INTRODUCTION TO LAW; COMPILED & COPIED FROM VARIED SOURCES

Introduction to Law
What is
‘Law’?
To answer the question, the following definitions are discussed:-
Austin’s definition of law
John Austin is a renowned British jurist of 19th Century. He published extensively on the philosophy of
law. He was Professor of Jurisprudence in the University of London (now University College London)
1826-33. His
book: “The Province of Jurisprudence” determined was very popular. He gives the following
definition of law:
“Law is the command of the sovereign”
Command
(Order)
Sovereign
(Ruler)
Thus it may be stated that law is the order of the ruler.

Simple definition of law

“Law is the right of one, obligation of the other, maintained by law enforcing authority”
Right (Sheltered and recognized
interest) Obligation (Duty)
Maintained (Managed)
Enforcing authority (Implementing power)
Thus, it may be stated that law is the sheltered and recognized interest of one, duty of the other managed
and controlled by law implementing power.
Additional information
Kinds of sovereign:
 De-jure sovereign (Constitutional ruler)
 De-facto sovereign (Unconstitutional ruler)

Aristotle defines constitution as, “A constitution denotes not only an arrangement of office, but, a manner
of life.

Aristotle’s definition of law

“Law is the experience, developed by reason and reason, tested by experience”.

ZUBAIR AHMED SHAH \ ASSISTANT PROFESSOR MGT. SCIENCES 1

 INTRODUCTION TO LAW; COMPILED & COPIED FROM VARIED SOURCES

Experience
(=Knowledge)
Reason (=
Rationale) Tested
(=Checked)

Thus, it may be stated that law is the knowledge, developed by rationale and rationale, checked by
knowledge.

ZUBAIR AHMED SHAH \ ASSISTANT PROFESSOR MGT. SCIENCES 2

Relevant Quotation: “Experience is a very hard teacher she gives the test first, the lesson afterwards”.

Classical definition of law

Law is the ‘dispassionate reason’ and its content is the same as that of morality.
Dispassionate
(=Unemotional) Reason
(= Rationale)
Content (=Substance

Why laws are made?

Laws are made to regulate human actions.

Advantage of law
The supreme advantage of law is peace and harmony. In an ideal world, Law governs both the ruler and the
ruled.

What is justice?
Justice means every man is given his legal right.
Relevant quote on relationship of law and justice: “Justice is an ideal like truth just as a sculptor
tries to achieve beauty with his mallet and chisel, so law is the tool of a judge in the pursuit of
justice.”
Ideal (Model)
Beauty (Splendor or
Prettiness) Mallet
(Hammer)
Chisel (Shape)
Tool
(Instrument)
Pursuit
(Search)

Thus, justice is a model like truth just as a sculptor tries to achieve prettiness with his hammer
and a shape so law is the instrument of a judge in the search of justice.
What are the kinds of justice?
Justice is of two kinds:
 Natural justice
 Legal justice

 Natural justice deals with the enforcement of rights and punishments of wrongs according to
moral standards as appeal to the mind of human being. It stands independent of recognition by
state.

Legal justice denotes justice according to what the law declares to be just (=right). Legal justice
may be divided in to the following kinds:

a. Private
justice b. Public
justice
a. Private or personal justice is what the person whose right is violated wants from the counter party.
 b. Public or community justice is what a plaintiff demands and receives from the community
through court if his counter parties have denied him personal justice. Private Justice is the object
for which the public justice exists.

(a) Civil justice

(b) Criminal justice

The two kinds of public justice can be well understood by understanding their points
of difference:
Sr. Points of Difference Civil Justice Criminal Justice
Civil justice is dispensed for Criminal justice is
Nature of Wrong private wrongs. dispensed for public
Private wrong (breach of wrongs.
1 Wrong (breach of one’s legal
duty) right of individual) Public wrong (breach of
Dispense (to give out) right of community)
Nature (Character)
Dispense (to give out)
The purpose of criminal
The purpose of civil justice justice is to punish the
is to compensate the offenders
2 Purpose aggrieved party.
Offenders (Wrong
Compensate (Reimburse)
doers) Punish
For civil justice civil procedure For (=Penalize)
criminal justice criminal
3 Procedure
is adopted. procedure is adopted.
Criminal justice is
Civil justice is administered by administered by Criminal
4 Nature of Court
Civil Courts. Courts.
Criminal wrongs are
Civil wrongs are relatively
5 Degree of Harmfulness relatively more harmful for
less harmful for the society.
the society.
Civil cases are titled as Criminal cases are titled as
6 Style of Titling ‘Bashier ‘State’ versus ‘Bashier’
versus ‘Nazier’
The relevant procedural Code The relevant procedural code
7 Relevant Procedural Code is ‘The Civil Procedure Code, is ‘The Criminal Procedure
1908.’ Code, 1898.’
In criminal justice,
In civil justice, government government prosecutes the
8 Prosecution
does not prosecute the case.
case.
In civil cases in determining Criminal liability is
the liability, the measured by keeping the
following factors are following in view: (1)
9 Measuring the liability irrelevant: Motive
(1) Motive (2) Intention (2) Intention (3)
Magnitude of the offense
(3) Magnitude of the offense
(4) Character of the
(4) Character of the offender.
offender.
Who makes laws?
Laws are made by super human wisdom. In modern political state they are made by Parliament.

