Legal Methods

What is law:

Different schools of law:

1. Historical School
➔ It emphasizes that for proper understanding of law and legal institutions of any
country, it is imperative to take into account the history as well as the society with
the law and legal institutions have to operate and are closely interconnected.
➔ It emphasizes on the history as an important factor for the study of law.
➔ Law is not an abstract set of rules imposed on society but it has deep roots in the
social and economic factors and the attitude of the past and present members of
the society.
➔ According to historical school, Law is found and not made. It emphasizes that the
historical factors influence the origin, formation and development of law.
➔ Custom is the most important source of law
➔ Laws are not universal application as tradition and customs determines the law.
➔ Laws are rules consist partly the social habits and partly the experiences.
➔ Savigny, it's main exponent opined that, “Law grows with the growth, and
strengthen with the strength of the people, and finally dies as the nation loses its
nationality.”

2. Procedural Law
➔ It can be defined as the law which governs the way in which court proceedings
are undertaken. It explains the methods and practices that are followed in the
code for the case, i.e the gradual faces of lawsuit that will take place and the way
in which cases are managed in the court. So, it describes a series of steps taken
in civil or criminal cases.
➔ It determines the means of imposing right and providing remedies to wrong. It
consist of rules, concerning jurisdiction, pleading, appealing, presenting
evidence, executing judgment, cost and the like

3. Substantive Law
➔ It is the written laws which state the rights, duties and liabilities of the citizens and
collective bodies. It is the system of rules that regulates the behavior of the
citizen of the country and is generally codified in statute.
➔ It is concerned with the substance of the case. It neither helps suing someone or
defending a person from legal proceeding.
 ➔ It is that part of the legal system which differentiates between right and wrong
conduct and personifies the idea that committing the crime will lead to penalty or
punishment or both to the wrongdoer.

4. Natural Law School

➔ The history of natural law reveals an attempt by the jurists to provide the concept
and content of natural law in order to meet the subjective conditions of human
existence and to solve the contemporary social problems of their time.
➔ Natural law in common sense means the law that is largely unwritten and
consists of principles of ‘ought’ as revealed by the nature or reason or derived
from God etc.
➔ It is originated from some supreme source other than any political authority.
➔ As observed by many jurists it is essentially an assertion of faith in values.
➔ According to Julius Stone, natural law is an assertion of faith’ rather than a
demonstration.
➔ It serves as a defense against ethical relativism.
➔ The idea of natural law originated in answer to a philosophical theory which
challenged the obligatoriness of all human rules and even the law itself.

5. Analytical School
➔ Analytical school was established by Jeremy Betham in the beginning of 19
century. He utilized the analytical method to study law in place of abstract
method of natural law school.
➔ The jurists of the analytical school considered that the most important aspect of
law is its relation to the state.
➔ Law is treated as an imperative or command originating from the state, that is
why the school is also known as the imperative school.
➔ The exponent of this school are concerned neither with the past not the future of
law but it exists, i.e. with law as ‘is’ (Positus), and for this reason the school is
termed as positive school.
➔ The school takes for granted the developed legal system and proceeds logically
to analyze its basic concepts and classify them so as to bring out their relation
with one another.
➔ It deals with the systematic exposition of the legal system.
➔ It emphasize on legislation as sources of law.
➔ The school regards law as a closed system of pure fact from which all norms and
values are rigidly excluded.
➔ It views law as a command.
6. Social Contract Theory
➔ The concept of social contract is that in the beginning man lived in natural state.
They had neither any govt. nor any law. There were hardships and oppressions
on a section of the society. The men then entered into an argument known as
“pactum unions” for the protection of their lives and property. Thus, a society
came into existence and they undertook to respect each other and live
peacefully.
➔ Then again they entered into another agreement called “pactum subjectionis” by
which the people who had united together earlier undertook to obey authority and
surrendered the whole or a part of their freedom and rights. The state guaranteed
everyone of them the protection of life, property and to a certain extent liberty.
➔ Thus, the “Government” or “Sovereign” or “Rule” came into being through social
contract. The social contract theories are important,
● First, the people are the source of political power
● Second, the concept of society is individualistic
➔ In the words of Thomas Hobbes, ”Law was brought into the world for nothing else
but to limit the natural liberty of particular men, in such a manner, as they might
not hurt but assist one another and join together against a common enemy.
➔ According to Hobbes-
‘man's life in a state of nature was one of fear and selfishness. The idea of
self preservation and avoiding misery and pain are inherent in man's nature. He
desire society also. These natural inclinations induce him to enter into a contract
and surrender his freedom and power to some authority. The law of nature can
be discovered by ‘reason’ which says what a man should do and what he should
not do.
➔ Locke’s theory of social contract states that authority of the state rests on the
consent of the subjects.
➔ According to Locke the state of nature was a golden age, but property was
insecure, and for this purpose man entered into the social contract.
➔ In the words of Locke “Every man has a property in his own person.”
➔ Man entered into the social contract by which he yields to the sovereign, not all
his rights, but only the power to preserve order and enforce the law of nature.
➔ According to Rousseau, “social contract is not a historical fact but a hypothetical
construction of reason.
➔ He argued that in the original contract, the individual did not surrender their life to
any single sovereign but to the society as a whole and this is their guarantee of
freedom and equality.
➔ Society having came into being for this purpose is expected to restore these
rights to its members as civil liberties.
7. Sociological School
➔ The main field of study of the jurists of sociological school is the effect of law and
society on each other.
➔ It regards Law as a social institution consciously designed on the basis of
experience, need or both.
➔ It emphasizes on social requirements and purposes which the law must attend
answer.
➔ It also emphasizes on functional aspects of legal institutions, doctrines and
percepts and consider not merely as a tool or technique to subserve varying
individual or social interest.

