LEGAL METHOD AND INTRODUCTION TO LEGAL SYSTEM
MODULE 1
LAW - MEANING, NATURE AND FUNCTIONS
Date: 31/08/2021 MR. ARINDAM NERAL
ASSISTANT PROFESSOR OF LAW
1. Evolution of Law - Ancient India - Greek - Roman - Christian
2. Definition of Law-Functions
3. Classification of Law- Municipal & International Law, Justice & Morality, Public &
Private Law, Substantive & Procedural Law, Civil & Criminal Law
4. Approaches to Study of Law - Historical, Analytical, Sociological, Natural Law
INTRODUCTION TO LEGAL METHOD
• Legal method is made up of two words: ‘legal’ and 'method'. The word ‘legal’ in general terms
means something relating to law. It is also described as conforming to rules or law. Law is a set of
rules enforced through a set of institutions. It shapes politics, economics and society in numerous
ways. “Method”, on its part, is a systematic procedure, technique, or mode of inquiry employed by
or proper to a particular discipline of legal method.
• Laws are general rules of human conduct which are accepted and enforced by the governments.
The judiciary punishes for its noncompliance. The legal system elaborates on a range of rights and
responsibilities of the state and its citizens.
• Legal Method commonly refers to a set of techniques used to analyse and apply the law.
EVOLUTION OF LAW
ANCIENT INDIA
Law in India has evolved from religious prescription to the current constitutional and legal system
we have today, traversing through secular legal systems and the common law.
India has a recorded legal history starting from the Vedic ages and some sort of civil law system
have been in place during the Bronze Age and the Indus Valley civilization. Law as a matter of
religious prescriptions and philosophical discourse has an illustrious history in India. Emanating
from the Vedas (Dharma), Dharmshastra, Smritis other religious texts.
Court systems for civil and criminal matters were essential features of many ruling dynasties of
ancient India. Excellent secular court systems existed under the Mauryas (321-185 BCE).
However during the Mughal Rule in the Medieval India (16th - 19th centuries) laws were based
largely on the Holy book of Islam- Quran. Mughal emperors were very fond of justice and were
considered the ‘fountain of justice.’ The emperor set up a separate justice department called
Mahakuma-e Adalat.
BRITISH INDIA
The common law system, which is a system of law based on recorded judicial precedents came to
India with the British East India Company. The company was granted charter by King George I in
1726 to establish “Mayor’s Courts” in Madras, Bombay and Calcutta (now Chennai, Mumbai and
Kolkata respectively).
Following the First War of Independence in 1857, the control of company territories in India
passed to the British Crown. Being part of the empire saw the next big shift in the Indian legal
system. Supreme courts were established replacing the existing mayoral courts.
Coding of law also began in earnest with the forming of the first Law Commission. Under the
stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal Code was drafted,
enacted and brought into force by 1862. The Code of Criminal Procedure was also drafted by the
same commission enacted in 1973. Host of other statutes and codes like Evidence Act (1872) and
Contracts Act (1872) were drafted and codified.
GREEK EVOLUTION OF LAW
Greek law, legal systems of the ancient Greeks, of which the best known is the law of Athens.
There were a number of basic approaches to legal problems, certain methods used in producing
legal effects, and a legal terminology, all shared to varying degrees by the numerous
independent states constituting the Hellenic world. It should not be forgotten, however, that
such common foundations as there were gave rise to a great variety of individual legal systems
differing as to their completeness and elaboration.
Greek legal life of the 5th and 4th centuries BCE was determined by three dominant factors.
First was the existence of a multiplicity of city-states (poleis), each of which possessed and
administered its own set of laws. The second element was the fact that in many, if not most, of
the poleis the laws were laid down in written statutes, some of them being elaborate and more
or less complete codes setting forth procedural methods and substantive rules for the
administration of justice. The third determining factor for Greek law was the absence of a body
of jurisprudence comparable to that of the Romans.
The three characteristics outlined here were important influences on the general character of
Greek law.
