LL.

B (Hons)II Semester
Legal Method
Unit I

Legal Method
Unit-I: Introduction to Legal Method (Lectures-12)
i. Definition of Law
ii. Functions of Law
iii. Law, Justice and Morality
iv. Classification of Laws: Public and Private Law, Substantive and Procedural Law, Municipal and
International
Law, Civil Law and Criminal Law

MODEL PAPER

1. In the context of various jurists define the term “Law”?

2. Explain relationship between Law justice and Morality. How they are different from each other?
Short Questions:
1. Substantive Law and Procedural and Law
2. Municipal and international Law
3. Public and Private Law
4. Civil and Criminal Law
5. Functions and purpose of Law

1. Give the meaning and definition of law?

Law, in its widest sense, means and involves a uniformity of behavior, a constancy of happenings or a
course of events, rules of action, whether in the phenomena of nature or in the ways of rational human
beings. In its general sense law means an order of the universe, of events, of things or actions. In its judicial
sense, law means a body of rules of conduct, action or behavior of person, made and enforced by the State. It
expresses a rule of human action.

The different meanings of the word ‘law’ may be classified as follows:

1) Law means justice, morality, reason, order, righteousness etc., from the point of view of society;
2) Law means statutes, Acts, rules, regulations, orders, ordinances etc., from the point of view of
legislature;
3) Law means rules of Court, decrees, judgments, orders of Courts, injunctions etc. from the point of
view of the Judges;
4) Law means rights and remedies from the point of view of the decree-holders;
5) Law means duties, liabilitites, obligations etc. from the point of view of the judgment-debtor;
6) Law means titles, written laws, judicial precedents, customs as evidence of law.
Generally the term law is used to means three things:

First, it is used to mean ‘legal order’. It represents the regime of adjusting relations, and ordering
conduct by the systematic application of the force of organized political society.

Secondly, law means the whole body of legal precepts which exists in a politically organized society.

Thirdly, law is used to mean all official control in a politically organized society. This leads to the
actual administration of justice as contrasted with the authoritative material for the guidance of judicial
action.

Law in its narrowest or strict sense, is the civil law or the law of the land.
Jurist have defined law differently from different point of views. It has been called Dharma in Hindu
Jurisprudence and “Hukum” in Islamic Justice system. Romans called it Jus and in Germany and France it is
called as Richt and Droit respectively.

Definitions of Law

Idealistic Definition:- According to Salmond “the law may be defined as the body of the principles
recognized and applied by the State in the administration of justice”.

According to Gray, “The law of the State or of any organized body of men is composed of the rules which
the Courts, that is, the judicial organ of the body lays down for the determination of legal rights and duties”.

Positive Definition:- According to Austin, According to Austin, “law is the aggregate of rules set by men as
politically superior or sovereign to men as politically subject”. He says, “A law is a command which obliges
a person or persons to a course of conduct”.

According to John Erskine, “Law is the command of a sovereign, containing a command rule of life for his
subjects and obliging them to obedience

Holland defines law as “A general rule of external human action, taking cognizance only of external acts,
enforced by a determinate authority, which authority is human, and among human authority, is that which is
paramount in a political society”.

Historical Definition:- Savigny says that law is not a body of rules set by a determined authority but are
rules consist partly of social habit and partly of experience. It is not the product of direct legislation but is
due to the silent growth of custom or the outcome of unformulated public or a professional opinion.

Sociological Definition:- According to Duguit, law is essentially and exclusively a social fact. It is in no
sense a body of rules laying down rights. The foundation of law is in the essential requirements of the
community life.

Ihering defines law as “the form of the guarantee of the conditions of life of society, assured by State’s
power of constrain”.

According to Pound, “Law is the body of principles recognized or enforced by public and regular tribunals
in the administration of justice”.

Realist Definition:- Holmes J. says that “the prophesies of what the Courts will do, in fact, and nothing
more pretentious, are what I mean by law”. According to Realists, the formal law is simply a guess as to
what the Courts would decide and the law is that what the Courts actually decide.

