Lahore University of Management

Sciences
Law 101 – Introduction to Legal Reasoning

SESSION 3
The Pakistan Legal System
What are the sources of Law?

① Constitution of Islamic Republic of Pakistan, 1973

 No law can be made which is in contravention to the provisions

of the Constitution

 Constitution itself can be amended

What are the sources of Law?

② Primary Legislation: Article 142 of the Constitution

 Subject-matters on which the Parliament (President, National

Assembly and Senate) has the exclusive authority to make
laws.

 Subject-matters on which the Provincial Assembly (with the

assent of the Governor) has the exclusive authority to make
laws.

 The Parliament and the Provincial Assembly shall have power

to make laws with respect to criminal law, criminal procedure
and evidence.
What are the sources of Law?

② Primary Legislation: Article 142 of the Constitution

 Inconsistency between Federal and Provincial Law – Article 143

of the Constitution

 If any provision of an Act of a Provincial Assembly is

repugnant to any provision of an Act of Parliament which
Parliament is competent to enact, then the Act of Parliament,
whether passed before or after the Act of the Provincial
Assembly, shall prevail and the Act of the Provincial Assembly
shall, to the extent of the repugnancy, be void.
What are the sources of Law?

③ Delegated Legislation/Secondary Legislation

 Bye-Laws, Rules and Regulations

 Law made by an executive authority under powers delegated

from by a Statute, which grants the executive agency power to
implement and administer the requirements of that Statute.

 For example Court Rules, Environmental Rules, Health Rules.

What are the sources of Law?

 Case-Law

 Collection of all legal principles emanating from all reported

cases on a given topic. Body of Law developed solely through
judicial opinions

 Case law interpreting enacted law is at the same level of

hierarchy as the enacted law it interprets.

 Common law case law is lowest level in hierarchy of sources of

law, so it can be displaced by enactment.
Case Law – Doctrine of Judicial Precedent
 Binding Precedent

 Stare Decisis - “To stand by that which is decided”

 One court must follow the decision of a superior court when

dealing with similar cases.

 Decision of Supreme Court binding on all courts.

 Decision of a High Court binding on the province to which is

applies.
Case Law – Doctrine of Judicial Precedent
 Persuasive Precedent

 Decisions of other High Courts

 Decisions of Lower Courts

 Foreign Decisions
Hierarchy of Courts
Supreme
Court
Federal
Shariat Court

High Court

District Court

Tribunals
Holand & Webb, “Learning Legal Rules” P.
157-199
Ratio Decidendi

The Principle in a case that is brought about by material facts.

Judge is bound to follow the ratio decidendi (the reasoning) of

the earlier higher authority

Established principles may have to be modified to

accommodate new situations.

Problems of Perception: Using words to explain principle.

Ratio Decidendi

 Ratio and Interpretation

 Park Ltd. v Moloney

 During his employment an employee must not disclose any of his

employer’s confidential information to a third party. But once
that employment has ended the employee should be free to use
information which he has come by in the course of his
employment unless that information amounts to a trade secret.
Ratio Decidendi

 Ratio and Interpretation

 Park Ltd. v Moloney

 Judge I: Park v Moloney clearly establishes that an ex-employee

is bound to observe his former employer’s secrets only in very
limited circumstances.

 Judge II: Park v Moloney did not give ex-employees a free hand
to disclose secrets on leaving employment. There are clear
words of limitation in the phrase “trade secrets”. All manner of
things in particular circumstances may amount to trade secrets.
We therefore need to explore what is meant by trade secrets.
Obiter Dictum

 Obiter dictum: “A thing said by the way”

 Only those pronouncements which the judges considers

necessary for his decision form the Ratio. Statements which
could beyond the points necessary to decide the case are
Obiter.

 Obiter dictum statements are not binding upon later judges

 Examples?
Finding out Material Facts and Ratio
SCENARIO I
Salman was driving a Ford on Main Boulevard. He runs over Katrina while she
was lawfully using a zebra-crossing. Salman was speeding and using his mobile
phone at the time of the accident. However, Katrina had stepped on the zebra-
crossing late and Salman could not stop the car on time.

Held: Salman was liable for negligence.

 Finding out Material Facts and Ratio?
SCENARIO I
Material Facts:

a) Use of zebra-crossing
b) Speeding
c) Attention distracted by use of mobile phone
d) Katrina stepped on the crossing late
e) Weather conditions were good
 Finding out Material Facts and Ratio?
SCENARIO I
Ratio:

Where a person is not paying adequate attention and is speeding, they will be
liable for negligence if they injure a pedestrian who is using a zebra-crossing,
even where the pedestrian steps onto the crossing late, if a careful driver
(taking account of the weather conditions) could have still avoided causing
injury.
Finding out Material Facts and Ratio
SCENARIO II
Meera was driving a BMW runs over Mufti Sahab who was crossing the road.
She was speeding and trying to pacify her crying toddler in the back-seat when
the accident took place.