ROMAN EVOLUTION OF LAW
Roman Republic was established in 509 BCE, the early Romans lived by laws developed through
centuries of custom.
This customary law (ius, in Latin) was handed down through generations and was considered by the
Romans to be an inherited aspect of their society as it had evolved from its earliest days. Integral to
the notion that this customary law was part of the fabric of early Roman culture was the fact that this
law only applied to Roman citizens and was thus ius civile, or civil law.
During a period of social unrest, when some Romans felt that legal decisions were being arbitrarily
decided, a push was made to write down the law in order to better anticipate how decisions would be
made. Thus a committee of ten men called the decemvirs. The work they produced called the Twelve
Tables, documented the centuries-old customary laws and became the foundation of Roman law as
we know it. The Twelve Tables touched on many areas of law, not only the civil law that applied
directly to citizens, but also areas such as public law and religious law, which applied to larger social
constructs and institutions.
CHRISTIAN EVOLUTION OF LAW
Early Christian legal thought and practice was influenced by Roman and Greek law, by Jewish law, and
by Christian legal traditions.
Canon law is the body of laws made within certain Christian churches, for the government of the
Christian organization and its members. But the expression "canon law" (jus canonicum) becomes
current only about the beginning of the twelfth century, being used in contrast with the "civil law" (jus
civile).
Canon law is also called "ecclesiastical law"; however, strictly speaking, there is a slight difference of
meaning between the two expressions: canon law denotes in particular the law of the "Corpus Juris",
including the regulations borrowed from Roman law; whereas ecclesiastical law refers to all laws made
by the ecclesiastical authorities as such, including those made after the compiling of the "Corpus Juris".
MEANING OF LAW
The term “Law’ denotes different kinds of rules and Principles. Law is an instrument which
regulates human conduct/behavior.
Law means Justice, Morality, Reason, Order, and Righteous from the view point of the
society.
The term law has different meanings in different Places/societies at different times. In Hindu
religion law implied “Dharma” and in Mohammedan religion (Islam) it is “Hokum”
The law is subject to change with the change in society and also change in the
Government/legislative through the amendment of laws.
DEFINITION OF LAW
Salmond: Law may be defined as the body of principles recognized and applied by the state in the
administration of Justice.
Austin: Law in the strict sense is a general command of the sovereign individual or the sovereign body.
Issued to those in subjectivity and enforced by the physical power of the state.
Saviginy: Savigny says that law is not the product of direct legislation but is due to the silent growth of
custom or the outcome of unformulated public or Professional opinion.
John 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.
Holmes J.: The realist considered the law to be a part of judicial process. He says, “that the prophesies
of what the courts will do, in fact and nothing more pretentions, are what I mean by law.
FUNCTIONS OF LAW
• Maintenance of law and order in society.
•Protection of Fundamental Rights.
•Control of Political System
•The regulations of economic activity.
•Regulations of human relations
•International relations
CLASSIFICATION OF LAW
•Classification of laws is not only desirable but also necessary.
•The systematic arrangement of laws helps a lawyer to understand the law.
•Classification of laws has been made from time to time.
•No classification of laws is going to be permanent as law is ever changing.
•Law may be classified in various different ways but the most important classification of
law are as follows: – Municipal and International Law, Public Law and Private Law,
Criminal Law and Civil Law, Substantive Law and Procedural Law.
MUNICIPAL AND INTERNATIONAL LAW
MUNICIPAL LAW:
Municipal law is the law of that nation; it is domestic law that governs the subject of the state. This
includes state, provincial, regional, regional or local law of a state. State force is the approval behind
the law. It is generally regional in nature as it is applied within the territory of the country itself.
It can be divided into two classes:
1. Public Law
2. Private Law
INTERNATIONAL LAW:
International Laws are laws which govern the conduct or relations of nations among each
other.
International Law is divided into two classes:
1. Public International Law: These are the rules that govern the conduct and relations of
the state with others.
2. Private International Law: It contains rules and principles according to which cases
with foreign elements are decided.