The modern definition given by Dias is “Law consists largely of ‘ought’ (normative) propositions
prescribing how people ought to behave. The ‘oughts’ of law are variously dictated by social, moral,
economic, political and other purposes”.

Subject-matter of Law

Dias lists out the subject material of laws as follows:

1) Duties prescribed how people ought, or ought not, to behave with regard to others who are said to
have correlative claims or rights;
2) Liberties or freedom to act and not to act;
 3) Powers to alter existing legal situations;
4) Immunities from having existing legal situations altered;
5) Means of achieving legal ends;
6) Definitions;
7) Location of legal relationships;
8) Principles, doctrines and standards.

Q.2 Explain relationship between Law justice and Morality. How they are different from each other?

Ans.

Introduction: Law justice and morality are often used interchangeably in layman terms. Though they all
are part of the same system and have a lot of common factors, it cannot be ignored that they connote
different meaning in the Legal term. Before understanding the interlinking of law justice and morality, it is
necessary to understand their individual meaning.

Law
As of now, there is no definition that is universally accepted. Jurists have made effort to define it on the
basis of ‘nature’ ‘source’ ‘effect’ ‘purpose’ and other factors.
Society is one of the major factors in explaining the law. Law tells people what they should and must do and
what they must not do. For example, the law tells people that they should not hurt people and if they do they
will be punished. In the same way, even society tells us what to do and what not to do. If we do not obey
society looks down on us. For example o respect elders.
Law is a social science and to keep up with the change in society it has to change thus there can be no
perfect definition of law because of the ever-changing society.
To give the definition of law the analysis of various legal concepts against various disciplines like sociology,
political science, history, psychology, and economics is needed to be done with the element of logic and
practicality, to meet the ends of justice.

Justice
The concept of justice is an age-old justice. It is necessary for the growth of the society. Society demands
that people should live peacefully in society. While living in the society we experience a conflict of interest
and expects that other people have rightful conduct towards him. But on contrary he being ‘selfish’ by
nature, and may not act justly to others. Thus it is necessary that there should be some external force which
is necessary for maintaining the society. Salmond and Roscoe’s pound have emphasized the importance of
justice in their definition of Law. For Salmond without justice, an orderly society is unthinkable.
Blackstone: Justice is a reservoir from where the concept of right, duty, and equity evolves.
The essence of legal justice lies in ensuring uniformity and certainty of law and at the same time ensuring
that rights and duties are duly respected by the people. Justice ensures impartiality. One has to be just not to
himself but toward all members of the society.
Law and Justice in modern society:
“Justice according to law” is the modern view of the justice in society. Dicey has called this principle as
“Rule of Law”. This includes that everyone is equal before the law and there should be no arbitrariness and
law should apply justly to everyone without any differentiation. ‘No one is above law’
Civil Justice:
Citizens can enforce and protect their legal civil rights and to resolve the disagreement between two or more
parties through the civil justice system. The system ensures the protection of rights instead of punishment.
Criminal justice:
The main aim of criminal justice is to punish the offender. It is state who punishes the offender. The end of
criminal justice is to punish the offender and create a society so that there is no crime. Punishment is in
some form of pain and to create example is society and to show the subjects of the state that if they won’t
follow the law same will happen with them
Four theories of punishment are:-
1 Deterrent: To create an example in society.
2 Retributive: an eye for an eye and tooth for a tooth
3 Preventive: preventing the criminal from repeating the offense through measures such as
imprisonment, the death penalty.
4 Reformative: Reformation of offenders through the method of individualization
Morality:
In the ancient time, there was no distinction between Law Justice and morality. In Hindu law, there were
Smritis and Vedas. The Greeks in the name of ‘natural rights’ formulated a theoretical moral foundation of
law. The Romans recognized moral laws on the basis of ‘natural law’. In middle age, churches came in
power and Christian morals were considered as the basis of law.
When the churches were removed from power, it was asserted that law and morals are different. Law derives
its authority from state and not from morals. In the 18th century ‘Natural law’ theory was becoming popular
and it had a moral foundation. It was again considered that law and morals are same. In the 19th Century,
Austin propounded his theory that morality has nothing to do with the law. Law is the command of
sovereign backed by sanctions. In the 20th century, Kelsen said that only legal norms are subject of
jurisprudence. He excluded all other extraneous things including the morals from the study of law.
India: In ancient time there was no distinction between law and morals. In modern times, the Privy
Council in its decision always made a distinction between law and morals.