What is Parliament?
The Supreme legislative body of a country is called ‘Parliament’. The parliament of Pakistan consists of
National Assembly, Senate and President. Then we have provincial legislative bodies as well.

Concept of supreme law (A Latin proverb about law)

“Salus est poupli suprema lex” (Latin Maxim)
Salus (Welfare)
est (is)
Populi (People)
Suprema
(Supreme) Lex
(Law)
Thus, it means welfare of people is the supreme law.

What law is considered effective law?

Law that has the following characteristics is known as effective law:
 Issued by the un-commanded commander—the sovereign;
 The commands are backed by threats of sanctions; and
 The sovereign is habitually obeyed.

Some important quotations relating law:

“United States is the greatest law making factory the world has ever
known”. “Laws are imperative in nature”.
“Law helps the vigilante not the indolent; it means law comes to the assistance of the vigilant, not
of sleepy”.
“Violence is inimical to law”.
Inimical (Against)
“It means law does not like violence but peace”.
“People follow truth; truth makes public opinion; public opinion makes law”.
Advantages of law
(1) Uniformity and
certainty (2) Equality &
impartiality (3) Protection
from errors
Uniformity and certainty: The first of the advantages is that the law imparts uniformity
and certainty to the administration of justice
Uniformity (Evenness;
sameness)
 Certainty (Sureness)
This advantage enable the people to know what the law is what would be the decision of the
court.

Equality and impartiality: The law is made for no particular person or for no individual case
and so admits no respect of person which is incompatible with justice. None can escape from
the clutches of law.

Protection from errors: The law serves to protect the administration of justice from the errors
of individual judgment. The establishment of the law is the substitution of the opinion
and conscience of the society at large for those of the individual to whom judicial functions are
entrusted. Aristotle observes: “To seek to be wiser than the laws is the very thing forbidden by
good law itself”.

Disadvantages of law
The law is without doubt a remedy for greater evils, yet it brings with it the evils of its own”. The evils are
discussed as under:
(1) Rigidity
(2) Conservatism
(3) Formalism
(4) Needless complexities

Rigidity: The first disadvantage of law is its rigidity. Because of its rigidity it applies without any
allowance for special circumstances and without turning to the right hand or to the left. In other words
rigidity is the failure of law to conform itself to the requirements of special circumstances.

Conservatism: Conservatism is laws failure to conform itself to those changes in circumstances and in
men’s views of truth and justice. Progressive societies are in advance of law. The existing body of rules
may be found in-applicable to such changed circumstances.

Formalism: Another vice of the law is the formalism. By this is meant the tendency to attribute more
importance to technical requirements than to substantive rights and wrongs. In modern time registration
and attestation are examples of formalities.

Needless complexities: The fourth defect of law is undue and needless complexity. The law becomes more
and more complex due to the excessive development of legal system and it becomes too difficult to
understand the law.

Formula of solving scenario based question:

The scenario based questions are solved by applying the following formula:

FOI+QRL+ALFI+D
FOI = Framing of Issue
QRL = Quoting relevant law
ALFI= Application of the law on the framed issue
D = Decision

The most technical thing involved in the formula is as to how issues are framed; the following material
will make you understand this process:
Framing of issues:
(1) Issue arises when a material proposition of fact or law is affirmed by the one party and denied by
the others.
 (2) Material propositions are those propositions of law or facts which a claimant must allege in
order to show a right to sue or a defendant must allege in order to constitute his defense.