Held: Meera was liable in negligence

 Finding out Material Facts and Ratio?
SCENARIO I SCENARIO II
Material Facts: Material Facts:

a) Use of zebra-crossing a) No zebra-crossing

b) Speeding
c) Attention distracted by use of mobile
phone
d) Katrina stepped on the crossing late
e) Weather conditions were good
b) Speeding
c) Attention distracted by noisy child in
the back seat
d) Weather conditions were good
 Finding out Material Facts and Ratio?
SCENARIO I
Ratio:
Where a person is not paying adequate
attention and is speeding, they will be
liable for negligence if they injure a
pedestrian who is using a zebra-
crossing, even where the pedestrian
steps onto the crossing late, if a careful
driver (taking account of the weather
conditions) could have still avoided
causing injury.
SCENARIO II
Ratio:
Where a person is not paying adequate
attention and is speeding, they would
be liable for negligence if they injure a
pedestrian who is crossing a road, if a
careful driver (taking account of the
weather conditions) could have still
avoided causing injury.
Finding out Material Facts and Ratio
SCENARIO III
Reham was driving a Mehran when she ran over Imran who was crossing the
road (there was a bend in the road). There was heavy rain at and Reham was
distracted as she was looking at a dog on the roadside when the accident took
place.

Held: Reham was liable in negligence.

 Finding out Material Facts and Ratio?
SCENARIO I SCENARIO II SCENARIO III
Material Facts: Material Facts: Material Facts:

a) Use of zebra-crossing a) No zebra-crossing a) No zebra-crossing

b) Speeding b) Speeding b) Not speeding
c) Attention distracted by c) Attention distracted by c) Attention Distracted by
use of mobile phone noisy child in the back a dog
d) Katrina stepped on the seat d) Weather was not good
crossing late d) Weather conditions
e) Weather conditions were good
were good
 Finding out Material Facts and Ratio?
SCENARIO I
Ratio:
Where a person is not
paying adequate attention
and is speeding, they will
be liable for negligence if
they injure a pedestrian
who is using a zebra-
crossing, even where the
pedestrian steps onto the
crossing late, if a careful
driver (taking account of
the weather conditions)
could have still avoided
causing injury.
SCENARIO II
Ratio:
Where a person is not
paying adequate attention
and is speeding, they
would be liable for
negligence if they injure a
pedestrian who is crossing
a road, if a careful driver
(taking account of the
weather conditions) could
have still avoided causing
injury.
SCENARIO III
Ratio:
Where a person is not
paying adequate attention,
even where there is an
understandable reason for
the lack of attention, they
will be liable for negligence
if they injure a pedestrian
who is crossing on the
bend of a road, if a careful
driver could have still
avoided causing injury.
Finding out Material Facts and Ratio

 Distinguishing cases on absence of material facts and/or

reasoning employed

 Abstraction of facts

 Narrow Facts
 General Facts
Use of Precedent – Snails and Underpants
 Donoghue v Stevenson

 Mrs. Donoghue went to a café with a friend, who had bought her
a drink of ginger beer. She had poured some of the drink into a
glass and consumed it. After drinking most of it, she found a
decomposed snail inside the bottle while drinking the ginger
beer. After that, Mrs. Donoghue became unwell and ill. So, she
decided to sue the manufacturer of the ginger beer who is the
defendant.
Use of Precedent – Snails and Underpants
 Ratio

 A manufacturer of products which he sells in such a form to

show that he intends them to reach the ultimate consumer in
the form in which they left him with no reasonable possibility of
intermediate examination, and with the knowledge that the
absence of reasonable care in the preparation or putting up of
the products will result in an injury to the consumers life or
property, owes a duty to the consumer to take that reasonable
care.
Use of Precedent – Snails and Underpants
 Donoghue v Stevenson

 The House of Lords had stated that the manufacturer of ginger

beer owed a duty of care to the Mrs. Donoghue. The
manufacturer of ginger beer must have duty of care to the end
customer of its products. In this case, the manufacture of ginger
beer had breached the duty of care. Therefore, Mrs. Donoghue is
entitled for the remedy of damages.
Use of Precedent – Snails and Underpants
 Grant v Australian Knitting Mills Ltd

 Dr. Grant, the plaintiff had bought an underpants from a retailer. The
underpants were manufactured by the defendant, Australian Knitting
Mills Ltd. Dr. Grant was contracted dermatitis around the ankles. The
underpants were in a defective condition owing to the presence of
excess of sulphite.
Use of Precedent – Snails and Underpants
 Grant v Australian Knitting Mills Ltd

 It was found that the underpants had been negligently left in the
process of manufacture. In this case, the buyer successfully sued the
retailer in contract and the manufacturer in tort.

 The chemical in the underpants represented a latent defect equivalent

to the snail in the opaque bottle.
Fate of the Ruling in a Case
 Followed

 Overruled

 Overturned/Reversed

 Distinguished

 Per incuriam: Without due regard to facts or law.

 Change in Law

 No Clear Ratio
END OF SESSION III