PUBLIC AND PRIVATE LAW
PUBLIC LAW:
The activities of the state are regulated by public law. It determines and controls the organization and
functioning of the state and also determines the relationship of the state with its subjects. The term
‘public’ means a state or a sovereign part of it or a body, or a person holding a delegated authority
under the state.
Public law can be further divided into: –
1. Constitutional Law
2. Administrative Law
3. Criminal Law
PRIVATE LAW:
The branch of law that deals with the rights and duties of private individuals and the
relationship between them. Private law deals with the rights and obligations of
individuals, families, businesses and small groups and exists to assist citizens in disputes
involving private matters.
Further classification of private law is as follows:
1. Law of the person
2. Property law
3. Law of liability or law of obligations
CIVIL AND CRIMINAL LAW
CIVIL LAW:
Civil law deals with behavior that causes injury to an individual or other private party, such as a
corporation. Example of civil law is defamation, breach of contract, negligence which is resulting in
injury or death, and property damage.
CRIMINAL LAW:
Criminal law deals with behavior that can be recognized as a crime against the public, society, or the
state even if the immediate victim is a person. Examples of the same are murder, assault, theft and
drunk driving.
SUBSTANTIVE AND PROCEDURAL LAW
SUBSTANTIVE LAW:
The law which defines rights and liabilities is known as substantive law. It is called so since it lays
down a proper and precise substance of subject matter which is enforceable in the courts. The
purpose of a law that is substantive is to define, create or confer a proper substantive legal right or
status or to impose the nature and extent of any sort of legal duties or obligations.
PROCEDURAL LAW:
Procedural law establishes the legal rules by which substantive law is created, enforced and
applied, especially in a court of law. Procedural law consists of a set of rules by which a court
hears cases and decides the proceedings.
LAW AND MORALITY
• In the earlier stages of the society there was no distinction between law and morals.
•Later on, Mimansa laid down certain principles to distinguish obligatory from recommendatory
injunctions.
•In the West also the position was similar.
•The Greeks in the name of the doctrine of ‘natural right’ formulated a theoretical moral
foundation of law. The roman jurist in the name of ‘natural law’ recognized certain moral
principles as the basis of law.
•In the Middle Ages, the Church become dominant in Europe. The ‘natural law’ was given a
theological basis and Christian morals were considered as the basis of law.
DISTINCTION BETWEEN LAW AND MORALS
Vinogradoff: “Law is clearly distinguishable from morality. The object of law is the submission of
the individual to the will of organised society while the tendency of morality is to subject the
individual to the dictates of his conscience”.
Pound: “Law and morals have a common origin but they diverge in their development”.
Bentham: “In a word, law has just the same centre as morals but it has by no means the same
circumference”.
HART – FULLER DEBATE
Law and morality are different words with different meanings, yet they influence each other and
often used overlapping.
Law is defined as “a rule of conduct or action prescribed or enforced by controlling authority as a
command or provisions enacted by a legislature and also judicial decisions”.
Morality means “the quality of being right, honest or acceptable”.
H.L.A. Hart was a British Legal Philosopher and was a positivist.
Lon L. Fuller was a American Legal Philosopher and was a naturalist.
The Hart–Fuller debate is an exchange between Lon Fuller and H. L. A. Hart published in
the Harvard Law Review in 1958 on morality and law, which demonstrated the divide between
the positivist and natural law philosophy.
H.L.A. HART
• He does not believe that there is a necessary connection between law and morality. While he does
acknowledge that there is a close relationship between law and morality, and does not disagree that the
development of the law has been immensely influenced by morality.
• He feels that a line should be drawn between what law should be, and what law ought to be. The fact
of the matter remains, that a law does not stop being law due to moral criticism of it.
• According to Hart the law consists of primary and secondary rules. Primary rules are duty imposing
rules on the citizens and have a legal sanction. Secondary rules are power conferring laws that describe
how laws should be recognised, adjudicated or changed.