Allege (assert; claim; contend)

Law (rule as laid down by Parliament or by a
precedent) Facts (whatever is perceived by
our five senses are facts)

(3) Issues are of the following two

kinds: (a) Issue of law

(b) Issue of fact

Issue of law: An issue of which answer is already prescribed in some rule of law.

Issue of fact: Before dealing with ‘issue of fact’, it is important to first understand the term ‘fact’---
‘fact’ includes the following:

(a)Anything, state of things or relation of things capable of being perceived by senses; and

(b) Any mental condition of which any person is

conscious. Issue of fact means an issue other than the issue of
law.
Hint: While attempting the scenario based question students are required to carefully read the proposition
and thereafter ascertain what material proposition of fact or law the parties are at variance and shall
thereupon
proceed to frame and record the issues on which the right answer of the question appears to be dependent.
Proposition (Situation;
scheme) Ascertain
(Determine) Variance
(Difference; conflict)
Proceed (Go ahead; advance; progress)
 Lecture 2
Kinds of Law
There are following kinds of
law:
 Common law
 Equity
 Statute law
 Substantive law
 Procedural law
 Private law
 Public law
 Criminal law
 Civil law

1. Common law
The term ‘common law’ is derived from the ‘French law word’ ‘common ley’ which means:
“The body of law derived from judicial decisions, rather than from statutes or constitutions”.
Statute (A law passed by a legislative body)
Constitution (The fundamental and organic law of a nation or state that establishes the institutions and
apparatus of government, defines the scope of governmental sovereign powers, and guarantees
individual civil rights and civil liberties).

Black stone says: ‘Common law is the municipal law of England or the rule of civil conduct prescribed to
the inhabitants of the kingdom.
Municipal (= civic;
community) Inhabitants
(= residents)

About common law it is also said that: “Common law is the experience expressed in law”.

2. Equity Law
Equity is not part of the law, but a moral virtue, which qualifies moderates and reforms the rigor, hardness
and edge of the Common law.
Moral (=ethical)
Virtue (=good
quality) Qualify
(=succeeds)
Moderate
(=modest) Reform
(=restructure)
Hardness
 (=stiffness) Edge
(=stitching)

Thus, it may be stated that Equity is not part of the law, but an ethical good quality, which succeeds,
moderates and restructure the rigor, stiffness and stitching of the law. Equity does not destroy the law
nor create it
but assist it. Equity is distinguishable from the Common law not because it relates to a different subject
matter but merely because it appears at a later stage of legal development.
Underbill says: ‘Equity was originally the result of common sense against the pedantry of law and
trammels of the feudal system; it became a highly artificial and refined body of legal principles and it is at
the present day an amendment and modification of the Common law.”
Pedantry (= literalism; lack of
imagination) Trammels (=limits;
restrictions)

According to Henry Maine, it is a “Fresh body of rules by the side of the original
law”.
Aristotle says: “It is equity to pardon human failings and to look to the law giver and not to the law; to the
spirit and not the letter; to the intention and not to the action; to the whole and not to the part; to the
character of the actor in the long run and not in the present moment; to remember good rather than evil, and
good that one has received rather than good that one has done; to bear being injured; to wish to settle a
matter by words rather than by deeds; lastly to prefer arbitration to judgment for the arbitrator sees what is
equitable, but the judge only the law and for this an arbitrator was first appointed, in order that the equity
might flourish”.
Pardon (=
forgive) Deeds
(= activities)
Arbitration (= mediation;
settlement) Judgment (=
announced decision of court)
Equitable (= consistent with principles of justice and right)

3. Statute
law
A law passed by the parliament of
England.
English parliament = House of Commons + House of Lords+
Crown

4. Substantive
law
The part of the law that creates, defines, and regulates the rights, duties and powers of
parties.

5. Procedural
law
Procedural law or adjective law comprises the rules by which a court hears and determines what
happens in civil lawsuit, criminal or administrative proceedings.
6. Private
law
Private law is the body of law dealing with private persons and their property and
relationships.

