLES TO VIEW RELATIONSHIP BETWEEN LAW AND MORALITY:

1. Morality as the basis of law: In the past, societal morals and values viewed
marriage as a contract in which the wife gave irrevocable consent for sexual
relations with her husband. This was a reflection of the societal norms and moral
values of that time.
2. However, as society progressed and moral values evolved, the idea that a wife
could not withdraw consent within marriage began to be seen as morally wrong.
This shift in societal morality led to a change in the perception of marital rape
and served as the basis for changes in the law.

3. Morality test of law: The evolution of societal morals led to a re-evaluation of

existing laws. Marital rape, which was once not legally recognized due to the
prevailing moral values, is now considered a crime in many jurisdictions,
including the UK and the US. This change in law passed the morality test as it
aligned with the evolved societal morals. The new law upholds the belief that
every individual, regardless of their marital status, has the right to personal
autonomy and bodily integrity, reflecting the current societal moral standards.

4. Morality as ends of law: The recognition of marital rape as a crime serves the
moral ends of justice, fairness, and equality. It upholds the principle that all
individuals, regardless of their marital status, have the right to personal
autonomy and bodily integrity. By recognizing marital rape as a crime, the law
promotes a more just and equitable society. It serves the moral ends by ensuring
justice for victims of marital rape and upholding the principles of fairness and
equality.

In conclusion, the evolution of laws related to marital rape clearly demonstrates how
morality can serve as the basis of law, provide a test for the validity of law, and represent
the ultimate ends that law seeks to achieve.

HOW LAW AND MORALITY INFLUENCE EACH OTHER ?

Homosexuality
Morality influencing Law: The decriminalization of homosexuality by the Supreme
Court of India in 2018 was a response to changing societal morals. As public attitudes
evolved to be more accepting and inclusive, the legal system adjusted to align with these
progressive moral values. This shift in morality was evident in widespread movements
advocating LGBTQ+ rights and increased awareness campaigns.

Law influencing Morality: The legal recognition of LGBTQ+ rights through the
decriminalization of homosexuality in 2018 has significantly influenced societal
morals. It provided a platform for increased visibility and acceptance of diverse sexual
orientations. Pride parades, support groups, and inclusive policies in workplaces are
manifestations of how the law has fostered a more positive and accepting moral
environment.

Abortion

Morality influencing Law: The amendments to the Medical Termination of

Pregnancy Act, 1971, were driven by changing societal morals regarding abortion. As
discussions around women's reproductive rights gained prominence, the legal
framework responded to align with evolving moral perspectives. Grassroots movements
advocating women's autonomy over their bodies played a crucial role in shaping this
changing moral landscape.

Law influencing Morality: The legalization of abortion under the Medical

Termination of Pregnancy Act has played a vital role in reshaping societal morals. It
shifted the narrative from stigma and taboo surrounding abortion to recognizing a
woman's right to make decisions about her body. The law has contributed to changing
societal attitudes, fostering a more compassionate and understanding moral stance.

Marriage

Morality influencing Law: Legal provisions like the Hindu Marriage Act, 1955, and
the Indian Christian Marriage Act, 1872, reflect changing societal morals. The
condemnation of child marriage and the emphasis on gender equality were pivotal in
influencing the development of these laws. Grassroots movements, advocacy by
women's rights groups, and awareness campaigns contributed to this moral evolution.

Law influencing Morality: Legal provisions against dowry and the promotion of
women's rights in marriage have significantly influenced societal morals. By enshrining
these principles in law, there has been a transformative impact on societal attitudes.
Initiatives promoting gender sensitivity, legal literacy programs, and community
engagement have furthered the moral shift towards more equitable perceptions of
marriage.
Live-in Relationships

Morality influencing Law: The recognition of live-in relationships by the judiciary

and legal protections under the Protection of Women from Domestic Violence Act,
2005, responds to evolving societal morals. As acceptance of diverse relationship
structures grew, legal adaptations followed suit. Grassroots movements advocating for
relationship rights and changing perceptions of societal norms were instrumental in this
moral evolution.

Law influencing Morality: Legal recognitions for live-in relationships and individual
rights within them have played a crucial role in influencing societal morals. The law
provided legitimacy and protection, contributing to increased acceptance. As more
individuals openly embraced non-traditional relationship models, societal attitudes
evolved, showcasing the impact of legal changes on moral perspectives.

---------------------------------------------------------------------------------------------
Morality Influencing Law:
1. Social Movements and Legal Reforms: The civil rights movement in the
United States during the 1960s was a powerful example of morality influencing
law. The moral imperative for racial equality led to landmark legal changes such
as the Civil Rights Act of 1964. This Act outlawed discrimination based on race,
color, religion, sex, or national origin, demonstrating how a moral outcry against
racial discrimination can influence legislators to enact laws promoting equality
and justice.

2. Changing Attitudes Towards LGBTQ+ Rights: The global movement for

LGBTQ+ rights have significantly influenced legal reforms. As societal attitudes
evolved, countries like India and the United States decriminalized
homosexuality. This legal shift aligns with changing perceptions of human
rights, showing how evolving moral norms can lead to significant legal changes.

3. Environmental Morality and Legal Responses: Growing concerns about

environmental degradation and climate change have led to legal responses. The
creation of environmental protection laws and international agreements, such as
the Paris Agreement, reflects a legal acknowledgment of the moral responsibility
to protect the planet for future generations. This demonstrates how morality can
drive legal action to address pressing global issues.

Law Influencing Morality:

1. Same-Sex Marriage Legalization: The legalization of same-sex marriage in

various countries has not only granted legal recognition but also influenced
societal morality. The law has played a pivotal role in challenging traditional
norms, contributing to greater acceptance and understanding of diverse forms of
 relationships. This shows how law can influence societal morality and promote
inclusivity.

2. Deterrence Effect of Anti-Drug Laws: Anti-drug laws, with their associated

legal consequences, act as a deterrent. The criminalization of drug possession
sends a moral message that substance abuse is not only legally punishable but is
also socially unacceptable. This illustrates how law can shape moral perceptions
about the responsible use of substances.

3. Educational Role of Anti-Discrimination Laws: Anti-discrimination laws,

such as the Americans with Disabilities Act (ADA), play an educational role in
shaping societal attitudes. By legally mandating accessibility and inclusivity,
these laws contribute to a moral understanding that all individuals deserve equal
rights and opportunities. This highlights how law can educate society and foster
a sense of morality.

In summary, the interplay between morality and law is evident in various contexts, from
civil rights movements influencing legal reforms to laws shaping societal perceptions
about issues like environmental responsibility and LGBTQ+ rights. This dynamic
relationship underscores the reciprocal influence between legal and moral frameworks
in society.

SIMILARITIES BETWEEN LAW AND MORALITY

▪ Defending basic values

▪ Sense of obligation
▪ Influence of morality on law
▪ Law can be a public expression of morality
▪ Real nature of law or its substance

Aspect Detailed Answer Example

Defending
Basic Values Both law and morality serve as Example: Laws against hate crimes
guardians of fundamental values not only deter such offenses but
within a society, outlining what also express a collective societal
is deemed acceptable or stance against violence rooted in
unacceptable behaviour. They prejudice. The legal prohibition
establish a moral compass for defends the basic values of equality
individuals and communities. and non-discrimination.
 Sense of The influence of both law and Example:
Obligation morality extends to creating a Environmental protection laws,
profound sense of obligation stemming from the moral duty to
among individuals. Legal and safeguard the planet, create a sense
moral norms carry an inherent of obligation among individuals
weight that significantly shapes and corporations to adhere to
behaviour and decision-making. regulations that promote ecological
well-being.

Influence of The legislative process is often Example: The legalization of same-

Morality on influenced by the prevailing sex marriage in various countries is
Law moral values within a society. a testament to the impact of
Morality plays a pivotal role in changing societal morality. Laws
shaping laws, reflecting are adapted to align with evolving
evolving societal perspectives moral perspectives, acknowledging
and values. the rights and equality of the
LGBTQ+ community.

Law as a Laws can act as a visible Example: Anti-discrimination laws

Public expression of the moral publicly express the moral stance
Expression of principles upheld by a society. that condemns unfair treatment
Morality They serve as public statements based on protected characteristics.
against certain behaviours and By enshrining these principles in
demonstrate shared moral law, societies make a collective
values. statement against unjust practices.
Real Nature Both law and morality address Example: Laws prohibiting bribery
of Law or its fundamental questions about and corruption reflect the moral
Substance what is right or wrong. They principle that dishonest practices
delve into the essence of justice, are inherently wrong. The
fairness, and ethical conduct, convergence in the real nature of
contributing to the development law and moral values is evident in
of a shared moral and legal the legal condemnation of unethical
framework. conduct.

Similarities Numerous similarities exist Example: Both legal systems and

Between Law between law and morality, moral codes often condemn actions
and Morality illustrating their interconnected such as murder, theft, and fraud.
nature in shaping human This shared disapproval highlights
conduct and societal norms. a fundamental agreement that
certain behaviours are inherently
wrong, warranting both legal and
moral censure.

In essence, the intricate relationship between law and morality underscores their joint
role in guiding societal values, shaping behaviour, and fostering a sense of obligation
among individuals. The examples provided illuminate instances where legal principles
and moral norms align to preserve the ethical fabric of a community.

HLA HARTS VIEW

Separability of Law and Morality: Hart's legal positivism asserts that law and
morality are separate and distinct concepts. He argues that the validity and
existence of law do not depend on its conformity to moral principles.

Hart suggests that legal systems are sets of social rules that regulate behavior and
are enforced by social institutions. Legal rules are distinct from moral rules and
are based on social acceptance and customary practices.

According to Hart, legal systems are founded on a "rule of recognition." This

rule designates criteria by which individuals and officials identify legal rules
within a given legal system. It is a social practice that determines the
authoritative status of legal rules.
Hart distinguishes between primary and secondary rules. Primary rules impose
obligations and duties on individuals, while secondary rules provide the
framework for creating, changing, and enforcing primary rules. Secondary rules
include rules of recognition, change, and adjudication.

Sure, let’s look at specific examples of primary and secondary rules in the
Indian context:
Primary Rule Example:

The Indian Penal Code (IPC) contains many primary rules. For instance,
Section 379 of the IPC states that “Whoever commits theft shall be punished
with imprisonment of either description for a term which may extend to three
years, or with fine, or with both.” This is a primary rule as it imposes a duty on
individuals not to commit theft1.

Secondary Rule Examples:

Rule of Recognition: The Constitution of India serves as the ultimate rule of

recognition. It sets the criteria for legal validity within the Indian legal system. It
lays down the procedures for creating laws and defines the powers of the
government2.

Rule of Change: The legislative process outlined in the Indian Constitution is a

rule of change. It provides a method for creating, amending, or repealing primary
rules (laws). For example, a bill in India has to pass through various readings
and votes in both houses of the Parliament before it becomes a law2.
 Rule of Adjudication: The existence of courts and the process they follow to
interpret and apply the law is a rule of adjudication. This rule provides a method
for settling disputes and enforcing primary rules. For instance, the Code of Civil
Procedure governs the process of adjudication in civil matters.

Law and society are deeply intertwined, and understanding this relationship
requires considering various social, political, and economic aspects:

1. Social Aspects of Law: Law is an instrument of human life that cannot be

separated from various aspects around it, including social and cultural beings.
It governs our everyday life and affects us in many ways. For instance, the law
of contracts governs sales, so when you buy a bed, it’s involved. If you live in a
rented house, the law on lease agreements applies. These laws are more or less
invisible to non-lawyers, but they become visible when things go wrong.

2. Political Aspects of Law: Law also has significant political implications. It can
be used as a tool by the ruling class or the elite. The elite tend to be conservative
and afraid of change, because change for them means endangering the privileges
that benefit their economic interests. For example, laws can be used to
legitimize the power of a certain economic class.

3. Economic Aspects of Law: The economy greatly influences law. According to

Marx, whoever controls the economy, controls people. The entire human
behaviour is controlled by economic motives. For instance, laws related to
property, contracts, and service agreements are all influenced by economic
factors.

Real-life Examples:

• Social Aspect: Laws related to marriage, divorce, and child custody reflect the
social norms and values of a society.

• Political Aspect: Laws related to voting rights and political campaign

financing can influence the balance of power in a society.

• Economic Aspect: Laws related to taxation, business regulation, and labor

rights can have significant economic impacts.
In conclusion, law is not just a set of rules; it’s a reflection of the society in which it
operates, influenced by various social, political, and economic realities.

CLASSIFICATION OF LAWS

Understanding law requires classification, clarifying relationships between rules.

Historical attempts by Roman jurists and Hindu law-givers classified laws, with
Hindu law distinguishing civil and criminal laws under 18 titles. Importantly,
classifications aren't permanent, evolving with societal needs. Law's nature is dynamic,
necessitating new classifications as society changes. Distinctions between law types
aren't always clear or universally applicable. Each community and era may demand a
unique classification reflective of its legal landscape.

International law is a collection of laws that are accepted as governing the relations
between states. It’s a complex and ever-evolving field that is essential for
understanding the global order.
There are three main types of international law:
Public International Law: This type of law governs the conduct and relations of states
with each other. For example, customary public international law involves regular state
practices that rely on opinio-juris, which is the belief that an action is carried out
because of a legal obligation to do so.
Private International Law: This law governs private conflicts between individuals,
rather than between the states. It determines the jurisdiction that has authority to hear a
legal dispute, and which jurisdiction’s laws should be applied to the situation.
For instance, if a contract is made between an Indian and a Pakistani which is to be
performed in Sri Lanka, the rules and principles on which the rights and liabilities of
the parties depend are to be determined by private international law.
Supranational Law: These are laws that are created and enforced by supranational
organizations, such as the European Union, that have authority over their member states.
There are also two branches of international law: jus gentium and jus inter gentes.
Jus gentium is not a statute or legal code, but more of an accepted body of laws that
governs the relations between countries.
Jus inter gentes, on the other hand, refers to the body of treaties and/or agreements that
are mutually acceptable to both countries.

Here are some examples of international law:

International Labor Organization (ILO) standards ensure humane and equal working
conditions for employees across countries.
World Trade Organization (WTO) rules oversee international trade and enforce fair
trade practices among countries.
Municipal law is the law applied within a State.
It can be divided into two classes: public law and private law.
Public law determines and regulates the organisation and functioning of the State and
determines the relation of the State with its subjects Public law is divided into three
classes: constitutional law, administrative law and criminal law.
Constitutional law deter- mines the nature of the State and the structure of the
government. It is superior to the ordinary law of the land Constitutional law is written
in India and the United States but it is unwritten in England. The modern tendency is to
have written constitutions.
Administrative law deals with the structure, powers and functions of the organisation
of administration, the limits of their powers, the methods and procedures followed by
them and the methods by which their powers are controlled including the legal remedies
available to persons whose rights have been infringed.
Criminal law defines offences and prescribes punishments for them. It not only
prevents crimes but also punishes the offenders. Criminal law is necessary for the
maintenance of law and order and peace within the State.
In criminal cases, it is the State which initiates proceedings against the wrongdoers. The
State is always a party in criminal cases.
Private law regulates and governs the relations of citizens with one another. The parties
are private individuals and the State decides the disputes among the people. There is
great difficulty in classifying private law. A general classification of private law is the
law of persons, the law of property, the law of obligations, the conflict of laws, contracts,
quasi-contracts and tort.

Examples:
1. Municipal Law: Municipal law refers to the laws that govern a municipality,
which is a city or town with its own local government. For instance, a city may
have by-laws that regulate business licensing, parking, noise control, local utility
fees, animal control, and more.
2. Constitutional Law: This involves the interpretation and application of the
constitution. For example, the landmark case of K.M. Nanavati vs State of
Maharashtra in 1959 was a significant event in India’s constitutional history, as
it led to the abolition of jury trials.
 3. Administrative Law: This law governs the activities of administrative agencies
of government. For instance, the Environmental Protection Agency (EPA) in the
United States, created by the environmental protection acts, regulates
environmental issues.
4. Criminal Law: This law relates to crimes and their punishments. A famous
example is the case of O.J. Simpson, who was tried for the murder of his ex-wife
and her friend. The case was one of the most widely publicized criminal trials in
American history.
5. Private Law: This law governs disputes between private individuals or
entities. Examples include issues relating to the fulfilment of contracts,
marriages, professional relationships, and more5. For instance, if two businesses
have a dispute over a contract, they would engage in a lawsuit under contract
law, which is a branch of private law.

Difference Between Substantive and Procedural Law.

Law can be further divided into two broad categories –
I. Substantive laws and
II. Procedural laws.
Substantive laws are the statutory laws passed by the legislature. Whereas, procedural
laws comprise the rules and processes which any court follows for hearing and
determining the cases.
Procedural laws are also known as ‘Adjective laws’. In absence of substantive laws,
procedural laws cannot be framed. Similarly, without procedural laws, substantive laws
cannot be applied fairly and properly. Both the laws are equally important and one could
not be applied effectively in absence of the other law.
In the case of Commissioner of Wealth Tax, Meerut v. Sharvan Kumar Swarup and
Sons (1994), the Supreme Court of India made the distinction between substantive and
procedural laws clear.
The Court defined substantive laws as the laws which fix duties and establish rights and
responsibilities among and for natural or artificial persons, while procedural laws are
those which prescribe the methods in which such rights and responsibilities may be
exercised and enforced respectively.
Both the substantive laws and the procedural laws are two related sets of legal systems
and are interdependent on each other.
Substantive laws are the essential laws that govern any particular field and declare the
rules and lay down the principles. The Indian Penal Code (IPC) which lays down
different types of crimes and defines their respective punishments is one of the examples
of substantive laws in India.
Procedural laws are the set of procedures to be followed for making, administering and
enforcing substantive laws. For example, the Code of Criminal Procedure
(CrPC) defines the procedures to be followed in criminal proceedings in India.
Substantive civil laws
Substantive civil laws are the laws which deal with disputes between any individuals,
organisations or between both of them where the victim is entitled to compensation.
Using substantive civil laws, the courts find out whether the legal rights of the plaintiff
have been violated or not.
Examples
Some examples and functions of substantive civil laws in India include:
• Law of Contracts such as the Indian Contract Act, 1872 defines what are the
essential elements and conditions required to enter into any contract. The broader
category of the laws related to the contract also includes the Sale Of Goods Act,
1930 for the sale of goods and the Partnership Act, 1932 for the law related to
the formation and registration of partnership firms and businesses.
• The Indian Succession Act, 1925 is an Act dealing with the substantive laws of
testamentary and intestate succession concerning the persons who follow any
forms of Christianity in India.
Substantive criminal laws
Substantive criminal laws deal with criminal offences and the punishments to be
awarded for each of these criminal offences. A criminal prosecution starts after the
defendant violates any criminal statute. The primary purpose of substantive criminal
laws is to provide punishment to the convict while compensation may be provided to
the victim depending on the situations.
Examples
Various penal offences and their respective punishments have been described in the
Indian Penal Code (IPC). It also defines the conditions for various penal offences such
as ‘Murder’, ‘Rape’, ‘Abduction’ etc.
Apart from IPC, Domestic Violence Act, 2005; the Juvenile Justice (Care and
Protection of Children) Act,2000; the Sexual Harassment Of Women At Workplace
(Prevention, Prohibition And Redressal) Act, 2013 are some of the substantive criminal
laws in India.
Limitations of substantive laws
 • Elements of substantive laws sometimes act as an obstacle to access to justice.
Some elements of substantive laws which are unfavourable to any litigant will
constitute an impediment to justice.
• Substantive laws can be used to limit and restrict the power and freedom of any
individual.
• The State possesses the uncontrolled and unlimited power to frame laws
according to its own will which the judiciary is bound to follow.
However, in India, the judiciary may strike down any law if it is unconstitutional.
For example, the Supreme Court of India struck down the Constitution (Ninety-Ninth
Amendment) Act, 2014, which established the National Judicial Appointment
Commission (NJAC) for the appointment of judges instead of the traditional collegium
system of appointment of judges, in the case of Supreme Court Advocates-on-Record
Association and another v. Union of India (2016).

Procedural laws
In contrast to substantive laws, procedural laws, also known as Adjective Laws, are the
laws which act as the ‘machinery’ for enforcing rights and duties.
Procedural laws comprise the rules by which a court hears and determines what happens
in civil, criminal or administrative proceedings, as well as the methods by which
substantive laws are made and administered. The rules are designed to ensure a fair and
consistent application of due process and fundamental justice to all cases before any
particular court.
Nature of procedural laws
• Procedural laws lay down the ways and means substantive laws can be enforced.
• They do not carry any independent powers to decide any case.
• These laws are applied in the legal procedure which sometimes may be used in
non-legal contexts, such as filing any suits or the manner any case will proceed.
• These laws are enforced by the Acts of Parliament or implemented by the
government.
A procedural law should always follow substantive law. The Madhya Pradesh High
Court held the decision in Farookh Mohammed v. the State of Madhya Pradesh
(2015). The Himachal Pradesh High Court held that procedural law should not
ordinarily be considered “mandatory” in the case of Gurudwara Bei Sehjal v. Nanhku
And Others (2022).
Limitations of procedural laws
Procedural laws have certain drawbacks and limitations.
• Some of the procedural laws may impose strict time limitations which may either
hasten or slow down the speed of the legal proceedings.
• Any party who is unfamiliar with procedural laws may breach the guidelines.
Though they may not affect the merits of the case, the failure to follow these
guidelines may severely damage the chances of the party.

MODULE 2: SOURCES OF LAW

Types of sources of law

Material sources
Material sources of law are those sources from which the law gets its content or matter,
but not its validity. There are two types of material sources which are legal sources and
historical sources.
Legal sources
Legal sources are the instruments used by the state which create legal rules. They are
authoritative in nature and followed by courts of law. These are the sources or
instruments that permit newer legal principles to be created. According to Salmond,
legal sources of English law can be further classified into four categories-
• Legislation,
• Precedent,
• Customary law, and
• Conventional law.

Historical sources
Historical sources are sources that influence the development of law without giving
effect to its validity or authority. These sources influence legal rules indirectly. The
difference between legal and historical sources is that all laws have a historical source
but they may or may not have a legal source. Decisions given by foreign courts serve
as an example for this kind of source.
Roman law, originating in the city of Rome and extending to the Roman Empire, has
profoundly influenced modern legal systems, particularly the civil law system of
Europe. The Corpus Juris Civilis, developed under Emperor Justinian I, stands as a
significant legacy from this era. Presently, two major European legal systems, the
common law of England and the continental civil law, are deeply shaped by the revived
principles of Roman law.
Formal sources
Formal sources of law are the instruments through which the state manifests its will.
In general, statutes and judicial precedents are the modern formal sources of law. Law
derives its force, authority, and validity from its formal sources.
According to Keeton, the classification given by Salmond was flawed. Keeton
classified sources of law into the following:
Binding sources
Judges are bound to apply such sources of law in cases. Examples of such sources are
statutes or legislation, judicial precedents, and customs.
Persuasive sources
Persuasive sources are not binding but are taken into consideration when binding
sources are not available for deciding on a particular subject. Examples of such sources
are foreign judgements, principles of morality, equity, justice, professional opinions, etc
1. Foreign Judgements: The Supreme Court of India has often relied on decisions
of foreign courts in a wide range of areas from protection of life and personal
liberty to freedom of speech and expression. The enforcement of foreign
judgments in India is governed by Section 44-A of the Code of Civil Procedure
1908. For example, the right to privacy was influenced by foreign judgements
in the case of Kharak Singh v. State of Uttar Pradesh.
2. Principles of Morality: The law often involves certain basic principles such as
fairness and equality, which are derived from ethics and morals. For instance, the
morality test of law ensures justice in society and does what is best for the
welfare of all the people.
3. Equity: The Law of Equity is based on principles of fairness and justice.
For example, the principle “Equity will not suffer a wrong to be without a
remedy” ensures that if a wrong has been committed, there must be a remedy
available. Modern times have seen the emergence of new equitable remedies
such as the Anton Piller Orders, Mareva Injunctions, and Super Injunctions.
4. Justice: Precedents often serve as persuasive sources of law. For instance, the
decisions of the European Court of Human Rights and the European Court of
Justice have been extensively cited by courts in several non-European Union
countries.
5. Professional Opinions: Legal scholars and professionals often provide their
opinions on various legal matters. These opinions, while not binding, can
influence the interpretation and application of law. For example, the opinions of
legal scholars like John Salmond and Jeremy Bentham have significantly
influenced the understanding and application of law.
Constitution: The Constitution of India, which came into effect on January 26, 1950,
is the supreme law of the land. It lays down the framework that demarcates fundamental
political code, structure, procedures, powers, and duties of government institutions and
sets out fundamental rights, directive principles, and the duties of citizens.
Legislation: An example of legislation is the Indian Penal Code of 1860, which is a
comprehensive code intended to cover all substantive aspects of criminal law.
Precedent: A landmark case that serves as a precedent is the Kesavananda Bharati vs
State of Kerala case (1973). In this case, the Supreme Court of India established the
“basic structure” doctrine of the Constitution.
Custom: An example of custom serving as a source of law in India is the recognition
of customs in personal laws. For instance, certain customs related to marriage,
succession, and adoption are recognized under the Hindu Marriage Act, 1955, and the
Hindu Succession Act, 1956.
Treaty/Convention: The Ramsar Convention, an international treaty for the
conservation and sustainable use of wetlands, is an example. India, as a party to this
convention, is obligated to protect and conserve its wetlands.
Professional Opinions: Legal scholars and professionals often provide their opinions
on complex legal matters. For instance, in the field of constitutional law, the opinions
of legal scholars can influence the interpretation and application of the Constitution.
Another example could be of American Legal Realism, prominent in the 1920s and
1930s, notably influenced judicial decision-making. Led by scholars like Oliver
Wendell Holmes, it emphasized evaluating law based on its effects, leaving a lasting
impact on legal thought and scholarship.

PRECEDENT
A precedent refers to a rule or principle of law that has been established by a previous
ruling by a court of higher authority, such as an appeals court or a supreme court. This
principle or rule is then used by the court when deciding later cases with similar issues
or facts.
For example, Kesavananda Bharati the basic structure doctrine of the Indian
Constitution was propounded which is applicable as a precedent in the case of Indira
Gandhi Vs. Raj Narayan, Minerva Mills and other cases where the facts of the case
and the circumstances are subsequently similar.
Judicial precedent means a judgment of a court of law cited as an authority for
deciding a similar set of facts; a case which serves as authority for the legal principle
embodied in its decision. A judicial precedent is a decision of the court used as a source
for future decision making. The concept of “stare decisis”, Latin for “to stand by things
decided”, is the doctrine that obliges courts to look to precedent when making their
decisions. This helps to ensure fairness and integrity in the legal system.

The cases of “Roe v. Wade” and “Planned Parenthood v. Casey” share similarities:
Protection of Abortion Rights: Both cases affirmed a woman’s right to choose an
abortion. In “Roe v. Wade,” the Supreme Court held that the 14th Amendment
protected this right. "Planned Parenthood v. Casey" reaffirmed this decision.
Viability Test: Both cases used fetal viability as a significant factor in assessing the
constitutionality of abortion restrictions. While "Roe v. Wade" estimated viability at
about 28 weeks, "Planned Parenthood v. Casey" adjusted it to around 23 weeks due to
advances in neonatal care.
Stare Decisis and Precedent: The principle of “stare decisis” (adherence to precedent)
played a key role in both cases. "Planned Parenthood v. Casey" emphasized the
importance of adhering to precedent, particularly in politically divisive cases unaffected
by new facts or legal changes.
Undue Burden Standard: "Planned Parenthood v. Casey" introduced the “undue
burden” standard, allowing states to enact abortion restrictions as long as they didn't
impose an undue burden on the woman. This standard built upon the framework
established in "Roe v. Wade."

2 FUNDAMENTALS OF PRECEDENT
1. Concrete Decision: This refers to the specific ruling or judgement given by the
court in a particular case. It’s called “concrete” because it directly addresses the
unique circumstances and facts of the case at hand. This decision is binding on
the parties involved in the case, meaning they must abide by the decision. For
example, in the famous case of Roe v. Wade in the United States, the concrete
decision was that laws prohibiting abortion were unconstitutional. This
decision was binding on the parties involved in the case.
2. Abstract Principle (Ratio Decidendi): This is the general principle or rule that
the court establishes in its judgement. Unlike the concrete decision, this principle
is not tied to the specific facts of the case. Instead, it’s an abstract concept that
can be applied to other, similar cases in the future. This principle is binding on
future judges, meaning they should follow this principle when making decisions
in similar cases.
For instance, in Roe v. Wade case, the abstract principle established was that a
woman’s right to choose to have an abortion falls within the right to privacy
protected by the Fourteenth Amendment. This principle has been used as a guide
for judges in subsequent cases involving similar issues.

