Legal Methods

Download as docx, pdf, or txt
Download as docx, pdf, or txt
You are on page 1of 14

CHAPTER 1

INTRODUCTION

Law can be defined as the system of rules which a particular country or


community recognizes as regulating the actions of its members and which it
may enforce by the imposition of penalties, or law can also be defined as a set
of rules that a society or government in order to deal with crime, business
agreements and social relationships.
So, in basic terminology, Law is something that controls the behaviour of an
individual or community so that they can live in the society with peace and
harmony.
Because of these definitions, people think that law tells them that what is right
and wrong or that a law that has been implemented provides justice or not?
For this purpose, two concepts had evolved: -
 The Doctrine of Natural love:
It tries to answer this question by referring to the meta-legal authority,
who tries to conforms that law is correct or not and that it confers with
the human nature, to divine revelation or to reason.

 The Positivist Doctrine:


According to this, we have no means of deriving a law from higher
authority. It shows that Law is made up of social norms which are
generally and adhered to or are formally accepted.
Law provides us a link between different caste, religion, race, creed, etc and the
overall society. Law plays an important role in regard to the changes taking
place in the society and also solve the disputed that occur among the citizens or
the people residing in the country.
Roman Law
Law came to existence at the time of The Roman Republic. Before that the,
Roman’s lived b laws developed through centuries of customs. There were two
classes: 1. Patricians and 2. Plebeians.
The Patricians, were the elite group, the one who ruled the roman society. And
Plebeians were the masses (the common people). In Patricians, there was a
group of men called the Pontiffs. The Pontiffs were the ones who made
decisions and ruled in questions of customary laws or beliefs. Because of this
groupism, differences occurred between them and chaos started. Thus, a
committee of ten men called Decemvirs was set up. They worked up together
and produced The Twelve Tables, which documented the centuries old
customary laws and became the foundation of Roman law as we know it.
It is just one example which shows that every country has its own start or an
ignition point so as India had.
CHAPTER 2
Emergence of Law in India

Indian Law
Law in Indian had evolved from all the customs, religious practices and
scriptures to the modern well codified acts and laws based on a constitution. It
is widely believed that ancient Indians did have some sort of legal systems at
the time of Bronze Age and during the Indus Valley Civilization. Indian law has
evolved and has been amended through many stages, that are Vedic period,
British period and the post-independence period.
Vedic Period
In comparison with the modern or current law system, the old classical Hindu
law was a peculiar legal system as it was influenced by polity with a unique
scheme of values. India in the ancient time had a distinct tradition of law and
had a well-developed independent school of legal theory and practices. The
main aim of the Vedic law was to preserve the “Dharma”. Dharma means the
eternal and inherent nature of reality, that is regarded as cosmic law which is
underlying right behaviour and social order in Hinduism. Dharma includes not
only courts and law procedure but also a wide range of activities like rituals
purification, personal hygiene regimes of the humans in the society. So, in basic
terminology, Dharma provides the principal guidance by which one endeavours
to lead his life. The sources of law during this period were 1. Smriti and 2. Shruti
Shruti consists of four Vedas that are Rigveda, Samaveda, Yajurveda and
Atharvaveda. The Vedas usually deal with duties, practices and customs.
Smriti refers to tradition and means ‘as remembered’. They are the humanly
authored written texts that contain the collected traditions. Some of the most
prominent Smritis are:
1. NaradaSmriti (100BC-400CE)
2. Manu Smriti (200BC-200CE)
3.Yajnavalkya Smriti (200-500CE)
Dharma sutra, one of the four texts of the Dharma Shastra, discusses the rules
and duties for the ashrama. It also provided the rites and duties of kings and
court proceedings.
During the Vedic Period all the legal procedures like filing case was called
‘Vyavahara’, plaint was called ‘Purvapaksha’, written statement was called
‘Uttar’, trial was called ‘Kriya’ and verdict as ‘Nirnaya’. There were two types of
trial at that time, by jury and by ordeal. All these beliefs made the basic
structure of law before the invasion of British.

