Legal Methods
Legal Methods
Legal Methods
INTRODUCTION
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.
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.
RESEARCH METHODOLOGY
OBJECTIVES
SOURCES:
Customs – they can be simply explained as those long-established
practices or unwritten rules which have acquired binding force.
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.
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
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.
6. We are not direct Democracy like Switzerland and the constitution of our
country gives immense rights and benefits to the Politicians.
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:
2) To define the roles of the officials within the Government that are so
empowered.
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
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