In essence, while the concrete decision impacts the parties involved in a specific case,
the abstract principle has a broader influence, shaping the application of the law in
future cases. This is a key aspect of the doctrine of precedent, which promotes
consistency and predictability in the legal system.

NATURE OF PRECEDENT
Constitutive, not abrogative: A court can establish a new rule but cannot change an
existing one. For example, in the case of Kesavananda Bharati, the Supreme Court of
India propounded the basic structure doctrine of the Indian Constitution, a new legal
principle, without altering existing law.
Adherence to settled law: Judges must follow established laws. In "The Collector vs
K. Krishnaveni" case, the court overturned the removal of an Anganwadi worker based
on a criminal case, stating removal only on the basis of the criminal case is unjust. This
decision, a precedent, mandates adherence by other judges in similar cases.
No substitution of opinions: Judges cannot replace personal opinions for established
laws. In Texas vs. Johnson, the U.S. Supreme Court ruled that flag burning is protected
symbolic speech, despite personal views that may find it offensive.
Filling legal gaps: In cases where existing law doesn’t cover a situation, the court's
decision can create a new law. In District of Columbia v. Heller, the U.S. Supreme
Court ruled that the Second Amendment gives individuals the right to own guns
outside of military service, filling a gap in gun ownership law.
Scope of Precedent
The "scope of precedent" refers to the extent and application of a judicial decision's
authority in influencing future cases. It involves determining the range of situations and
legal issues to which a precedent should be applied, considering both horizontal and
vertical dimensions.
1. Horizontal Scope:
• Horizontal scope pertains to the breadth of impact across various legal
areas or subject matters.
• Example: In "Brown v. Board of Education (1954)," the ruling against
racial segregation had a broad horizontal scope, affecting not only
education but also influencing subsequent cases in areas such as
employment and housing discrimination.
2. Vertical Scope:
• Vertical scope involves the depth of influence within a specific legal area
or field.
• Example: In "Miranda v. Arizona (1966)," the establishment of Miranda
rights had a vertical scope, directly impacting criminal procedure and law
enforcement practices during custodial interrogations.

3. Distinguishing Precedent:
• Definition: Distinguishing precedent involves demonstrating differences
between the current case and a prior decision, justifying a departure from
the precedent.
• Example: In "Brown v. Board of Education," the Court distinguished it
from "Plessy v. Ferguson" by highlighting changed social conditions and
evolving legal principles, justifying a departure from the earlier
precedent.
 4. Overruling Precedent:
• Definition: Overruling precedent occurs when a court explicitly rejects a
prior decision as incorrect or outdated.
• Example: In "Lawrence v. Texas (2003)," the Court overruled "Bowers v.
Hardwick," signalling a change in societal attitudes toward personal
liberties, especially regarding consensual adult relationships.
5. Expanding Precedent:
• Definition: Expanding precedent involves broadening the application of
a prior decision to cover new or related situations.
• Example: In "Obergefell v. Hodges (2015)," the Court expanded
marriage rights to same-sex couples, building upon the precedent set in
"Loving v. Virginia," which had invalidated bans on interracial
marriage.

IMPORTANCE OF PRECEDENCE:
Consistency and Predictability:
Importance: Precedents ensure that courts make judgments based on consistent rules
in similar cases, leading to a fair and predictable outcome. This maintains the integrity
of the legal system and ensures consistent justice.

Example: In the case of "Roe v. Wade (1973)," the U.S. Supreme Court established a
precedent affirming a woman’s right to choose abortion. Subsequent cases, like
"Planned Parenthood v. Casey (1992)," upheld and reaffirmed this precedent,
providing consistency in the application of abortion rights.
Fairness and Equality:
Importance: Precedents foster fairness and equality by treating similar cases alike,
preventing arbitrary decision-making.
Example: In "Brown v. Board of Education (1954)," the Supreme Court ruled that
racial segregation in public schools was unconstitutional. This landmark decision set a
precedent that challenged racial discrimination, promoting equal protection under the
law. Following the original "Brown" decision, "Brown II" addressed the
implementation of desegregation in public schools. The Supreme Court held that
desegregation should proceed with "all deliberate speed."
Efficiency in Judicial Decision-Making:
Importance: Precedent streamlines the judicial decision-making process, making it
more efficient and reducing the need to start from scratch with each case.
Example: In "Miranda v. Arizona (1966)," the Supreme Court established the
Miranda warning requirement for custodial interrogations. This precedent has since
provided a standard framework for handling such cases, streamlining the process for
judges and law enforcement.
In Dickerson v. United States (2000), the Supreme Court upheld the Miranda decision
in Dickerson, reaffirming that the Miranda warnings are constitutional requirements and
not merely a judicial policy. This case confirmed the enduring authority of Miranda.

HISTORY
Legal precedent in the UK traces back to medieval England, where judges recorded
decisions, relying on prior judgments. In the 13th-14th centuries, Year Books compiled
legal reports, contributing to common law. Stare decisis, "to stand by things decided,"
became foundational, encouraging consistency. The Court of King's Bench, established
in the 13th century, standardized legal principles. The fusion of common law and equity
in the 19th century further shaped precedent. Before the 2009 Supreme Court
establishment, the House of Lords served as the highest court, significantly
contributing to precedent development. These milestones reflect the evolution of UK
legal precedent.

In India, the doctrine of precedent is rooted in English common law due to British
colonial influence during the British Raj. Although an organized judicial system was
initially absent, the theory of precedent began developing after British rule was
established. The Government of India Act, 1935, played a pivotal role by establishing
a federal court and Privy Council. According to Section 212 of the Act, decisions of
these entities became binding on all other courts in the country. This laid the foundation
for the doctrine of precedent in Indian law, with Article 141 of the Indian constitution
further emphasizing the binding nature of Supreme Court decisions on all courts within
the territory of India.

AUTHORITY OF A PRECEDENT?
The reason why a precedent is recognised is that a judicial decision is presumed to be
correct. That which is delivered in judgment must be taken for established truth. In
all probability, it is true in fact and even if it is not, it is expedient that it should be held
to be true. The practice of following precedents creates confidence in the minds of the
litigants. Law becomes certain and known and that in itself is a great advantage. It is
conducive to social development; administration of justice becomes even-handed and
fair. Decisions are given by judges who are experts in the study of law.

HOW DOES IT WORK IN INDIA LEGAL SYSTEM?

Binding Nature: The Supreme Court’s decisions are binding on all courts in India based
on Article 141 of the Indian Constitution.
Supreme Court’s Autonomy: The Supreme Court is not bound by its own decisions or
those of the Privy Council or Federal Court, giving it the power to overrule its previous
decisions. Thus, the Supreme Court is not bound to follow its own decision but free
to review and reconsider its previous decisions following the arisen extenuating
circumstance. The same was held in the case of Bengal Immunity Co. v. the State of
Bihar.

In the case of Suganthi Suresh Kumar v. Jagdeesham, it was held by the Apex court
that under no circumstance a High Court can overrule the decision of the Supreme
Court.
Interpretation of Article 141: The Supreme Court clarified that the term “all courts in
India” does not include the Supreme Court itself.
Deviation from Previous Decisions: The Supreme Court can deviate from its earlier
decisions, but only in exceptional cases.
Division Bench Decisions: A law pronounced by a Division Bench of the Supreme
Court is binding on a Division Bench of the same or a smaller number of judges.
It’s not necessary for the decision to be rendered by the full Court or a Constitution
Bench of the Supreme Court.
Revision of Earlier Decisions: The Supreme Court can revise its earlier decision if
there are compelling and substantial reasons to do so. For instance, if an earlier
relevant statutory provision had not been brought to the notice of the court, or if a vital
point was not considered. In the case of G.L. Gupta v. D. D. H. Mehta, the Supreme
Court reviewed its judgment in a criminal appeal concerning a breach of the Foreign
Exchange Regulation Act, 1947, and revised the prison sentence to a fine.
The court would, however, do well to ensure that although the new norm chosen in
response to the changed social climate represents a departure from the previously
ruling norm it must, nevertheless, carry within it the same principle of certainty, clarity
and stability.
The earlier decision may be reviewed, for instance,
(i) where an earlier relevant statutory provision had not been
brought to the notice of the court, or
 (ii) if a vital point was not considered.

Binding Nature of Judgments Inter Se: A judgment of one bench is binding on another
bench of lesser or equal strength. However , If a Single Judge finds that a judgment of
a Division Bench of two Judges is not correct, he can make a reference to the Chief
Justice to place the matter before another Division Bench or more Judges and if nothing
happens , the single judge is bound to follow the decision of division bench .If a
Division Bench of two Judges differs from the decision of another Division Bench of
two Judges, it has to make a reference to the Chief Justice to refer the matter to a bench
of more than two Judges.
Kesavananda Bharati vs State of Kerala: This is a landmark case where a larger bench
of 13 judges overruled the decision of a smaller bench in the Golak Nath case. The
larger bench propounded the doctrine of the ‘Basic Structure’ of the Constitution,
which cannot be altered by amendments by the Parliament.
Referral to Larger Benches: Sometimes, considering the importance of the issue, the
Chief Justice can refer the matter to a Bench of 5, 7, 9, 11, or 13 Judges.

HIGH COURTS
• High Courts: Their decisions are binding on all courts within their own
jurisdiction. For courts outside their jurisdiction, their decisions only have
persuasive value. If there’s a conflict with a decision of the same court and bench
of equal strength, the matter is referred to a higher bench.
In Medical Council of India v. Christian Medical College, Vellore And Others
,the judgment of the other High Courts, though not binding, have persuasive
value.

• Decisions of PC and Federal Court: These are binding as long as they don’t
conflict with decisions of the Supreme Court.
• Lower Courts: They are bound to follow decisions of higher courts in their own
state, even over the decisions of High Courts from other states.

Authoritative Precedents: These are the judgments or decisions made by higher

courts that lower courts are obligated to follow, regardless of whether they agree with
them or not. This is a key principle in many legal systems, particularly those that
follow common law, as it ensures consistency and predictability in the application of
the law. These precedents are considered legal sources of law.
In the United States, the case of Marbury v. Madison (1803) stands as a significant
authoritative precedent. It established judicial review, granting the Supreme Court the
authority to declare legislative and executive acts unconstitutional. This precedent has
enduringly shaped the balance of power in the American government.

Persuasive Precedents: These are the judgments or decisions that are not binding on
the court, but the court may consider and follow if they find them to be applicable and
convincing. These can include decisions from foreign courts, obiter dicta (remarks or
observations made by a judge that, although included in the body of the court’s opinion,
do not form a necessary part of the court’s decision), and decisions of the Privy Council.
These precedents are considered historical sources of law.

In People’s Union for Civil Liberties v. Union of India (1997) ,the Supreme Court of
India referred to the Canadian case of ‘R. v. Oakes’ while interpreting the concept of
‘reasonableness’ in the context of restrictions on fundamental rights.

Absolute Precedent: A binding legal decision without conditions, providing an

unequivocal rule to be followed unless overruled.
In the Kesavananda Bharati case the basic structure doctrine of the Indian
Constitution was propounded which is applicable as a precedent in the case of Indira
Gandhi Vs. Raj Narayan, Minerva Mills and other cases where the facts of the case
and the circumstances are subsequently similar.
Conditional Precedent: A legal decision with specific conditions for application,
subject to change in interpretation based on altered circumstances.
In "Lawrence v. Texas" (2003) in the United States. In this case, the Supreme Court
struck down a Texas sodomy law as unconstitutional, explicitly stating that the decision
was limited to consensual adult sexual conduct in private settings.
A ‘declaratory’ precedent is merely the application of an already existing rule of law; •
An ‘original’ precedent is one which creates an applies a new rule. It becomes the law
for the future.
(INSERT - ROE v. WADE AND PLANNED PARENTHOOD v. CASEY)
ADVANTAGES OF PRECEDENT
Consistency and Predictability: Precedent ensures consistent and predictable legal
outcomes. Similar cases are decided similarly, fostering fairness. For instance, in
contract law, the Carlill v Carbolic Smoke Ball Company precedent established that an
advertisement can constitute a legally binding offer, offering predictability for
businesses and consumers.
Flexibility: Judicial precedent allows flexibility. Higher courts can change decisions on
appeal or in response to societal shifts. For example, Plessy v. Ferguson initially
endorsed "separate but equal" but was later overturned by Brown v. Board of
Education, illustrating the system's adaptability.
Time Efficiency: Precedent saves time by providing a basis for future cases. Once a
question is settled, courts can apply the same reasoning to similar cases. For instance,
the principle of res ipsa loquitur, established in Byrne v Boadle, has streamlined
analysis in numerous personal injury cases.
Guidance for Future Behavior: Judicial precedent enables lawyers to advise clients
confidently, allowing individuals and businesses to make informed decisions. In
employment law, Donoghue v Stevenson established the duty of care principle, guiding
businesses in their health and safety practices.

DISADVANTAGES OF PRECEDENT
1. Stifling Progress: The tendency to follow precedents can lead to stereotyped
procedures and stultify progress. This is because the application of past rulings
in a mechanical manner may not provide much assistance in human situations.
In Dred Scott v. Sandford , a landmark decision by the United States Supreme
Court that held that African Americans, whether enslaved or free, could not be
American citizens and therefore had no standing to sue in federal court. The
court’s decision was seen as potentially stifling progress towards racial
equality.
2. Rigidity: The practice of rigid adherence to precedent can eventually produce
an accumulation of outmoded rules.
These rules are likely to be blurred by artificial distinctions, making it difficult
to implement the right precedent. An example of the rigidity of precedent is seen
in the "separate but equal" doctrine established in Plessy v. Ferguson (1896).
This inflexible precedent, upholding racial segregation, endured until Brown v.
Board of Education (1954) overturned it, highlighting the challenges of
adhering strictly to outdated legal principles
3. Threat to Stability: While restraint in the application of precedents ensures
stability, abstention can defeat this very stability. This is because the absence of
a precedent can lead to inconsistencies in rulings, which can undermine the
predictability and fairness of the legal system.
4. Overstepping Boundaries: Judges, while exercising judicial powers, often try
to overtake the role of the legislature. them. For example, The Supreme Court
of India imposed a ban on the sale of liquor within 500 meters of state and
national highways. This decision was seen as an overreach of the judiciary into
the domain of the executive.
STARE DECISIS
The doctrine of stare decisis is expressed in the maxim "stare decisis et non quieta
movere", which means "to stand by decisions and not to disturb what is settled. “The
underlying logic of this doctrine is to maintain consistency and avoid uncertainty. The
guiding philosophy is that a view which has held the field for a long time should not be
disturbed only because another view is possible.
HISTORY OF STARE DECISIS
The doctrine of stare decisis has essentially developed as a result of progress made in
law-reporting. In beginning, there was no doctrine of stare decisis as there was no
reporting of the decisions of the courts in England. The origin of reporting of decisions
in England can be traced back to 17th century when the decisions of Exchequre
Courts came to be reported and were given binding force. In 1833 Chief Justice Park
reiterated the need for recognizing the binding force of precedents in the historic
decision in Mirehouse v. Rennel, later, with the establishment of the supreme court of
judicature by the Acts of 1873 and 1875 the doctrine of stare decisis was firmly
established. A Hierarchy of courts which is also a pre-condition for the stare decisis
was established along with the above said Acts. In England, while initially precedents
were considered as guiding principles, with the doctrine of binding precedent developed
and around the 20th century it was completed in some respects. Law reporting started
in India with the creation of the Supreme Court in 1774.
An attempt was made to reprint the cases in the old reports and re-issue a new series
known as the Indian Decisions (Old Series). This series edited by T.A. Venkaswamy
Row started its publication from 1911.

DOCTRINE OF STARE DECISIS IN CIVIL LAW SYSTEM

Stare decisis is not usually a doctrine used in civil law systems, because it violates the
principle that only the legislature may make law. However, the civil law system does
have jurisprudence constant, which is similar to Stare decisis and dictates that the
Court's decision condones a cohesive and predictable result. In theory, inferior courts
are generally not bound to precedents established by superior courts.
In practice, the need for predictability means that inferior courts generally defer to
precedents by superior courts. In a sense, the most superior courts in civil law
jurisdictions are recognized as being bodies of a quasi-legislative nature.
Germany: The Federal Constitutional Court of Germany, known as the
“Bundesverfassungsgericht”, has a significant role in shaping the jurisprudence
constante in Germany. It has the power to review and invalidate legislation and its
decisions are considered binding.
IMPORTANCE:
In Minerva Mills Ltd. v. Union of India (1980), the Supreme Court emphasized the
crucial role of legal certainty and continuity in upholding the rule of law. The court
warned against easily overturning its own precedents after a considerable period, stating
that such actions could lead to uncertainty, instability, and confusion in the legal system.
The message conveyed is that maintaining consistency in legal decisions is essential for
the reliability of the law and for providing a predictable framework for individuals and
entities interacting with the legal system.
CAVEAT:
Although this rule is generally followed by the courts, it is not applicable in all cases.
The reason is that previous decisions should not be allowed to perpetuate a wrong
if the court is convinced that the previous decision is wrong. The rule of stare decisis
is not so imperative or inflexible that it cannot be departed from but its application must
be determined in each case by the discretion of the court and previous decisions should
not be followed to the extent that error may be perpetuated and grievous wrong may
result.

In Maktul v. Manbhari, it was held that where the correctness of the decision has been
challenged from time to time and in fact had been reversed and its decision has been
considerably impaired by a Privy Council decision, the doctrine of stare decisis is not
applicable.

In Bachan Singh v. State of Punjab (1982), the Supreme Court rejected the plea that
the constitutional validity of the death sentence, settled by a prior Constitution Bench
in Jagmohan Singh v State of U.P. (1973), could not be reargued before a similar-sized
bench. The Court emphasized that while stare decisis is a necessary tool in the legal
system, it must not become a tyrannous master. The Court justified reconsideration
due to supervening circumstances: the introduction of a new Code of Criminal
Procedure in 1973 and a reinterpretation of constitutional articles by the Court in
Maneka Gandhi v Union of India (1978). These changes made the death penalty
vulnerable to new challenges not available when Jagmohan Singh was decided in 1973.
The Court's departure from stare decisis was based on evolving legal standards,
international human rights instruments, and the need for a nuanced approach in the
interest of justice.
In Krishena Kumar And Anr. Etc. Etc vs Union of India And Ors (1990) retired
railway employees contested alleged discrimination in pension scheme options. They
claimed that certain retirees were given choices beyond specified cut-off dates, violating
Article 14 of the Constitution. The court, guided by stare decisis and Article 141 of the
Indian Constitution, considered prior rulings on similar matters.

EXCEPTIONS TO THE DOCTRINE OF STARE DECISIS

 • Conflict with a previous decision of the same court: In the Gujarat Housing
Board, Ahmedabad case, it was emphasized that in the presence of a clear
conflict between two decisions of the Apex Court with an equal number of
Judges, the later decision takes precedence and binds the High Court.
• Overruled by the subsequent decision of a higher court: In M/s Unicorn
Industries vs. Union of India, the judgment in SRD Nutrients (P) Limited was
specifically overruled, clarifying that the exemption from excise duty under a
notification doesn't extend to education cess and secondary education cess.
• Obsolete, obscure, or out of accord with authority or established principle:
Cooks v. State highlighted that while the rule of stare decisis is generally
valuable, it should not perpetuate error. Courts, exercising caution, must
reconsider and rectify their own mistakes when necessary.
• Per Incuriam

CIRCUMSTANCES WHICH WEAKEN THE FORCE OF PRECEDENT

• Decisions can be nullified by new laws or overruled by higher courts. Courts
can follow either precedent when there’s a conflicting one. Overruling can be
express or implied. Until the 1940s, the Court of Appeal followed its own
previous decision even if it contradicted a later House of Lords decision, unless
it was expressly overruled.
• In India, the 24th and 25th Amendments were passed to nullify Supreme Court
decisions in the Golak Nath and Bank Nationalisation cases, respectively.

• Decisions can be affirmed or reversed based on different grounds than those

used in the lower court. If affirmed on different grounds, the appellate court may
not necessarily agree with the original reasons, but it can still serve as a reference
for other courts. The binding force of a decision may be affected when affirmed
or reversed on different grounds, but its influence persists. Sometimes, the
appellate court may choose a different point for its decision, possibly finding it
easier to resolve the case.

• In Durning v. Citibank, the Durnings bought bonds from the Wyoming

Authority, believing they couldn’t be redeemed before 1991. They claimed they
were misled and wouldn’t have bought the bonds otherwise. The Authority
claimed immunity as a state entity, but the court disagreed. The Durnings
appealed the dismissal of their case. The case also discussed that a reversed
decision can influence future cases, but a vacated one has no authority as a
precedent.
 • In Narayani Krishnan vs The Union of India demonstrates the principle that a
precedent isn’t binding if it overlooks a statute or rule. Here, the overlooked
statute was the eligibility of the Punnapra Vayalar Struggle for the Freedom
Fighters’ Pension Scheme in 1980. The Punnapra Struggle wasn’t recognised
under the scheme during his lifetime. This oversight influenced the court’s
decision, showing that such mistakes can invalidate a precedent.

• A precedent loses its binding force if the court that decided it overlooked an
inconsistent decision of a higher court. If the High Court of Delhi decides a
case in ignorance of a decision of the Supreme Court of India, the decision of the
High Court of Delhi is not a precedent and hence is not binding on any lower
court. Buta Singh v. Union of India, the court held that a decision can be “per
incuriam” if it overlooks a binding decision of a larger bench.

• SUB SILENTIO
• INSERT ALL THE POINTS OF RUPERT CROSS EXCEPTIONS TO
STARE DECISIS.

CIRCUMSTANCES WHICH STRENGHTEN THE FORCE OF

PRECEDENT
1. Unanimous Decision: A unanimous decision by the judges in a case strengthens
the value of a precedent as it shows a clear consensus among the judiciary. This
is often seen as a strong endorsement of the legal principle established in the
case. The case of Bedford in Canada is an example of a unanimous decision. In
this case, all nine judges agreed that the challenged prostitution laws were
unconstitutional.

2. Affirmation by Higher Courts: If a decision is affirmed or approved by a higher

court, it adds to the strength of the precedent. This is because higher courts have
more authority, and their approval signals that the legal principle is sound. In
Texas vs. Johnson in the United States is an example of affirmation by a higher
court. In this case, the Supreme Court affirmed the decision of the lower court
that flag burning is symbolic speech protected by the First Amendment.
3. Legislation embodying the Precedent: If a law is passed that embodies the
principle established in a precedent, it gives the precedent added authority. This
is because it shows that the legislative branch, which represents the will of the
people, has also endorsed the legal principle. The Vishakha guidelines in India
 is an example of legislation embodying a precedent. These guidelines were
issued by the Supreme Court of India in Vishakha and others vs. State of
Rajasthan in 1997. They were later incorporated into the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Municipal Corporation of Delhi Vs Gurunam Kaur

“Wherein three judges bench of Hon'ble Supreme Court laid down that the following
categories of decisions of the Supreme Court have no binding force:
• a) Obiter dicta, i.e. statements which are not part of ratio decidendi.
• b) A decision Per incurium, i.e. given in ignorance of the term of a statute or rule
having the force of a statute.
• c) A decision passed sub silentio, i.e. without any argument or debate on the relevant
question.
• d) An order made with the consent of the parties, and with the reservation that it should
not be treated as precedent”.

RATIO DECIDENDI
A precedent is a judicial decision which contains in itself a principle. The underlying
principle which thus forms its authoritative element is often termed the ratio decidendi.
The concrete decision is binding between the parties to it but it is the abstract ratio
decidendi which alone has the force of law as regards the world at large.
According to Professor Dias, three shades of Meaning can be attached to the expression
'ratio decidendi”:
Understanding through case of “DONOGHUE v. STEVENSON”
1. Reason for Decision: Pertains to the specific facts leading to a verdict. In
Donoghue v Stevenson (1932), Mrs. Donoghue falling ill after finding a
decomposed snail in her ginger beer was pivotal in the decision.
2. Rule of Law: The legal principle guiding a judge's decision. In Donoghue v
Stevenson, the judge applied the duty of care principle, stating manufacturers
owe a duty of care to consumers, forming the decision's basis.
3. Binding Authority: Legal principles from prior cases binding on subsequent
ones. Donoghue v Stevenson's establishment of the duty of care is now a binding
 authority in negligence cases, shaping the modern concept of owing a duty of
care to a "neighbour."

PER INCURIAM
A decision given per incuriam is a case in which a statute or rule having statutory effect
is not brought to the attention of the court. The term “per incuriam” is Latin for
“through inadvertence” or “through lack of care”.
• A judgement can be said to be “per incuriam” if it has been delivered in ignorance
of the statutory provisions.
• It can also be considered “per incuriam” if another binding judgement has been
disregarded by the Court.

• In practice, “per incuriam” is taken to mean “per ignoratium”, which means a

decision is in disregard of the previous decisions of the Court itself, or that it was
rendered in ignorance of the terms of an applicable statute or of a rule having the
force of law.

CASE EXAMPLES:

Gurbaksh Singh Sibbia vs State of Punjab: This judgement set a precedent

regarding the anticipatory bail under section 438 Crpc.

Later, there were judgements in the same matter but with a totally reverse view.
These judgements were held to be per incuriam because they did not follow the
precedent set by the Constitutional Bench of 5 Judges in the Sibbia case.

Siddharam Satlingappa Mhetre vs State Of Maharashtra And Others (2011):

The judgement in this case was seen as a reaffirmation of the law laid down in the
case of Gurbaksh Singh Sibbia vs State of Punjab, which set a precedent
regarding anticipatory bail under section 438 Crpc. Any orders contrary to the clear
legislative intention of law laid down in Sibbia’s case were considered per incuriam.

SUB SILENTIO

“Decisions sub silentio” is a Latin term that means “decisions made in silence”.
In the context of law, it refers to situations where a court makes a decision on a
case, but doesn’t specifically address or comment on a certain point or issue
within that case.

For example, imagine a case where a person is sued for not paying rent and causing
property damage. The court might rule that the person has to pay for the property
damage, but doesn’t say anything about the unpaid rent. This could be considered a
decision sub silentio on the rent issue.

These types of decisions do not set a precedent, which means they are not considered
as a guiding principle or rule for future similar cases. This is because the court didn’t
provide a clear judgement or reasoning on that particular point or issue. This concept
is important because it helps determine the precedential value of a case.

In the case of “Municipal Corporation of Delhi vs Gurnam Kaur”, the Supreme

Court of India observed that a decision passes sub silentio when the particular point
of law involved in the decision is not perceived by the court or present to its mind.

In the "State of U.P. and ors. v. Jeet S. Bist" case, the High Court directed the State
Government to establish at least five State Consumer Forums, viewed as a judicial
overreach into the executive domain, conflicting with the separation of powers
principle. The reference to the "All India Association and ors. v. Union of India"
case highlighted it as an instance of a decision passed "sub silentio," where the court
issued directions without discussing their validity.

In Gerard v. Worth of Paris Ltd. 1936, where a dismissed employee who had
obtained damages against a Company for wrongful dismissal applied for a garnishee
order on a bank account standing in the name of the Liquidator of the company. In
this case the question whether a garnishee order could legally be made on an account
standing in the name of the Liquidator was not considered at all.

Hence when the question was raised in the subsequent case Lancester Motor Co. v.
Bremith Ltd. It was held that the previous decision was not binding.

In the Synthetics & Chemicals case as per R.M. Sahai, J., it was established that a
decision becomes sub-silento when the court fails to perceive or consider the
particular point of law involved in the decision.

Regarding the decision in Mehboob Hasan's case, it appears to be a judgment sub-

silento since the Division Bench did not notice Entry 56 List II, which was logically
involved in the interpretation of Section 3(1) and Explanation II of the Adhiniyam.

OBITER DICTA

“Obiter Dicta” is a Latin term that means “things said by the way”. It is generally
used in law to refer to an opinion or non-necessary remark made by a judge. They
are considered additional remark, are not binding and have persuasive value.

In Kumar Aggarwal v. State Of Madhya Pradesh And Others, a judge remarked

that "pertaining to challan proceedings is in the nature of mere obiter dicta and
could not qualify to be treated as a direction of the Court even by any stretch of
imagination". This statement was not directly necessary for the decision of the case;
hence it is considered as obiter dicta.
CUSTOM
It is a long-standing practice that, due to its consistent and widespread application,
has acquired the status of law within a specific region. It’s a rule that, having been
followed unvaryingly and continuously for an indefinite period, is considered
binding on and enforceable among members of a community. It encapsulates
principles deemed just and beneficial to the public.

In India, personal laws are community-specific legal systems that govern matters of
marriage, divorce, inheritance, and other personal matters. The Hindu Marriage Act
of 1955 governs Hindu marriages. This act recognizes the customs and traditions of
Hindu marriages, including ceremonies like the Saptapadi (the taking of seven steps
by the bridegroom and the bride jointly before the sacred fire). The law is designed
to protect the rights of the Hindu bride and groom tied together by the holy bond of
marriage.