The distinction between law and morals:

Morals are an end in itself. They should be followed because they are good in themselves. They are
concerned with the character of the individual and helps in molding the character. Morals look into the
motive behind the act of the person. The obedience of morals is a matter of individual conscience. Morals
are generally universal. Roscoe Pound said “ As to the application of moral principles and legal percepts
respectively, it is said that moral principles are of individual and relative application; they must be applied
with reference to circumstances and individuals, whereas legal rules are of general and absolute application”
Law is not an end in itself, it is meant to an end. Its aim is smooth functioning of the society. Law
concentrates on the society and lays down rules concerning the relationship of individuals with each other
and with the state. It is concerned with the conduct of the individual. Law can only function properly with
the help of the proper functioning of the state and when all the subjects surrender themselves to the state.
Law is relative, relative to time, place, and people. It is applied uniformly to all people.

Morals Law
An end in themselves Means to an end. Aims at smooth
functioning of the society

Concerned with the character of person Concerned with society

They look into the motive behind the conduct They look into the conduct
 Should be followed because good in Should be followed because necessary for
themselves proper functioning of society

It is a matter of individual conscience State ensures proper enforcement of the law

Morals are universal They are relative to time, place, Laws are
They are applied to individual cases applied uniformly

The relationship between Law and Morals

Though there are many differences between law and morality, it should not be presumed that there is no
similarity between the law and morals. They have the same center but different circumference. They are
very closely related. It depends on the definition of the law whether they will include morals or not.
Different schools have given a different definition of law.
The relationship between Law and Morals can be studied from 3 angle.
1 Morals as the basis of law
2 Morals as the test of positive law
3 Morals as the end of the law

1. Morals as the basis of law

The law and morals have a common origin but due to the course of development, they came to differ. In
the earlier society, there was no distinction between law and morals. They had a common source and their
sanction was of the same nature. Later on, with the development of the society and formation of the state, it
picked up those rules which were necessary for the functioning of the state and applied its own sanctions to
enforce them. These rules are called ‘law’. The ruled which were for the ‘good’ of humanity but the state
could not ensure its observance were left as they were. These are called ‘morals’. Thus it could be said that
law and morals have a common origin, but diverge in their development. Many rules are common to both of
them such as NOT killing a person, NOT stealing.

2 Morals as a test of positive law

In early times it was contended that law must be in conformity with morals. It was supported by Greeks
and Romans. The Romans recognized moral laws on the basis of ‘natural law’. Later churches came in
power and said that if the law is not in conformity with the Christian law it is invalid. When the churches
were removed from power, it was asserted that law and morals are different.Law derives its authority from
state and not from morals. In the 18th century ‘Natural law’ theory was becoming popular and it had a moral
foundation. It was again considered that law and the rules are same. In the 19th Century, Austin propounded
his theory that morality has nothing to do with the law. Law is the command of sovereign backed by
sanctions. In the 20th century, Kelsen said that only legal norms are subject of jurisprudence. He excluded
all other extraneous things including the morals from the study of law.Now it cannot be said that if the law is
not in conformity with morals it is not binding. However l, aw more or less is in conformity with morals.
The conformity of morals with lathe w is via very important factor for its obedience.
3 Morals as an end of the law

Morals have often been considered the end of the law. Many jurists have defined law on the basis of
‘Justice’. And thus there is a relationship between law justice and morality. Most jurists say that the end of
the law is to secure ‘justice. Justice has more or less been defined in the terms of ‘morals’. Thus the law is
used to give an idea of both morals and justice.Laws and morals have in an influence on each other. In
judicial arbitration and also in law making it plays a big role because it cannot be against the morals of the
society.

