Legal Methods

What are sources of law?

Sources of law means the sources from where law or the

binding rules of human conduct originated.To understand law, it
is essential to understand the sources of law

Classification of Sources:

Salmond, an English jurist, classified sources of law into two

main categories:

​ Formal Sources of Law:

● These are the sources that give law its legal force
and validity.
● Example: Legislations (laws passed by a legislative
body).
​ Material Sources of Law:
● This refers to the substance or content from which
laws are derived.
● In simpler terms, it's about the raw material of the
law.
● Example: Customs (established practices and
traditions).

In summary, formal sources focus on the legal authority of laws,

while material sources deal with the content or substance of the
laws, such as customs and traditions.

In any modern society, three major sources of law can be

identified:
 ​ Custom:
● For a custom to be considered valid, it must be
continuously observed over a long period without
interruption.
● Additionally, the practice should be supported not
only by its long-standing nature but also by the
general public opinion and morality.
● Custom can simply be explained as those
long-established practices or unwritten rules which
have acquired binding or obligatory character.
​ Judicial Precedent:
● Judicial precedent involves decisions made by courts
in the past.
● These decisions set a standard for similar cases in
the future, creating a precedent that guides future
legal interpretations.
​ Legislation:
● Legislation refers to laws enacted by a legislative
body, such as a parliament or congress.
● These laws are formally written and adopted through
a legislative process.

Binding of Courts:

The hierarchy of judicial authority in India can be summarized

as follows:

​ Supreme Court (SC):

● Binding on all courts in India.
● Not bound by its own decisions or decisions of the
Privy Council (PC) or Federal Court.
​ High Courts:
 ● Decisions are binding on all courts within their own
jurisdiction.
● Only persuasive (not binding) for courts outside their
jurisdiction.
● In case of a conflict with a decision of the same court
and bench of equal strength, the matter is referred to
a higher bench.
● Decisions of the Privy Council (PC) and the federal
court are binding as long as they do not conflict with
decisions of the Supreme Court (SC).
​ Lower Courts:
● Bound to follow decisions of higher courts in their
own state, giving preference to decisions of higher
courts within their own state over High Courts of
other states.

In essence, the Supreme Court holds the highest authority and

is binding on all courts in India. High Courts have jurisdiction
within their territories, and their decisions are binding within that
jurisdiction. Lower courts are bound by decisions of higher
courts within their state and give preference to those decisions
over High Courts of other states.

Judicial decisions are typically divided into two parts:

​ Ratio decidendi (Reason for the Decision):

● The 'ratio decidendi' is the binding part of a judgment.
● It refers to the legal reasoning or principle that forms
the basis for the decision.
● Essentially, it is the part of the judgment that creates
a legal precedent and must be followed by lower
courts.
​ Obiter dicta (Said by the Way):
 ● 'Obiter dicta' refers to parts of judicial decisions that
are general observations made by the judge.
● These observations do not have binding authority,
but they may have persuasive value.
● While not binding, obiter dicta of higher judiciary is
given consideration by lower courts.

Considering these aspects of precedent, it is evident that the

system is based on the hierarchy of courts. Therefore,
understanding the hierarchy of courts is crucial to comprehend
the precedent system. The decisions of higher courts,
especially the ratio decidendi, set legal principles that lower
courts are obligated to follow, creating a hierarchical structure
in legal precedents.

Do Judges Make Law?

Indeed, the constitutional framework in India establishes a clear

separation of powers among the three branches of government:
the legislature, the executive, and the judiciary. The Indian
Constitution grants the power to the legislature to make laws,
and the judiciary is entrusted with the responsibility to ensure
the constitutionality of those laws. However, the judiciary's role
goes beyond mere scrutiny; it involves the interpretation of
constitutional provisions and statutes, as well as adjudication
on the rights and duties of citizens.

In the process of interpreting laws and adjudicating cases, the

judiciary often ends up creating new rights for citizens. This is
particularly true when the existing legal framework is silent or
ambiguous on certain matters. The judiciary's role in
interpreting the Constitution and statutes is vital in ensuring
justice, protecting individual rights, and adapting the law to the
evolving needs of society.

The argument that judges, in the course of their duties,

effectively "make law" is rooted in the idea that judicial
decisions contribute to the development and evolution of legal
principles. By setting precedents and establishing legal
standards through their interpretations, judges shape the legal
landscape and, in a sense, add to the body of laws in the
country. This judicial lawmaking is seen as a necessary
function to address gaps in legislation, respond to changing
societal norms, and uphold constitutional values.