Muslim personal law in India is based on a mix of local customs and Islamic
law. For instance, Muslim personal laws allow Muslim males and females to marry
after attaining puberty, while all other Indian males have to be 21 years old and
females 18 years old to get married.

In the United States, the customs and traditions of Native American tribes are
binding and enforceable in tribal courts. For example, the Navajo courts have
recognized a customary law right to notice, as well as a right to indigent
representation and effective counsel during a trial.

VIEW OF VARIOUS THINKERS

According to Halsbury, “a custom is a particular rule which has existed either
actually or presumptively from time immemorial and has obtained force of law in
a particular locality”.

For example, the practice of “right to light” in England. This is a rule that has been
recognized for centuries, where a long-standing opening in a building could legally
demand that a neighbour not obstruct the light from reaching this opening.

According to Salmond “Custom is the embodiment of those principles which have

commended themselves to the national conscience as principles of justice and
public utility”.

For example, the principle of “non-refoulement” in international law. This custom

prohibits nations from returning asylum seekers to a country where they would
likely face persecution. It has been widely accepted as a principle of justice and
public utility.

According to Carter “It is the uniformity of conduct of all persons under like
circumstances.

In the United States, it is customary to tip service workers such as waitstaff,

bartenders, and taxi drivers. This is a uniform behavior conducted by individuals
after receiving a service.

ORIGIN OF CUSTOMS
Workplace dress code example to explain each point:

1. Oldest Form of Law-Making:

• Custom as the oldest form of law-making is reflected in the establishment
of a workplace dress code. Initially, there may have been an informal
agreement among employees or members of a profession regarding
suitable attire for work.

2. Regulation by Spontaneous Development:

 • The dress code likely developed spontaneously as employees, over time,
found certain types of clothing more practical and appropriate for the
nature of their work. For instance, professionals in a corporate setting may
have gravitated towards business attire for its formal and polished
appearance.

3. Convenience as a Driving Factor:

• The choice of specific attire in the workplace is often driven by
convenience and practicality. For instance, uniforms in certain
professions enhance safety or make it easier to identify employees. In a
corporate setting, business attire may be chosen for its professional image.

4. Imitation in Custom Growth:

• New employees entering the workplace observe the dressing habits of
their colleagues and superiors. If a specific dress code is consistently
followed and imitated, it becomes a customary practice. Over time,
adherence to the established dress code becomes a norm within the
organization or industry.

BINDING FORCE OF LAW / REASONS FOR CUSTOM IS GIVEN

THE FORCE LAW
Custom embodies principles of truth, justice, and public policy that have gained national
acceptance. The fact that a rule is sanctioned by custom implies it deserves legal
sanction too. Judges tend to favor rules with the prestige of long acceptance.

Custom, as an external sign of national conscience, is accepted by courts as an

authoritative guide.

For example, standing in respect during the national anthem is a custom in many
countries, reflecting patriotism and honor. Some jurisdictions legally mandate standing
during the national anthem, reinforcing the custom through specific laws and
regulations.

Another reason for the binding force of custom is that the existence of an established
usage is the basis of a rational expectation of its continuance in the future. Justice
demands that this expectation should be fulfilled and not frustrated. The observance of
a custom may not be ideally just and reasonable, but it cannot be denied that it brings
stability and certainty in the legal order. In the case of New Zealand, the customs of
the Maoris, the original inhabitants of the country, were recognised by the Native
Rights Act of 1865.
Sometimes a custom is observed by a large number of persons in society and in course
of time the same comes to have the force of law the custom of giving three days of
grace on bills of exchange.

Custom rests on the popular conviction that it is in the interests of society. This
conviction is so strong that it is not found desirable to go against it.

Custom is useful to the law-giver and codifier in two ways. It provides the material out
of which the law can be fashioned and psychologically, it is easier to secure reverence
for a code if it claims to be based on customs immemorially observed and themselves
true even though historically the claim cannot be substantiated. There is inevitably a
tendency to adopt the maxim 'Whatever has been authority in the past is a safe guide
for the future’.

The Hindu Marriage Act of 1955 governs Hindu marriages. This act recognizes the
customs and traditions of Hindu marriages, including ceremonies like the Saptapadi
(the taking of seven steps by the bridegroom and the bride jointly before the sacred
fire). The law is designed to protect the rights of the Hindu bride and groom tied
together by the holy bond of marriage.

THEORIES REGARDING TRANSFORMATION OF LAW INTO

CUSTOM
HISTORICAL SCHOOL
Growth of Law Not Depending on Arbitrary Will: The development of the
common law system is a good example. The common law system, which is used
in countries like the United Kingdom, United States, Canada, and Australia,
evolved over centuries through decisions made by judges in individual cases.
These decisions were not based on the arbitrary will of any individual, but rather
on the collective intelligence and wisdom of the judiciary interpreting and
applying the law to specific facts.
Custom Derived from Common Consciousness: An example can be seen in
the tradition of shaking hands as a form of greeting. This custom has been widely
 accepted and practiced by people across various cultures and societies. It is not
the result of any conscious thought or decision by an individual, but rather a
practice that has evolved over time and has become a part of social etiquette.

Criticism:
Customs Arising from Tentative Practice: The practice of driving on a
particular side of the road can serve as an example. In some countries, people
drive on the right side of the road, while in others, they drive on the left. This
custom did not arise from any conscious thought or decision, but rather from
tentative practices that eventually became the norm. (Paton)
Customs Arising from the Convenience of the Ruling Class: The caste
system in India is an example of a custom that arose for the convenience of
the ruling class. The system was initially intended to divide society into
different occupational groups, but it eventually became a tool for the ruling
class to maintain their social and economic dominance. (Allen)

ANALYTICAL SCHOOL
Austin’s Theory: Austin proposed that customs are a source of law but not
law itself until recognized by court decisions. For instance, in India, there is
a custom known as ‘Hindu Undivided Family’ (HUF), which is a unique
form of joint family system practiced by Hindus. Over time, this custom was
recognized by the courts and given legal status, with specific tax benefits
under the Income Tax Act. Thus, a customary practice became a part of the
law through court recognition.
Holland’s Theory: Holland believed that customs are not laws at their inception, but
they are largely incorporated into laws through state recognition. A good example
of this is the ‘Doctrine of Native Title’ in Australia. Indigenous customs and
traditions related to land ownership were initially not recognized by the Australian
legal system. However, in the landmark Mabo case, the High Court of Australia
recognized the existence of native title rights and incorporated these customary laws
into the formal legal system.
Allen’s Criticism: Allen argued that customs grow out of conduct and it’s incorrect
to measure their validity solely by the sanction of courts or other authorities.
An example of this can be seen in the business world. In many industries, there are
unwritten ‘rules of conduct’ or ‘business etiquette’ that professionals adhere to.
These customs, such as not discussing business at social events or respecting a
client’s personal space, are not legally enforced but are widely accepted and
practiced. They have grown organically out of professional conduct and are
considered valid, even without formal sanction.
Conclusion
The Historical and Analytical Schools of law through the concept of customs.
Customs, originating from society, are the foundation of all legal systems,
embodying principles of justice. They can be local, foreign, or international, and are
influenced by societal development, jurists, codifiers, and law-givers. As society
evolves, customs undergo rationalization and systematization, becoming
incorporated into legal rules. This process is evident in different legal systems, such
as Roman and English law. Courts in developed legal systems play a key role in
controlling, interpreting, and molding customs. The synthesis of the Historical
School’s focus on customs and the Analytical School’s emphasis on rational and
systematic processes provides a comprehensive understanding of the evolution and
function of customs in legal systems. This perspective underscores the dynamic
interplay between customs and law, highlighting their mutual influence and co-
evolution.

CONVENTIONAL CUSTOMS OR USAGE

Conventional Custom or Usage: The concept of a conventional custom, which is
a practice that becomes legally binding because it has been incorporated into a
contract, either explicitly or implicitly. It explains that not all terms of a contract are
written down; some are implied and can be understood from customary law and
other factors. These customs are considered part of the contract and courts are
obligated to recognize them.
Case of Huth. v. Warren: In this case, a lease of agricultural land was subject
to the local custom that the tenant must follow a certain course of husbandry and
is entitled to an allowance for seed and labor when leaving the land.
The court ruled that commercial transactions can include extrinsic evidence of
custom and usage to add to written contracts in areas where they are silent.
1. Process of Conventional Usage Becoming Law: This paragraph describes the
process by which a conventional usage can become law. Initially, the court will
not recognize a usage unless it is expressly provided. Over time, if the usage
becomes well-known, the court may take judicial notice of it and consider it as
settled law. Eventually, the legislature may codify this usage into law. Examples
of this process include the Bills of Exchange Act, the Marine Insurance Act,
and the Sale of Goods Act.
2. Distinction Between Custom and Usage: This paragraph distinguishes between
a custom and a usage. A custom is binding regardless of the parties’ consent,
while a usage is binding only if it is not expressly excluded by the contract. A
custom must have existed from time immemorial, but a usage can be of recent
 origin. A local custom can override common law but not statute law, while a
usage can override common law to the extent that it can be excluded by a specific
contract. If common law cannot be excluded by an express agreement, it cannot
be excluded by usage either. However, a custom can override common law.

LEGAL CUSTOM –
Its authority is absolute and have the force of law and people may agree or not ,
but are bound by it.
Local Custom is a type of legal custom that prevails in a specific locality, such as a
borough or county, and constitutes a source of law for that place only. It’s a tradition or
practice that has been long established and consistently observed within a particular
community or group.
For a local custom to be valid and operative as a source of law, it must conform to the
following requirements:
1. Reasonableness: The custom must be reasonable. It should not be arbitrary,
capricious, or in contradiction with the principles of justice and public policy.
For example, a local custom allowing the inhabitants of a village to freely graze
their cattle on a common land could be considered reasonable.
2. Conformity to Statute Law: The custom must not conflict with any existing
statute law. If a statute law exists that contradicts the custom, the statute law
prevails. For instance, if there’s a local custom of hunting in a certain forest, but
a statute law exists protecting wildlife in that area, the custom would be invalid.
3. Obligatory Observation: The custom must have been observed as obligatory,
meaning it’s not optional or discretionary.
People in the locality must feel legally bound by it. An example could be a
custom in a coastal town where fishermen always share a portion of their catch
with the community.
4. Immemorial Antiquity: The custom must have been practiced for a time period
so long that its origin cannot be traced, i.e., from ‘time immemorial’. In English
law, this is often interpreted as meaning the custom has been in continuous
existence since the year 1189.

GENERAL CUSTOM
In essence, a general custom is a long-established practice or tradition that is universally
accepted and followed throughout a country, and it plays a significant role in shaping
the common law of the land. It’s a reflection of the collective wisdom and shared values
of the people, and it helps maintain social order and justice in society.
REQUITES OF A VALID CUSTOM
The first requirement for a custom to be valid is that it must be immemorial or ancient.
This means that the custom must have been practiced for such a long period that no one
can remember when it started. The idea of an immemorial custom was derived by
English law from the canon law, and by the canon law from the civil law. English law
places a limit to legal memory and fixes 1189 A.D. as enough to constitute the antiquity
of a custom. However, in the context of Indian law, the requirement is less stringent.
The custom does not necessarily need to be immemorial in the English sense, but
it must be ancient.
Two case examples :
Subham v. Nawab: In this case, the Privy Council observed that a custom observed in
a particular district derives its force from the fact that it has, from long usage, obtained
in that district the force of law. It must be ancient but it is not of the essence of the rule
that its antiquity must in every case be carried back to a period beyond the memory of
man. What is necessary to be proved is that the usage has been acted upon in practice
for such a long period and with such invariability as to show that it has, by common
consent, been submitted to as the established governing rule of the particular district.
Baba Narayan v. Saboosa: In this case, Sir George Rankin observed that in India, while
a custom need not be immemorial, the requirement of long usage is essential since it is
from this that custom derives its force as governing the parties’ rights in place of the
general law.
(3) Only that custom is valid which has been continuously observed without any
interruption from time immemorial. If a custom has not been followed continuously and
uninterruptedly for a long time, the presumption is that it never existed at all.
1. Inheritance and Succession: The Dharmashastra writers codified the laws of
inheritance and succession1. These laws determined how property was to be
divided among heirs and successors. This custom has been observed
continuously and is still relevant in modern Hindu law2.
(4) The enjoyment of a custom must be a peaceable one. If that is not so, consent is
presumed to be wanting in it.
An example of a custom enjoyed peaceably is the tradition of gift-giving during
Christmas. This custom is observed by many people around the world and is generally
carried out in a peaceful and joyous manner.
(5) A valid custom must be certain and definite. In one case, a customary easement was
claimed to cast on the lands of neighbours the shadow of overhanging trees It was held
to be vague and indefinite on the ground that the shadow of overhanging trees was a
changing occurrence.
The custom of driving on a specific side of the road in different countries is a clear
example. In countries like the United States and Canada, the custom is to drive on the
right side of the road, while in the United Kingdom and Australia, the custom is to
drive on the left. This custom is certain and definite, and everyone is expected to follow
it.
(6) A custom is valid if its observance is compulsory. An optional observance is
ineffective. It is the duty of the court to satisfy itself that the custom is observed by all
concerned and not by any one who pleases to do so.
In many societies, it is a custom (and often a legal requirement) to pay taxes. This is not
optional and is enforced by law.
(7) The custom must be general or universal. According to Carter. "Custom is
effectual only when it is universal or nearly so. In the absence of unanimity of
opinion, custom becomes powerless, or rather does not exist "".
One example of a universal custom that became a law in many countries is the
recognition and protection of human rights. The Universal Declaration of Human Rights
(UDHR), adopted by the United Nations General Assembly in 1948, represents a global
consensus on fundamental human rights and freedoms.
(8) A valid custom must not be opposed to public policy or the principles of morality.
Consider the practice of "Zakat" in Islam, where Muslims are required to give a portion
of their wealth to help those in need. This aligns with the moral principle of generosity.

Conformity to Statute Law: The custom must not conflict with any existing statute
law. If a statute law exists that contradicts the custom, the statute law prevails. For
instance, if there’s a local custom of hunting in a certain forest, but a statute law exists
protecting wildlife in that area, the custom would be invalid.

Case Overview:
N. Adithayan v. The Travancore Devaswom Board & Ors.
Background: The case involved a dispute over the appointment of a non-Malayala
Brahmin as the "Santhikaran" or Poojari (priest) for the Kongorpilly Neerikode Siva
Temple. The petitioner, N. Adithayan, a Malayala Brahmin, challenged the
appointment, contending that it violated the established custom of having only Malayala
Brahmins perform poojas in the temple.
Outcome: The Supreme Court of India upheld the decision of the Full Bench of the
Kerala High Court regarding the appointment of a non-Malayala Brahmin as the
"Santhikaran." The court concluded that the petitioner failed to establish a specific
custom or usage restricting the appointment to Malayala Brahmins. Consequently, the
non-Brahmin priest's appointment was deemed valid.
Rationale Behind the Outcome:
1. Absence of Established Custom:
• The court emphasized that the petitioner could not substantiate the
existence of a longstanding custom or usage specific to the Siva temple,
mandating only Malayala Brahmins as "Santhikaran." Without a
demonstrated custom, the claim lacked legal basis.
2. Rejection of Custom as a Source of Law:
• The judgment rejected the notion of "custom as a source of law" when
such customs violate fundamental rights, human dignity, social equality,
and constitutional mandates. The court asserted that historical practices,
even if followed for an extended period, cannot be accepted if they
conflict with constitutional principles.
3. Emphasis on Qualification and Competence:
• The court highlighted that the appointment of a priest should be based on
qualifications, expertise, and suitability for performing religious duties,
rather than caste-based considerations. The decision emphasized that as
long as an individual is qualified to perform the puja appropriately, caste
should not be a determinant.
4. Protection of Rights Under the Constitution:
• Upholding the appointment of a non-Malayala Brahmin as the
"Santhikaran," the court reaffirmed the protection of rights to practice and
profess religion under Articles 25 and 26 of the Constitution. It
emphasized that individuals have the right to manage their religious
affairs, but such management should not infringe upon constitutional
principles.

Case Background:
Atluri Brahmanandam v. Anne Sai Bapuji
The case of Atluri Brahmanandam v. Anne Sai Bapuji originated from a small cause
suit filed by Myden Saheb against Atluri Brahmanandam in Atkuru village. The suit
was decreed for an amount of approximately Rs. 355, inclusive of costs and interest.
Atluri Brahmanandam contested the claim, specifically challenging the adoption deed
presented by the plaintiff, Myden Saheb.
Court Decision:
The Supreme Court ruled that Anne Sai Bapuji was indeed the adopted son of late
Seetharamaiah and had the entitlement to file a suit. Furthermore, the court recognized
the prevailing custom among the Kamma community, indicating that there existed a
tradition of adopting individuals above the age of fifteen. The court dismissed the
appeal and affirmed the binding nature of the decree in the small cause suit.
Rationale Behind the Decision:
1. Verification of Adoption and Custom:
• The court carefully considered both oral and documentary evidence to
ascertain the legitimacy of Anne Sai Bapuji's adoption. By examining the
adoption deed and scrutinizing testimonies, the court confirmed the
adoption and recognized Anne Sai Bapuji as the adopted son of late
Seetharamaiah.
2. Recognition of Custom:
• The court took into account the prevalent custom among the Kamma
community, acknowledging a tradition of adopting individuals aged
fifteen and above. This recognition of custom played a crucial role in the
decision, demonstrating the court's willingness to accommodate
community-specific practices, especially when they did not
contravene fundamental rights or public policy.
3. Role of section 10: The court meticulously examined the adoption deed and the
evidence presented to ascertain the legitimacy of Anne Sai Bapuji's adoption. By
recognizing the adoption and the existing custom, the court ensured that the
adoption met the conditions specified in Section 10 of the Hindu Adoption
and Maintenance Act.
The court's decision emphasizes the importance of ensuring that customs align
with statutory requirements and do not infringe upon fundamental rights or
public policy.
Case Name: Ujagar Singh vs Mst.Jeo
1. Proof of Customs under Section 57:
• Ujagar Singh v. Mst. Jeo clarified that while the ordinary rule is to prove
customs, Section 57 of the Evidence Act, 1872 provides an exception.
According to Section 57, if a court can take judicial notice of a fact, it
does not need explicit proof. This exception is crucial for understanding
the recognition of customs without the need for continuous proof.
 2. Repeated Recognition of Custom:
• The decision emphasized that when a custom has been repeatedly
recognized by courts, it becomes part of the law of the land. In the case
of the Kamma community, if there is consistent acknowledgment by the
court of the custom allowing the adoption of individuals above 15 years,
it may be considered integrated into the legal framework.
3. Application of Section 57 to Kamma Community Case:
• If the Andhra Pradesh High Court has consistently recognized and
validated the Kamma community's custom of adopting individuals above
the age of 15, it aligns with the principles outlined in Ujagar Singh v. Mst.
Jeo. This recognition could exempt the need for explicit proof of the
custom, as the courts have already acknowledged its existence and
validity.
4. Legal Status of Kamma Community Custom:
• The Andhra Pradesh High Court's recognition of the custom among the
Kamma community, if consistent, may signify that the custom has been
blended into the law of the land. Therefore, proof of this custom would
be unnecessary under Section 57 of the Evidence Act, as reiterated in
Ujagar Singh v. Mst. Jeo.

CASE NAME: SABRIMALA CASE

Indian Young Lawyers Association vs The State Of Kerala
Facts: The Sabarimala shrine in Kerala, dedicated to Lord Ayyappan, historically
restricted menstruating women aged 10-50. Managed by the Travancore Devaswom
Board, this practice was reinforced by Rule 3(b) of the Kerala Hindu Places of Public
Worship (Authorization of Entry) Rules, 1965. This rule, reflecting the belief that the
deity is celibate, prohibited women in the specified age group from entering the temple
premises. The Kerala High Court upheld this ban in 1991, citing tradition and non-
discrimination. In 2006, the Indian Young Lawyers Association challenged the ban in
the Supreme Court, asserting it violated constitutional rights. The legal dispute centered
on whether the ban violated Articles 14 and 15 of the Indian Constitution. The case
raised fundamental questions about gender discrimination, religious practices, and
constitutional rights within the framework of the specific Kerala Act.
Verdict:
The court ruled in a 4:1 majority that the restriction on the entry of women into the
Sabarimala temple was unconstitutional and discriminatory.
Rationale:
1. Violation of Constitutional Rights: The court ruled that the prohibition on
women was not an essential part of Hindu religion and therefore, the courts could
intervene in such a matter1. The court found that the restriction violated the rights
guaranteed under Articles 14, 15, 25, and 51A (e) of the Indian Constitution2.
2. Individual Freedom Over Group Rights: The verdict established the principle
that individual freedom prevails over professed group rights, even in religious
matters1. The court emphasized the need to challenge discriminatory practices
and promote inclusivity within religious institutions, ensuring equal rights and
opportunities for all individuals3.
3. Cultural Sensitivity: The court acknowledged the cultural dimensions of the
case. However, it ruled that cultural sensitivity could not be used as a reason to
deny women their constitutional rights2.

The conflict emerged when the practice of barring menstruating women from the temple
was contested on grounds of discrimination and infringement of women's constitutional
rights. The Supreme Court of India, in its decision, prioritized constitutional morality
over the custom, declaring the restriction as unconstitutional.
The court noted that although customs hold recognition as a valid legal source, they are
subordinate to the supreme law of the land—the constitution. Consequently, any custom
conflicting with constitutional rights is open to challenge and can be deemed invalid.

Justice Indu Malhotra’s dissenting view in the Sabarimala case can be explained as
follows:
1. Essential Religious Practice: Justice Malhotra noted that what constitutes an
essential religious practice is for the religious community to decide, not the
court. She reasoned that courts should not interfere with religious practices
unless they are a social evil.
2. Rationality and Religion: She stated that notions of rationality cannot be
invoked in matters of religion. This means that religious beliefs and practices
often go beyond the realm of rational explanation and should be respected as
such.
3. Balance between Religious Beliefs and Constitutional Principles: Justice
Malhotra emphasized the need to strike a balance between religious beliefs on
one hand and Constitutional principles of non-discrimination and equality on the
 other. She held that the right to equality under Article 14 does not override the
fundamental right to religion under Article 25, irrespective of whether the
religious practice falling under Article 25 is rational.
4. Wide Ramifications of the Judgment: She warned that the present judgment
would not be limited to Sabarimala but will have wide ramifications. This means
that the decision could impact various other religious practices and traditions
across the country.
5. Non-interference in Deep Religious Sentiments: Justice Malhotra opined that
issues of deep religious sentiments should not ordinarily be interfered with by
the Court. She believed that it is not for courts to determine which religious
practices are to be struck down, except in issues of social evil like 'Sati’.

PERSONAL COMMENT ON THE OPINION

As a law student, I appreciate Justice Malhotra’s perspective on religious autonomy in
the Sabarimala case. It underscores the complexity of judicial review when religious
practices intersect with constitutional rights. However, my inclination is towards
constitutional morality, which champions equality and non-discrimination.
While religious freedom is crucial, I believe that when religious practices potentially
marginalize certain societal sections, constitutional principles should supersede. Justice
Malhotra’s apprehension about the judgment’s far-reaching implications is noteworthy.
Yet, it could also pave the way for the judiciary to challenge and reform regressive
religious customs, thereby reinforcing constitutional principles.
In essence, while Justice Malhotra’s dissent offers a valuable viewpoint on religious
freedom, I believe that upholding constitutional morality is crucial in a pluralistic and
secular nation like India.

LEGISLATION
The term legislation is derived from two latin terms i.e. legis meaning Law and latum
meaning to make, put, set.
I. According to Salmond: “Legislation is that source of law which
consists in the declaration of legal rules by the competent authority.”

II. According to Gray: “Legislation means the formal utterance of the

legislative organs of the society.”

III. According to Holland: “The making of general orders by our judges

is as true legislation as is carried on by the crown.”
SUPREME LEGISLATION
Supreme legislation is that which proceeds from the sovereign power in the State. It
cannot be repealed, annulled or controlled by any other legislative authority.
SUBORDINATE LEGISLATION
Subordinate legislation refers to laws made by an authority other than the supreme
power in the state. These laws are created under the powers granted by the supreme
authority. The existence, validity, and continuation of such legislation depend on the
supreme authority. At any time, the supreme authority can revoke or abolish subordinate
legislation. Therefore, subordinate legislation must be compatible with the laws enacted
by the supreme authority.
EXECUTIVE OR DELEGATED LEGISLATION
At the point when legislative powers are delegated by the designated official to an
executive, it is called executive legislation. Even though the significant capacity of the
official is to execute the laws and carry on the organisation, he/she is continuously
dependent on some subordinate enactment powers. Today, for all intents and purposes
of each law sanctioned by the lawmaking body contains assignment statements giving
law-making powers by the official to the executive in order to enhance the statutory
arrangements.

CHECKS AND CONTROL ON EXECUTIVE LEGISLATION:

(a) Parliamentary control: In 1999, the Atal Bihari Vajpayee-led government lost a
no-confidence motion by one vote, leading to the dissolution of the government1.
(b) Parliamentary supervision: The Parliament has the power to impeach the
President. However, no President in India has been impeached so far1.
(c) Judicial control: In the Kesavananda Bharati case in 1973, the Supreme Court of
India established the doctrine of the basic structure, which cannot be altered by
amendments by the Parliament1. This is a form of judicial control over the legislature.
(d) Power must be handed over to trustworthy persons: In 2014, President Pranab
Mukherjee appointed Ranjan Gogoi as the 46th Chief Justice of India1.
(e) Public opinion: The 2014 and 2019 general elections are examples of public
opinion influencing the executive branch. The Bharatiya Janata Party won both
elections, demonstrating public support for their policies1.
(f) Experts’ opinion: The drafting of the Goods and Services Tax (GST) involved
extensive consultations with experts to understand its implications on the Indian
economy.

COLONIAL LEGISLATION
The nations which are not autonomous, and are under the control of some other state
have no Supreme capacity to make law. Such countries can be in different classes such
as colonies, domains, secured or trust regions and so forth. The laws made by them are
subject to the Supreme legislation of the state under whose control they are. Therefore,
it is subordinate legislation.
1. India under British Rule: Many laws enacted during the British colonial rule
are still in effect in India. For instance, the Indian Penal Code (1860), the
Indian Police Act (1861), and the Indian Evidence Act (1872) were all
introduced during the British rule and are still in use.
2. The Ganges Tolls Act, 1867: This act entailed collecting toll “not exceeding 12
annas” on boats and steamers plying on the Ganga between Allahabad and
Dinapore (Bihar). This law was also recently repealed.

AUTONOMOUS LEGISLATION
At the point when the Supreme authority gives powers upon a gathering of people to
administer on the issues depended to them as a gathering, the law made by the last is
known as the autonomous law and the body is known as a self-ruling body. A railway
is an independent body. It makes bye-laws for the guideline of its organisation, and so
on. A college is likewise a self-governing body. Even some universities in India have
been granted the status of autonomous bodies.

MUNICIPAL LEGISLATION
Municipal bodies are offered powers to make bye-laws concerning their neighbourhood
matters. Bye-law made by a neighbourhood body works inside its individual area. In
India, such municipal bodies are Municipal corporations, Municipal Boards, Zila
Parishads, and so on. There is a move for allowing extensive powers to Panchayats.
74th Constitutional Amendment Act: It was the 74th amendment to the
Constitution of India in 1992 that brought constitutional validity to municipal or local
governments.

JUDICIAL LEGISLATION
Powers delegated to the judicial system to make and implement their own laws to
maintain transparency in the judicial system of the country. This will also ensure that
there is no involvement of any other organ of the government in the governance of the
judicial system of the state.

DETAILED COMPARISON BETWEEN LEGISLATION AND PRECEDENTS:

Feature Legislation Precedents

Source of Derives from the law-making Originates from the ratio
Authority will of the State, usually the decidendi and obiter dicta of
legislature. judicial decisions.
Source of Origin Originates from the legislative Originates from the decisions
process and is imposed by the made by the courts in the course
legislature. of adjudicating cases. Courts
create precedents.
Imposition on Courts are bound to apply Courts create precedents through
Courts legislation as it is imposed on their decisions, and these
them by the legislature. precedents are not imposed
externally but are intrinsic to the
judicial process.
Creation of Legislation involves the Precedents are created through the
Rules formal and express declaration recognition and application of
of new rules by the legislature. rules by courts in the
administration of justice.
Type of Law Legislation creates statute law, Precedents create judge-made
Created which is written law enacted law, often referred to as common
by the legislature. law, evolving through court
decisions.
Timing of Legislation is in place before a Precedents are established after
Application specific case arises, applying the cause has arisen, serving as
to future cases. guidance for similar cases in the
future.
Form of Legislation is expressed in a Precedents are expressed in a
Expression general and comprehensive particular and limited form,
form, aiming to address broad addressing the specific facts and
categories of situations. issues of the case at hand.
Abstract vs. Legislation is often abstract, Precedents are more definite,
Definite providing general principles offering specific guidance based
applicable to various on the facts of the particular case.
scenarios.
Interpretation Legislation is generally easier Precedents can be more
Difficulty to interpret due to its formal challenging to interpret as they are
language and comprehensive based on the specific context and
scope. facts of individual cases.
Prospective vs. Legislation is ordinarily Precedents are retrospective,
Retrospective prospective, applying to future applying to cases that have
cases and events. already occurred and providing
guidance for future similar cases.