• Hart acknowledges that law and morals are bound to intersect at some point, for instance where a
case comes up where the wordings of the relevant statute is not sufficient to give effect to the purpose
of the law.
LON L. FULLER
He sees laws as a way of achieving social order by regulating human behaviour through laws. He
believes that our legal systems are derived from the norms of justice which have a moral aspect.
He argues that for a law to be valid, it must conform to a certain moral function test. These are the
eight principles of legality set out by Fuller; (I) Sufficiently general rules (ii) published (iii)
prospective (iv) intelligible (v) not contradictory (vi) possible to comply with (vii) reasonably stable
through time (viii) followed by officials.
Fuller rejects the positivist approach to law and argues that society’s goals can be achieved by other
means rather than relying solely on law.
HART – DEVLIN DEBATE
The Hart-Devlin debate was motivated by a report published by the Wolfenden committee that
recommended the decriminalization of prostitution and homosexuality.
The report of the committee stated that it is not the responsibility of law to solve immorality. The Hart-
Devlin debate was an attempt to contribute to the findings of the Wolfenden committee.
The debate was between Professor Hart and Patrick Devlin. The argument was that homosexuality should
be made legal because of the freedom of choice and the privacy of morality. The recommendations of the
committee emanated from the principles of utilitarianism. The law is not supposed to interfere with the
lives of people as a way of influencing behavior.
The Debate:
• Devlin's philosophy of law argued that the collective judgment of a society should guide enforcement
of laws against both private and public behavior that was deemed immoral. He says when a behavior
reached the limits of "intolerance, indignation and disgust," legislation against it was necessary.
Hart's philosophy of law held that laws should not be based only on popular moral consensus, in the
absence of other harms. One role of law was to protect individual liberty.
• Devlin argued that it is important to establish laws that control morality because law not only protects
individuals but also the society. To Devlin, morality is a requisite for maintenance of good laws that
preserve the freedom of conscience, and reduce the probability of tyranny. He was of the view that law
should be superior to morality and thus control behavior.
On the contrary, Hart argued that law should not adhere to the principles of populism.
• Hart disagreed with Devlin’s argument that morality should be guided and determined by law. Hart
supported the committee’s recommendation of legalizing homosexuality and prostitution. Hart argued
that enforcing a moral code was unnecessary & undesirable. He argued that doing so would interfere
with individual liberty.
FOUR STAGES OF DEVELOPMENT OF LAW AND MORALITY: ROSCOE POUND
Dean Roscoe Pound describe four stages of development of law with respect to morality.
1. The first stage is of indifferentiated ethical custom, religion and law. It was the pre-legal stage in the
development of law and law and morals were the same thing and were two sides of the same coin.
2. The second stage is that of strict law, codified which in time is outstripped by morality.
3. The third stage is that of infusion of morality into the law and reshaping it by morals.
4. The final stage is that of conscious constructive law making, the maturity of law in which morals and
morality are for the law maker and that law alone is for the judge.
LAW AND JUSTICE
• Austin and Holland had defined law with reference to sanction without bothering for the ends of
law. They have excluded the idea of morality and justice from definition of law.
• Law exist according to Salmond for promotion of justice within the framework of law.
• Justice cannot be defined rigidly, what has been considered just at one time has frequently not be
so considered at another.
• At times justice was defined in terms of moral ideas.
• In the modern context, justice basically means the recognition and implementation of laws made
by legislatures. Furthermore, in the modern context, unlike ancient states, this function lies largely
on judicial organs.
JUSTICE ACCORDING TO LAW
• In contemporary times, what is being administered by the State through its judicial system is not
‘justice’ but ‘justice according to law’.
• The doctrine of separation of powers mandates the judiciary to ‘administer’ the law of the land. If
any legislation is found to be defective, it cannot assume legislative functions. At most, it can issue
guidelines to aid the legislature.
• For instance, a murderer may have willfully confessed his crime in front of a police officer but
may not have been able to do so before a magistrate. In such a situation, even though convicting him
on the basis of the confession may have ensured justice, it shall not be recognized by the court for it
is against the ‘law of the land’.