In summary, the Indian judiciary not only reviews the

constitutionality of laws but also plays a significant role in
interpreting and applying them. Through this process, judges
contribute to the development of the legal system, effectively
"making law" in the course of their constitutional duties.

Ordinance: An ordinance is a law in India that the President

can issue when the Parliament is not in session. The President
does this based on the advice of the Union Cabinet. In simpler
terms, it's a temporary law that the President can make when
the regular legislative body is not meeting.

Ex - The Data Protection Act

Rules serve as prescribed guidelines for proper conduct and

are designed to supplement acts. Acts may not always contain
every minute detail to avoid lengthiness, and rules help fill in
those details. The authority to make rules is often granted by a
specific section within the act itself.

For instance, in the Companies Act, an example could be

Section 13(3), which may empower a regulatory body or
authority to establish rules regarding certain aspects of
company governance, operations, or compliance. These rules,
created under the authority of the specified section, provide
more specific and detailed instructions to implement the
broader provisions of the act.

Delegated Legislation:Regulations, also known as

subordinate legislations, are laws created by executive
authorities through the delegation of legislative power by a
primary legislation. In simpler terms, when the main law gives
the government or specific authorities the authority to make
detailed rules and laws, those rules are called regulations.
Regulations help in specifying and implementing the practical
aspects of broader laws passed by the primary legislative body.

Basically when legislation gives power to others to make law

such as judiciary and the precedents.

Interpretation: Indeed, the name "interpretation" derives from

the Latin term "Interpretari," which comprises tasks like
explaining, expounding, comprehending, or interpreting.
Interpretation in the legal context refers to the process of
determining the true meaning of words used in statutes or laws.
According to legal scholar Salmond, interpretation is the court's
attempt to determine the legislature's intended meaning by
evaluating the language expressed in the statute. It is, in
essence, the judicial process of comprehending and clarifying
legislative meaning through the language used in the
legislation.

Rules of Interpretation:
1 - Literal/Grammatical Rule: The first rule of interpretation is
straightforward: when reading a law, use the everyday meaning
of the words. If, after reading, the meaning is crystal clear,
follow the grammatical structure of the sentence. The main idea
is to understand what the lawmakers intended, and this often
involves following the basic rules of grammar. This principle
was reinforced in the legal case Maqbool Hussain vs. State of
Bombay.

2 - Mischief Rule: The mischief rule was first introduced in

Heydon's case in 1584. It's called the mischief rule because its
main purpose is to fix or address problems. There are four
steps to follow:

1) Look at what the law was before the new act.

2) Identify the problem that the current law was meant to solve.

3) See what solution or remedy the parliament provided.

4) Understand the actual reason behind the remedy. This rule

was applied in the legal case Pyarelal vs. Ram Charan.

Golden Rule: The rule suggests that initially, we should

interpret the law using the literal rule—giving words their
ordinary meaning. However, if following the literal rule results in
ambiguity, injustice, inconvenience, or hardship, then the literal
interpretation should be set aside. In such cases, the
interpretation should be adjusted to fulfill the intended purpose
of the legislation. This approach prioritizes the overall objective
of the law when the strict literal interpretation might lead to
unfavorable outcomes.

It has 3 rules to be followed

- If the meaning of the wording of the law is plain, then the
literal rule should be applied
-When there is ambiguity the golden rule shall be applied.
-The intention of the statue must be considered and eliminate
the evil which was directed as per the mischief

Harmonious Construction: Harmonious construction in legal

interpretation means interpreting different parts of a law to
avoid conflicts and create a consistent understanding, ensuring
that the provisions work together smoothly. The goal is a unified
and balanced interpretation.
Basically creating harmony so 2 or more than 2 rules can be
applied simultaneously without affecting each other in any way

Liability: Liability comes from the term ‘ligare’ which means to

bind.Liability refers to legal responsibility or obligation, where
an individual or entity may be held accountable for their actions
or failure to fulfill a duty.
According to Salmond - He was the 1st person to define liability
A responsibility which is a bond of necessity that exist between
the wrongdoer and the remedy of the wrong

Types of Liability:
Civil liability:
Criminal liability
Penal liability
Remedial liability
Vicarious liability
Strict/Absolute liability
Joint liability
Group liability
Civil liability: Austin, a legal theorist, defined civil liability as an
offense that is pursued at the discretion of the injured party or
their representative. In essence, civil liability involves seeking
redress for a civil injury, and it is initiated by the party who has
suffered harm.

According to Salmond “Distinction between civil and criminal

wrong isn't on the difference in nature of the right infringed but
on the difference in the nature of the remedy applied.