EXAMPLES TO ILLUSTRATE EACH POINT IN THE DETAILED

COMPARISON:
Feature Legislation Precedents
Source of Example: The Clean Air Act, Example: The legal principle of
Authority passed by the U.S. Congress, "innocent until proven guilty,"
establishes regulations for air established in various court
quality standards. decisions, forms part of criminal
law.
Source of Example: The Copyright Act of Example: The legal concept of
Origin 1976, originating from the "precedent" itself, which
legislative process to protect emerged through judicial
intellectual property rights. decisions over time.
Imposition on Example: The Affordable Care Example: The landmark case of
Courts Act, which courts are obligated Brown v. Board of Education
to apply as federal law. (1954), where the Supreme
 Court's decision set a precedent
against racial segregation in
schools.
Creation of Example: The General Data Example: The "reasonable
Rules Protection Regulation (GDPR) expectation of privacy" standard,
created rules for the protection established through court
of personal data in the decisions in Fourth Amendment
European Union. cases.
Type of Law Example: The Sherman Example: The common law
Created Antitrust Act, enacted by principle of "adverse
Congress to prevent possession," evolving through
anticompetitive practices. court decisions on property
disputes.
Timing of Example: The Americans with Example: Roe v. Wade (1973),
Application Disabilities Act (ADA), in where the Supreme Court's
place before specific disability decision on abortion rights
discrimination cases arise. became a precedent after the case
arose.
Form of Example: The Clean Water Act, Example: Miranda v. Arizona
Expression expressing broad guidelines for (1966), where the court decision
water quality standards. established specific procedural
rights for individuals in police
custody.
Abstract vs. Example: The Civil Rights Act Example: The "fruit of the
Definite of 1964, addressing broad poisonous tree" doctrine, a
issues of discrimination in specific rule excluding evidence
various contexts. obtained illegally, established in
court decisions.
Interpretation Example: The Federal Tax Example: Legal doctrines like
Difficulty Code, which may require "stare decisis," which govern
interpretation by tax courts due how precedents should be
to its complexity. applied and interpreted.
Prospective vs. Example: The Dodd-Frank Example: Marbury v. Madison
Retrospective Wall Street Reform and (1803), where the court's
Consumer Protection Act, decision had a retrospective
addressing future financial effect on the exercise of judicial
regulations. review.

LEGISLATION OVER PRECEDENT:

1. Abrogative Power: Legislation is both constitutive and abrogative, meaning it
can create new laws and abolish existing ones. This is crucial for legal reform.
On the other hand, precedent is merely constitutive - it can produce new law but
cannot reverse that which is already law.
 The Prohibition of Sex Selection Act in India is an example of legislation’s
abrogative power. This act was introduced to abolish the existing practice of sex
determination tests, which were leading to female foeticide
2. Efficiency through Division of Labour: Legislation is based on the principle
of division of labour, separating the legislative and judicial functions for better
efficiency. The legislature focuses on creating laws, while the judiciary interprets
and applies them. In the case of precedent, these functions are combined, which
may not be as efficient.
The passing of the Affordable Care Act (ACA) in the United States is an
example of efficiency through division of labour. The ACA was passed by the
legislature to provide affordable health insurance, and the judiciary interprets
and applies this law in various cases2.
3. Proactive Rule-Making: Legislation can make rules for cases that have not yet
arisen, allowing it to fill gaps or settle doubts in the legal system proactively.
Precedent, however, must wait until an actual incident comes before the courts
for decision. It is dependent on the accidental course of litigation.
General Data Protection Regulation (GDPR) in the European Union is an
example of proactive rule-making. This legislation was enacted to protect data
privacy before any specific incidents occurred, demonstrating the ability of
legislation to address potential issues proactively1.

PRECEDENT OVER LEGISLATION

1. Higher Morality: According to Dicey, the morality of the courts is higher than
that of politicians. Judges decide cases in a calm atmosphere and can afford to
hold the scales even between the contending parties. For instance, in the
landmark case of Brown v. Board of Education in the United States, the
Supreme Court’s decision to desegregate schools was a precedent that overruled
existing legislation, demonstrating a higher moral standard.
2. Flexibility: Salmond states that case law enjoys greater flexibility than statute
law. In the case of precedent, analogical extension is allowed. For example,
the Donoghue v Stevenson case in the UK established the modern concept of
negligence, demonstrating the flexibility of case law to adapt to new situations.
3. Certainty: According to Amos, law does not become more uncertain when it is
based on precedents than when it is founded on enacted law. The English legal
system, which is largely based on precedents, provides a good example of this.
Despite the lack of a codified constitution, the system has provided a stable legal
framework for centuries.
DIFFERENCE BETWEEN LEGISLATION AND CUSTOM
Feature Legislation Customary Law
Basis of Origin Legislation grows out of legal Customary law grows out of
theory and is a deliberate, practice, necessity, utility, and
planned process. imitation, evolving over time.
Existence (De Essentially de jure, meaning it Essentially de facto, meaning it
Jure/De Facto) exists by law and is formally exists by practice and is not
recognized. always formally recognized by
law.
Historical Represents the latest Represents the oldest form of
Development development in law-making law, characteristic of primitive
tendencies, often associated societies and undeveloped
with advanced societies. legal systems.
Nature of Expresses the relationship Expresses the relationship
Relationship between individuals and the between individuals in a
State. society.
Characteristics Complete, precise, and easily Rarely clear, requires many
and Accessibility accessible. Jus scriptum years to form, and may lack
(written law). precision. Jus non scriptum
(unwritten law).

EXAMPLES
Feature Legislation Customary Law
Basis of Origin The U.S. Clean Air Act of 1970, The "Three Strikes Law" in
enacted by Congress to regulate California, which mandates
air pollution, exemplifies harsher sentences for
legislation growing out of legal individuals with repeated
theory. criminal offenses, reflects a
legislative approach based on
legal theory.
Existence (De The Americans with Disabilities The practice of handshake
Jure/De Facto) Act (ADA) formally recognizes agreements in certain
and prohibits discrimination industries, where informal
against individuals with agreements are widely
disabilities. recognized even if not formally
codified.
Historical The development of antitrust Indigenous legal systems in
Development laws in the United States, such various African tribes, which
as the Sherman Antitrust Act have evolved over centuries
(1890), as a response to based on societal norms and
industrialization and market historical practices.
competition.
Nature of Contract laws governing The traditional practice of
Relationship agreements between parties in a dowry in some cultures,
business transaction, such as the shaping the relationship
Uniform Commercial Code in between families in the context
the U.S. of marriage.
Characteristics The General Data Protection Common practices in fishing
and Accessibility Regulation (GDPR) in the communities, where unwritten
European Union, offering a rules and traditions guide access
comprehensive and accessible to fishing grounds, and disputes
framework for data protection. are resolved informally.

PRECEDENT AND CUSTOM DIFFERENCES

Feature Custom Precedent
Basis of Evolves organically from the Derives from the ratio decidendi and
Origin habitual practices, needs, obiter dicta of judicial decisions,
utilities, and imitations within providing a legal framework for
a community over time. future similar cases.
Existence (De Primarily de facto, existing by Exists de facto, recognized and
Facto) virtue of consistent practice formalized within the legal system
and acceptance within a as a binding authority guiding
community, often without judicial decisions.
formal legal recognition.
Historical Represents an ancient form of Evolved over time, with
Development law, deeply rooted in historical contemporary legal systems placing
practices, traditions, and greater reliance on statutes, making
societal norms, often precedent a significant but not
associated with primitive exclusive source of law.
societies.
Nature of Expresses the relationships Expresses the relationship between
Relationship between individuals within a individuals and the State, serving as
society, shaping local customs, a binding authority that contributes
and influencing social to the development of legal
interactions. principles in a broader societal
context.

DEMERITS OF LEGISLATION:
1. Lack of Flexibility: Legislation is often criticized for its rigidity. Once a law is
passed, it applies uniformly to all situations it covers, regardless of the unique
circumstances of each case. For instance, the “three-strikes” laws in the United
States, which mandate life sentences for anyone convicted of a serious criminal
offense on three or more separate occasions, have been criticized for their
inflexibility. These laws can result in life sentences for relatively minor crimes,
depending on the state’s definition of a “strike.”
2. Over-reliance on Precise Wording: The effectiveness of legislation heavily
depends on its wording. Ambiguities or errors in the language can lead to
misinterpretations and unintended consequences. For example, in 2014, a typo
in the Affordable Care Act (often referred to as “Obamacare”) led to a
major legal challenge. The law stated that subsidies were available to people
who enrolled “through an Exchange established by the State,” which some
interpreted as excluding those who enrolled through the federal exchange. The
case, King v. Burwell, eventually reached the Supreme Court, which ruled that
the subsidies were intended for everyone, not just those who enrolled through
state exchanges.
 3. Potential for Overreach: Legislation can sometimes overstep, infringing on
individual rights or judicial independence. An example is the Preventing Real
Online Threats Endangering Children Today (PROTECT) Act of 2003 in the
U.S., which was challenged in the case Ashcroft v. Free Speech Coalition. Critics
argued that the Act’s provisions on “virtual child pornography” were overly
broad and infringed on First Amendment rights. The Supreme Court agreed,
striking down those provisions.

CODIFICATION
“Codification is the systematic process and reduction of the whole body of law into a
code in the form of enacted law”.
The Indian Penal Code is the official criminal code of India, covering all substantive
aspects of criminal law. It came into force in colonial India during the British Raj in
1862.

Introduction to Historical Codes:

Codes have existed since ancient times, contributing to the legal frameworks of various
civilizations. In India, notable codes include the Code of Manu, along with the Codes
of Yajnavalkya, Brihaspati, Narada, and Parashar. The Code Justinian stands out as a
crucial ancient Roman code, resembling modern codes in structure. Justinian compiled
laws from sources like the Praetor's edicts and classical jurists' writings. Other
significant ancient codes include the Jewish Code, the Chinese Code, and the Code of
Hammurabi.
Codification Advocacy in the 19th Century:
In the early 19th century, Napoleon introduced the Code Napoleon in France. Advocates
like Bentham and Thibaut supported codification in England, while Savigny opposed
it. Sir Henry Maine also championed codification, leading to notable progress in the
19th and 20th centuries. Codification efforts focused on simplifying, clarifying, and
modernizing laws, particularly in areas like property law.
Codification in India:
The first Indian Law Commission, led by Lord Macaulay under the Charter Act of 1833,
drafted codes such as the Indian Penal Code, Civil Procedure Code, and Indian
Limitation Act. A Second Law Commission, established in 1853, contributed to the
passage of the Indian Penal Code in 1860, followed by the Criminal Procedure Code
and other Acts. Subsequent Law Commissions in 1861 and 1879 further revised and
drafted numerous Acts, resulting in the codification of criminal law and civil law in
most parts, along with procedural laws by the early 20th century.
Post-Independence Codification in India:
After India gained independence in 1947, the Indian Law Commission continued its
role in recommending legal reforms. Comprehensive recommendations have been made
on various aspects of law in India, contributing to the ongoing process of legal
development and codification.

KINDS OF CODIFICATION: AN OVERVIEW

1. Creative Code:
A creative code involves the establishment of new laws without direct reference to
existing legal frameworks. It is a form of law-making through legislation. A prominent
example is the Indian Penal Code, where laws were formulated for the first time,
providing a comprehensive legal framework.
2. Consolidating Code:
A consolidating code is designed to bring together and declare the entirety of the law
on a specific subject. This includes statutory, customary, and precedent laws. The aim
is to systematize and simplify legal provisions. The Code of Justinian and the Indian
Transfer of Property Act, 1882, fall into this category, providing a unified and organized
structure for their respective legal domains.
3. Creative and Consolidating Code:
Some codes serve a dual purpose, combining the creation of new laws with the
consolidation of existing legal provisions on a particular subject. An illustrative
example is recent legislation in India concerning Hindu law. This legislative effort
introduces new legal principles while consolidating and organizing the existing body of
Hindu law.

CODIFICATION-MERITS
1. Certainty: Codification ensures that the law can be known with certainty1. For
instance, the Indian Contract Act and the Indian Evidence Act provide clear
and certain rules for contracts and evidence respectively in India1. This
certainty helps avoid confusion in the public mind.
2. Avoidance of Judicial Legislation: Codification helps avoid the pitfalls of
judge-made law. Well-designed legislation is the remedy against legal quibbles
and chicanery. For example, the Indian Penal Code, drafted by Lord Macaulay,
is a codified law that provides clear rules on criminal conduct, thus avoiding the
potential for arbitrary or inconsistent rulings.
3. Preservation of Customs: Codification can help preserve customs that are
suited to the people of a country. For instance, the codification of Hindu personal
laws in India helped preserve customs while ensuring legal certainty and
uniformity.
4. Unity: Codification can foster national unity by providing a common legal
framework. The German Civil Code (BGB), for instance, unified various
regional laws in Germany, contributing to national cohesion1.
CODIFICATION – DEMERITS
1. Rigidity: Codification can lead to rigidity in the legal system. For instance, the
Indian Penal Code, has been amended numerous times to address new types of
crimes and societal changes. However, the process of amending the code can be
slow and cumbersome, leading to a delay in addressing emerging issues.
2. Uniformity Over Individuality: Codification provides a uniform law for the
entire country, often overlooking regional differences in customs, traditions, and
sentiments. A prime example of this is the ongoing debate over the
implementation of the Uniform Civil Code (UCC) in India34. The UCC aims to
replace personal laws based on the scriptures and customs of each major
 religious community in India with a common set governing every citizen. Critics
argue that this overlooks the diverse cultural practices across the country.
3. Simplicity Enabling Misuse: While codification simplifies the law, making it
more accessible, it can also enable individuals with malicious intent to exploit
the system. A real-life example of this is tax evasion in India. Individuals and
corporations often exploit loopholes in the tax code to avoid paying
taxes. Despite efforts to simplify and clarify tax laws, tax evasion remains a
significant issue in India.

LEGAL SYSTEMS
A “legal system” refers to the framework of rules, procedures, and institutions that a
community uses to interpret and enforce their laws. It is binding on all legal disputes
within its jurisdiction1. The type of legal system a jurisdiction uses will have a
significant impact on the application of the law.

1. Common Law System: Originating from British rule, this system is based on
court decisions and is guided by the principle of stare decisis, meaning ‘let the
decision stand’. It relies heavily on judicial precedent and the rule of law1. The
U.S. is an example of a country with a common law system2.
 2. Civil Law System: This system is governed by statutes, rather than by case
law. Judges in a civil law system often take a more active role in investigations
and trials1. France is an example of a country with a civil law system3.
3. Religious Law System: This system is based on religious texts or traditions. For
example, Islamic law (Sharia) is based on the Quran and the teachings of the
Prophet Muhammad1. Saudi Arabia is an example of a country with a religious
law system3.
4. Customary Law System: This system is based on long-standing practices or
customs, often unwritten, that have been passed down from generation to
generation1. Some African countries, for example, still use customary law
systems3

CIVIL LAW SYSTEM

HISTORY-
The legal system in question has its roots in four key legal traditions: Roman law, local
customary law, canon law, and the law merchant. The term "civil law" is derived from
jus civile, the Roman Republic and Empire's civil law. Roman jurists, influenced by
Justinian's Corpus Juris Civilis, played a pivotal role in shaping this legal framework.
In medieval Italy, the "glossators of Bologna" adapted and resurrected the Corpus Juris
Civilis, prioritizing system-building and logical form. Unlike their Roman counterparts,
Italian glossators were primarily university law faculty members.
Roman judges, elected or appointed temporarily, received assistance from jurists. In
medieval Italy, the glossators, including university law faculty members, provided
invaluable advice, emphasizing Custom as a source of law.
Both Roman and Italian jurists influenced untrained lay judges, and the impact of Italian
glossators extended beyond Italy, shaping the legal systems of Germany, France, Spain,
Switzerland, and other European nations.

TWO MAJOR DEVELOPMENT:

1. Creation of Canon Law by the Roman Catholic Church: The Church
established a comprehensive ecclesiastical law, enforced by ecclesiastical courts.
These courts had a uniform structure, systematic management, and educated
judges skilled in applying canon law, which primarily governed the
administration of the Church and its rules. Given the Church’s pervasive
influence in medieval European life, canon law significantly impacted the legal
system. The Church’s adoption of a reasoned system of procedures contributed
to the orderly and systematic conduct of court proceedings and dispute
resolution.
 2. Maturation of Commercial Law: The growth of commercial classes and
expansion of commercial activities in European cities and regions led to the
development of a law merchant, covering commercial transactions. This law was
not uniform and evolved differently for maritime and land-based transactions.
Maritime laws were established in Italy during its economic revival in the 11th
and 12th centuries. Land laws developed to handle trade practices and disputes,
often originating from markets and fairs held throughout Europe. Precedents
were more common in land law compared to maritime law. The establishment of
special commercial courts to handle trade disputes and matters led to the modern
practice in some European countries of separating commercial law and
procedure from other parts of the law.

CIVIL LAW CORE PRINCIPLES

1. Laws Made by Representatives, Administered by Judges: In France, laws are
created by the legislative body, which is composed of elected representatives.
The French Parliament, consisting of the National Assembly and the Senate, is
responsible for creating laws. The role of judges in France is to apply these laws
to individual cases, not to make or modify them.
For example, the French Labour Code, which governs employment law, is
enacted by Parliament and then applied by judges in labor disputes.
2. Codification of Laws: French law is characterized by its comprehensive legal
codes, the most famous being the Napoleonic Code or the Civil Code of France.
Established under Napoleon in 1804, this code consolidated various statutes into
a single document, clearly outlining the law on property, civil rights, and family
law. These codes provide a detailed legal framework that judges must follow in
their rulings.
3. Inquisitorial System: Unlike the adversarial system of common law countries,
France's inquisitorial system involves the judge playing a more active role in
investigating the facts of a case. In criminal proceedings, for instance, the
(examining magistrate) actively directs the investigation, gathers evidence, and
interrogates witnesses and suspects. This approach is aimed at uncovering the
truth through a thorough examination of the facts.
4. Active Role of Judges in Trials: In French civil trials, judges are not mere
moderators but actively participate in the examination of evidence and
questioning of witnesses. This is in contrast to the role of judges in common law
trials, who primarily oversee the proceedings to ensure fairness and legality.
In France, the judge's active involvement is seen as a means to uncover the truth,
ensuring that all relevant facts are thoroughly examined and considered in the
judgment.
FEATURES
THE FEATURES OF CIVIL LAW SYSTEMS WITH SPECIFIC EXAMPLES
FROM FRANCE:
1. Existence of a Written Constitution: France has a written constitution,
currently the Constitution of the Fifth Republic, established in 1958. This
document lays the foundational legal framework of the country, defining the
structure of government, the distribution of powers, and fundamental rights. It
serves as the supreme law of the land, and all other laws and enactments must
conform to it.
2. Legislative Enactments as Binding Law: In France, laws enacted by the
Parliament are the primary source of binding legal authority. These legislative
enactments, including statutes and decrees, form the basis of the legal system.
For instance, the French Civil Code, which governs civil law matters such as
contracts and property, is a legislative enactment that judges must apply in
relevant cases.
3. Influence of Legal Scholars: Legal scholars, or "jurists," have significant
influence in the French legal system. Their writings and commentaries on the
law are often used by judges as guiding interpretations, especially in areas where
statutes may be ambiguous. This tradition reflects the importance of academic
contribution to the development and understanding of law in France, unlike
common law systems where judicial precedents hold more sway.
Jean Carbonnier, a prominent 20th-century legal scholar and law professor in
France, significantly impacted French civil law. He authored influential works,
notably "Flexible droit" (Flexible Law),
4. Special Courts for Specific Codes: France has a variety of specialized courts to
deal with different areas of law. For instance, administrative matters are handled
by administrative courts, separate from the ordinary civil and criminal courts.
The Conseil d'État is the highest administrative court, dealing with disputes
involving public administration. Additionally, there are commercial courts for
business disputes and labor courts for employment-related issues. This
specialization allows for more focused and expert handling of specific legal
matters.

COMMON LAW
Common law is a legal system characterized by case-based law, where legal precedents
set by courts play a central role in shaping the law. Originating in England, it relies
heavily on judicial decisions and interpretations, and is distinguished by the lesser role
of comprehensive statutes compared to civil law systems.
HISTORY
1. Middle Ages Emergence: Common law began to emerge in England during the
Middle Ages. It evolved as a system distinct from the ecclesiastical and feudal
law systems that were prevalent in Europe at the time.
2. Influence of the Jury System: The jury system, which played a pivotal role in
the development of common law, has its origins in the practices of the Frankish
kings. This system was later brought to England by William the Conqueror after
the Norman Conquest in 1066.
3. Establishment under Henry II: The use of juries in England became more
widespread during the reign of Henry II (1154-1189). In 1164, Henry II instituted
the Clarendon Assizes, which established juries as a regular part of the English
justice system. This marked a significant step in the development of common
law.
4. Replacement of Roman and Canon Law: In England, the existing systems of
Roman Law and Canon Law (church law) were found to be unsuitable for
governing a diverse and changing society. In response, a new system was
developed. This new system centered around jury trials, established legal
precedents as a significant source of law, and aimed to create legal norms that
were common across the entire country.

LET'S EXPLORE THE CORE PRINCIPLES OF COMMON LAW, CITING

RELEVANT EXAMPLES FROM THE UNITED STATES TO ILLUSTRATE
EACH POINT:

Adversarial System: In the U.S., the legal system is adversarial, especially in criminal
and civil trials. Parties present their cases to an impartial judge or jury. An example is
the famous O.J. Simpson trial, where both the prosecution and defense vigorously
presented evidence and arguments, and the jury determined the outcome based on this
adversarial presentation.
Presumption of Innocence: A foundational principle in U.S. law is the presumption of
innocence in criminal cases. This means a defendant is considered innocent until proven
guilty. The trial of Casey Anthony for the alleged murder of her daughter illustrates this,
as the jury acquitted her based on reasonable doubt, despite public opinion and media
coverage suggesting her guilt.
Development of Case Law through Judgments and Precedents: In the U.S., legal
decisions in higher courts set precedents for lower courts. A landmark example is Brown
v. Board of Education, where the Supreme Court's decision overturned Plessy v.
Ferguson, establishing that racial segregation in public schools was unconstitutional and
setting a new legal precedent.
Coexistence of Case Law with Statute Law and Constitution: In the U.S., case law
works alongside statutes and the Constitution. For instance, the Supreme Court's
interpretation of the Constitution in Roe v. Wade established legal precedents regarding
abortion rights, although this was later overturned by another landmark case, Dobbs v.
Jackson Women's Health Organization, showing how case law evolves alongside
statutory changes.
Punishment of Crimes and Rectification of Civil Wrongs: In the U.S., criminal law
focuses on punishing offenders, as seen in the sentencing guidelines for various federal
crimes. Civil law, on the other hand, often involves compensation for wrongs, such as
in the case of the tobacco settlements where major tobacco companies paid billions to
compensate for the health impact of smoking.

FEATURES OF THE COMMON LAW SYSTEM THROUGH EXAMPLES

FROM THE UNITED STATES, A PROMINENT COMMON LAW COUNTRY:
1. Development through Usage: In the U.S., common law has evolved through
usage and court decisions over time, rather than through a centrally codified
system as in civil law countries. For example, the legal principle of "negligence"
in tort law has been developed through numerous court cases over the years,
rather than being defined in a specific statute.
2. Absence of a Codified Constitution or Laws: While the U.S. does have a
written Constitution, many laws and legal principles are not codified in the same
way as in civil law systems. For instance, the right to privacy is not explicitly
mentioned in the Constitution but has been interpreted and established through a
series of landmark Supreme Court decisions, such as in Griswold v. Connecticut.
3. Binding Judicial Decisions: In the U.S. legal system, decisions made by higher
courts are binding on lower courts. A classic example is the Supreme Court's
decision in Brown v. Board of Education, which declared racial segregation in
public schools unconstitutional. This decision became a binding precedent for all
U.S. courts.
4. Extensive Freedom of Contract: The U.S. legal system upholds the principle
of freedom of contract, allowing individuals considerable liberty to enter into
contracts on their own terms. This is evident in the U.S. business environment,
where contracts can be highly customized and are strongly enforced by courts,
provided they don't violate any laws or public policies.
THE COMPARISON TABLE BETWEEN CIVIL AND COMMON LAW
SYSTEMS:
Aspect Civil Law System Common Law System
Source of Primarily derived from codifiedBased largely on judicial
Law statutes and comprehensive legal
decisions and legal precedents,
codes created by legislative with statutes playing a secondary
bodies. role.
Role of Judges apply and interpret the law
Judges play a crucial role in
Judges as written in codes, with limited
shaping law, with their decisions
scope for judicial interpretation or
in court cases setting legal
law-making. precedents for future cases.
Legal Uses an inquisitorial system Employs an adversarial system
Proceedings where judges actively investigate
where opposing parties present
cases, question witnesses, and their cases and evidence, and the
determine the relevance of judge or jury decides the
evidence. outcome.
Flexibility of Laws are relatively fixed, withLaw is dynamic and evolves
Law legal changes and updates continuously through new
occurring through formal
judicial rulings, adapting to new
legislative amendments. circumstances and societal
changes.
Doctrine of Precedents are not binding; each Strong doctrine of precedent
Precedent case is decided on its own merits ('stare decisis') where past
based on codified laws. judicial decisions bind future
cases, ensuring consistency.

ISLAMIC LAW
• Islamic system is one of the three major legal systems in the world.
• It is a comprehensive code of behaviour of Muslims.
• Like common law not a written law but instead of a judge’s words the law is looked
in the teachings of authoritative jurists.
• Fictional cases are used as precedents. The judgement of these fictious cases depend
upon the school of law that the jurists belong to. School of law in Islam are not officially
recognised but rather is named after some 2nd Century Muslim jurist who established
that school.
• There are 4 schools of law and their prevalence depends upon the geographical
location of a place.
ORIGIN
1. Origins in the Middle East: Sharia, originating in the Arabian Peninsula in the
late 6th century, evolved with the Islamic community, based on Prophet
Muhammad's teachings and the Quran.
2. Expansion with the Arab Empire: During the 7th-8th centuries, Sharia spread
from Central Asia to Spain with the Arab Empire's expansion, blending Islamic
principles with diverse local customs.
3. Flourishing under the Mughals: In the 17th century, under the Mughal Empire
in the Indian subcontinent, Sharia experienced significant development, merging
with South Asian legal and cultural traditions. This period saw a synthesis of
Islamic law with South Asian culture, influencing legal and social practices in
the region, a legacy that continues to impact legal systems in countries like India,
Pakistan, and Bangladesh.

1. Defining Sharia
• Meaning: The term 'Sharia' is Arabic for "the right path." It represents the
traditional Islamic law derived from the Quran, the Hadith (sayings and actions
of Prophet Muhammad), and juristic interpretations.
• Scope: Sharia governs both the private and public aspects of life, extending
beyond legal prescriptions to include moral and ethical dimensions.
2. Components of Sharia
• Aqayid (Principles of Belief): This segment focuses on the theological
underpinnings, including beliefs about God, prophethood, and the afterlife.
• 'Ibadat (Rituals): Pertains to religious practices and worship like prayer, fasting,
pilgrimage, and almsgiving, dictating the proper conduct of rituals.
• Mu'amalat (Transactions): Encompasses civil transactions and interactions,
covering commercial dealings, contracts, family law, and social obligations. It
parallels the content of secular legal systems but is guided by Islamic ethics.
• Uqubat (Punishments): Relates to criminal law within Sharia, prescribing
punishments for certain offenses, often reflecting a strong moral stance.
3. Ethical and Moral Dimensions
• Mandatory and Prohibitory Acts: Sharia classifies actions into mandatory
(wajib) and prohibitory (haram), which are legally enforceable.
 • Praiseworthy (Mandub) Acts: These acts carry religious merit if performed and
demerit if omitted. They are encouraged but not legally enforced.
• Blameworthy (Makruh) Acts: Acts that are discouraged but not legally
punishable. Omitting such acts is considered meritorious.
• Indifferent Acts (Mubah): Actions that are morally neutral, neither encouraged
nor discouraged.