KINDS OF JUSTICE
• Natural Justice - Natural justice implies to the ends of natural law. The purpose of natural law is
to ensure that the natural rights, inherent in all individuals, remain protected. When the said
purpose is achieved, it can be said that there is natural justice in society.
• Economic Justice - Economic justice refers to the effective realization of the economic rights of
an individual. It is argued that, in order to effectively administer all the other kinds of justice,
economic justice has to be necessarily ensured.
• Political Justice - In a State where all the individuals have an equal right to participate in the
nation’s political process, political justice can be said to prevail.
• Social Justice - With the emergence and growing popularity of the idea of the welfare state,
the idea of social justice has occupied a central position amongst the various kinds of justice. In
order to ensure social justice, a State must ensure that an individual, as a member of any social
group, is not subjected to any kind of discrimination or unfair treatment.
• Legal Justice - Legal Justice refers to the ideal of justice that a legal system seeks to achieve
through the enactment of various laws and legal rules. Justice must be backed by law. When
Justice is administered within the boundaries set by law, the kind of justice administered is
known as legal justice. This kind of justice is administered by the courts of law. It is also
known as ‘Justice according to Law’.
SCHOOLS OF LAW
• The different approaches towards the study of jurisprudence have led to the emergence of different
schools.
• With the passage of time, there have been some drastic changes in the scope and subject-matter of
Jurisprudence.
• The word ‘jurisprudence’ is derived from the Latin word ‘juris prudentia’ which means the study of or
science of law. The Latin word ‘juris’ means law and ‘prudentia’ means skill or knowledge.
• The schools of jurisprudence has defined law in various aspects. They are:
1. Natural Law
2. Analytical School
3. Historical School
4. Sociological School
• The schools of jurisprudence have provided their views on the concept of law as per their ideologies
and thinking.
NATURAL LAW
• Man does not make natural Law and he has only discovered it.
• Natural Law has existed from the commencement of the world. It is eternal and unchangeable.
• Any external agency cannot enforce natural law & it does not have backing of legislation.
• Basically it is an outcome of preaching of the philosophers, prophets, saints and thus it is a higher
form of law.
• Also known as Divine Law, Law of Nature, and Law of God. Divine Law implies the order of God
forced upon men.
• Social contract, in political philosophy, an actual or hypothetical contract, or agreement, between the
ruled or between the ruled and their rulers, defining the rights and duties of each.
In primeval times, according to the theory, individuals were born into an anarchic state of nature, which
was happy or unhappy according to the particular version of the theory. They then, by exercising
natural reason, formed a society (and a government) by means of a social contract.
• Socrates: Socrates has stated that a man can distinguish between good and bad and can
appreciate the moral values. This human ‘insight’ is the foundation to review the law.
Socrates pleaded the necessity of Natural Law for the safety and stability of the nation, which was
one of the major need of the age. His apprentice Plato supported the same theory.
• Aristotle: According to Aristotle, man is a part of nature in two means. Firstly, he is a part of
the creatures of God. Secondly, he possesses awareness and reason by which he can form his will.
By this reason, man can determine the eternal norm of justice. The man’s reason being the part of
nature, the law discovered by reason is called ‘natural justice’.
• Thomas Aquinas: Aquinas wrote most extensively about natural law. He stated, "the light of
reason is placed by nature in every man to guide him in his acts." Therefore, human beings, alone
among God’s creatures, use reason to lead their lives. This is natural law.
The master principle of natural law, was that "good is to be done and pursued and evil avoided."
Aquinas stated that reason reveals particular natural laws that are good for humans such as self-
preservation, marriage and family, and the desire to know God. Reason also enables humans to
understand things that are evil such as adultery, suicide, and lying.
ANALYTICAL/POSITIVE SCHOOL
• The positivist movement began at the beginning of the 19th century.
• Analytical school is otherwise called the Austinian school since this methodology is set up by John
Austin.
