Legal Methods

Unit 01(10+6)
Intro
 Law is a term which does not have a universally accepted definition, but one definition is that law is a system of
rules and guidelines which are enforced through social institutions to govern behavior. Laws are made by
governments, specifically by their legislatures. The formation of laws themselves may be influenced by a
constitution (written or unwritten) and the rights encoded therein. The law shapes politics, economics and society in
countless ways and serves as a social mediator of relations between people.
 Law is a normative science. They are the statements of behavior prescribed and enforced by the state. It serves a
purpose.
 It is an instrument of society. It is a necessary agent enforced by the state on any violations.
Meaning:
 Meaning of law is different in different societies.
 In Hindu system – Dharma, in Islamic system – Hukum, Roman- jus, French-droit, German – Richt.
 The word 'Law' has been derived from the Teutonic word 'Lag, which means 'definite'. On this
basis Law can be defined as a definite rule of conduct and human relations. It also means a
uniform rule of conduct which is applicable equally to all the people of the State
 It is a set of rules and regulations that are meant to regulate human behavior.
 It is a tool in the hands of the state to exercise social control.
 As man lacks internal control over his behavior, law is used to regulate his behavior.
 It is one of the tools of social control but strongest among all.
Definition:
 John Austin
 John Salmond
 Roscoe Pound
 Thomas Hobbes(KLE)
Ideas of law:
Natural Law theory:
 Natural law is a theory says that human beings possess intrinsic values that govern our reasoning and behaviour. It
states that there are universal moral standards that are seen across time periods and societies because these
standards form the basis of a just society.2
 Aristotle believed that there is a natural justice that is valid everywhere with the same force. This natural justice is
positive and does not depend on the decisions or laws of any one group of people.3
 For St. Thomas Aquinas natural law and religion were connected. He believed that natural law "participates" in the
divine "eternal" law. Aquinas thought eternal law to be that rational plan by which all creation is ordered, and
natural law is the way that human beings participate in the eternal law. He further posited that the fundamental
principle of natural law is that we should do good and avoid evil. 5
 Human beings are not taught natural law per se. Instead, we “discover” it by consistently making choices for good
instead of evil. Some schools of thought believe that natural law is passed to humans via a divine presence.6

 Under the theory of natural law, everyone—regardless of their governmental or political system, culture, or religion
—has the same rights, and these rights cannot be denied by others. 7

 The birth rights granted to humans under natural law, however, are not the same as human rights, which vary and
can change depending on societal views. For example, a human right in the United States is equal pay for equal
work; however, in other countries, it is not.8

 Guide pg14
Positive law theory:
Notes 13
 3 In Austin’s Analytical Approach, He chooses to exclude all external influence or even history and completely indulges in
gaining access to first principles of law as it is, regardless of its “goodness” or “badness” or “moral worthiness”. This
approach leads to reading of “Law as it is” or “Positum” (and not the ideal law) also called “Positive Law”, advocated by
Austin in his Theory of Legal Positivism. Positive law is basically human-made law. It includes statutes laid down by
legislatures or rules and regulations by the human institution. Black’s law dictionary defines positive law as “Law actually
and specifically enacted or adopted by proper authority for the government of an organized society.” This is principally
how Austin frames his notion of Law.

In other words, he says, laws are man-made rules by sovereign imposed upon the society it governs. He equates a law to a
“command” by a body which is politically higher.

Thus we have following essentials

 Sovereign, which makes a

 Command, which imposes a
 Duty, which IF NOT followed calls for
 Legal sanction
 for him.

“Command”

His definition is also called “Command theory” or “Imperative theory” of law. “Imperative Law is a rule which
prescribes a general course of action imposed by an authority which enforces it by superior power either by physical force
or any other form of compulsion.”

“Duty”

The command levies a “legal duty” on those who are politically subject to the “commander” who is sovereign. Every duty
supposes a command by a sovereign by which it is created.

“Legal sanction”

It is implied in the theory that this sovereign has with itself a power to punish or penalize for noncompliance of laws. This
penalty or punishment imposed is called Legal Sanction.

Differences between positive and natural law:

Natural
law Legal Positivism

Believers of the
natural law are
known as Believers of the legal positivism or
1. “Naturalists.” positive law are known as “Positivists.”

Natural laws are

inherent rights, not
conferred by the act Legal positivism is law conferred by the
2. of legislation. act of legislation.

Natural law are Man-made laws conferred only to certain

3. universal laws. geographical areas or territories.

Natural laws are Positive laws can be amended or

4. eternal and constant. changed.
 Positive law
prescribes
what is right
or wrong and
people have
to abide by
the
prescriptions,
Natural law is based and these are
on reason and enforced by
human being have institutions
the free will choose such as the
what they feel is police and
right or wrong. judiciary.

Natural law can

exist in the absence Positive law is dependent on the
6. of a human being. existence of a human being.

Natural law is a law

whose content is set
by nature and that
therefore has Legal positivism is a law made by human
7. validity everywhere. beings.

Natural law is a
combination of laws Legal positivism is the separation of laws
8. and morals. and morals.

Natural law declares

morality is relevant Legal positivism declares morality is
to the identification irrelevant to the identification of what is
9. of what is valid law. valid law.

Positive laws only apply to those people

Natural law is who are the subjects or citizens of the
10. universal. government that makes the law.

Is law necessary:
Law in society is not something which arises from outside the borders of society. It is in reality a fundamental concept of
society. The law represents society’s norms what is good, equal and fair as per the society. Each society has its own rules,
but with the modification in society’s norms, these rules alter. In society, law is needed for major reasons:

 To govern the behaviour of people in accordance with society’s norms including contract laws, regulatory laws, prohibition
laws, personal laws etc.

 To balance the damage done by the victim against the person and society in general.

 Gathering and extracting profits from the masses by using taxation laws.

 Is man good
 Is man evil
 Is man combination of good and evil
 Guide
Essential function of legal process:
 Kle
 Notes
Essence of law:
 Notes
 Dairy