FEATURES OF ISLAMIC LAW

1. Governance of State and Citizen:
• Sharia provides guidelines for governance and public administration,
influencing the legal and political framework within an Islamic state.
• It also governs personal conduct, family life, and social interactions,
offering detailed prescriptions for daily living.
2. Comprehensive Coverage of Human Life:
• Sharia does not distinguish between secular and religious spheres,
encompassing all aspects of life, from commercial transactions and
inheritance to worship and moral conduct.
• This integration signifies a holistic approach to law, where legal, ethical,
and spiritual dimensions are inseparable.
3. Role of the Ruler:
• The ruler or governing authority in an Islamic system is primarily
responsible for implementing Sharia principles in governance and societal
organization.
• This role involves not just enforcing legal aspects but also upholding
ethical and religious values as dictated by Sharia.
4. Divine Nature:
• Sharia is considered divine as it is derived from the Quran and the Hadith,
regarded as the direct word of God and the teachings of Prophet
Muhammad.
• Its divine origin gives Sharia a moral and ethical authority that transcends
human-made laws, guiding not only legal judgments but also personal and
communal ethics.
SOURCES OF LAW:
Pyramid of Sources
• Quran at the Apex: The Quran's preeminence is due to its status as the direct
word of God, revealed to Prophet Muhammad over a period of 23 years. Its
verses cover a wide range of topics, including legal principles, moral guidance,
and spiritual teachings.
Four Major Sources of Islamic Law
1. Quran: As the cornerstone of Islamic law, it provides explicit legal directives on
matters like inheritance, marriage, and criminal justice.
2. Sunna (Traditions of Prophet Muhammad): The Hadith collections, like
Sahih Bukhari and Sahih Muslim, are key sources, detailing the Prophet’s life
and offering contextual insights into Quranic verses.
3. Qiyas (Analogical Reasoning): Used for issues not explicitly addressed in the
Quran or Sunna. For example, the prohibition of narcotics can be derived through
qiyas, based on the Quranic prohibition of alcohol.
4. Ijma (Consensus of Opinion): This could involve the consensus of the
Prophet's companions (Sahaba) on a legal matter, considered authoritative in
interpreting Sharia.
Development of Interpretative Methods by Islamic Scholars (Ulama)
• Tafsir (Interpretation of the Quran): Prominent tafsir works like Ibn Kathir's
provide context, historical background, and linguistic analysis to explain
Quranic verses.
• Fiqh (Islamic Jurisprudence): Fiqh expands on the Quran and Sunna,
developing detailed rules for daily life. For example, fiqh texts elaborate on the
five daily prayers, detailing their timings and procedures.
• Usul al-Fiqh (Principles of Islamic Jurisprudence): This discipline establishes
the methodologies for deriving rules from primary texts. Al-Ghazali's works, for
instance, are seminal in defining these principles.

INFLUENCE ON CIVIL LAW

1. Exchange Through Arab Traders and Crusaders:
• Cultural and Legal Exchange: During the Middle Ages, Arab traders
and European Crusaders engaged in extensive cultural and commercial
exchanges. This interaction was a conduit for transferring legal concepts
from the Islamic world to Europe.
 • Learning Centers: Places like Spain and Sicily, where Islamic and
European cultures coexisted, became hubs for this exchange, with
scholars translating Arabic legal, philosophical, and scientific texts.
2. Transfer of Debt:
• Roman Law Limitation: Under Roman law, the transfer of debt
obligations was rigid and limited.
• Islamic Influence: Islamic law facilitated more flexible debt transactions,
which influenced European merchants and eventually led to the adoption
of similar practices in medieval Europe.
3. Hawala and Aval:
• Hawala System: Originating in Islamic finance, Hawala is an informal
method of transferring money without physically moving it.
• Influence on French Law: The 'aval,' a French legal concept used in
guaranteeing bills of exchange, is believed to have been derived from the
Islamic Hawala system, demonstrating the cross-cultural legal influences.
INFLUENCE ON COMMON LAW
1. Agency in Contract Law:
• Roman Law Absence: In Roman law, the concept of agency in contracts
was not well-developed.
• Islamic and Common Law Similarity: Both Islamic law and English
common law recognize agency in contracts, indicating a possible
influence from Islamic legal principles.
2. Undisclosed Principal:
• Unique Feature: A distinctive feature in both English and Islamic legal
systems is the recognition of an undisclosed principal in contracts.
• Contractual Relationships: This principle allows for direct contractual
relationships between the principal and the third party, once the principal's
existence and identity are revealed, a concept not commonly found in
other legal jurisdictions.

ISLAMIC LEGAL SYSTEM IN 21st CENTURY

• Spectrum of Muslim legal systems in the 21st century.
• Different groups among Muslims hold different perspective regarding the fundamental
Sharia law.
• Modern or secular Sharia law being followed in secular Muslim countries like Mali,
Kazakhstan and Turkey. Role of Sharia is limited to personal and family matters.
Religious interference in the matters of state, law and politics is prohibited.
• Countries having mixed kinds of laws are Pakistan, Indonesia, Afghanistan, Egypt,
Nigeria, Sudan, Morocco and Malaysia. These Islamic countries possess legal systems
of their own, however these are greatly under the influence of Sharia, however the
ultimate authority remains their constitutions and the rule of law.
• Hardcore Muslim countries having traditional perspective on Sharia law. These
countries include Saudi Arabia and Gulf countries that have got its constitutions or
legislatures and where the state head have got some authority to change laws, because
they are derived from Sharia law as it is interpreted by their religious scholars. Important
point to note here is that Iran shares some of these characteristics, however it also have
got parliament that legislates in a manner consistent with Sharia.

Indian Legal System: Common and Civil Law Fusion

The Indian legal system is a complex amalgamation of common law and civil law
traditions, the analysis provides a structured breakdown with specific details and
examples:

Common Law Elements:

• Precedent in Indian Jurisprudence:
• Example: The Supreme Court's decision in Kesavananda Bharati v. State
of Kerala established the 'Basic Structure' doctrine, now a precedent in
constitutional law cases.
• Adversarial System:
• Case Study: The landmark case of NALSA v. Union of India, where
opposing parties presented arguments, and the court made a judgment
recognizing the rights of transgender people.
 • Role of Judges:
• Judicial Activism: Indian judges, like in the Vishaka v. State of Rajasthan
case, have often taken an active role in expanding legal interpretations to
protect fundamental rights.

Civil Law Elements:

• Codification of Laws:
• Statutes: The Indian Penal Code and the Civil Procedure Code are
examples of comprehensive legal codes akin to civil law systems.
• Legal Education Emphasis on Statutes:
• Curriculum Focus: Indian legal education focuses heavily on
understanding and interpreting statutes like the Indian Contract Act and
the Companies Act.
Inquisitorial Elements:
• Criminal Investigations:
• Judicial Inquiry: In certain criminal cases, Indian judges can order
investigations, an element of inquisitorial systems.

DISTINCTIVE FEATURES OF THE INDIAN LEGAL SYSTEM

Constitutional Framework:
• Indian Constitution as Supreme Law:
• Landmark Cases: The Indira Nehru Gandhi v. Raj Narain case not only
challenged a Prime Minister's election but also reinforced the supremacy
of the Constitution over parliamentary authority, setting a precedent for
judicial review.
• Fundamental Rights and Duties:
• Judicial Interpretation: The Maneka Gandhi v. Union of India case
revolutionized the interpretation of personal liberty under Article 21,
integrating it with other fundamental rights and setting a higher threshold
for its deprivation.
Multilingual and Multireligious Nature:
• Personal Laws:
 • Religious Diversity: The Shah Bano case brought attention to the conflict
between religious personal laws and civil laws, especially in matters of
alimony and women’s rights, while the Sabarimala case highlighted
gender equality in the context of religious practices.
• Language Diversity in Laws:
• Legislation and Judgments: The availability of laws and judgments in
multiple languages like Hindi, English, and regional languages
exemplifies India's commitment to linguistic inclusivity and accessibility
in its legal system.
Comparative Analysis with Other Legal Systems
Sources of Law:
• Statutes and Precedents:
• Coexistence: The Goods and Services Tax Act exemplifies legislative
law-making, while Supreme Court rulings, like the Vishaka Guidelines,
showcase how judicial decisions can fill legal voids, demonstrating the
fluid interaction between statute and precedent in India.
• Hierarchy within the System:
• Judicial Hierarchy: The hierarchical structure ensures uniform
application of law across the country, with landmark judgments from the
Supreme Court, like the decriminalization of homosexuality in Navtej
Singh Johar v. Union of India, having a nationwide impact.

TERRITORIAL NATURE OF LAW:

The territorial nature of law dictates that a state's legal system and laws are enforceable
only within its geographical boundaries, governing all within that space. This principle
limits a state's legal authority to its territory, except where international agreements or
specific extraterritorial statutes extend its reach.

1. International Treaties and Lawmaking (Extradition):

• Example: The extradition of Vijay Mallya, a prominent businessman,
from the UK to India on charges of financial crimes showcases India's use
of international treaties to extend its legal reach.
 2. Extraterritorial Jurisdiction:
• Example: The Indian Penal Code (IPC) Section 4 allows for the IPC's
application to Indian citizens committing crimes outside India. A notable
case is when Indian citizens commit cybercrimes abroad and are
prosecuted in India.
3. Conflict of Laws:
• Example: In cases involving NRI (Non-Resident Indian) divorces, Indian
courts often have to deal with conflicts of law where they may apply
foreign law based on the circumstances of the case, such as the place of
marriage or domicile.
4. Special Status Individuals (Diplomatic Immunity):
• Example: Diplomatic immunity cases in India, such as when foreign
diplomats in India violate local laws but are not prosecuted due to their
immunity. This was highlighted in the case involving an envoy of a Gulf
country accused of wrongdoing but protected by diplomatic immunity.
5. Jurisdiction Over Citizens Abroad:
• Example: The Indian government's intervention in cases involving
domestic issues of Non-Resident Indians (NRIs). Indian courts have
occasionally exercised jurisdiction in marital disputes or child custody
cases involving NRIs.
6. Remedy in Civil Cases:
• Example: Indian consumers filing complaints against foreign airlines. The
Supreme Court of India ruled that complaints can be filed in India against
foreign airlines if the tickets were purchased in India, as seen in the case
involving Emirates Airlines.

HIEARCHY OF COURTS IN INDIA

The hierarchy of courts in India is structured to ensure an orderly and efficient system
of justice, spanning from the local level to the apex judicial authority. Here's a detailed
explanation:
1. Supreme Court of India
• Position: At the top of the Indian judicial system.
• Role: Serves as the final court of appeal, the highest constitutional court, and the
guardian of the Indian Constitution.
 • In the Kesavananda Bharati case (1973), the Supreme Court established the
'Basic Structure' doctrine, affirming its role in constitutional interpretation.
• Jurisdiction: It has appellate, original, and advisory jurisdiction. It hears appeals
against the decisions of the High Courts and other courts. It also deals with cases
involving the interpretation of the Constitution and can hear matters of national
importance or cases involving substantial questions of law.
• Composition: Consists of the Chief Justice of India and a number of other judges
as determined by Parliament (currently capped at 34).

2. High Courts
• Position: Below the Supreme Court, each state or union territory in India has a
High Court. In some cases, a single High Court serves more than one state.
• Role: They have jurisdiction over a state, a group of states, or a union territory.
The Delhi High Court's 2009 judgment decriminalizing homosexuality (later
upheld by the Supreme Court) exemplifies its significant role in legal
interpretation.
• Jurisdiction: High Courts have appellate and supervisory jurisdiction over all the
courts and tribunals in their respective states. They also have original jurisdiction
in certain types of cases.
• Composition: Each High Court has a Chief Justice and other judges appointed
by the President of India.

3. District Courts
• Position: Below the High Courts, each Indian state is divided into judicial
districts.
• Role: They administer justice at the district level. The fast-track trial of the
Nirbhaya gang-rape case in 2012, demonstrating the District Court's capacity to
handle serious criminal cases.
• Jurisdiction: District Courts have jurisdiction over civil and criminal cases
falling within their district. They handle most of the serious criminal and civil
cases.
• Composition: Headed by a District Judge, they also have additional and assistant
district judges.
4. Subordinate Courts
• Types: These include Civil Courts, Criminal Courts, Family Courts, and various
other lower courts.
• Role: They handle the majority of litigation at the grassroots level.
• Jurisdiction: Civil Courts handle civil matters, while Criminal Courts deal with
criminal cases. Family Courts specifically handle family-related cases.
• Composition: Presided over by judges appointed by the state government.
5. Specialized Tribunals
• Examples: Includes the National Green Tribunal (Addressed environmental
compliance in the 2013 Uttarakhand flood case)
• , Income Tax Appellate Tribunal, Consumer Forums, and Labor Courts.
• Role: These tribunals handle specialized matters in their respective fields.
• Jurisdiction: They function independently of the traditional criminal and civil
court system and provide faster resolution of specific types of disputes.
6. Village Courts (Lok Adalats)
• Role: Aimed at providing easy and quick justice at the grassroots level.
• Jurisdiction: These courts handle minor civil and criminal cases and act as an
alternative dispute resolution mechanism.

JURISDICTION OF COURTS
1. Territorial Jurisdiction
• Definition: It refers to the geographic area within which a court has the authority
to hear and decide cases.
• Example: In the Sushant Singh Rajput case, which involved the death of a
Bollywood actor, the jurisdiction issue arose. The incident occurred in Mumbai,
hence falling under the territorial jurisdiction of the Maharashtra Police and
judiciary.
2. Pecuniary Jurisdiction
• Definition: Relates to the monetary value involved in a case. Different courts
have the authority to hear cases based on the financial value at stake.
 • Example: The Small Causes Courts deal with civil cases involving small
monetary amounts, typically not exceeding a specific limit (like Rs. 1 lakh). In
contrast, higher value property disputes would be heard by District Courts or
High Courts, depending on the value involved.
3. Subject Matter Jurisdiction
• Definition: Concerns the type of case a court is authorized to hear, based on the
nature of the legal issue involved.
• Example: The National Green Tribunal (NGT), which has specific jurisdiction
over environmental issues, took up the 2013 case of the illegal sand mining in
the rivers of Uttar Pradesh. This case fell under the NGT’s subject matter
jurisdiction due to its environmental implications.
4. Appellate Jurisdiction
• Definition: This involves the power of a higher court to review, amend, or
overturn decisions made by a lower court.
• Example: The High Courts have the authority to hear appeals against decisions
made by District Courts within their jurisdiction. Similarly, the Supreme Court
of India can hear appeals against decisions of the High Courts. A notable example
is the appeal of the 2002 Gujarat riots cases in the Supreme Court, following
judgments by lower courts.

ADMINISTRATION OF JUSTICE

Justice is a moral principle ensuring fairness, equity, and impartiality. It’s based on
ethics, law, and rationality. It involves upholding rights within a community, often
enforced by the state’s physical force. Breaches of ethics are punished, maintaining
order and obedience to law. It’s influenced by social sanctions and habits.
The word "justice" comes from the Latin word "iustitia," meaning "righteousness" or
"equity." It originated from "iustus," which means "just" or "upright." It was later
adopted into Old French as "justice" in the 11th century, referring to legal rights and
jurisdiction.

NECESSITY OF JUSTICE
 1. Necessity of a Common Power: Without a common power, such as a
government or state, society would be chaotic and unmanageable. For example,
consider a traffic system without any rules or regulations enforced by a common
power. The result would be chaos, with accidents and conflicts occurring
frequently.
2. Presence and Role of Force: The potential presence of force, represented by the
state’s power, acts as a deterrent for unlawful behavior and helps maintain order.
For instance, the existence of law enforcement agencies like the police, even
when not actively intervening, serves as a deterrent for criminal activities.
3. Public Opinion and Legal Sanctions: While public opinion can influence
behavior, it is not a substitute for legal sanctions. For example, while society
might disapprove of tax evasion (public opinion), it’s the legal consequences
(fines, imprisonment) that most effectively deter such behavior.
4. Administration of Justice: The administration of justice, backed by the physical
force of the state, is necessary for maintaining order in society. For instance, the
court system ensures that individuals who break the law are held accountable,
preventing a minority from taking unfair advantage over the majority. This is
evident in cases where powerful individuals or corporations are brought to
justice, ensuring fairness and justice for all.

THREE SATGES OF JUSTICE

Primitive justice / STAGE 1: In the earliest societies, every individual was responsible
for their own justice. This often took the form of personal vengeance or retaliation. If a
wrong was committed, the individual and their family or tribe would seek to punish the
wrongdoer themselves. This often led to ongoing feuds and violence. To mitigate this,
societies developed systems of compensation, where the wrongdoer or their family
could pay a penalty to the victim or their family.

State-Regulated Vengeance / Stage 2: With the rise of political states, the

administration of justice began to be regulated by the state. However, these early states
were not strong enough to fully control crime and punishment, so the law of private
vengeance still prevailed. The state set rules for how private vengeance could be carried
out, enforcing concepts like “an eye for an eye” and “a life for a life”. This stage saw
the restriction and regulation of private vengeance, but not its abolition.

State-Administered Justice / Stage 3: As states grew in power, they began to take on

the role of judge, assessing liability and imposing penalties. The state moved from being
a regulator of private vengeance to a provider of public enquiry and punishment. The
administration of civil justice became a way to help those who had been wronged,
replacing the violent self-help of earlier times. This is the stage that most modern
systems of justice are at, where the state has the power and responsibility to administer
justice.

ADVANTAGES OF LEGAL JUSTICE:

1. Uniformity and Certainty: The law is known to everyone and is certain, leaving
no room for arbitrary action. This allows citizens to shape their conduct
accordingly.
o Example: In India, the Motor Vehicles Act, 1988, clearly states the rules
and penalties for traffic violations. For instance, driving above the speed
limit can result in a fine of ₹1,000 to ₹2,000 for the first offence. This
uniformity and certainty allow people to drive safely and predictably.
2. Impartiality: Judges are required to make decisions based on pre-determined
legal principles, not personal convenience or bias. This ensures impartiality in
the administration of justice.
o Example: In the 2010 case of Jessica Lal, a model who was shot dead in
New Delhi, the accused Manu Sharma was initially acquitted due to his
influential background. However, following public outcry and media
scrutiny, the case was re-investigated and Sharma was eventually
convicted, demonstrating the principle of impartiality.
3. Wisdom of Law: Legal justice represents the collective wisdom of the
community, accumulated over generations. This wisdom is considered superior
to any individual’s wisdom.
o Example: The Indian Penal Code, established in 1860, is based on the
collective wisdom of legal experts and has evolved over time to address
various crimes and offences. Its longevity and continued relevance
demonstrate the wisdom of law.
4. Rule of Law: Legal justice means the rule of law and not the rule of any person.
It provides legal security to all and does not discriminate between the rich and
the poor.
 o Example: In the 2G spectrum case in India, several high-profile
individuals, including politicians and business tycoons, were held
accountable for their involvement in the scam, demonstrating that the rule
of law applies to everyone, regardless of their status or wealth.

DISADVANTAGES OF LEGAL JUSTICE

1. Rigidity of Law: Laws are often based on precedents and may not always adapt
quickly to societal changes. This can lead to hardship and injustice in certain
cases.
Brown v. Board of Education in the US overturned legal segregation in public
schools, challenging the precedent set by Plessy v. Ferguson. This landmark case
highlighted the challenges of changing entrenched legal norms.
2. Legal Formalism: Judges often give more importance to legal technicalities
than they deserve, focusing more on form than substance.
The Nirbhaya Case in India exemplifies legal formalism. The brutal gang rape
and murder triggered protests and led to changes in the Juvenile Justice Act 2000,
lowering the age for trial as an adult from 18 to 16. This case underscores how
legal procedures can sometimes overshadow the essence of the law.

3. Complexity of Law: As society becomes more complicated, so does the law.

Despite efforts to simplify the legal system, it often becomes complicated again
over time. For instance, tax laws are notoriously complex. Even with periodic
attempts at tax code simplification, the laws often become convoluted again due
to the introduction of various deductions, credits, and exceptions.

CIVIL JUSTICE
1. Primary Rights: These are basic rights that exist independently. They don’t
come from a wrong action. For example, if person A enters into a valid contract,
their right to have the contract performed is a primary right.
2. Sanctioning Rights: These rights come into existence when a primary right is
violated. For example, if the contract mentioned above is broken, person A’s right
to damages for the loss caused by the breach of contract is a sanctioning right.
 3. Specific Enforcement: This is when a primary right is enforced directly. For
example, making a defendant perform a contract or pay a debt.
4. Sanctioning Enforcement: This is when a sanctioning right is enforced. There
are two types:
o Restitution: This is about restoring the plaintiff (the person who was
wronged) to their original position before the wrong was done.
o Penal Redress: This involves restoring all benefits the offender got from
their wrongful act, plus fully compensating for the plaintiff’s loss.
In simple terms, primary rights are your basic rights, and sanctioning rights are the
rights you get when someone violates your primary rights. Enforcement is about making
sure these rights are respected

CIVIL JUSTICE IN INDIA:

1. Enforcement of Rights: In cases like the Bhopal Gas Tragedy, where victims
sought legal recourse against Union Carbide Corporation, the civil justice
system's role in enforcing individual rights against a corporate entity's
negligence is exemplified. This tragic incident highlighted the importance of
civil law in holding corporations accountable for their actions affecting
individuals.
2. Remedial in Nature: The Vodafone tax dispute case is a significant example
of the remedial nature of civil justice. In this instance, the dispute involved
complex financial remedies related to capital gains tax in a cross-border
corporate acquisition, demonstrating the civil justice system's focus on resolving
financial and contractual disputes.
3. Private Litigation: The corporate legal battle in the Tata Sons vs. Cyrus Mistry
case, involving issues of corporate governance and individual rights within a
private corporation, illustrates the essence of private litigation in civil justice.
This high-profile case underscores the role of civil courts in resolving disputes
between private parties without direct state intervention.

CRIMINAL JUSTICE IN INDIA:

1. Punishment of Wrongs: The 26/11 Mumbai terror attacks and the subsequent
trial and punishment of Ajmal Kasab illustrate the criminal justice system's focus
 on punishing acts harmful to society. This case is a stark reminder of how
criminal law is used to address grave offenses against the state and its citizens.
2. State Prosecution: The Nirbhaya case, involving a heinous crime that shocked
the nation, is a prime example of the state's role in prosecuting criminal offenses.
The state's involvement in such cases reflects society's collective condemnation
of certain acts and the need for a rigorous legal process to bring offenders to
justice.
3. Variety of Punishments and Social Control: The Salman Khan hit-and-run
case showcases the criminal justice system's role in imposing various types of
punishment based on the nature and severity of the crime. This case, involving a
high-profile figure, illustrates how criminal law serves to maintain social order
and deter wrongful acts.
PUNISHMENT
Punishment is a legal sanction imposed by the state upon an individual who has
breached the law, aiming to deter crime, exact retribution, and rehabilitate the offender,
thus upholding social order and legal norms.
1. Deprivation of certain normally recognized rights:
• Punishment often involves the deprivation of rights such as liberty,
property, or even life. For example, imprisonment restricts one's freedom
of movement and association, fines take away one's property, and the
death penalty deprives one of life.
2. It is a consequence of an offence:
• Punishment follows the commission of an act deemed criminal by law.
For instance, a person convicted of theft may be sentenced to
imprisonment, indicating the punitive consequence of committing the
offense.
3. It is applied against the author of the offence:
• The individual responsible for committing the offense is the one who is
subject to punishment. As in the case of corporate fraud, the CEO or
directors of a company may face penalties if found personally responsible
for the fraudulent activities.
4. It is applied by an organ of the system that made the act an offence:
• The authority that defines the legal system and enacts laws is also
responsible for imposing punishment. For instance, the judiciary, as a
branch of government, has the power to impose sanctions based on the
laws passed by the legislature. If a new law is enacted making a certain
 drug illegal, the courts will then have the authority to punish those who
are found in possession of that drug.

MERITS OF PUNISHMENT:
1. Deterrence:
• Punishment serves to deter both the individual and the general populace
from committing crimes, as the prospect of facing penalties can
discourage law-breaking behavior.
2. Retribution:
• It provides a means of retribution, allowing society to express disapproval
for the crime and offer closure to victims by ensuring that offenders
receive their just deserts.
3. Rehabilitation:
• Offers a chance for the offender to be rehabilitated. The structured
environment of a penal system can provide education, therapy, and
training, aiming to transform an offender into a law-abiding citizen.
DEMERITS OF PUNISHMENT:
1. Difficulty in Measuring Proportionality:
• There is no objective way to measure the pain and suffering caused by a
crime or by a punishment, making it challenging to calibrate a punishment
that is proportionate to the harm caused.
2. Potential for Undesirable Outcomes:
• The principle of "an eye for an eye" is often infeasible, as most crimes
cannot be exactly replicated for punishment, and the outcomes may not
be equally undesirable for the offender and the victim, leading to
inconsistencies and potential injustice.

DETERRENT THEORY OF PUNISHMENT:

The Deterrent Theory of Punishment posits that the primary purpose of punishment is
to deter or discourage potential offenders from committing crimes. It aims to make the
act of committing a crime a “bad bargain” for the offender, as philosopher John Locke
suggested. This theory emphasizes the necessity of protecting society by treating
prisoners in such a way that others will be deterred from breaking the law.
In the infamous Nirbhaya case in India, the perpetrators were given the death
penalty. This severe punishment was intended to deter similar crimes in the future.
MERITS:
1. Prevention of Crime: The main advantage of the deterrent theory is that it aims
to prevent crime by making the consequences of committing a crime severe and
undesirable.
2. Protection of Society: By deterring potential criminals, the theory seeks to
protect society from harm.
3. Exemplary Effect: The punishment serves as a warning to others, discouraging
them from committing similar crimes.
DEMERITS:
1. Ineffectiveness: Critics argue that the deterrent theory has not been effective in
reducing crime rates. Even with severe punishments in place, people continue to
commit crimes.
2. Excessive Harshness: The theory can lead to excessively harsh punishments,
which may arouse public sympathy for the punished individuals rather than
deterrence.
3. Hardening of Criminals: Instead of instilling fear of the law, deterrent
punishment can harden criminals, making them unafraid of further punishment.
4. Lack of Rehabilitation: The deterrent theory focuses on punishment rather than
rehabilitation, which could potentially lead to reformation and reintegration of
the criminal into society.

PREVENTIVE THEORY OF PUNISHMENT

The preventive theory of punishment is a concept in criminal justice that focuses on
preventing future crimes by incapacitating the offender. This theory operates under the
premise that by restraining or removing the criminal from society, future offenses can
be prevented. The theory is grounded in the belief that certain individuals, due to their
past behavior or inherent tendencies, pose a continuing threat to society.

Two Main Merits of Preventive Theory of Punishment:

 1. Deterrence: One of the primary merits of the preventive theory is its deterrent
effect. By imposing a punishment that incapacitates the offender, it serves as a
warning to both the individual and the broader society about the consequences
of engaging in criminal behavior. The idea is that the fear of punishment and the
consequent loss of freedom will deter both the individual and potential offenders
from committing crimes.
2. Protection of Society: The preventive approach directly contributes to the safety
and security of society by physically removing dangerous individuals from the
public sphere. This separation reduces the immediate risk of these individuals
committing further crimes, thereby safeguarding potential victims and
contributing to overall public safety.
Many countries maintain sex offender registries and impose restrictions on
convicted sex offenders, such as prohibiting them from living near schools.
These measures aim to protect society by limiting the opportunities these
individuals have to reoffend.
Two Main Demerits of Preventive Theory of Punishment:
1. Possibility of Overreach and Rights Infringement: A significant critique of
the preventive theory is the potential for overreach, where individuals may be
excessively restrained or punished based on the potential for future crimes rather
than the severity of their past actions. This could lead to disproportionate
punishment and infringement of individual rights, especially in cases where the
threat posed by the individual may not be as severe as perceived.
2. Temporary Solution with Limited Rehabilitation: Preventive punishment
often focuses more on incapacitation and less on rehabilitation. This approach
can be seen as a temporary fix, as it doesn't necessarily address the underlying
causes of criminal behavior. Without effective rehabilitation, there's a risk that
once the punishment is over, the individual might revert to criminal activities, as
the punishment does not inherently change the person's behavior or
circumstances that led to the crime.

RELATION BETWEEN DETERRENT AND PREVENTIVE THEORY

1. Deterrent Theory: This theory is like a big sign that says “Don’t commit a
crime, or you’ll be punished.” It’s meant to discourage everyone in society from
breaking the law by making an example of those who do. The idea is that if
people see the consequences of committing a crime, they’ll think twice before
doing it themselves.
 2. Preventive Theory: This theory focuses on the person who has already
committed a crime. It’s like saying, “We’re going to stop you from doing this
again.” The punishment here is designed to prevent the criminal from being able
to repeat their actions. It’s less about the motive behind the crime, and more
about physically stopping the criminal from being able to commit it again.