Criminal liability: Requires intention and motive, guilty act and

action (idk)

Remedial liability: Ubi jus ibi remedium - when there is a right,

there is a remedy
For torts - damages
For crime - punishment, imprisonment,fine
Actus non facit reum, nisi mens sit rea - Act alone does not
amount to guilt it must be accompanied by guilty mind

Vicarious Liability: The liability where the master is liable for

the acts done by the servant.
Master - servant, principal - agent , director - company.

Absolute liability: Absolute Liability is a liability with no

defenses it is only used on enterprises, and uses deep pocket
theory meaning the more the profit = the more the
compensation. And this is done due to enterprises doing
continuous harm. In india we follow absolute liability but not
strict

Strict liability: Strict liability does have defenses and those are
1 - Act of god
2-Volenti non-fit injuria

Strict liability has some essentials - Thing kept should be

Dangerous - meaning the thing kept in my boundaries should
be not amounting to nuisance if escapes, Non-natural use of

🙂
land should be there, if anything is in my boundaries and
someone else entered and got affected then not my fault

Joint liability:When 2 or more persons are liable in respect to

the same liability, when there is pre-meeting of minds/common
interest, then all will be held liable

Example - Priya Mattew’s case - a girl was held liable for rape
under sec 34 of Ipc for common intention

Group liability : when the whole group has a common

objective but no pre-meeting of mind.

Rights-

The concept of rights can be understood through two main

theories: will theory and interest theory.

​ Will Theory (Choice):

● Proponents: Austin, Holland, and Pollock.
● Definition: According to Holland, a right is the
capacity residing in a person to control the actions of
others. Austin states that a party has a right when
others are bound by the law to do or forbear in
respect of him. In essence, it emphasizes the will or
choice of the individual.
​ Interest Theory (Accepted By):
● Proponents: Ihering, Salmond, Allen, Buckland.
 ● Definition: Ihering defines a right as a legally
protected interest. Allen suggests that rights are
legally guaranteed by the power to realize an
interest. Buckland views rights as interests or
expectations guaranteed by law. Salmond aligns with
Ihering's view. Kant defines a right as an authority to
compel. This theory focuses on the protection of
interests.

In summary, will theory emphasizes the individual's will or

choice in rights, while interest theory focuses on the legally
protected interests that rights guarantee. Various legal theorists
contribute different perspectives to these theories.

Relative Duty and Absolute Duty (Austin):

● Relative Duty: A duty that corresponds to a specific

right. If someone has a right, there is a duty imposed
on others to respect or fulfill that right.
● Absolute Duty: A duty that doesn't have a
corresponding right. It is a duty to perform an action
without someone else having a corresponding
entitlement or right.
​ Duties (Salmond):
● Salmond asserts that there can be no right without a
corresponding duty and vice versa. This is likened to
the relationship between a husband and a wife—they
are interdependent. If there is a right, there must be a
duty, and if there is a duty, there must be a
corresponding right.
​ Example (Relative Duty and Absolute Duty):
 ● Relative Duty Example: The right to life imposes a
duty on others not to harm or endanger one's life,
and it may extend to a clean environment as part of
safeguarding life.
● Absolute Duty Example: A duty bound to do
something without a corresponding right might be a
legal obligation that does not grant any entitlement or
right to another party.

In summary, Austin differentiates duties into relative (with a

corresponding right) and absolute (without a corresponding
right), while Salmond emphasizes the mutual relationship
between rights and duties, stating that they are interdependent.

Different types of Rights:

Perfect Right- It is the one which corresponds to a perfect

duty, Ex - Right to life,Abortion rights,Right to education.

Imperfect Right - Doesn’t have a corresponding duty, Time bar

debts, loans, Banking related, Ex - Land taken for lease for 5
years , after 5 years the right is over

Positive Right - Bound to do sth, Ex - freedom of speech

Negative Right - Bound to omit sth, Ex - Right to suicide

Right in Rem - Can be enforced against anyone at large

Right in personam - Right against 1 person

Moral Right - dont have legal backing just are right

Human Right - Rights based on civil, political and economic

Legal Right - conferred by law.

FR - Conferred by the constitution, states are bound to protect

Primary Rights - Are independent of any wrong being

committed, exist on their own

Secondary Rights - Rights which are provided for the

redressal of injury done to primary rights

Public Right - Rights to public at large

Pvt Right - Individual rights

Vested Right - Rights which are independent without nay

condition

Contingent Right - A right that comes along with conditions

Principal right - Independent of other rights

Accessory Rights - Are complementary to principal rights

Right in re propria - Right in own property

Right in re alina - Right in others property

Salmond says Rights are what other are to do for me and

liberties are what I may do for myself

Ben10 material