7. Public law
Public law is that part of law which governs relationships between individuals and the
Government. Constitutional law, Criminal law, and Administrative law
Constitutional law (The body of law deriving from constitution)
Criminal law (The body of law defining offenses against the community at large)
 Administrative law (The law governing the organization and operation of administrative agencies)
8. Criminal law
The body of law defining offenses against the community at large, regulating how suspects are
investigated, charged, and tried, and establishing punishments for convicted offenders. In a criminal case
the state is the prosecutor because it is the community as a whole which suffers as a result of the law being
broken. Persons guilty of crime may be punished by fines payable to the state, imprisonment, or a
community based punishment.
Suspect (=
accused)
Investigate (=
inspect)
Charged (= to be accused of an
offense) Tried (= to be
examined judicially)
Prosecutor (= a legal officer who represents a state in
judicial proceedings) Guilty (= blameworthy)

Generally, the Police take the initial decision to prosecute but this is then reviewed by the Prosecution
Service. In a criminal trial the burden of proof to convict the accused is on the prosecution, which must
prove its case
beyond reasonable doubt.
Reasonable doubt (The doubt that prevents one from being firmly convinced of a defendant’s
guilt-----‘beyond a reasonable doubt’ is
the standard used by a jury to determine whether a criminal
defendant is guilty) Crime: an act that the law makes
punishable.

9. Civil law
Civil law deals with disputes over the rights and obligations of persons dealing with each other’s. It is a
form of private law. In civil proceedings, the case is proved on the balance of probability. The claimant
must convince the court that it is more probable than not that their assertions are true.
Balance of probabilities (The greater weight of the evidence, not necessarily established by the
greater number of witnesses testifying to a fact but by evidence that has the most convincing
force.
Testify (To give evidence as a witness)
Fact (Anything that may be perceived by the five senses)

Court System of Pakistan

Court system of Pakistan consists of courts diverse in echelons of legal superiority and jurisdiction.
Following are the courts of Pakistan:
 Supreme Court of Pakistan
 Federal Shariat Court of Pakistan
 High Courts of Pakistan (one in each province and also in federal capital)
o Lahore High Court, Lahore, Punjab
o Sindh High Court, Karachi, Sindh
o Peshawar High Court, Peshawar, Khyber Pakhtunkhwa
o Balochistan High Court, Quetta, Baluchistan
 o Islamabad High Court, Islamabad, ICT
 District Courts of Pakistan (one in each district)
 Judicial Magistrate Courts (in every town and city)
 Executive Magistrate Courts (Summary trial court)
 Courts of Civil Judge (judges with power of 1st class and 2nd class cases)
 Family Courts
 Juvenile Courts

Special Tribunals and

Boards
Following are the special tribunals in
Pakistan:
 Banking Courts
 Services Tribunals
 Income Tax Tribunals
 Anti-Corruption Courts
 Anti-Narcotics Courts
 Anti-terrorist Courts
 Labor Relations Court
 Board of Revenue
 Special Magistrate courts
 Consumer Courts - drug courts

Sources of Law in Pakistan

The terms: ‘sources’ and ‘law’ respectively means ‘a point that something comes from’ and ‘rule’. Thus the
phrase: ‘sources of law’ means point wherefrom rules come. Legislation & Precedent are two main sources
of law.

Legislation:
The term ‘legislation’ has its etymology in the Latin words: ‘Legis’ & ‘Latum’ respectively means ‘law’ &
‘to make’. Thus the term ‘legislation’ means ‘to make law’.
Etymology
(Origin)

In Pakistan the legislative sovereignty belongs to Parliament. It means only National Assembly, Senate
and the
President can pass amend or repeal laws to any
extent. For each province we have provincial
legislative assemblies.

Procedure of legislation in
Pakistan
The constitution of Islamic republic of Pakistan provides legislative procedure in part III chapter 2. The
parliament makes laws, grants finance to the Government and administers the policies of the ministries.
The most important function of the parliament is to make laws for the state. Articles 70-89 of the Islamic
republic constitution of Pakistan empower the parliament to make laws.
What is
Bill?
A bill is proposal for new law for amending or repealing an old
one.
Kinds of bill
Following are kinds of
bill:
 Public bill
It relates to public at large.
 Private bill
It relates to the interest of private individuals.
 Money bill
It relates to the finance matters.

Legislative procedure
The legislative procedure in different kinds of bill is
different.

Legislative procedure of ordinary and non-money bill is as

under:
1) Introduction of
Bill:
Bill may be introduced in any of the two houses. If a bill is introduced by govt. minister, it is called
govt. bill and if otherwise termed as private bill.

2) First
Reading:
In the first reading the causes of presentation are explained by the member who introduces the
bill.

3) Reference to committee:
Bill is examined in detail in committee stage. The committee hears the evidence of expert and any
objection of any person interested in such bill.

4) Second reading:
Bill is discussed clause by clause and amendments may be made during the second
reading.