Indian Law at the time of British


The Common Law System – A procedure of law based on previously recorded
judicial precedents came to India along with the British East India Company.
King George 1 in 1726granted The East India company the charter to establish
the “Mayor’s Courts” in the then Madras, Bombay and Calcutta (now Chennai,
Mumbai and Kolkata respectively). All the judiciary related functions of the
company substantially expanded after its victory in battle of Plassey and by 1772
company’s expanded its court out from the three major cities. In the process,
the company slowly replaced the Mughal legal system in those parts.
After the first War of Independence in 1857, British Crown took all the control
over the territories in India. Supreme Court was established which replaced the
existing Mayor court. These courts got converted into High Courts through the
letter of patents passed and authorized by the Indian High Courts Acts passed by
the British Parliament in 1862.
During the Queens rule, the privy council acted as the highest court of appeal.
All the cases that came before the council were decided by the law Lords of the
House of Lords. The state sued and was sued in the name of the British
sovereign in her capacity as Empress of India. During the shift from the Mughal
legal system, “Vakils” the advocates followed suit` and mostly continued their
earlier role as the representative of the client. The doors of the Supreme Court
were restricted for the Indian practitioners and only English, Irish and Scottish
professionals had a right of audience. Subsequent statutes and provisions
culminating in the Legal Practitioners Act of 1846 which opened up the
profession regardless of a person’s caste, race, nationality and religion. First Law
Commission was set up to codify the laws under the chairmanship of Thomas
Babington Macaulay. The Indian Penal Code was enacted and brought into force
in 1862. The Code of Criminal Procedure also was drafted and brought into by
the commission.

Indian Law After Independence


After a long rebel for Independence, India got free in 1947. The Parliament of
Independent India crafted a document that will guide the young nation and its
people. It will fall on the keen legal mind of B.R. Ambedkar to formulate a
constitution for the newly independent nation. There were many leaders who
were lawyers by profession like M.K. Gandhi and Jawaharlal Nehru. Many with
them devoted their energy and together formed up a Constitution of
unprecedented magnitude in both scope and length.
The Constitution of India is the guiding light in all the matters of the country, like
it gives direction to executive, judiciary and legislative. The Constitution of India
turned the whole direction of system originally introduced for perpetuation of
colonial and imperial interests. The basic aim of Indian Constitution is to
empower those who are weaker in the society. The Indian Constitution has an
organic law as a consequence of common law system. Through some judicial
pronouncements and actions, this has been fine-tuned for Indian conditions.
The Indian Legal system has evolved as an essential ingredient of the world’s
largest democracy and a crucial front in the battle to secure constitutional rights
for every citizen.
Review of Literature

A book on “The Constitution of India-A Contextual Analysis” written by Arun K.


Thiruvengadam gives a concise summary of the Indian legal system not only in
history but also in the politics and events that have contributed to its evolution.
The Constitution of India consists of seven chapters. It provides us with the
ideas and concepts in making of the Indian Constitution. Through this book, the
author wants the readers to make them informed about the pre and the post
scenario of India and its rules and regulations of the constitution and then after
the important amendments made for the welfare of the citizens of the country.

In an article “The Concept and the Rule of Law” written by Jeremy Waldron
connects two issues 1. The relationship between the Rule of Law and the work
we do in general jurisprudence on the concept of law. 2. the distinction
between conceptions of law which emphasis on certainty and predictability and
the conceptions on procedures and arguments. The first statement argues in
the favour of more understanding of what law is and against of casual positivism
that takes almost any instance of centralized command and control as a legal
system. The second statement argues in the favour of connecting two
arguments with an improvised rule-oriented understanding of the Rule of Law.