Short question:
1. What are the functions and purpose of Law?

Functions of law

 Ever since the down of Human civilization, mankind has had some sort of rule or that they used to
Govern itself in society laws set the standard in which we should live in if we want to be part of
society. Law set up rules and regulations for society so that we can freedom, gives Justice to those
who were wronged, and it set up that it protects us from our own Government. Most importantly the
law also provides a mechanism to resolve disputes arising from those duties and rights and allows
parties to enforce promises in a court of law
 Laws are created because it helps prevent chaos from happening within the business environment
and as well as society. In business law sets guide lines regarding employment regulatory,
compliance, even inter office regulations.

Role of law in Society:- Without law our society would be chaotic, uncivilized mess and anarchy would
reign supreme. The role that law has in society is that it creates a norm of conducts in the society we live in
laws are made to protect its citizen from harm. It set in way that all citizens are given equal opportunity,
protection from harm no matter your race, Gender, religion and social standing. Under the law all its citizens
are guarantee equal protections. In society laws are made to promote the common good for everyone. That is
sets up Guideline for everyone in society to act in way that brings the Greater Good. Everyone acted without
thinking about the Greater Good, society would revert to those days where survival of the fittest was the
common sight. We live in world where we have finite amount of resources should shared or used. Laws are
made on how to manage these and how we resolve if issues arise over these resources. If know laws were in
place these sources would be controlled by the string and the wealthy.

Role of law in Business:

The rule of law plays an important role in the business world when set setting a business it is the laws that
determine what type of business it is to became, and the structure is to be formed.

Also the law sets up a reasonable expectation on how the business should operate in order to protect the
business owner’s interest of the Customer of that business. The rule of law not only allows people to
understand what is expected of them in their personal capacities but also set forth rules for business so that
they, too know what is expected of them in their dealing and transactions. The law protects those who work
for a business. it sets Guideline of how treat your employees, equal opportunities, pay scale, hours, breaks,
benefits and long with a host of other right privileges. In short the laws for business create an honest
environment where consumers and business owners interest can be protected and we have ways to solve of
any disputes arise. If these laws are in any ways are violated it sets up Guidelines for punishment.

Purpose of Law

Law is an instrument of society and its objects are achievement of justice, stability and peaceful
change.

(i) Justice and Law

The ultimate purpose of law is justice. Salmond says that law is “the body of principles
recognized and applied by the State in administration of justice.
 According to Salmond, justice consists in giving to every man his own. The rule of justice
determines the sphere of individual liberty in the pursuit of individual welfare, so as to confine that
liberty within the limits which are consistent with the general welfare of mankind, within the sphere
of liberty so delimited for every man by the rule of justice, he is left free to seek his own interest in
accordance with the rule of wisdom.

(ii) Stability (Uniformity)

Law must aim at stability in society. To achieve stability a balance has to be struck not between
persons, but between interests. The law has to maximize the fulfillment of the interests of the
community and its members and to promote the smooth running on the machinery of society. Indeed,
the motion of law represents the need of uniformity and certainty to achieve stability. The stability
and security which the social order derives from uniform unchanging and certain rules of law.

(iii) Peaceful change (Flexibility) (Social Control)

The existing rules may not provide solution to the cases of changed times and no rule can provide
for every possible case. There is need for flexibility. Flexibility is necessary to enable the law to
adapt itself to social change. As society alters, new social, political and economic requirements creep
in and the needs of the people change from time to time. In a progressive society law has to keep
pace with the changing needs of society. Law has to undergo a progressive change if it is to subserve
the needs of the society which it seeks to govern. In relatively static societies, law can be used as a
powerful instrument of social change. Law then induces a new pattern of social behavior more
conductive to the prosperity of the society.