5) Third
reading:
After second reading, it is read third time and sent to the other
house. In the other house the same procedure is adopted to pass the
bill.

6) President's assent to bills:

If the bill is passed in the joint sitting, with or without amendment, by the vote’s majority of the
total membership of the house then it shall be presented to the president for assent.

Relevant case law:

P.L.D. 2001. Kar.
415
It was held bill would become law when assent it by the president or the governor as the case may
be.
Legislative procedure in money
bill:
Article 73 of the constitution of Islamic republic of Pakistan states that a money bill shall be originated in
the National Assembly and after its being passed by the national assembly, without being transmitted to the
senate, be presented to the president who will assent to the bill with in thirty day, otherwise the bill shall be
deemed to have been assented to and it shall become law.
 a) Features of money bill:
a. The imposition, abolition, remission, alteration of any tax.

b. The borrowing of money or a giving of any guarantee, by the Federal Government or of

the amendment of the law relating to the finance obligation of the Govt.

c. The custody of the federal consolidates fund, the payment of moneys into, or the issues
of moneys from the fund.

d. The imposition of charge upon the federal consolidated fund, or the abolition or alteration
of any charge.

e. The receipt of money on account of the public accounts of the federation the custody of
issue of such money.

f. The audit of the accounts of the federal Govt.

g. Any matter incidental to any of the matters specified above.

b) Dispute regarding determination of money bill: If any question arises whether a bill is a money
bill or not, the decision of the speaker of the national assembly shall be final.

c) Discussion in senate on money Bill: Now by the amendment in the constitution (Legal Frame
Work order 2002) a money bill can be discussed in the senate.
Distinction between money bill and ordinary
bill:
Points of distinction between money bill and ordinary bill are following:
 As to Nature:
Money bill relates to finance matters. Ordinary bill relates to the interest of private or public
persons.

 As to origin:
Money bill can be originated only in national assembly. Ordinary bill can be originated in either
house.

 As to transmission:
Money bill is not transmitted to other house. Ordinary bill is transmitted to other house when
passed by one house.

Delegated legislation in Pakistan

In Pakistan, delegated legislation is legislation that is passed otherwise than an Act of Parliament. An
enabling Act or the parent Act confers a power to make delegated legislation on a Government Minister or
another person or body. Several thousand pieces of delegated legislation are made each year, compared
with only a few dozen Acts of Parliament.
Otherwise (= or else)
Enabling Act or parent Act (= a law that creates new powers especially a statute conferring
powers on an executive agency to carry out various delegated tasks.)
For example section 506 is one of the sections of the Companies Ordinance 1984 that confers
delegated powers on the federal government to make relevant rules.
Delegated legislation can be used for a wide variety of purposes, ranging from relatively narrow, technical
matters such as fixing the date on which an Act of Parliament will come into force, or setting the level of
fees payable for a public service, e.g. the issue of a passport, to filling in the detail of how an Act setting
out broad principles will be implemented in practice.
Relatively
(=comparatively)
e.g. (=example
given)

Types of delegated legislation

Delegated legislation may take the following
forms:
1) Orders made by the president on the advice of the federal cabinet. Orders are generally used where
it would be inappropriate for the order to be made by a Minister, for example, where the matter is
of constitutional significance such as transferring powers and functions from one Minister to
another, or bringing into force emergency powers to be exercised by Ministers.
Order (= a command; direction;
instruction) Inappropriate (=
wrong)
Constitutional (= relating to
constitution) Significance (=
worth; importance; impact)

Orders are usually made by Ministers. An Order is an exercise of executive powers, for example, to
create or dissolve a public body. Commencement Orders are used to set the date on which an Act,
or part of an Act, comes into force.
Dissolve (= break up)

2) Regulations are also usually made by Ministers. Regulations are the means by which substantive
and detailed law is made, for example setting out in detail how an Act is to be implemented.
Regulations made under the Income Tax Ordinance 2001 are the means by which the Government
most often implements tax rules and regulations within Pakistan.
Regulations (= the act of controlling
by rules) Means (= ways)
Substantive Law (= the part of the law that creates, defines and regulates the rights
duties and powers of parties)

3) Rules set out procedures, for example rules governing court procedures, or the way in which
the Patent Office deals with applications. Rules may be made by Ministers or, if specified in
the parent Act, a senior judge.
Procedure (= measures; dealings)
Patent office (=office that deals with the registration of copy rights; design and model etc.)
(4) Directions are a means by which Ministers give legally binding instructions to a public body about
the way it exercises its functions.
 (5) Byelaws are laws of limited application, usually restricted to certain places, made by local
authorities or certain other bodies (for example, train operating companies or Lahore development
authority byelaws of construction) to control the activities of the people in construction.