In an article “Public Law in The Concept of Law” written by Peter Cane wants to
understand the nature of law while contrasting it with the widely practiced
method of conceptual analysis. The article tries to focus on administrative and
constitutional law and with that contrasts the modern standard accounts of
public law with HLA. Hart’s highly influential threefold list of ‘necessary’ types of
public ‘secondary rules’: rules of recognition, change and adjudication.

In an article “Definition and Basic Features of Law” written by Tesfaye Abate,


the jurist has defined the basic law differently at different point of time and with
different views. It has been called Dharma in Hindu law and Hukum in Islamic
law. In Roman it is called as Jus and in France and Germany is has been called as
Droit and Retch respectively. He thinks that defining the term law is not an easy
task as the term changes from time to time and different learned people and
scholars define or give law a definition differently.

RESEARCH METHODOLOGY

It involves a specific technique that is adopted in research process for the


collection of data. It defines those tools that are used to gather relevant
information in a specific research study. In this research paper, I would like to
do Doctrinal study which is purely based on data that is available online like
articles and journals.

OBJECTIVES

1) To define the meaning of Law


2) To know the Emergence of Law
3) To get familiarised with its concepts
4) To know its types
5) To know the Flaws in the Indian Constitution
6) To provide suggestions
CHAPTER 3
SOURCES AND IMPORTANT CONCEPTS OF
LAW

SOURCES:
 Customs – they can be simply explained as those long-established
practices or unwritten rules which have acquired binding force.

 Precedents – As per Black’s law dictionary precedent is a rule of law


established for first time by a court for a particular type of case and there
other referred to in deciding to a similar case. So, basically precedent is
the legal principle or rule that is created by a court to guide the judges
when a similar set of facts come.

 Statutes (Acts of Parliament) – India is Democratic country, where people


elect their representative who they feel is good according to them. In
democratic system the power to make law is with the citizens as they
elect people who constitute the law-making body. The parliament creates
statutes via the proper legal procedure established by the constitution of
the country.

 Regulations – All the Parliamentary statutes are executed by the


Administrative bodies of upper level. But parliament may give them the
power to enact on the basis and within the scope of statutes detailed
provisions within their field of activity.

 International Public Law – Its rules are created by the state either
customarily or by way of international agreements. It governs the
relationship between states and international organisations. They are
binding upon the state and only exceptionally upon the individual citizens.
The generally accepted rules of international public law, however
recognised part of the domestic law.
 Academic Writing – In a country an academic discussion is of much worth
and has a considerable influence on the courts. Judgements are subjected
to criticism and the courts are expected to refer to the opinions given by
the people in the discussion when the issues come up the next time.

India is a Common law system following country. In common law the judges also
make the law. They base their judgement on a general reasoning. Under Article
141 of the Indian Constitution, all the lower courts i.e. High Court, Session
Court, District Court are bound to follow the decision of the Supreme Court.
But, The Parliament is not bound to follow SC decision. Parliament can amend
or create new laws to supplement the common law rules.

IMPORTANT CONCEPTS:
 Natural Person and legal Person- A natural person is the one who has own
legal personality that is as an individual human being. On the other hand,
a legal person is the one which maybe private (business entity, non-
governmental organisation) or It may be public(government) organization.

 Legal Objects –

1. tangible and intangible; tangible is the one which we can touch and feel
like chair and intangible are those which cannot be touched like love,
hate, affection etc.

2. Movable and immovable; movable are those objects that can be shifted
from one place to another like books, pen etc. and immovable is the one
which cannot be shifted from its place in any circumstance like land,
house etc.
CHAPTER 4
TYPES OF LAW

 PUBLIC LAW – It consists of those areas of law which are related with the
state itself and those where the state or a minister or a public body
confronts the individual in its capacity of sovereign.

 PRIVATE LAW – It is a branch of law which deals in the relations between


individuals and institutions, and not in the relations between these and
the state.