2.What are the classification of Laws?

Public law Private law

Public law deals with the matter Private law is concerned with the
concerning state and its citizens. matters related to the individual more
than public.
Public law is such part of the law which Private law regulates and governs the
deals with constitution and working of relations of citizens with each other.
the state and functioning of its various
departments.
In public law provisions are made with The sole purpose of private law is to
the view to promote social objectives create and protect the individual
and to protect collective interest. interest.
Public law may be further divided into 3 Private law may be further divided into
parts: 4 parts:
a. Constitutional law a. The law of persons
b. Administrative law b. The law of property
c. Criminal law c. The law of obligation
d. The conflict of law
3.

Substantive Law Procedural (Adjective or Formal) Law

1 Substantive law deals with Procedural law deals with the process of
the rights, duties and litigation.
liabilities of the citizens.
2 It enables citizens to It gives the citizens the means to achieve their
understand their rights. rights.
3 It is that portion of law It governs the process of litigation and relates to
which concerns the the action of civil and criminal proceedings.
purposes and subject-matter
of litigation.
4 It deals with the ends which It deals with the instruments by which the ends
the administration of justice of administration of justice are to be attained.
seeks.
5 It determines the conduct It regulates the conduct and relations of Courts
and relations of the parties and litigants in respect of the litigations.
inter se in respect of the
matter litigated.
6 It relates to matters outside It regulates the affairs inside the Courts.
the Courts.
7 It defines the rights and It governs the institution and prosecution of
remedy. civil and criminal proceedings.
8 What facts constitute a What facts constitute proof of a wrong is a
wrong is determined by question of procedure.
substantive law.
9 Whether an offence is Whether an offence is punishable summarily or
punishable by fine or by only on indictment is a question of procedure.
imprisonment is a question
of substantive law.
10 The elements of substantive The normal elements of procedure are:
law rules of rights. (i) Summons;
(ii) Pleading;
(iii) Proof;
(iv) Judgment;
(v) Execution.
4.

Criminal law Civil law

Criminal law (also known as penal law) Civil law deals with the disputes
is the body of statutory law that deals between individuals, organizations, or
with crime and the legal punishment of between the two, in which
criminal offenses. compensation is awarded to the victim.

A guilty defendant is punished by either A defendant in civil litigation is never

 incarceration in a jail or fine paid to the incarcerated and never executed. Losing
government, or, in exceptional cases, defendant in civil litigation only
the death penalty. reimburses the plaintiff for losses
caused by the defendant’s behavior.
Either party (plaintiff or defendant) can
be found at fault.
In criminal law FIR is lodged or In civil law case is filed by private
complained is filed by the State. party.

Theft (by deception or unlawful taking), Landlord/tenant disputes, divorce

assault, robbery, wanton endangerment, proceedings, child custody proceedings,
trafficking in controlled substances, property disputes (real estate or
alcohol intoxication,etc. material), etc.

Beyond a reasonable doubt: Burden of Preponderance of evidence: Burden of

proof is always on the state/government. proof is initially on the plaintiff and then
switches to the defendants.

5.

INTERNATIONAL LAW MUNICIPAL LAW

International law is the law of nations, Municipal law is the law of state regulating
regulating the relations between the member the conduct of individuals and deal with the
states of the family of nations relation between individual and the state
This law is concerned mainly with the This law is intra-state affairs concerned with
foreign affairs or interstate affairs domestic affairs.
This law is a nature of consent and Municipal law is of command and sanction
consensus.
This law is the common will of the states Municipal law is the will of state empowered
by sovereign authority.
This law is considered as a weak law in This law is the stronger law from the
comparison to municipal law only from the positivist point of view.
positivist point of view.
In this law treaties, conventions, custom, In this law the source of it is legislation.
general principal of law are the primary
source of it.
In this law international court of justice work In this law judiciary is all
as judiciary pervasive(universal.)