REFORMATIVE THEORY OF PUNISHMENT

Reformative Theory of Punishment: The Reformative Theory of Punishment
emphasizes on the reformation of offenders through the method of individualization. It
is based on the humanistic principle that even if an offender commits a crime, he does
not cease to be a human being. Therefore, an effort should be made to reform him/her
during the period of his/her incarceration1.
Merits:
1. Human Rights Protection: The reformative approach to curb crimes and
reform the convicts has come up in order to protect the basic rights a human is
entitled to3.
2. Rehabilitation: This theory helps in making a criminal a good citizen as much
as possible. Furthermore, it makes the citizen a meaningful citizen and an upright
straight man4.
3. Reintegration: The reformative theory of punishment also emphasizes the
reintegration of offenders back into society as productive citizens. This may
involve providing assistance with housing, employment, education, and other
resources that can help offenders successfully reintegrate into their communities
and reduce their risk of reoffending5.
Demerits:
1. Lack of Deterrence: One criticism of the reformative theory of punishment is
that it may not effectively deter offenders from committing future crimes5.
2. Inadequate Infrastructure: Reformative theory expects better infrastructure
and facilities in prison, proper coordination between different disciplines and
persistent effort on their part to mould the criminal. It requires huge investments
which poor countries cannot afford5.
3. Neglect of Potential Offenders: This theory neglects potential offenders and
persons who have committed crime but not within the arms of law. Further, it
overlooks the claims of victims of crimes
 Aspect Deterrent Theory Reformative Theory
Objective To discourage crime by Focuses on rehabilitating the
imposing severe punishments offender, aiming to reintegrate
as a warning to others. them into society as a reformed
individual.
Approach to Favors harsh punishments like Advocates for minimal
Punishment capital punishment to set an punishment and emphasizes
example. rehabilitation and improvement of
the criminal.
View on the Emphasizes the nature of the Prioritizes understanding the
Criminal crime more than the character criminal’s background and the
of the criminal. circumstances leading to the crime.
Treatment of Suggests increasingly severe Argues that reformative
Habitual punishments for repeat approaches may not be effective
Offenders offenders, assuming previous for habitual offenders; focuses on
punishments were inadequate. rehabilitation but recognizes its
limits.

INDIA’S POSITION REGARDING REFORMATION RELATED LAWS:

1. Constitutional Provisions
• Article 72 and Article 161 of the Indian Constitution: These articles empower
the President and the Governor, respectively, to pardon offenders. This pardoning
power is significant in the context of reformative justice as it allows for
absolution from penalties, punishments, and disqualifications in certain cases,
especially where there is a perceived injustice or overly harsh punishment.
2. Juvenile Justice (Care and Protection of Children) Act, 2015
• Ideology of Dealing with Delinquent Children: This Act represents a shift
towards a more rehabilitative approach for juvenile offenders. The focus is on
reformation and integration of children into society as productive members.
• Key Sections Illustrating Reformative Approach:
• Section 14: Provision for bail or guidance under a probation officer for
non-bailable offenses committed by children.
• Section 18: Various rehabilitative options like counseling, community
service, or probation for offenders below 16 years.
• Section 21: Prohibition of life imprisonment or death penalty for children.
• Section 40 and 74: Emphasis on transformation and confidentiality of
child offenders’ identities.
3. Probation of Offenders Act, 1958
• Section 4: Addresses the discharge of offenders on the basis of good behavior.
This section excludes cases with offenses punishable by death or life
imprisonment.
• Case Reference - Gulab Singh v. Yuvraj Singh (1994): The Supreme Court’s
decision in this case highlighted the reformative intent of the Indian penal
system, refusing to increase the punishment for the sake of reformation.
4. Probation
• Concept and Implementation: Probation is offered as an alternative to jail time,
particularly for minor offenses. It involves the offender being released under the
supervision of a probation officer, aiming at good behavior and societal
reintegration.
5. Parole
• Definition and Purpose: Parole allows for early release of prisoners before
completing their sentence, based on good conduct. It's a system designed to
gradually reintegrate prisoners into society under supervision.
6. Indeterminate Sentence
• Concept and Historical Context: The indeterminate sentence, which doesn't
prescribe a fixed duration of imprisonment, allows for parole based on the
prisoner's improvement and behavior. This concept aligns with the reformative
approach, as it considers the individual’s progress and rehabilitation in prison.

RETRIBUTIVE THEORY
Retributive Theory of Punishment: The Retributive Theory of Punishment is based
on the principle of ‘desert’ or ‘justice’, which suggests that the guilty deserve to be
punished1. This theory replaces private punishment with institutionalized punishment
structured by law and state in an organized manner1.
Merits of Retributive Theory of Punishment
1. Simplicity:
• The theory is straightforward and clear-cut. It posits that punishment is
deserved for wrongdoing and serves as an end in itself. This contrasts with
utilitarian theories, where punishment is a means to achieve broader
societal goals.
2. Civilized and Proportional:
 • Retributive punishment is based on the principle of proportionality – the
punishment should fit the crime. This approach is considered civilized
because it avoids cruelty or barbarism, ensuring that the severity of
punishment is justly aligned with the gravity of the offense.
3. Impartial and Neutral:
• By focusing on proportionate punishment, the theory strives to balance
the interests of the wrongdoer and society. It aims to be fair and neutral,
treating all offenders equally based on the nature of their crimes, without
prejudice or bias.
Demerits of Retributive Theory of Punishment
1. Lack of Guidelines:
• One of the major criticisms is the absence of clear guidelines or principles
for determining proportionate punishment. This vagueness can lead to
inconsistencies in sentencing, making it challenging for judges to decide
on appropriate punishments for different crimes.
2. Prevention of Future Crime:
• The retributive theory primarily focuses on punishing the criminal for past
actions, rather than on preventing future crimes. In this sense, it is seen as
limited, as it does not directly address the utilitarian aspect of punishment,
which is to deter future criminal behaviour and protect society.

TYPES OF PUNISHMENTS
DEATH PENALTY
The death penalty, or capital punishment, is a legal procedure where a person is executed
by the state as punishment for a crime. This ultimate form of penalty is typically
reserved for severe crimes, such as murder or treason.
SHORT HISTORY
In the past, death sentences were common for many minor offenses. During King
George III's reign, 220 offenses, including shoplifting, cattle-stealing, and tree-cutting,
could lead to the death penalty.
The use of the death penalty in India can be traced back to British colonial rule when it
was included in the Indian Penal Code for various crimes. This stance remained
relatively unchanged for over a century. However, global trends towards abolition
influenced India's legislative and judicial perspectives. Notable changes in Indian law
include:
• Pre-1955: Courts needed to provide reasons for not imposing the death penalty
in murder cases.
• 1955 Amendment: Removed the requirement to justify not imposing the death
penalty.
• 1973 Code of Criminal Procedure: Required courts to record reasons for
imposing the death penalty.
Significant Supreme Court cases like Ediga Anamma v. State of Andhra Pradesh and
Bachan Singh v. State of Punjab highlighted the evolving judicial stance. In the latter,
the Supreme Court upheld the constitutionality of the death penalty under certain
circumstances but emphasized its use as an exception rather than the rule.
Merits of the Death Penalty:
1. Deterrence:
• Advocates for the death penalty in India often point to its potential
deterrent effect. For example, the 2012 Nirbhaya case, involving a brutal
gang rape in Delhi, led to a public outcry demanding the death penalty for
the perpetrators. The subsequent death sentences were perceived by some
as a strong message against such heinous crimes, potentially deterring
future offenses of a similar nature.
2. Retribution and Justice:
• In cases like the 1993 Bombay bombings, the death penalty was seen as
a means of delivering justice. Yakub Memon, convicted for his role in the
bombings, was executed in 2015. Many saw this as a form of retribution,
serving justice for the victims and their families and affirming the rule of
law in the face of terrorism.
Demerits of the Death Penalty:
1. Risk of Wrongful Execution:
• Concerns about wrongful convictions leading to executions are
significant. In India, the case of Dhananjoy Chatterjee, executed in 2004
for the rape and murder of a 14-year-old girl, stirred debate. There were
questions raised about the fairness of his trial and the quality of legal
representation he received, highlighting the risks involved in
administering the death penalty.
2. Human Rights Concerns:
 • The death penalty in India faces criticism for violating human rights,
particularly the right to life. The case of Afzal Guru, executed in 2013 for
his involvement in the 2001 Indian Parliament attack, was controversial.
There were debates over the adequacy of the evidence against him and
the haste in carrying out his execution, which raised concerns about the
respect for human rights and due process in capital punishment cases.
METHODS OF DEATH PEANLTY:
1. Lethal Injection: This method involves administering a fatal dose of drugs to
cause death.
2. Electrocution: Execution by electric chair, where death is caused by a powerful
electric current.
3. Lethal Gas: The use of a poisonous gas in a sealed chamber to cause death.
4. Hanging: A traditional method where the condemned person is dropped from a
height to break the neck and cause death.
5. Firing Squad: A method in which a group of marksmen shoot the condemned
person.

DEPORTATION
This is a form of punishment where dangerous criminals are sent away from their
society. However, this isn’t a good solution because these individuals could be just
as dangerous in another society.
Also, maintaining a separate colony for these offenders is difficult and could
negatively affect their character. This form of punishment has been abolished in
Britain and India.

CORPORAL PUNISHMENT
This includes punishments like flogging (whipping) and torture. It was very
common and severe in the past, especially during the Middle Ages. Many people
died from the wounds they received from whipping. Public whipping was common
in ancient and Medieval times in India.

IMPRISONMENT:
This is a form of punishment where criminals are put in jail. It can serve three purposes:
o Deterrent: It can discourage others from committing crimes.
 o Preventive: It can stop the criminal from repeating the crime for a while.
o Reformation: It can provide opportunities to reform the criminal’s
character.
However, deciding the length of the imprisonment is challenging. Short-term
imprisonments are seen as ineffective and dangerous because they don’t allow for
proper training or treatment, and can expose minor offenders to a criminal
environment. Long-term imprisonments also have their issues, and the Supreme
Court of India has reduced the length of imprisonment in some cases.
2. Imprisonment and Fine: Sometimes, criminals are sentenced to both
imprisonment and a fine, or sometimes just a fine. Lord Goddard believes that
fines shouldn’t be used to allow wealthy individuals to avoid imprisonment.
3. Adequacy of Sentence: When deciding the appropriate sentence, the court
considers many factors, including the nature of the crime, the circumstances of
its commission, the offender’s age and character, the harm caused to individuals
or society, the effect of the punishment on the offender, and the potential for the
offender’s correction and reformation.

1. Purpose of Imprisonment:
• Imprisonment can serve three main purposes:
• Deterrence: It acts as a warning to others by making an example
of the offender.
• Prevention: By confining the offender, it prevents them from
committing further offenses for a certain period.
• Reformation: Properly managed, imprisonment can help reform
the character of the accused.
2. Issues with Duration of Imprisonment:
• Short-Term Imprisonment: Considered ineffective and potentially
harmful because it's too brief for any meaningful reform and can expose
minor offenders to criminal influences.
• Long-Term Imprisonment: The Supreme Court of India has recognized
risks associated with long-term sentences and has reduced them in cases
like Ashok Kumar v. State (Delhi Administration) and Nadella
Venkatakrishna Rao v. State of Andhra Pradesh.
3. Combination with Fines:
 • Sometimes, the court sentences the accused to both imprisonment and a
fine, or just a fine. However, there's a concern that fines may allow
wealthier individuals to avoid imprisonment, which is not seen as
equitable.
4. Considerations in Sentencing:
• When deciding the appropriate sentence, courts consider various factors
including the nature of the offense, the circumstances in which it was
committed, the age and character of the offender, the impact of the crime
on individuals and society, and the potential for the offender's correction
and reformation.

FORFEITURE OF PROPERTY is a legal process where the state takes ownership of

property because it has been involved in or associated with criminal activity. This can
happen for several reasons:
1. Crime-Facilitating Property: If the property was used to commit or facilitate
the commission of a crime, like a house used for drug trafficking.
2. Proceeds of Crime: If the property represents the proceeds of criminal activity,
such as money earned from selling stolen goods.
3. Punitive Forfeiture: As a direct punishment, where the loss of property is
intended to penalize the wrongdoer for their illegal actions.
The idea behind forfeiture is both to deter crime by removing the financial incentives
and to penalize the wrongdoer. However, it can be controversial, particularly when it
involves taking property without a criminal conviction or when it impacts the property
rights of individuals not directly involved in the crime.
A notable case is that of Vijay Mallya, where the Enforcement Directorate attached
properties worth hundreds of crores under the PMLA due to his alleged involvement in
bank loan default cases.

SOLITARY CONFINEMENT
Overview of Solitary Confinement Solitary confinement is a severe form of
punishment that isolates the individual from social contact. It capitalizes on the human
need for companionship by denying interaction with others, intending to inflict
psychological pain.
Criticism of Solitary Confinement Many critics argue that solitary confinement is
inhumane and can cause psychological damage. The concern is that even a mentally
stable person can be driven to mental instability or madness if subjected to prolonged
isolation.
Potential Effects and Use While some argue that solitary confinement, if used
judiciously, can be an effective punitive measure, there is a consensus that overuse can
lead to irreversible harm to the inmate's mental health.
Legal Limits in India The Indian Penal Code, specifically Sections 73 and 74,
stipulates strict limitations on the use of solitary confinement:
• The maximum duration of solitary confinement cannot exceed three months.
• The confinement cannot be continuous for more than 14 days, with at least a 14-
day gap between periods.
• Alternatively, it cannot last more than 7 days at a time without an interval of 7
days in between.
Ajmal Kasab: The sole surviving terrorist of the 2008 Mumbai attacks was held in
solitary confinement during his imprisonment. This was done for security reasons and
to prevent any potential influence he might have on other prisoners.

COMPENSATION:
In India, several laws and schemes provide compensation for victims of crimes,
accidents, and natural disasters:
For Victims of Crimes:
• The Code of Criminal Procedure, 1973, especially Section 357, allows courts
to order compensation to victims if the crime results in injury or loss. The
implementation of this provision is subject to certain conditions.
• Section 357A was added following the Law Commission's recommendations to
ensure victims receive compensation, leading to the formulation of Victim
Compensation Schemes (VCS) by the Central and State Governments. These
schemes are designed to compensate victims or their dependents for the losses
and damage caused by the crime. The State Government is responsible for
generating and sustaining the fund for this purpose.
For Victims of Accidents:
• The Motor Vehicles Act, 1988, provides for a structured formula for
compensation to victims of road accidents.
• The Workmen's Compensation Act, 1923, mandates compensation for
employees who suffer from injuries resulting in death or permanent disablement
due to accidents during the course of their employment.
For Victims of Natural Disasters:
• The National Disaster Management Authority (NDMA), under the Ministry
of Home Affairs, has guidelines in place for providing financial assistance to
families affected by natural disasters. This includes compensation for the loss of
human life, damage to housing, and for restoring means of livelihood.
• The State Disaster Response Fund (SDRF) and National Disaster Response
Fund (NDRF) are used for immediate relief and for supporting those affected
by calamities.
For Women, Children, and Vulnerable Groups:
• The Protection of Women from Domestic Violence Act, 2005, allows for
monetary relief to victims of domestic violence.
• The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989, mandates compensation for victims of caste-based atrocities.
• The Maintenance and Welfare of Parents and Senior Citizens Act, 2007,
ensures maintenance for senior citizens and parents, and in the event of non-
compliance by children or heirs, the tribunal may order for a monthly allowance
to be provided to them.
Central Victim Compensation Scheme:
• Introduced by the Ministry of Home Affairs, this scheme provides uniform
compensation across states for various types of victimization, including acid
attacks and sexual assaults. For instance, it provides Rs. 3 lakhs for acid attack
and rape victims, with higher compensation for victims below 14 years of age.
The compensation provided is dependent on the severity of the offense and the specific
needs of the victim. For more detailed information and applications, one can refer to the
National Legal Services Authority (NALSA) website, which oversees the
implementation of various victim compensation schemes.

The case of Suresh vs. State of Haryana focuses on the importance of providing justice
to victims of crimes, particularly when the criminal justice system fails to convict the
guilty due to systemic challenges like the non-collection of evidence or the inability of
witnesses to testify freely. The judgement emphasizes that justice for victims should not
be contingent solely on the punishment of the perpetrators.
Key Points from Suresh vs. State of Haryana Regarding Compensation:
• Victim Support: The State must take actions that reassure and protect crime
victims, ensuring justice from the system.
 • Immediate Financial Relief: Courts should ascertain the commission of the
crime and identify the victims who may require immediate financial relief.
• Interim Compensation: The courts have the authority to grant interim
compensation after taking cognizance of a criminal offense, which can later be
adjusted against the final compensation amount.
• Final Hearing Obligations: At the final hearing, the court must determine the
eligibility for compensation, who is entitled to it, and the amount.
• Guiding Factors for Compensation: The severity of the offense and the
victim’s needs should guide the compensation, along with other relevant case
factors.
• Scale of Compensation: There is a suggestion to revise the scale of
compensation upwards, using the scale notified by the State of Kerala or a higher
scale from other states as a benchmark.
Legislation and Schemes for Victim Compensation:
• New Legislation: Acts such as The Protection of Women from Domestic
Violence Act, 2005, The Maintenance and Welfare of Parents and Senior Citizens
Act, 2007, and The Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 have made provisions for mandatory compensation to
victims.
• Need for Comprehensive Legislation: Despite these laws, the judgment notes
that the legal framework is fragmented and calls for comprehensive legislation
to address victim compensation holistically.
• Judicial Support: The judiciary has repeatedly emphasized the need for
comprehensive legislation to ensure proper compensation to victims.
This case reinforces the principle that the criminal justice system should not only focus
on punishing the guilty but also ensure that victims receive adequate compensation and
support to address the harm they have suffered.

JUSTICE AND COMPENSATION IN SURESH VS. STATE OF HARYANA

Overview of the Case
In Suresh vs. State of Haryana, the court addressed the issue of justice for victims of
crime, emphasizing the state's responsibility to provide support and assurance to
victims, irrespective of the conviction status of the perpetrator.
Court's Stance on Victim Compensation
 • State's Duty to Protect Victims: The judgement underscores the duty of the
state to take steps to protect and reassure victims, even when the criminal justice
system fails to punish the guilty.
• Financial Relief for Victims: The court highlighted the importance of
identifying victims who require immediate financial relief and ensuring that they
receive it promptly.
Directions Issued by the Apex Court
• Assessment of Crime and Victim Impact: The court must determine the
existence of tangible evidence, the identification of the victim, and the need for
immediate financial aid.
• Interim Compensation: The court should direct the provision of interim
compensation where necessary, with the final amount to be determined later.
• Obligation at Final Hearing: At the final hearing, the court is obliged to decide
on the eligibility for compensation, the entitled party, and the compensation
amount.
• Compensation Criteria: The gravity of the offence and the victim's needs are
the primary considerations for compensation, among other relevant factors.
• Revision of Compensation Scale: The court suggested an upward revision of
the compensation scale, recommending the adoption of the scale used by Kerala
or a higher one from other states in the interim.
Current Legislation and Schemes
• Legislative Measures: Various acts like The Protection of Women from
Domestic Violence Act, 2005, and others mandate compensation for victims.
• Call for Comprehensive Legislation: The fragmented nature of existing laws
calls for a more comprehensive legislative framework for victim compensation.
• Judicial Advocacy for Legislation: The judiciary has been instrumental in
advocating for comprehensive legislation to ensure fair compensation for
victims.
CIVIL JUSTICE
1. Primary Rights: These are basic rights that exist independently. They don’t
come from a wrong action. For example, if person A enters into a valid contract,
their right to have the contract performed is a primary right.
2. Sanctioning Rights: These rights come into existence when a primary right is
violated. For example, if the contract mentioned above is broken, person A’s right
to damages for the loss caused by the breach of contract is a sanctioning right.
 3. Specific Enforcement: This is when a primary right is enforced directly. For
example, making a defendant perform a contract or pay a debt.
4. Sanctioning Enforcement: This is when a sanctioning right is enforced. There
are two types:
a. Restitution: This is about restoring the plaintiff (the person who was
wronged) to their original position before the wrong was done.
b. Penal Redress: This involves restoring all benefits the offender got from
their wrongful act, plus fully compensating for the plaintiff’s loss.
5. In simple terms, primary rights are your basic rights, and sanctioning rights are
the rights you get when someone violates your primary rights. Enforcement is
about making sure these rights are respected.

IDENTIFICATION OF REMEDIES: DAMAGES, INJUNCTIONS AND

SENTENCING IN CRIMINAL CASES
1. Damages:
• Definition: Damages are monetary compensation awarded to a person who has
suffered loss or harm due to the unlawful act or omission of another.
• Relevant Law: Damages are typically awarded in civil cases under the Law of
Torts, Contract Law, or specific legislations that provide for compensation.
• Example: If a person is injured in a car accident due to another's negligence,
they may claim damages for medical expenses and loss of earnings under the
Motor Vehicles Act, 1988.
2. Injunctions:
• Definition: An injunction is a court order requiring a person to do or refrain from
doing a specific act.
• Types: There are generally two types of injunctions - temporary (ad-interim) and
permanent.
• Relevant Law: They are often granted under specific statutes like the Specific
Relief Act, 1963.
• Example: A court may issue an injunction to prevent the breach of a contract or
to stop the infringement of intellectual property rights.
3. Sentencing in Criminal Cases:
• Definition: Sentencing is the judicial determination of a punishment to be
imposed on a person found guilty of a criminal offense.
• Relevant Law: Sentencing in criminal cases is guided by the Indian Penal Code,
1860, and other criminal statutes like the Prevention of Corruption Act, 1988.
 • Example: Conviction for murder under Section 302 of the Indian Penal Code
can lead to life imprisonment or the death penalty, subject to the discretion of the
court.
Each of these remedies serves a different purpose within the legal system. Damages aim
to compensate the victim, injunctions aim to prevent or mandate actions maintaining
the status quo or rights, and sentencing aims to punish the offender, deter crime, and
protect society.

LEGAL METHOD END SEM NOTES

*Law, Fact and Language:
Explained by Chatgpt:
1. Question of Law:
• This is a legal issue that is decided by a judge.
• It involves the interpretation and application of the law to a specific
situation.
• Judges make rulings on questions of law based on established legal
principles, statutes, and precedents.
• For example, if the question is whether a defendant's actions meet the
legal definition of a specific crime, that's a question of law.
2. Question of Fact:
• This is an issue that is determined by a jury or judge (if a jury trial is not
involved).
• It relates to the factual circumstances of a case, such as what actually
happened or the credibility of witnesses.
• Jurors or the judge weigh the evidence and make findings of fact.
• For example, in a personal injury case, determining whether a car
accident was caused by the negligence of the defendant is a question
of fact.

QUESTION OF LAW:
"Questions concerning matters on which there exist well-established laws": This
means that a question of law arises when a legal issue can be resolved by applying
existing, clear, and well-established legal rules or principles. In such cases, there is no
need for a factual investigation; it's about the interpretation and application of
established legal rules.
"Interpretation of law. No factual investigation": Questions of law involve the
interpretation of existing laws or legal principles, not the determination of factual
matters. There is no need to gather new evidence or conduct investigations to answer
these questions.
"When the questions as to what law is arises": This indicates that questions of law
arise when there is a dispute or uncertainty about the meaning or application of a
particular law.
"Absence of an authoritative precedent and enactment": A question of law can
also arise when there is no prior legal precedent (previous court decisions) or statutory
law (laws passed by a legislative body) that directly addresses the specific issue at
hand.
"Ambiguity in statutory provisions": If a law's wording is unclear or open to
multiple interpretations, it can lead to questions of law because it requires a judge to
determine how the law should be applied in a particular case.
"Question of law is decided by the Judges": In legal proceedings, questions of law
are typically resolved by judges. It is their responsibility to interpret and apply the law
to the specific case before them.
"Ex: Murder, Robbery, Domestic Violence": These examples are common criminal
offenses where questions of law frequently arise. For instance, a judge may need to
determine how the law defines murder or robbery in a particular case, or whether an
act constitutes domestic violence under the law.

QUESTION OF FACTS:
Facts - Section 3 of IEA 1872 states that 'Anything, state of things, or relation of
things, capable of being perceived by the senses or any mental conditions of which
any person is conscious'": This definition, taken from Section 3 of the Indian Evidence
Act (IEA) of 1872, defines "facts" as anything that can be perceived through the
senses or any mental conditions that a person is conscious of. In legal contexts, facts
form the basis for determining what happened in a given situation.
"Fact could be true or false in context to law. Factual investigation": This means
that facts in a legal case can be either true or false in relation to the law. To ascertain
the truth or falsity of these facts, factual investigations, such as gathering evidence,
conducting interviews, and collecting data, may be necessary.
"QOF are answered on the evidence adduced": Questions of fact are resolved based on the
evidence presented in court. The parties involved present evidence, such as witnesses'
testimonies, documents, or other exhibits, to prove or disprove the facts in dispute.
"Role of jury (not applicable to India)": In some legal systems, a jury plays a crucial role
in determining questions of fact. However, in India, jury trials are not commonly used,
especially in criminal cases. Instead, judges typically determine both questions of law and
fact in Indian legal proceedings.
"The QOF is not subject to Judicial Discretion": This means that questions of fact are not
left to the discretion of the judge. Instead, they are decided based on the evidence and facts
presented during the trial. Judges are expected to assess the evidence objectively and make
determinations of fact based on the evidence and the law.

MIXED QUESTION OF LAW AND FACT:

• "Where there is QOL there will be little of QOF and vice versa": This
means that in questions of pure law (QOL), there is minimal involvement of
factual elements (QOF), and conversely, in questions of pure fact, legal
considerations play a smaller role. However, in mixed questions, both legal and
factual elements are interrelated.
• "Substantial Question of Law: Art 132: Appeals to SC": A "substantial
question of law" typically refers to an important legal issue that is raised in a
case. It's a question that carries significant legal implications and can be a basis
 for appealing to the Supreme Court of India under Article 132 of the Indian
Constitution.
• "Lower courts deal with the Questions of Fact": In legal proceedings, lower
courts, such as trial courts, often focus on resolving questions of fact, which
involve determining what happened in a case based on the evidence presented.
• "Judicial Determination requires both Fact and Law to be considered
(separable)": When addressing a mixed question of law and facts, the judge
must consider both the factual circumstances of the case and the applicable
legal principles. These two elements are separable, meaning they can be
distinguished and analysed independently.
• "Mixed question depends on relative standards": The outcome of a mixed
question depends on how the applicable legal standards are applied to the
specific factual scenario. The determination involves an analysis of whether the
facts meet the legal criteria or standards.
• "Ex: Is the building illegally constructed? (height is calculable and
tangible. What is the height of the building? What is the limit prescribed
by law? Limitation, Jurisdiction is a mixed question": This example
illustrates a mixed question. Whether a building is illegally constructed
involves both factual and legal considerations. The height of the building is a
factual matter, but whether it exceeds a prescribed legal limit is a legal
question. Similarly, issues like limitation (time restrictions for filing a lawsuit)
and jurisdiction (whether a court has the authority to hear a case) often involve
mixed questions.