What are the Advantages and disadvantages of delegated

legislation? Advantages of delegated legislation:

1) It allows laws to be enacted without using up scarce Parliamentary time on technical matters, for
example the fine detail of a public sector pension scheme or the precise design of traffic signs,
thereby freeing Parliament to discuss matters of broad principle and policy.
Scarce (= limited; insufficient;
inadequate) Technical (=
methodological)
Thereby (= thus; in that
way) Policy (= strategy)

2) It allows laws relating to technical matters to be prepared by those with the relevant expert
knowledge.

3) Delegated legislation is flexible enough to deal speedily with changing circumstances, for
example increasing costs of services, developments in scientific knowledge or minor changes in
policy. This also makes it invaluable in emergencies when very swift action is required –
delegated legislation made under emergency powers can be drafted, enacted and brought into
force in a matter of hours rather than the days, weeks or months that would be required to pass an
Act of Parliament.
Emergency (=crisis
situation) Enacted
(=passed by parliament)

Dis-advantages of delegated legislation:

1) Delegated legislation can also be criticized on the grounds that it is subject to less
parliamentary scrutiny than primary legislation and thereby may potentially be used by the
Government in ways which Parliament had not intended or appreciated when it conferred the
power.
Scrutiny (= inspection;
examination) Intended
(=purported; aimed)
Confer (=give; grant; bestow)

2) Another disadvantage is in the sheer volume of laws that are passed as delegated legislation.
Because of this bulk, there is normally little publicity or knowledge about the changes that are
being made. However there are both parliamentary and judicial controls on delegated
legislation which are discussed below.
Sheer (=pure; utter)
Volume (= quantity;
amount) Controls over
delegated legislation
Control over Delegated
Legislation:
There are both parliamentary and judicial controls over delegated legislation. Judicial control is
exercised through the means of judicial review. Because delegated legislation is made by a person
exercising a power conferred by an Act of Parliament for a specified purpose, rather than by Parliament
exercising its sovereign law-making powers, it can be struck down by the courts if they conclude that it is
ultra vires This would be the case if the Government attempts to use delegated legislation for a purpose not
envisioned by the parent Act, or if the legislation is an unreasonable use of the power conferred by the Act,
or if pre-conditions imposed by the Act (for example, consultation with certain organizations) have not
been satisfied.
Judicial review (= a court’s power to review the actions of the other
branches of government) Ultra vires (= beyond the power)
Envisioned (= predicted; foresaw)
Unreasonable (= illogical; irrational)
Precedent

What is
Precedent?
According to Black’s law dictionary, “Precedent is making of law by a court in recognizing and applying
new rules while administering justice”.
Recognizing
(Identifying) Applying
(Implementing) While
(At the same time as)
Administering (Dispensing or giving out or
managing) Justice (Fairness or
righteousness or evenhandedness)

Thus, it may be said that ‘precedent is law making by a court in identifying and implementing new rules
while dispensing justice’.

Doctrine of judicial precedent

Precedents not only have persuasive authority but also must be followed when similar circumstances
arise.
Persuasive (Convincing; influential)

Where precedents are reported? Precedents are contained in Law Reports. Law reports (Law
news)

What is the Purpose of

precedent?
A precedent is a ‘considered decision’ of a court which provides a rule for the determination of an identical
or similar question of law. The only theory on which it is possible for one decision to be an authority for
another is that the facts are alike, or , if the facts are different, that the principle which governed the first
case is applicable to the variant facts.
Considered decision (Well thought-out judgment)
Binding Authority of Judicial Precedent or ‘Stare
Decisis’:
The binding authority of the precedent is based on the principle of ‘stare decisis’ which means ‘stand by
things decided’. Precedents enjoy value in a judicial system, due to the following factors:
Binding (Compulsory or unavoidable)
 Justice is administered by an establishment of judges.
 Judges are specialists of law.
 They represent the collective conscience of society.
 A case once decided stands correct unless reversed by the higher court.
Specialist (Expert)
Represent (Symbol of)
Collective (Joint or
combined)
Conscience (Sense of right
and wrong) Society (The
general public)
Unless (If not)
Reversed
(Overturned)