8. Realism
➔ It concentrates on a scientific observation of law in its making and working.
➔ The school gives maximum importance to courts.
➔ It's studies law as it is in actual working and its effects also concentrate on the
decision given by law courts.
➔ According to Pound, “By realism they mean Fidelity to nature, accurate recording
of things as they are, as contrasted with things as they are imagined to be, or
wished to be, or as one piece they ought to be.”
Interpretation of Statutes:
To interpret the board and ambiguous statutory language, courts look at the following:
1) The actual language of the statue, the words chosen by the legislature
2) The context within the statue, like what is the subject or purpose of the sections
in the same statue? What language do complimentary statues contain? Are there
any statutory statements of legislative purpose?
3) The legislative history of the statue because it provides information to the court
about the legislature intend in adopting the statues.r

Literal Rule-
It is a rule on construction of statutes that in the first instance the grammatical
sense of the word is to be followed

Golden Rule-
The golden rule permits the plain meaning to be departed from it when a strict
adherence to it would result in an absurdity

Mischief Rule-
● The rule was enunciated in Heydon’s case.
● For the true interpretation of all statues in general, 4 things are to be considered:
1. What was the common law before the making of the act.
2. What was the mischief and defect which the common law did not provide.
3. What was the remedy the parliament has resolved and appointed to cure
the disease of the common law.
4. The true reason for the remedy
● And then the office of all judges is always to make such construction which has
suppressed the mischief and advance the remedy according to the true intent to
the makers of the act.

Harmonious Construction:
Case- M.S.M. Sharma V. Krishna Sinha (AIR 1959 SC395)
➔ Supreme Court held that Article 19 (I) (a) had to be harmoniously interpreted. To
give effect to both provisions, it was necessary to hold that Article 19 (I) (a) is
subject to the privileges of the house guaranteed under Article 194 (III)

Arguments advanced:
Issue 1- according to Article 356 (1), “If the President on receipt of a report from the
Governor of the State or otherwise, is satisfied that a situation has arisen in which the
government of the state cannot be carried on in accordance with the provisions of this
constitution, the President may by Proclamation-
(a) (b) (c)
The words “or otherwise” indicate that the President may act under Art. 356 (1) on
information received from sources other than governor’s report.

Research Methodology:
R - Rational way of thinking
E - Exhaustive treatment
S - Search for solutions
E - Exactness
A - Analytical analysis of adequate data
R - Relationship between facts and theories
C - Critical observation
H - Honesty and hardwork

Types of Legal Research

1. Theoretical research
2. Applied Research
3. Action Research
4. Interdisciplinary Research