LAW AND LANGUAGE

• The Legal Process and Language: The legal process relies heavily on
language. It is through language that laws are written, legal arguments are
made, and judicial decisions are communicated. Language is the medium
through which legal professionals, including judges, lawyers, and legislators,
convey and interpret legal principles.
• Process of Legal Argumentation in Court: In a courtroom, legal
argumentation involves lawyers presenting their cases and arguments using
language. They use language to persuade judges, present evidence, and
advocate for their clients. The effectiveness of their arguments often depends
on their ability to use language persuasively and logically.
• Words Dominating the Legal Landscape: In the realm of law, words play a
dominant role. Legal documents, statutes, contracts, court opinions, and legal
briefs are all composed of words. The interpretation of these words is what
often determines the outcome of legal disputes.
• Law Uses Language, but Language Is Stronger: The statement that "law
uses language, but language is the stronger" emphasizes the power and
influence of language in the legal field. Language shapes legal rules, but it is
also subject to interpretation and manipulation within the legal context.
• Gap Between Legal and Everyday Language: Legal language often differs
significantly from everyday language. It can be technical, formal, and laden
with legal terminology and jargon that may not be easily understood by the
general public. This gap between legal and everyday language can make the
law appear inaccessible to those without legal training.
• Legal Jargon and Attraction of Law: Legal jargon, which includes
specialized terminology and Latin phrases, has sometimes been presented as
part of the attraction or mystique of the law. It can create a sense of formality
and authority in legal documents and proceedings. For example, "Habeas
Corpus" is a Latin phrase used in legal contexts to challenge unlawful
detention.
• Law as Camouflage: The concept of "law as camouflage" suggests that legal
language can be used to obscure or hide certain aspects of a situation. For
instance, terms like "unreasonable behavior" may be subjective and open to
interpretation, allowing for legal flexibility in addressing various
circumstances.
• Language and Facts Depend on Each Other: The point made by Hnson that
"language and facts depend upon each other" underscores the interdependence
of language and the description of facts.
• The way facts are described: or framed in legal discourse can significantly
influence how those facts are perceived and understood.
• Linguistic Differences affect reality: Linguistic differences, including how
facts are described, can impact the way reality is constructed within the legal
context. For example, how a witness describes an event can influence how a
court perceives the nature of that event.
• Role of the Witness: Witnesses play a vital role in legal proceedings as they
describe facts and events. The accuracy and clarity of their descriptions are
crucial for the court's understanding of the case.
• Significance of the Medium of Communication: The medium of
communication, including the language and style used in legal discourse, is as
important as the actual content or message being conveyed. It can affect how
the message is received and interpreted.
• Flexibility of Language: Legal discourse involves a wide range of ordinary
English words. However, legal rules can be indeterminate or vague, and the
meaning of these words may need to be established both during the drafting of
legal documents and during their interpretation.
• Development of New Words: Legal language evolves to reflect changes in
technology and society. New words or terminology are introduced to address
emerging legal issues or concepts.
• Words with Multiple Meanings: Some words and phrases in legal language
may have more than one meaning, which can lead to ambiguity and require
careful interpretation. Ex: corrective measures , consideration.
• Syntax in Legal Language: The structure and syntax of legal language can
present challenges in interpretation. Legal sentences and paragraphs can be
complex, making it essential to decipher their meaning accurately.
• Legal Argument Requires Interpretation and Justification: Legal
argumentation involves two essential components- interpretation and
justification. Interpretation defines what is being argued based on the legal
rules and the relevant facts.
• Justification can take the form of consequential reasoning (focuses on goal,
outcome or consequences of legal action) or Rightness reasons (universal rights
or principle) (e.g. torture is wrong)
• Role of Lawyers and Judges: Lawyers and judges are tasked with
constructing interpretations based on the facts of a case and providing
justifications for the legal outcomes they seek or deliver. This often involves
creating a coherent narrative that integrates the facts with the law to achieve a
just outcome. In short Role of lawyers and judges is to: *To construct an
interpretation out of the facts, *To provide justification for an outcome, *To
provide a compelling story that integrates the facts with law for a good
outcome.
• Linguistic Community and Limits: Judges operate within a linguistic
community, which means that there are established norms and practices
regarding how language is used in legal contexts. This linguistic community
sets boundaries on what is considered acceptable or valid practice in the legal
field.

LAW, FACT AND LANGUAGE NOTES OF VD AND READINGS

Readings
Similarly, the separation of questions of law and questions of fact
has a great value in appellate proceeding, in particular if the appel-
late court is allowed to control merely legal questions (errores iuris),
and not factual questions (errores facti). It is important also in jury
trials because questions of fact are decided by the jury and questions
of law by the judge.

Let us take as examples of legal terms such terms as: contract, testament, property,
trespass or marriage and as examples of factual terms such terms as: trees, animals,
plants, buildings, etc. We should keep in mind that each definition of legal and
factual terms has to be related to a concrete legal system or legal text.
VD:
Question of law:
Salmond has divided in 3 senses.
1. It means a question which the court is bound to answer in accordance with
a rule of law which has been authoritatively answered by the court. all other
questions are question of facts.
ex - Is a contractor delayed in making of a building is a question of fact since the
law does not contain any rule for its determination. whereas, holder of a bill of
exchange has been guilty of unreasonable delay in giving notice to dishonour is a
question of law to be determined in accordance with certain fixed principles laid
down in bills of exchange act.
The question whether a child accused of a crime has sufficient mental capacity to
be responsible for his act is one of fact, if the accused over the age of 7 years in
india, it ia s a qstn of law if he is under that age.
2.A question of law is a question as to what the law is. Qstn of law in this sense
arise out of the uncertainty of law.
3. There is a general rule that questions of law are for the judges and questions of
fact are for jury to decide. It is true that qstns of law are never reffered to the jury,
but questions of fact can be reffered to a judge
Question of fact
In a narrower sense, a question of fact is opposed to a question of judicial
discretion which indulges question to a question of judicial discretion which
includes as to what is right, just, equitable or reasonable, Evidence can be led to
prove or disprove a qstn of fact.
 Ex - It is a qstn of fact whether the offence of adultery has been committed or not
but it is a qstn of law what punishment should be given to the adulterer. Also
things where court is supposed to decide on how much punishment must be given
is always a question of law.
Paton "However difficult it may be to define the exact difference between law and
fact, the distinction itself is fundamnetal for any legal system. Law consists of
abstract rules which attempt to reduce to order the teeming facts of life. Facts are
the raw material on the basis of which the law creates certain rights and duties."

Learning the Law: I (Statutes: Meaning and Interpretation)

A statute is a written law that is created by a legislature. A legislature is an
assembly that has the power to pass, amend, and repeal laws. Statutes are the
basic framework of the modern legal system.
A statute is valid until it is declared unconstitutional by a court of law. After a court of
law declares a statute unconstitutional, it is no longer valid.
Statutes are valid if they:
• Are made by a competent legislature
 • Adhere to constitutional boundaries
• Do not contradict the provisions and spirit of the Constitution
Statutes are created by:
• Drafting a bill to ensure the wording of the proposed legislation is clear
• Introducing the proposed legislation
• Debating whether the Act should exist or not
Statutes originate from:
• Decisions made in other courts
• The country's written constitution
MAKING AND VALIDITY OF STATUE (BY CHATGPT)
The making of a statute, also known as legislation, involves a complex process that
varies from one country to another. The validity of a statute is determined by its
adherence to the legal and constitutional framework of the respective jurisdiction.
Here's a general overview of the process of making a statute and how its validity is
assessed:

Making of a Statute:

1. Drafting: Statutes typically start with the drafting of a proposed law. This can
be done by government officials, legislators, or specialized drafting
committees. The draft is usually reviewed for clarity, consistency, and legal
soundness.
2. Introduction: The draft statute is introduced in the legislative body, such as a
parliament, congress, or assembly. It is presented by a sponsoring legislator or
government representative.
3. Debate and Committee Review: The proposed statute is then subjected to
debate and discussion within the legislative body. It may be assigned to a
committee for in-depth examination, public hearings, and amendments.
4. Voting: Once the committee review is complete, the statute is brought back
to the legislative body for a final vote. The specific voting requirements may
vary, but statutes usually require a majority vote to pass.
5. Approval: If the statute is approved by the legislative body, it is sent for
further approval, depending on the country's system. This could involve
approval by the head of state, such as a president or monarch.
6. Enactment: After all necessary approvals, the statute is enacted into law. It
becomes legally binding and is part of the legal system.

Validity of a Statute:
The validity of a statute is typically determined by its adherence to the following
principles:

1. Constitutional Compatibility: The statute must conform to the constitution

of the country. If it contradicts any provision of the constitution, it can be
declared invalid by the judiciary.
2. Legislative Authority: The legislative body that passed the statute must have
the authority to do so. In some systems, there are limits on what the
legislature can legislate on, such as certain matters being reserved for
referendum or constitutional change.
3. Procedural Regularity: The statute must be enacted following proper
legislative procedures. Failure to follow these procedures could render the
statute invalid.
4. Fundamental Rights: Statutes must not infringe upon fundamental rights and
liberties protected by the constitution. If a statute violates these rights, it may
be declared unconstitutional.
5. Consistency: Statutes should be consistent with existing laws. If a new statute
contradicts or repeals existing laws without proper procedure, it may face
legal challenges.
6. Delegation of Authority: Statutes can delegate authority to specific
government agencies or bodies. Such delegation should be within the limits
set by the legislature and constitution.
7. Public Interest: The statute should serve a legitimate public interest and not
be arbitrary or capricious.

The judiciary, particularly a country's highest court, is typically responsible for

assessing the validity of statutes. If a statute is found to be invalid, it may be struck
down, in whole or in part, and rendered unenforceable.

Statutory law example - A police officer pulls you over, and you are given a citation
for violating the speed limit. You have broken a vehicle and traffic law. This law is
established by legislature as a statute, or a law that is formally written and enacted. As
a result, the law you broke was a statutory law.
The Supreme Court observed that a law passed by the legislature is good law till it is
declared as unconstitutional by a competent Court or till it is repealed. The very
declaration by a court that a statute is unconstitutional obliterates the statute entirely
as though it had never been passed, the bench comprising Justices L. Nageswara Rao,
BR Gavai and BV Nagarathna observed.
STATUTE AND PARTS OF STATUE:
Title of the Statute:
Short title: "The Limitation Act, 1963"
The Limitation Act: This is the formal name of the statute or law.
1963: This refers to the year in which the statute was enacted or came into force. In
this case, it is the year 1963.
Long Title or Preamble: "An Act to consolidate and amend the law for the limitation
of suits and other proceedings and for purposes connected there with."
Long Title: This part of the statute's text serves as a brief description of the purpose
and scope of the law. It is often referred to as the "long title" or "preamble."

DEFINITIONS:
1. "Means": When the legislature uses the word "means" in a definition, it
provides a precise and rigid interpretation of the term. This means that the
term being defined is limited to exactly what is mentioned in the definition,
and no other interpretation or meaning can be assigned to it. In other words,
it's a strict or exclusive definition. The term cannot encompass anything
beyond what is explicitly stated in the definition. It is a RETRICTIVE
definition.
For example, if a statute defines "vehicle" as "a motorized, four-wheeled
conveyance," it means that the term "vehicle" is exclusively limited to this
specific definition and cannot include bicycles or motorcycles.
 2. "Includes": When the word "includes" is used in a definition, it has an
expansive effect. It broadens the scope of the term being defined to not only
cover what the term naturally implies but also anything that the statute
explicitly states it should include. This results in a more flexible or inclusive
definition, allowing for a wider interpretation. Indicates EXTENSIVE
definition.
For instance, if a statute defines "firearm" as "any portable weapon that
discharges projectiles, including rifles, shotguns, and pistols," it indicates that
"firearm" encompasses not only these specific types but also any other similar
devices specified in the statute.
3. "Means and Includes": The use of both "means" and "includes" together in a
definition indicates that the legislature intends to provide an exhaustive
explanation of the term's meaning. In this context, "exhaustive" means that,
for the purposes of the law, the term must be interpreted exactly as outlined
in the definition, and nothing more or less. Indicates EXHAUSTIVE definition.
When "means and includes" are used, it leaves no room for alternative
interpretations. The term is strictly and comprehensively defined, with all
possible inclusions spelled out in the statute.

If the last day to file a lawsuit, appeal, or application falls on a day when the court is
not operational (i.e., it is closed), the deadline for filing is automatically extended to
the next working day when the court is open. This ensures that individuals and parties
are not penalized for the court's closure when it comes to meeting legal deadlines.

This provision is designed to protect the rights of litigants and to account for
situations where a court may not be open due to weekends, holidays, or other
circumstances. It's a practical and fair rule to prevent individuals from losing their
legal rights simply because the final day to file a legal action happened to coincide
with a day when the court was closed.

PROVISO:
A proviso is something added to a document or agreement that details the terms. You
might agree to buy a used car with a proviso that the fuzzy steering-wheel cover is
included as part of the sale.
*A proviso, in simple language, is a special condition or exception that is added to a
rule, law, or agreement. It sets out certain conditions or circumstances under which the
rule or law will not apply or will be applied differently.
Here's an example in everyday language:
Imagine there's a rule that says, "You must wear a helmet while riding a bicycle." A
proviso to this rule might be: "Unless you are riding your bicycle within your own
backyard." This means that you don't need to wear a helmet when riding your bicycle
in your own backyard, even though the general rule is to wear one. The proviso
creates an exception to the rule.
So, a proviso is like a "but" or "except" statement that tells you when the rule doesn't
have to be followed or when it should be followed in a specific way. It's a way to add
flexibility and address unique situations within a broader rule or law.
Proviso definition in PPT: to except something out of the enactment or to qualify
something stated in the enactment which would be within its purview if the proviso
were not there. The effect of the proviso is to qualify the preceding enactment
which is expressed in terms which are too general. As a general rule, a proviso is
added to an enactment to qualify or create an exception to what is in the
enactment. Ordinarily a proviso is not interpreted as stating a general rule.
SAVING CLAUSE:
A saving clause in a statute is a legal provision that is included in a new law or
amendment to an existing law to preserve or protect certain rights, interests, or legal
consequences that existed under the prior law or regulations that are being changed.
The purpose of a saving clause is to ensure that the introduction of a new law or
amendment does not have a retroactive or negative impact on rights or situations that
were legally established before the change.
Here's a simplified explanation:
Preservation of Existing Rights: Let's say a new law is being enacted that changes
the rules for a particular type of contract. If this new law doesn't have a saving clause,
it might mean that existing contracts made under the old rules could be affected or
invalidated by the new law. A saving clause prevents this by preserving the legal status
of those existing contracts.
Continuity and Fairness: Saving clauses are often included to ensure fairness and
continuity. They protect individuals and entities who were operating under the previous
legal framework from sudden and unexpected changes that could harm their interests.

Legal Transition: A saving clause acts as a transition mechanism. It allows the old
law to apply to situations that occurred before the new law came into effect while
applying the new law to future situations. This helps to maintain order and
predictability in legal matters.
Clarity and Certainty: Saving clauses provide clarity by explicitly stating that
certain rights or legal situations are unaffected by the new law. This helps avoid
confusion and potential legal disputes.
Example : Let's say there is an existing law that sets the legal drinking age in a
particular country at 18 years old. Many people who are 18 or older are legally
allowed to purchase and consume alcoholic beverages under this law.
Now, the government decides to change the legal drinking age from 18 to 21 through a
new law. However, they want to ensure that individuals who were legally allowed to
drink when they were 18 aren't suddenly breaking the law.
To address this, the new law includes a saving clause that might say something like:
"Existing rights and privileges granted under the previous drinking age of 18 shall be
preserved. Individuals who were legally allowed to purchase and consume alcoholic
beverages when they were 18 years old will not be affected by this change in the legal
drinking age."
This saving clause protects the rights of those who could legally drink at age 18, even
though the law is changing to raise the drinking age to 21. It ensures that they can
continue to do so without facing legal consequences. The new law only applies to
individuals who have not yet reached 18 or 21, depending on the new drinking age.
• Saving clause in PPT: ‘Saving clause’ is used to preserve from destruction
certain rights, remedies or privileges already existing.

Saving — Nothing herein contained shall affect the provisions of any Statute, Act or
Regulation not hereby expressly repealed, nor any usage or custom of trade, nor any
incident of any contract, not inconsistent with the provisions of this Act.

Reading and analysing the statute: Analysing a statute (law) is an essential skill for
lawyers, legal professionals, and anyone seeking to understand the law. Here's a step-
by-step guide on how to read and analyse a statute:
1. Read the Entire Statute:
• Start by reading the entire statute from beginning to end. This will give
you a general sense of its purpose, scope, and structure.
2. Identify the Title and Preamble:
• Look for the title of the statute and any preamble or long title. These
sections often provide a brief overview of the statute's purpose.
3. Understand the Structure:
• Statutes typically have sections, articles, or chapters, each with a
number and a title. Pay attention to the organization, as it can help you
navigate the law.
4. Definitions:
 • Identify and understand any definitions provided within the statute.
Definitions are often found in the early sections of the law and are
crucial for interpreting the statute.
5. Key Terms:
• Highlight and make a list of key terms, phrases, or concepts used
throughout the statute. Understanding these terms is critical for
interpreting the law.
6. Consider the Punctuation and Grammar:
• Punctuation and grammar are essential in legal drafting. Pay attention
to the use of commas, semicolons, and other punctuation marks, as
they can affect the meaning of a provision.
7. Statutory Language:
• Legal language is precise and can be complex. Consider the use of
words like "shall" (mandatory) or "may" (permissive) as they indicate
the intent of the statute.
8. Cross-References:
• Check for cross-references to other statutes or sections within the same
statute. This will help you understand how different parts of the law are
interconnected.
9. Amendments and Repeals:
• Be aware of any amendments or repeals mentioned in the statute.
These sections indicate changes to the law and its history.
10. Case Law and Interpretations:
• Research and review relevant case law or legal interpretations that have
been made in connection with the statute. Court decisions and legal
precedents can provide guidance on how the statute has been applied
in practice.
11. Legislative History:
• If available, review the legislative history of the statute, which includes
records of debates, committee reports, and drafts. This can offer
insights into the lawmakers' intent.
12. Context and Purpose:
• Understand the context in which the statute was enacted and its
broader purpose. This can be critical for interpreting specific provisions.
13. Consult Legal Resources:
• If you encounter complex legal issues, consult legal experts, legal
dictionaries, or secondary sources to gain a deeper understanding of
the law.
14. Note Conflicting Provisions:
• Look for any conflicting provisions within the statute. Courts may have
to resolve such conflicts when interpreting the law.
15. Apply the Law:
 • Finally, apply the law to the specific situation or issue you are analyzing.
Consider how the statute's provisions interact and how they apply to
the facts at hand.

PUNCTUATION: Punctuation in a statute has interpretive value. It can

clarify the meaning of a statute or alter its connotation.
Punctuation is used to:
• Resolve ambiguity
• Help interpret the statute
• Form part of an Act
• Be used as a guide to interpretation
• Be put by the draftsmen
Punctuation is generally of little weight because the sense of an Act should be the
same with or without punctuation. However, the courts first look at the provision as
they are punctuated. If they feel that there is no ambiguity while interpreting the
punctuated provision, they shall so interpret it.
The Supreme Court has taken note of punctuations while construing the statutory
provisions.
In the case of Mohamed Shabir v. State of Maharashtra (AIR 1979 SC 564): the
Court examined the interpretation of Section 27 of the Drugs and Cosmetics Act,
1940. The dispute revolved around whether mere "stocking" of drugs without a license
is considered an offense under this law. The interpretation hinged on the placement of
commas in the text of the section.
Section 27 of the Drugs and Cosmetics Act, 1940, reads as follows:
"Whoever manufactures for sale, sells, stocks or exhibits for sale or distributes a drug
without a license is liable for punishment."
The argument presented in the case was based on the specific punctuation in this
section. It was noted that there were commas placed in the text, and the presence or
absence of these commas was considered important for understanding the scope of the
offense.
The text "manufactures for sale, sells," had a comma after "sells," which suggests that
"manufactures for sale" and "sells" are distinct actions subject to legal penalties.
However, the text "stocks or exhibits for sale or distributes a drug without a license"
did not have a comma after "stocks," which seemed to group "stocks" together with
"exhibits for sale" and "distributes."
The Court's interpretation was that due to the presence of the comma after
"manufactures for sale" and "sells," these two actions are distinct offenses and
subject to punishment. However, the absence of a comma after "stocks"
indicated that mere stocking of drugs, without any intention to manufacture or
sell them, would not be considered an offense under the Drugs and Cosmetics
Act.
In simpler terms, the court ruled that the law should be read to mean that
stocking alone, without the intent to manufacture or sell the drugs, is not a
violation of the statute. This interpretation focused on the grammatical structure
of the sentence and the placement of commas to clarify the specific activities that
the law intends to regulate and penalize.
NON – OBSTANTE CLAUSE:
The word non-obstante stems from Latin and it means notwithstanding or despite a
law. When we see the words “notwithstanding anythіng contaіned іn thіs Act” or
“notwithstanding anything contained in some particular Act” or “notwithstanding
anythіng contaіned іn some partіcular provіsіon іn the Act”, we can call such a clause
as a non-obstante clause. This is always inserted at the beginning of a provision with
the objective of giving the provision an overriding effect over the statute or provision
mentioned in the non-obstante clause. It essentially means that in spite of the
provision or Act mentioned in the non-obstante clause being in force, the provision
that comes after that would be fully enforced without being restricted by the provision
or Act mentioned in the non-obstante clause. Such a clause is used to modify the Act
or provision it carries or restrict its application in certain circumstances.
A "non obstante clause": in a legal document, like a contract or statute, is like a
statement that says, "Regardless of what else is written in this document or in other
laws, this specific provision or rule stands and applies." It's a way of emphasizing the
importance and priority of that particular rule or provision.
In simple words, it's like saying, "This rule is so important that it applies no matter
what else is said or written." It can help make sure that a specific rule is not
overridden or contradicted by other parts of the document or other laws.
• Defined in PPTs: A non-obstante clause is usually used in a provision to indicate
that the provision should prevail despite anything to the contrary in the provision
mentioned in such non-obstante clause. In case there is any inconsistency or a
departure between the non-obstante clause and another provision, one of the
objects of such a clause is to indicate that it is the non-obstante clause which
would prevail over the other clause
.

EX – Not with standing anything contained in section 309 of the Indian Penal Code
any person who attempts to commit suicide shall be presumed, unless proved otherwise,
to have severe stress and shall not be tried and punished under the said Code. Special
provisions for States in north-east and hill States. Presumption of severe stress in case
of attempt to commit suicide.
These are tools or sources of information that can help understand the meaning
and intent of a law when the text of the law itself may not provide a clear answer.
Here's an explanation of each of these external aids:
1. Historical Background: Understanding the historical context in which a law
was enacted can provide valuable insights into why the law was needed and
what problems it aimed to address. It helps interpret the law in light of the
circumstances that led to its creation.
2. Statement of Objects and Reasons: This is a formal document that
accompanies many laws and explains the purpose and objectives of the law. It
can offer clues about the legislative intent and the problems the law seeks to
solve.
3. The Original Bill as Drafted and Introduced: Reviewing the initial draft of
the law can show how the law evolved during the legislative process. Changes
made during debates and revisions may reveal the legislators' intent.
4. Debates in the Legislature: Transcripts or records of discussions and debates
in the legislative body during the law's passage can provide valuable context on
what lawmakers were thinking when they crafted the law.
5. State of Things at the Time of Legislation: Understanding the social,
economic, and political conditions at the time the law was enacted can help
interpret its provisions in the context of the challenges it aimed to address.
6. Judicial Construction: Previous court decisions and interpretations of the law
can serve as a guide for understanding its meaning, especially when there is
legal ambiguity or controversy.
7. Legal Dictionaries: Legal dictionaries or references can provide definitions
and explanations of specific legal terms and phrases used in the law.
8. Commonsense: Common sense and practical reasoning are sometimes used to
interpret the law when the language is plain and unambiguous. It helps in
applying the law to real-world situations.

These external aids are used in the interpretation of statutes to ensure that the law is
understood and applied in a manner consistent with the lawmakers' intent and the
broader context in which the law operates. While the text of the statute is the primary
source for interpretation, external aids help fill in the gaps and provide a more
complete understanding of the law.

INTREPRETATION OF STATUTES:
Meaning - It is the process of ascertaining the true meaning of the words used in a
statute.
• Interpretation means the art of finding out the true sense of an enactment
by giving the words of the enactment their natural and ordinary meaning.
Objective - As stated by SALMOND, "by interpretation or construction is meant, the
process by which the courts seek to ascertain the meaning of the legislature through the
medium of authoritative forms in which it is expressed."

Interpretation of Statutes is required for two basic reasons to

ascertain:
• Legislative Language - Legislative language may be complicated
for a layman, and hence may require interpretation; and
• Legislative Intent - The intention of legislature or Legislative intent
assimilates two aspects:
i the concept of ‘meaning’, i.e., what the word means; and
ii. the concept of ‘purpose’ and ‘object’ or the ‘reason’ or ‘spirit’
pervading through the statute.

Interpretation of statutes is needed because legislative language can be complex

for laypeople, and understanding legislative intent involves determining the
meaning of words and phrases and uncovering the broader purpose and
objectives of the law. This process makes the law more accessible and ensures
that it serves its intended purpose.
GOLDEN ASPECT OF INTERPRETING STATUTES:
• Statute must be read as a whole in Context
• Statute should be Construed so as to make it Effective and Workable
– if statutory provision is ambiguous and capable of various
constructions, then that construction must be adopted which will give
meaning and effect to the other provisions of the enactment rather than
that which will give none.
• The process of construction combines both the literal and purposive
approaches. The purposive construction rule highlights that you should
shift from literal construction when it leads to absurdity.

Literal Approach: This approach involves interpreting the words and phrases in the
statute according to their ordinary dictionary meanings, without considering the
broader context or intent behind the law. It's a strict, word-by-word interpretation.
Purposive Approach: The purposive approach, on the other hand, emphasizes
understanding the overall objectives, aims, and intentions of the legislature in passing
the law. It looks beyond the literal meaning of the words to ensure that the law serves
its intended purpose effectively.
RULES:
1. RULE OF LITERAL INTERPRETATION: The "Rule of Literal Interpretation" or
"Plain Meaning Rule" in statutory interpretation emphasizes that the words in a statute should
be understood in their ordinary, everyday sense, and their dictionary definitions, as a primary
step in interpreting the law.
2. GOLDEN RULE OF INTERPRETATION: The Golden rule is a form of statutory
interpretation that allows a judge to depart from a word's normal meaning in order to
avoid an absurd result.
• It is a compromise between the plain meaning (or literal) rule and the socio
rule.
• Like the plain meaning rule, it gives the words of a statute their plain, ordinary
meaning. However, when this may lead to an irrational result that is unlikely to
be the legislature's intention, the judge can depart from this meaning.

Certainly, let's use a simple example to illustrate the Golden Rule of

Interpretation:
• Imagine there's a law that says, "No vehicles allowed in the park."
• Now, if you interpret this law using the "plain meaning" rule, it would mean
that no cars, bicycles, skateboards, or any kind of vehicle can enter the park.
It's the literal interpretation.
• But what if you have a situation where someone is using a wheelchair, which is
technically a "vehicle" in a broad sense? Under the plain meaning, this person
couldn't go to the park, which would be an absurd or unreasonable outcome.
• This is where the Golden Rule comes in. It allows a judge to depart from the
strict literal meaning and say, "In this case, we need to make an exception
because it's not the kind of 'vehicle' the law was meant to prevent."
• So, the Golden Rule lets judges use common sense and interpret the law in a
way that avoids absurd or unreasonable results, while still respecting the words
of the law.
THE MISCHIEF RULE:
The mischief rule is a rule of statutory interpretation that attempts to determine the
legislator's intention. Originating from a 16th century case (Heydon’s case) in the
United Kingdom, its main aim is to determine the "mischief and defect" that the
statute in question has set out to remedy, and what ruling would effectively implement
this remedy.
When the material words are capable of bearing two or more constructions the most
firmly established rule or construction of such words “of all statutes in general be they
penal or beneficial, restrictive or enlarging of the common law is the rule of Heydon’s
case.
MISCHIEF RULE BY CHATGPT:
The "Mischief Rule" is a principle used in the interpretation of statutes (laws) that
aims to uncover the true intention of the legislator, or the authority that made the
law. It originated from a 16th-century case called "Heydon's case" in the United
Kingdom and is particularly useful when trying to understand the purpose of a law.
Here's how it works:

1. Understanding the Purpose: The Mischief Rule focuses on determining the

"mischief and defect" that a particular law was created to address. In other
words, it seeks to identify the problem or issue that the statute was meant to
solve.
2. Implementing the Remedy: Once the problem or defect is recognized, the
Mischief Rule asks what ruling or interpretation of the statute would
effectively solve or correct that issue. It aims to apply the law in a way that
aligns with the legislature's intended remedy for the problem.
3. Preferred Construction: When there are multiple possible interpretations of
the words in the statute, the Mischief Rule suggests that you should choose
the interpretation that best implements the intended remedy. This
construction is often in line with Heydon's case.

So, the Mischief Rule helps judges determine what the lawmakers were trying to fix
with a particular law and then interpret the statute in a way that serves that purpose.
It's a flexible approach that looks beyond the literal words of the law to ensure it
achieves its intended goal. This rule is particularly valuable when statutes are vague
or when their original context is unclear.

PRIMARY AND SECONDARY SOURCES OF INTERPRETATION:

Primary Sources of Interpretation:

• Primary sources are the foundational, official documents that establish the law
and have binding authority. They include:
• Constitutions: The highest form of law in a country, such as a national
or state constitution.
• Court Cases: Legal decisions made by courts, including judgments and
rulings.
• Statutes: Laws created by legislative bodies, like parliaments or
congresses.
• Administrative Rules and Regulations: Rules set by government
agencies to implement laws.

Secondary Sources of Interpretation:

 • Secondary sources provide explanations and analyses of the law. They don't
have the same binding authority as primary sources but are persuasive in
nature. They include:
• Books: Legal textbooks, guides, or academic publications that discuss
legal topics and interpretations.
• Articles: Published writings by legal scholars or experts offering insights
and opinions on legal matters.
• Encyclopedias: Legal reference materials that provide detailed
explanations and information about legal topics.
• Headnotes of Case Reports: Summaries or notes that accompany legal
cases, offering concise interpretations and analysis.