A rule formulated through precedent is a model implemented on the subsequent cases. It brings
fair- mindedness and impartiality in judicial decisions.
Impartiality (Neutrality)
Subsequent (Following or successive)

Advantages of case law as a source of

law:
The law is decided fairly and predictably, so that business men and individuals can regulate their conduct
by reference to the law. The risk of mistakes in individual cases is reduced by the use of precedents. Case
law can adapt to changing circumstances in society, since it arises directly out of the actions of society.
Case law, having been developed in practical situations, is suitable for use in other practical situations.
Regulate (Adjust)
Actions (=Law suits; cases)

Kinds of
Precedent:
Following are the kinds of
precedent:
1) Declaratory Precedent
2) Original precedent
3) Authoritative precedent
4) Persuasive precedent
5) Precedent of absolute authority
6) Precedent of conditional authority
1) Declaratory precedent: Declaratory precedent is merely an application of an already existing rule.

2) Original Precedent: Original precedent is the kind of precedent that creates and applies a new
legal rule.
3) Authoritative precedent: Authoritative precedent is an applicable holding of a higher court
binding upon the lower courts.

4) Persuasive Precedent: A precedent that is not binding on a court, but that is entitled to respect and
careful consideration. For example, if the case was decided in neighboring jurisdiction, the court
might evaluate the earlier court’s reasoning without being bound to decide the same way.

5) Precedent of absolute authority: Precedent of absolute authority is those which are

absolutely binding, however, unreasonable it may be. Precedents laid down by superior courts are
precedents of absolute authority for the subordinate courts.

6) Precedent of conditional authority: A precedent which is binding but not absolutely. Thus
a decision of a single bench of the High Court is only a conditional authoritative precedent for a
judge of the same of another High Court.

Ratio decidendi’
The ratio for decision of a particular case or the principle of law on which the decision of a particular
case is based is known as its ratio ‘decidendi’. Salmond defines ratio ‘decidendi’ as under:
“The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi
which alone has the force of law as regards the world at large.
Quotient (= value; measure;
appraise) Concrete (= solid)
Abstract (=conceptual)

Obiter
dicta:
All that is said by the court by the way i.e statements of law which go beyond the requirements of the
particular case in hand and lay down a rule which is either irrelevant or unnecessary for the decision of
that case are called obiter dicta. To put it in brief, when points not directly connected with a case are
discussed in a judgment, these remarks constitute obiter dicta. These, when made by superior courts are
however binding on the subordinate courts.

What are Law

reports?
Law reports mean ‘law newspaper’. In England there are several major series of law reports
bound as annual volumes. In addition case law is also available on electronic data base.
Title of civil case law is reported as: (Carlill v Carbolic Smoke Ball Co.); ‘Carlill’ is Claimant
whereas
‘Carbolic smoke Ball Co’. is
defendant.

The law case is reported in law report as under:

“Best v Samuel Fox & Co. Ltd 1952 2 All ER 394”
Best (Claimant)
Samuel Fox & Co. (Defendant)
1952 (Year of report)
2 (Volume 2)
 All (All)
ER (England Law Reports)
Thus it means the report is published at page 394 of Volume 2 of All England Reports for 1952.

Contents of a law report:

Following are the contents of law reports:
1) Names of the parties
2) Court
3) Name (s) of the Judge (s)
4) Date of hearing
5) Law Points
6) Cases cited
7) Litigation history
8) Facts
9) Counsels names
10) Verbatim (word for word) text of the judgment
11) Court order etc.

Difference between legislation and precedent or relative advantage of precedent:

Points of difference Legislation Precedent

Origin Legislation find its source in the Precedent is derived from the
law ‘ratio
making will of the state decidendi’.
Meaning Legislation means enactment of A precedent is the making of law by
a the
rule of law intended to apply to recognition and application of new
cases which have not necessarily rules by the courts themselves in the
yet
Thearisen. administration of justice.law on the
Object object of statute law is to The object of judiciary
lay other
down a certain guide for the hand is the decision of a particular case.
future conduct.
Form of expression Statute law is always expressed Judiciary laws always suffer from
in the
general and abstract terms. It is complexity and limitation of its
free from limitations of particular particular facts and cannot be expressed
facts. in general and clear terms.
Rules of interpretation It is easy to interpret where the The enunciation of a rule of
language of the statute is clear. It law
is to be given its ordinary meaning. embodies in judicial decision is not so
easy. It is ascertained by a process of
induction which is as follows.
 Lecture 3
Interpretation of Statutory
Law