• It regards law as the direction of the sovereign. Therefore, the legal positivist school only aims to
identify the law as it is laid down by a superior body and not how it should have been. Due to this
reason, this school is also known as the imperative school.
• The purpose of analytical jurisprudence is to analyse the first principles of law without reference
either to their historical origin or development or their validity. Another purpose is to gain an accurate
and intimate understanding of the fundamental working concepts of all legal reasoning.
• It puts emphasis on legislation as the source of law. It regards law as a closed system of pure facts
from which all norms and values are excluded.
Jeremy Bentham:
The founder of positivism is Jeremy Bentham. Austin owes much to Bentham and on many points, his
prepositions are merely the ‘paraphrasing of Bentham’s Theory’.
He expounded the principle of utility with scientific accuracy. He partitioned jurisprudence into censorial
and expository. Expository or analytical jurisprudence is concerned with law, it is without any regard to
its moral or immoral character. On the other hand censorial jurisprudence is concerned with ‘science of
legislation’ that is what the law ought to be.
As per Bentham’s concept of law, law is an imperative one for which he referred the term ‘mandate’.
John Austin:
John Austin is the originator of the analytical school. He is the father of Engish Jurisprudence. Law as
defined by Austin is the aggregate of the rules set by men as political superior or sovereign to men as
politically subject.
He built on the foundation of expository jurisprudence laid by Bentham and did not concern himself
with extra-legal norms. Austin differentiated the science of legislation and law from morals.
HISTORICAL SCHOOL
The Historical School believes that, according to their evolving requirements, law is created by
individuals.
Hence, Habits and customs are the primary sources of the Historical School.
The historical school follows the concept of human-made law. Law is framed for the individuals
and by the individuals which means that the law should be in line with people’s evolving
requirements.
Montesquieu
Montesquieu was the first jurist to embrace the historical method of understanding the legal
institution. According to him, it is irrelevant to discuss whether the law is good or bad, because the
law depends on the social, political and environmental conditions that prevail in society. He believed
that law had to alter according to society’s evolving requirements. He proposed that the law should
respond to the location’s requirements and alter according to people’s time, location, and needs.
Friedrich Carl Von Savigny
Savigny is the Historical school’s founder. According to him, the law is “a result of moments the
germ of which, like the germ of the State, remains in the nature of people as being produced for
culture and which grows different types from this germ, depending on the environment of the factors
that perform on it.” Savigny thinks that it is not possible to borrow the law from outside. Moreover,
the main source of law is the consciousness of the people. He was of the opinion that the law of the
state grows with the strengthening of the nationality of the state and that law dies or fade away when
nationality loses its power in the state.
SOCIOLOGICAL SCHOOL
• Auguste Comte, a French Philosopher used the word “Sociology” for the first time and defined
sociology as a positive social facts science. Hence, known as the father of Sociological school. He said
society is like an organism, and when it is guided by Scientific Principles it could advance. Thus, he
made excellent attempts to use law as an instrument through which human society retains itself and
advances.
• Law is a social phenomenon and there is a main or indirect relationship between law and society.
• Sociological School’s concept is to demonstrate a law-society relationship. This school put more
emphasis on the legal view of every issue and diversity that occurs in society.
• The Sociological School of Jurisprudence focuses on balancing the state benefit and the realization of
the person.
Roscoe Pound
Pound was an American Legal Scholar. Roscoe Pound gives the theory of Social Engineering in which
he compared lawyers with the Engineers. Engineers are required to use their engineering skill to
manufacture new products. Similarly, social engineers are required to build that type of structure in the
society which provides maximum happiness and minimum friction.
According to Pound, “Law is social engineering which means a balance between the competing
interests in society,” in which applied science is used for resolving individual and social problems.
Leon Duguit
Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law). He gave the theory
of Social Solidarity which explains the social cooperation between individuals for their need and
existence.
The word Social Solidarity reflects society’s power, cohesiveness, collective awareness, and viability.
‘Leon Duguit’s Social Solidarity explains men’s interdependence on his fellow men. Without relying on
other men, no one can survive.