 CONSTITUTIONAL LAW – Constitution of a country is the basic structure on


which a country runs. It defines the principal organs of the government
and determines their relationship to one another and those with the
individual.

 COMMON LAW – It is a body of unwritten laws based on legal precedents


established by the higher courts. It also influences the decision-making
process by making faster judgements in the given cases that have similar
factual situations.

 ADMINISTRATIVE LAW – The administrative law tells that how should


government should regulate and exercise its functions and conduct public
affairs. It basically deals with the relation between officials and the citizens
and also provides the way in which people can object to the decisions of
the officials.

 CIVIL LAW – A system of law that is concerned with private relations


between the members of a community rather than criminal, military, or
religious affairs.
 CRIMINAL LAW – It is a system or body of the law which relates to offences
and crimes. It prescribes the punishment for the conduct perceived as
threat, harm, or otherwise endangering to the property, health, safety and
moral welfare of the people including of one’s self.

 PROCEDURAL LAW – The rules and regulations of process such as the rules
related to evidence and of procedure in enforcing a legal right and
obligations.
CHAPTER 5
FLAWS IN INDIAN CONSTITUTION

1. The constitution of India is too comprehensive. Some of the provisions are


too superfluous to be considered as the part of the Constitution.

2. The Constitution of India is too bulky and complex for a normal or in legal
terms a layman to understand. In fact, it is said that it is “Paradise of
Indian Lawyers”.

3. There remains a very strong bias towards the centre in our federal
structure.

4. Provisions and Privileges given to the Parliament and the State Legislature
is left upon them to decide which has not been codified till date.

5. There is no provision to maintain efficiency of the legislature like minimum


number of working hours, minimum number of hours to be spent on
legislation, budget discussion, etc.

6. We are not direct Democracy like Switzerland and the constitution of our
country gives immense rights and benefits to the Politicians.

7. Article 34 restricts the Fundamental Rights while martial law is in force in


any area. But the basic problem is that nowhere in the constitution, the
term Martial Law has been defined.

8. The National Emergency has been invoked thrice. It is a fact that we didn’t
needed it after progressing a bit into a mature democracy. The Financial
Emergency has never been invoked and President’s Rule is nothing more
than a political tool.
CHAPTER 6
SUGGESSTIONS AND CONCLUSION

Suggestions:

1) The Constitution of India should serve as the fundamental framework of


principles through which government activities and laws may be enacted,
amended and adjudicated.

2) To define the roles of the officials within the Government that are so
empowered.

3) Set immutable limitations on the powers of the government for which it


stands as a framework.

Conclusion:

The rule is mostly said to be modern concept that is a gift of democracy, but it is
something which is fundamental to the very basic idea of good governance.
We basically need to focus on the loopholes and weakness present in the legal
system of India so that we can remove or plug them out. Actors like media,
society and also the citizens cannot run away from their respective
responsibilities. Therefore, it is equally important that all the actors of the
society ensure for the maintenance of Rule of Law.
BIBLIOGRAPHY

The research is based on secondary data, references is made by text book,


journals, articles, newspapers and various reports. Material are also obtained
from online sources.
Sources:
1) A Book “The Constitution of India-A contextual analysis” by Arun K.
Thiruvengadam.

2) An article “Definition and Basic Features of Law” by Tesfaye abate.

3) An article “The Concept and the Rule of Law” by Jeremy Waldron.

4) An article “Public Law in The Concept of Law” by Peter Cane.

5) https://academic.oup.com/ojls/article-abstract/33/4/649/1440921

6) https://www.abyssinialaw.com/about-us/item/478-definition-and-basic-
features-of-law

7) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273005

8) http://www.barcouncilofindia.org/about/about-the-legal-profession/legal-
education-in-the-united-kingdom/

9) https://www.quora.com/What-are-the-drawbacks-of-the-Indian-
Constitution

10) https://iasscore.in/national-issues/concept-of-rule-of-law

You might also like