Role of Primary and Secondary Sources:

• Primary sources establish the law and are the legal authorities.
• Secondary sources help explain, analyze, describe, or critique the law.
• Secondary sources are often used to support legal arguments, especially when
they provide expert analysis or context.

In summary, primary sources create the law, while secondary sources provide
valuable context and analysis to help understand, apply, and argue about the law.
Legal professionals often rely on both types of sources to navigate the complexities
of the legal system.

PURPOSIVE INTERPRETATION: The legal system of any society is developed

for the achievement of certain purposes or objectives, that is to establish an ordered
and systematic society. The world around us comprises of a whole lot of things, many
of which have been existing since time immemorial, but, it was only because of
gradual development in Science and Technology that one could understand about their
utility and usability and only, when one could understand as to what is what and what
purpose does it seeks to fulfil, one could appropriately use or operate any particular
thing. An idea of the purpose of any particular thing gives a direction and a set of
general guidelines that must be taken into account in the application or operation of
such a particular thing. On a similar note, it can be inferred that any legislation which
has been enacted by the legislature must have been so enacted, keeping into
consideration a particular objective or purpose for the fulfilment of which such
legislative exercise took place.

LIBERAL INTERPRETATION: The term “liberal construction” refers to the ability

of the Bench to interpret different factors while determining the meaning of a word or
document. According to this interpretation, the author most likely meant what the
reader believes. The interpretation must be made liberally with the goal of promoting
or discovering the state’s objective. In the event of welfare laws, equivocal terms or
ambiguous language, and hindering statutes, liberal construction is used.
Liberal construction may also refer to beneficial or benevolent legislation, such as
the Employer’s State Insurance Act,1948 and the Contract Labour Act,1970. This
construction is governed by the golden rule and the mischief rule, which are referred
to by judges. The Consumer Protection Act, 1986 is a valuable method of law that
protects the interests of consumers. It ought to be interpreted liberally. A provision in
legislation offering incentives for boosting growth and development should be
liberally read such that the actual purpose of such encouragement is not hindered.
CASELAW: Allahabad Bank v. All India Allahabad Bank Retired Employees
Association,
In this case, the skilled counsel for the appellant side argued that remedial statutes, as
opposed to punitive statutes, such as welfare, beneficent, or social justice focused
legislation, are preferable to penal statutes. Such welfare statutes should be liberally
construed. They must be interpreted in order to get the remedies contemplated by the
legislation. It is well established, and there is no need for repetition, that labour and
welfare statutes must be broadly and generously construed with appropriate
consideration for the directive principles of state policy. Welfare, beneficent, or social
justice-oriented statutes should always be construed liberally. In this case, this was the
judgement.

What is a strict construction of a penal statute: The term “strict construction”

refers to a statute that is strictly construed in legislation. Each word must be
interpreted by letters, and the interpretation must not exceed the scope of the
legislation. It is a legal theory that applies in a narrow manner or in a strict manner of
interpretation to legal legislation such as the United States Constitution. The bench’s
ability to read a text in written form that is provided inside the four boundaries of a
legal document must be evaluated. The constitution must be rigorously construed in
its original meaning.

This form of construction is used in taxation and criminal legislation. In strict

construction interpretation, the courts refer to the literal rule. The literal rule,
alternatively known as the simple rule, is a traditional rule used by English courts. It is
a guideline of law interpretation that in the first instance, the grammatical
interpretation of words must be followed. This is the earliest construction rule to
which judges refer when referring to strict construction. Even today, judges utilize it
since they do not have the authority to make laws. In each and every system of
interpretation, it is the primary and first interpretation of laws. In other words, it’s just
what the law says rather than what the law was meant to express.

HEYDON’S CASE:
This was set out in Heydon's Case:
Where it was stated that there were four points to be taken into consideration when
interpreting a statute:
• What was the common law before the making of the act?
• What was the "mischief and defect" for which the common law did not
provide?
• What remedy the parliament has resolved and appointed to cure the disease of
the commonwealth?
• What is the true reason of the remedy?

HEYDON’S CASE BY CHATGPT:

In Heydon's Case, four points were laid out to guide the interpretation of statutes:

1. What Was the Common Law Before?: Consider what the law was before the
new statute was created.
2. What Was the Problem (Mischief) Not Covered by Common Law?: Identify
the issue or problem the statute aimed to fix that the existing law didn't
address.
3. What Remedy Did the Legislature Intend?: Determine the solution or
remedy that the legislature decided to apply to address the problem.
4. What Is the True Reason for the Remedy?: Understand the underlying
reason or purpose behind the remedy chosen by the lawmakers.

These four considerations help in interpreting a statute by looking at the legal

context before the statute's enactment, the issue it sought to resolve, the intended
solution, and the broader purpose of the law. This approach aids in uncovering the
legislative intent and applying the law effectively.

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 LEGAL RESEARCH
• Searching or building upon prior art or knowledge: Research involves the
process of seeking out existing information and knowledge in a particular field
or subject area. This can include reviewing previous studies, literature, data, or
any established body of knowledge related to the topic of interest. Additionally,
it entails building upon this existing knowledge by contributing new insights,
discoveries, or innovations.
• Building a supra-structure based upon the infra-structure of prior art or
knowledge: This metaphorical expression suggests that research involves
constructing something new (the "supra-structure") on the foundation of what
is already known (the "infra-structure" or existing knowledge). In other words,
researchers use the existing knowledge as a base to create or develop new
ideas, theories, technologies, or solutions.
• Searching into matters carefully and closely: Research requires a thorough
and meticulous examination of the subject matter. Researchers need to delve
deeply into their chosen topics, scrutinizing every aspect, considering various
perspectives, and exploring the details with precision.
• A systematic study or investigation: Research is a structured and systematic
process. It involves the methodical collection and analysis of data, information,
or evidence to answer specific questions or solve particular problems. This
systematic approach ensures that the research is organized and can be
replicated or validated by others.
LEGAL OR LAW RESEARCH:
Any systematic study of legal rules , principles, concept, theories doctrines, cases,
phenomenon, situation, legal institutions, problems, issues, questions or
combination of some or all of them.

Broad - Legal research is a comprehensive and methodical investigation or study

within the field of law. It involves a systematic exploration of a wide range of
elements and aspects related to the legal system and its application. Here's a
breakdown of the key components mentioned in the description:

1. Legal rules: Legal research involves an examination of specific laws,

regulations, and rules that govern various aspects of society. Researchers
analyze these rules to understand their content, interpretation, and impact on
individuals and organizations.
2. Principles: Legal principles are foundational ideas and values that guide the
creation and interpretation of laws. Researchers study these principles to
comprehend the philosophical and ethical underpinnings of the legal system.
3. Concepts: Legal concepts refer to abstract notions or categories within the
field of law. Researchers explore these concepts to understand how legal
thinking is organized and to identify common themes and categories that apply
to different legal contexts.
4. Theories: Legal theories are overarching frameworks that explain the
reasoning and philosophy behind legal decisions and practices. Researchers
delve into these theories to gain insights into the intellectual foundations of the
legal field.
5. Doctrines: Legal doctrines are established sets of beliefs or teachings within
the legal system. Researchers analyze these doctrines to understand their
historical development, application, and influence on legal thinking and
decision-making.
6. Cases: Legal research involves the study of specific legal cases, which are
court decisions that set legal precedents. Researchers examine cases to
understand how the law is interpreted and applied in practical situations.
7. Phenomena: Legal phenomena refer to observable events, occurrences, or
developments within the legal system. Researchers may investigate these
phenomena to gain insights into the real-world implications of legal rules and
principles.
8. Situations: Legal research often involves an analysis of specific situations or
scenarios that have legal significance. Researchers may examine how the law is
applied in these situations and consider the implications of different legal
approaches.
9. Legal institutions: Legal institutions, such as courts, law enforcement
agencies, and regulatory bodies, play a vital role in the legal system.
Researchers may study the structure, function, and impact of these institutions
on the legal landscape.
 10. Problems: Legal research often addresses legal challenges, issues, or
problems. Researchers aim to identify, analyze, and propose solutions or
strategies to address these issues effectively.
11. Issues: Legal issues are specific topics or debates within the legal field that
require in-depth examination. Researchers may investigate these issues to
provide clarity, propose solutions, or contribute to ongoing legal discussions.
12. Questions: Legal research involves the pursuit of answers to unresolved or
unclear legal questions. Researchers seek to clarify legal ambiguities and
provide well-reasoned responses to these questions.

Legal research can encompass a combination of any or all of these elements,

depending on the specific focus of the study.

THERE CANNOT BE AN EXHAUSTIVE LIST OF OBJECTIVES OF

RESEARCH:
• Add to the existing knowledge bank: Legal research contributes to the
accumulation of knowledge in the field of law. Researchers conduct studies,
gather data, and analyze existing legal literature to expand the body of
knowledge available to legal scholars, practitioners, and policymakers. This
new knowledge can enhance our understanding of legal concepts, precedents,
and their practical applications.
• Assist in law making: Legal research plays a crucial role in the legislative
process. Researchers provide insights, analysis, and recommendations to
lawmakers when drafting new laws or amending existing ones. This assistance
ensures that laws are well-informed, well-structured, and aligned with societal
needs and legal principles.
• Ascertain the nature, purpose, and principles of law making: Legal
research seeks to understand the fundamental aspects of law-making processes.
This includes examining the underlying principles, motivations, and goals of
legislation, which are often rooted in justice, equity, and the public interest.
• Study the impact of law and court orders: Legal research assesses the
consequences and effects of laws and court decisions on individuals,
communities, and society as a whole. This study helps to evaluate whether
legal measures are achieving their intended outcomes and can highlight areas
where adjustments may be necessary.
• Provide inputs for law making: Researchers offer valuable insights, data, and
analysis to lawmakers and policymakers during the law-making process. These
inputs guide the development of effective, fair, and responsive legal
frameworks that address contemporary issues.
• Examine concepts, ideas, and theories: Legal research delves into the
conceptual and theoretical foundations of legal principles. Researchers explore
the philosophical and intellectual underpinnings of the law, shedding light on
the ideas and theories that shape legal systems and practices.
 • Examine the strengths and weaknesses of law: Legal research involves a
critical analysis of existing laws to identify their strengths and weaknesses.
This examination helps in improving legal systems by addressing flaws,
ensuring fairness, and enhancing legal clarity and effectiveness.
Legal research serves as a cornerstone for informed decision-making in the legal
field. It aids in the development and refinement of laws, contributes to our
understanding of the legal landscape, and plays a key role in the pursuit of justice
and fairness within society.

Approaches to legal research:

• Theoretical/ arm chair research
• Doctrinal research
• Empirical research

THEORETICAL/ ARM CHAIR APPROACH:

• Obtaining information: This is the initial step where researchers gather
relevant data, facts, literature, or any information necessary to address a
particular research question or topic. It often includes conducting literature
reviews, collecting data through experiments or surveys, or accessing existing
knowledge.
• Evaluation: After obtaining the information, the researcher evaluates the data
and sources. This involves assessing the quality, relevance, and reliability of
the information collected. Researchers must determine if the data is credible
and whether it is suitable for the intended research.
• Explanation: In the theoretical approach, researchers aim to provide
explanations for the phenomena they are studying. This step involves
synthesizing the information and data to create a coherent narrative or
understanding of the topic. It often includes identifying patterns, relationships,
or causal factors.
• Discussion: The discussion phase is where researchers elaborate on their
findings, addressing the implications, significance, and broader context of their
research. They may compare their results with existing theories or other
relevant studies, highlighting what their work contributes to the field.
• Arguments: Researchers use logical and well-structured arguments to support
their explanations and findings. These arguments are built upon the information
and data collected and evaluated earlier in the process. The strength of these
arguments can determine the validity and persuasiveness of the research.
• Offers opinion: While research often aims for objectivity and neutrality, there
may be instances where researchers provide their own perspective or opinion,
especially when interpreting data or discussing the implications of the research.
 These opinions should be based on the evidence and logical reasoning
presented throughout the research process.
• Systematic manner: The entire theoretical approach should be conducted
systematically, meaning that it follows a structured and well-organized process.
The steps are carried out in a logical sequence, with each building upon the
previous one. This systematic approach ensures that the research is rigorous,
transparent, and can be understood and replicated by others.
DOCTRINAL RESEARCH: Research which provides a systematic exposition of the
rules governing a particular legal category, analyses the relationship between rules,
explains areas of difficulty and, perhaps, predicts future developments.’

Focuses on the letter of the law rather than the law in action.
• Ex - Imagine someone is researching the rules and principles surrounding
speed limits on highways in a specific state. They would systematically explain
the laws, analyse how they relate to safety and traffic flow, identify areas where
the rules might be confusing, and perhaps make predictions about future
changes in speed limit regulations.
• If the government decides to bring umbrella legislation for all the crimes
committed against women, it may initiate doctrinal research by some jurists
and experts in the field.
The doctrinal approach to research is a method used in legal and academic research to
understand, analyze, and explain legal principles and practices. Here's an explanation
of the key aspects of the doctrinal approach:
• Arriving at a doctrine that describes a practice or phenomenon: In the
doctrinal approach, the primary goal is to formulate a doctrine or a set of
principles that succinctly describes and explains a specific legal practice or
phenomenon. This doctrine provides a structured framework for understanding
the subject under study.
• Involves a rational approach: The doctrinal approach is characterized by its
use of logic and reason to analyze legal issues. Researchers employing this
approach apply critical thinking and logical reasoning to interpret legal sources,
statutes, cases, and other relevant materials to develop a coherent doctrine.
• Sets a goal to identify the nature and governing principle behind a system:
One of the core objectives of the doctrinal approach is to identify and
understand the essential nature and governing principles that underlie a legal
system or a specific area of law. Researchers seek to uncover the fundamental
rules, concepts, and principles that guide legal decision-making and practice.

In practice, the doctrinal approach often involves several key steps:

 • Identification of legal sources: Researchers identify and collect legal sources,
such as statutes, regulations, case law, legal texts, and scholarly literature, that
are relevant to the subject of study.
• Analysis and interpretation: Researchers systematically analyze and interpret
these legal sources, seeking to identify recurring themes, principles, and rules
that pertain to the subject matter.
• Formulation of a doctrine: Based on their analysis, researchers create a
doctrine or set of principles that describe the essential nature and governing
principles of the legal practice or phenomenon. This doctrine serves as a
comprehensive framework for understanding the subject.
• Critique and refinement: The doctrine is subject to critical evaluation and
refinement. Researchers may revise their doctrine based on new insights or
feedback from peers and experts in the field.
• Application: The doctrine developed through the doctrinal approach can be
used to analyze specific legal cases, issues, or situations, helping to provide a
coherent and rational basis for understanding and resolving legal questions.
The doctrinal approach is particularly valuable in the legal field, where it helps to
clarify and organize complex legal concepts and principles.

EMPIRICAL RESEARCH/ NON DOCTRINAL:

Empirical research is a systematic approach to studying the world that relies on
evidence, observations, and data. In this approach:
• Statements and assertions: Empirical research involves making statements or
assertions about the world that can be tested through observation and data
collection. These statements are often based on hypotheses or research
questions.
• Theories: Researchers use existing theories or develop new ones to explain
phenomenan. These theories serve as frameworks for understanding and
making predictions about real-world events and behaviors.
• Must be testable and verifiable: In empirical research, the statements,
assertions, and theories must be formulated in a way that allows them to be
tested through empirical methods. This means that researchers should be able
to gather evidence and data to support or refute these ideas.
• Verifiable by evidence and proof: Empirical research relies on concrete
evidence and proof obtained through systematic observation, experimentation,
or data collection. This evidence is used to validate or invalidate the statements,
assertions, or theories under investigation.
In essence, empirical research is all about formulating testable ideas, gathering
evidence through observation or experimentation, and using that evidence to
 evaluate and refine our understanding of the world. It emphasizes objectivity and
data-driven decision-making.
An empirical approach gathers observable data and sets out a repeatable process
to produce verifiable results. Empirical analysis often requires statistical analysis
to support a claim. The word empirical comes from the ancient Greek word
empeiria, meaning experience.
A real-life example of empirical research: Would be a study that investigates
whether a new teaching method improves student test scores. In this research, teachers
implement the new method in one group of students (the experimental group), while
another group continues with the traditional teaching approach (the control group). By
comparing the test scores of both groups, researchers collect empirical data to
determine the effectiveness of the new teaching method. The study's findings are
based on concrete evidence and serve as a basis for educational decision-making.
NON - DOCTRINAL RESEARCH/ SOCIO LEGAL RESEARCH: Non-doctrinal
research studies law in connection with society and various non-legal aspects that
affect the law, It is socio-legal research.
A real-life example of non-doctrinal legal research is a study that investigates the
socio-economic impact of a specific law or policy, such as minimum wage legislation.
Researchers would gather data on employment rates, income levels, and living
standards in regions affected by changes in minimum wage laws. This research
provides empirical evidence and insights into how legal policies influence the well-
being of workers and their communities, contributing to informed policy discussions
and potential reforms.
• Interdisciplinary: Non-doctrinal research frequently integrates insights from
other disciplines, such as sociology, psychology, economics, and political
science, to better understand how the law operates in society.
• Empirical: Non-doctrinal research often relies on empirical methods, such as
surveys, interviews, case studies, and observations, to collect data and analyze
real-world legal phenomena.
• Contextual: This approach emphasizes examining the broader context in
which legal issues arise. Researchers consider the social, cultural, and historical
factors that shape and are shaped by the legal system.
• Policy-oriented: Non-doctrinal research often aims to inform policy decisions
and legal reform. It can provide evidence and insights that help policymakers
make informed choices.
• Critical and evaluative: Researchers using a non-doctrinal approach may
critically evaluate the impact of legal policies, court decisions, and legal
institutions on individuals and society.
 Examples of non-doctrinal legal research could include studies on the effectiveness
of criminal justice reform programs, the impact of intellectual property laws on
innovation, the role of legal aid services in access to justice, or the examination of
cultural and societal factors influencing the interpretation of legal statutes. These
studies go beyond the mere analysis of legal rules and delve into the broader
implications and influences of the law in the real world.

The basic features of socio-legal research often include:

• Study of Fact Situation: Examining and analyzing real-life situations,
cases, or events to understand the social and legal dynamics involved.
Researchers investigate specific incidents to gain insights into how laws
and legal institutions function in practice.
• Behavioural Study: Investigating the behavior of individuals, groups,
or institutions in the context of legal issues. This can involve examining
how people react to legal rules and how these rules shape their behavior.
• Study of Cause and Effect of a Problem in Society: Identifying and
researching the causes and effects of legal issues or problems in society.
This includes assessing the impact of laws and legal interventions on
social issues and studying the underlying factors that lead to legal
disputes or conflicts.
• Ascertaining Views and Ideas of People: Conducting surveys,
interviews, and other research methods to gather the opinions, attitudes,
and perspectives of individuals and communities regarding legal
matters. This helps in understanding public perceptions and the social
context of legal issues.
These features highlight the multidisciplinary nature of socio-legal research, which
seeks to bridge the gap between the legal system and society by exploring how they
intersect and influence each other.
DOCTRINAL/NON- DOCTRINAL RESEARCH:
Doctrinal research is theoretical research that focuses on analysing and
interpreting legal texts, such as laws, case law, and legal commentary. It
seeks to answer legal questions based on current legal
provisions. Doctrinal research is concerned with the question “What is law”
and studying law exclusively.
Non-doctrinal research is more practical and focuses on the social and
cultural context in which law operates. It seeks to understand how the law
is used, interpreted, and enforced in society. Non-doctrinal research studies
law in connection with society and various non-legal aspects that affect the
law.

Doctrinal Research:

• Imagine a legal researcher who loves studying the official written

rules and laws, like what's in books and court decisions. They look at
these rules very carefully.
• They don't just read them; they organize and think deeply about
these rules and how they relate to each other. They also check if the
rules make sense and if there are any problems.
• In simple terms, doctrinal research is like digging deep into the
rulebook and figuring out how the rules fit together and if they're
good rules.

Non-Doctrinal Research:

• Now, think about another type of legal researcher who's more like a
detective.
• They don't just look at the rules on paper; they want to know if these
rules actually work in real life. Do people follow them? Do they help
or hurt society?
• So, they go out into the real world and see if these rules are still
useful and fair. If they find problems, they try to figure out how to fix
them.
• Non-doctrinal research is like checking if the rules in the rulebook
actually work well in the real world and if they need any changes.
In a nutshell, doctrinal research looks at the rulebook itself and tries to
understand it better, while non-doctrinal research looks at how well the
rules from the rulebook work in real life and whether they need any
updates.

Black letter law is a term used in common law legal systems to describe
well-established legal rules that are no longer subject to reasonable
dispute. These rules can be applied to any set of relevant facts to form a
consistent outcome.
Examples of black letter law include:

• Contracts
• Torts
• Land law
Difference in THEORETICAL and doctrinal research:
Doctrinal research is primarily associated with legal studies and is focused on the
analysis and interpretation of legal principles and doctrines. It is specific to the
field of law and legal research.

On the other hand, theoretical research is a broader approach that can be

applied across various disciplines, including but not limited to the social sciences,
natural sciences, humanities, and more. Theoretical research involves the
development and testing of theories, models, and frameworks in a wide range of
areas beyond law, including physics, psychology, economics, and sociology.

TYPES OF LEGAL RESEARCH:

1. Descriptive Research:
• Purpose: Descriptive research aims to describe the current state of
affairs or phenomena as they exist at present. It's about painting a
picture of what is happening.
• Methods: This type of research uses surveys and fact-finding inquiries,
as well as various survey methods like comparisons and correlations to
collect and present data.
2. Analytical Research:
• Purpose: Analytical research involves using existing facts or
information and critically evaluating them. It's about examining and
making sense of data to draw conclusions.
• Methods: Researchers analyze pre-existing information and data to
gain insights and make evaluations.
3. Applied Research:
• Purpose: Applied research is focused on finding solutions to
immediate problems faced by society, industries, or businesses. It's
practical and problem-solving in nature.
• Methods: Researchers work to apply existing knowledge and findings
to address specific real-world issues.
4. Fundamental Research:
• Purpose: Fundamental research is more concerned with generalizing
and theory formulation. It seeks to develop theories and expand our
understanding of abstract concepts.
• Methods: Researchers in fundamental research often conduct
experiments and investigations to develop or refine theories.
5. Quantitative Research:
 • Purpose: Quantitative research is centered on measuring quantities or
amounts. It's suitable for phenomena that can be expressed
numerically.
• Methods: This type of research involves data collection through
structured surveys, experiments, or numerical analysis.
6. Qualitative Research:
• Purpose: Qualitative research explores the qualities and characteristics
of a phenomenon. It is used when the data cannot be easily quantified.
• Methods: Researchers gather data through open-ended interviews,
observations, and content analysis to understand the nuances of a
subject.
7. Conceptual Research:
• Purpose: Conceptual research is related to abstract ideas or theories. It
is used by philosophers and thinkers to develop new concepts or
reinterpret existing ones.
• Methods: Researchers engage in conceptual exploration and
discussion, often without a strict empirical focus.
8. Empirical Research:
• Purpose: Empirical research relies on observations or experiences. It
aims to produce conclusions that can be verified through observations
or experiments.
• Methods: Researchers gather data and use systematic observation or
experimentation to validate their findings.

LEGAL STUDY
DESCRIPTIVE/ EXPLORATORY LEGAL STUDY:
A descriptive or exploratory type of legal study is primarily concerned with finding
out what happened and ascertaining the current state of affairs in a specific legal
context. It seeks to provide a detailed understanding of a particular legal issue or
system without necessarily delving into the underlying causes or attempting to solve a
problem. Here's a breakdown of this type of legal study:
• Purpose: The main purpose of a descriptive or exploratory legal study is to
gather and present information about a specific legal or regulatory matter. It
aims to provide an accurate and objective account of the existing legal
framework or system.
• Examples: This type of study could involve examining the legal and
administrative mechanisms in place for food safety, investigating the protection
available to a database once it becomes publicly accessible, or detailing the
legal aspects of any specific subject matter.
 • Data Collection: Researchers typically gather information through legal
documents, statutes, regulations, court cases, and administrative procedures
related to the chosen legal issue. They may also review relevant literature and
case law to compile a comprehensive dataset.
• Presentation: Descriptive legal studies aim for a logical, coherent, and
systematic presentation of the gathered information. This involves organizing
the data in a structured manner to provide clarity and a complete picture of the
legal situation.
• Analysis: While the primary focus is on describing the legal framework or
system, this type of research may also involve a basic level of analysis to
highlight key elements, trends, or notable features within the legal context
being studied.
In summary, a descriptive or exploratory legal study helps researchers understand
and present the current status and details of a legal issue, mechanism, or system.
ANALYTICAL/CRITICAL APPROACH:
An analytical and critical study in the context of legal research involves a thorough
examination, evaluation, and understanding of legal issues, principles, or systems.
These approaches are used to gain insight, explain legal concepts, and draw
inferences or conclusions. Here's a combined explanation:

Analytical and Critical Approach:

• Purpose: The analytical and critical approach seeks to comprehensively

examine legal aspects to understand, explain, and evaluate them. It involves
both objective analysis and evaluative judgment.
• Method: Researchers use logical reasoning and systematic analysis to break
down legal issues, concepts, or systems into their constituent parts. They aim
to uncover the underlying structures, interrelationships, and evaluate them
critically, pointing out inadequacies or areas needing improvement.
• Goal: The goal is to create a deep and structured understanding of the legal
subject matter while also identifying areas for potential enhancement,
proposing reforms, or offering constructive criticism for positive change in the
legal system.

In a legal context, this combined approach might involve an in-depth analysis of a

specific statute or case law, aiming to understand its operations, implications, and
also critically assess whether it serves its intended purpose, pointing out any
weaknesses and suggesting improvements if necessary. This holistic approach helps
not only in comprehending the legal landscape but also in contributing to its
development and refinement.
HISTORICAL STUDY:
A historical legal study involves delving into the past to understand the evolution of
legal rules and systems. Researchers analyze historical documents and records to trace
the development of legal principles, exploring the historical context in which they
originated. This research aims to answer why and how certain rules evolved, shedding
light on the historical forces and factors that shaped modern legal doctrines. Examples
include the historical development of property rights from feudal times to modern
property law or the evolution of human rights principles and international agreements.
COMPARATIVE STUDY:
A comparative legal study involves the examination of the same legal issue or
problem in different countries, legal systems, or communities. Researchers analyze
and contrast how different jurisdictions address similar legal challenges, seeking to
identify similarities, differences, and the effectiveness of various approaches. This
research method helps in gaining a broader understanding of the diversity and
commonalities in legal systems, facilitating the exchange of knowledge and best
practices across borders.

PROFESSIONAL OPINIONS AND RELIGION

1. Obiter Dicta: In the case of Vishaka v. State of Rajasthan (1997), the
Supreme Court of India laid down guidelines to prevent sexual harassment of
women at the workplace. These guidelines, which were not directly related to
the case’s decision, became the basis for the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013.
2. Legal Profession’s Opinions: The legal profession in India has significantly
influenced the development of law. For instance, the decriminalization of
Section 377 of the Indian Penal Code, which criminalized homosexuality,
was largely due to the efforts of lawyers and activists who argued for the rights
of the LGBTQ+ community.
3. Opinions of Legal Writers: The writings of Dr. B.R. Ambedkar, the principal
architect of the Constitution of India, have greatly influenced Indian law. His
book, “Annihilation of Caste”, critiqued the caste system in India and
proposed a society free from discrimination. His writings continue to shape
public opinion and law in India.
Religion has been a key influence in law formation. This is seen in Jewish, Hindu, and
Muslim societies where laws are viewed as divine. Roman law was a blend of ‘Jus’
(law) and ‘Fas’ (religious rules), administered by pontiffs. Christianity preserved
Roman law in Western Europe. In Greece, ‘Themistes’ (divinely inspired judgments)
given by priest judges formed the basis of law. In England, Chancellors developed
equity law, guided by their conscience. Despite changes, ridiculing Christianity is still
considered blasphemy in English law.

There Are Two Prominent International Conventions That Have Become

Sources Of Law In The Context Of Indian Law:
1. The Universal Declaration of Human Rights (UDHR): India is a signatory
to the UDHR, and its principles have been incorporated into Indian law. The
UDHR has influenced various domestic laws and judicial decisions in India.
For instance, Article 21 of the Indian Constitution, which guarantees the right
to life and personal liberty, has been expanded by Indian courts to include
many rights enshrined in the UDHR, such as the right to dignity, privacy, and
protection from torture.
2. The United Nations Convention on the Rights of the Child (CRC): India
ratified the CRC in 1992, and it has had a substantial impact on Indian law
concerning children's rights. The Juvenile Justice (Care and Protection of
Children) Act, 2015, and the Protection of Children from Sexual Offences
(POCSO) Act, 2012, are examples of legislation influenced by the CRC. These
laws were enacted to ensure the protection and welfare of children in India and
align with the international standards set forth in the CRC.