Etymology of the Term ‘Interpretation’ is:

The term ‘interpretation’ is derived from Latin word ‘Interpres-pretis’, which means ‘to explain the
meaning of
words’
Etymology (=origin)
Derive (=originate or
grow) Term (=word or
expression)

Meaning of the Phrase ‘Interpretation of Law’:

The terms ‘interpretation’ and ‘law’ respectively means ‘understanding’ and ‘rule’. Thus the
phrase
‘interpretation of law’ means ‘understanding of rule’.
Phrase (=expression)

Meaning of the Term ‘Interpretation’ According to Black’s Law Dictionary Edition

8th: The process of determining what something especially the law or legal document
means.
Process
(=method)
Determine
(=decide)
Especially (=particularly or mainly)

John Salmond & Concept of ‘Interpretation of Law’:

According to John Salmond, the concept ‘interpretation of law’ means ‘the process by which court seeks
to
decide the meanings of law. According to him there are two kinds of interpretation:
(1) Grammatical Interpretation
& (2) Logical Interpretation
Concept
(=idea)
Seek (=search for)
(1) Grammatical Interpretation:
The term ‘grammatical’ refers to the ‘rules of language that govern the structure of a sentence’. In
grammatical interpretation of law, language rules are applied to understand the meaning of law.
Grammar (=language
rules) Govern
(=manage)
Structure (= arrangement)
What are the factors? Which affects the Grammatical Interpretation of Law?
Following factors affect the process of true grammatical
interpretation: (a) Ambiguous language.
(b) Inconsistency &
(c) Incompleteness

a) Ambiguous Language: The term ‘ambiguous’ means ‘doubtful’ or ‘unclear’. Sometimes, a

sentence or part of a sentence produces two or more different meanings causing vagueness or
elusiveness in understanding the law; under such situation, it is the duty of the court to logically
determine the real meaning of the sentence by establishing the more natural, consonant and obvious
meaning of the sentence.
Natural (=normal)
Consonant
(=suitable)
Obvious (=clear)

b) Inconsistency in the Construction of Law: The term ‘inconsistency’ means ‘contradiction’

or
‘discrepancy’. Where different parts of law are in contradiction with one another in such a manner
that they destroy and nullify the spirit of law, it becomes the duty of court to logically discover the
true intention of the legislature and make the parts of law consistent with one another.
Construction (=structure)
Contradiction (=disagreement or
discrepancy)) Destroy (=pull down)
Nullify (=cancel out)
Spirit (=will or force)
Legislature (=parliament or law
making body) Consistent
(=dependable)

c) Incompleteness of Law: The term ‘incompleteness’ means ‘lacking something’ or ‘having some
flaw’.
Sometimes there exists a kind of flaw in the law that whole meaning of law cannot be
understood.
Under such circumstance, the defect is cured by doing logical
interpretation.
Circumstance (=condition or fact or situation)

Rules of Grammatical Interpretation:

Following are the rules of grammatical interpretation:
a) The words are understood according to their definitions prescribed in the relevant enactment.
 Definition (=description of a thing by its properties)

b) If required, legal meanings of the words may be consulted from authentic legal dictionaries like
Black’s
Law dictionary, Osborn Law dictionary
etc.
 Authentic (=valid; genuine)
etc. (=and others)

c) If required, meaning of word may be judged by the company it keeps;

Company (=context)

d) Words are understood in the sense that they possess since the time of enactment of law.
Since (=from the time when)

e) The rule: ‘mentioning of one person is the exclusion of other’ is applied in a situation where
the subject matter of law consists of two subjects and there exists a provision that makes reference
to only one of the two subjects; the provision is construed without making the reference to the
other subject. For example: where the statute has two subject matters: ‘building’ and ‘land’. The
enactment contains along with other provisions the law regarding land. Here the provision is
construed without including the term ‘building’ even though in normal circumstances the term land
includes the term ‘building’.
Subject matter (=area under
discussion) Construe
(=interpret)

f) ‘Expressum facit cessare tacitum’ is a rule of interpretation of law which states: ‘express words
die down chance of implied interpretation of law’.
Die down (=close or
finish) Implied
(=indirect or oblique)

g) ‘Ejusdem generis’ is a Latin rule of interpretation which means ‘of the same kind or class’.
The rule states: ‘when a general word or phrase follows a list of specifics, the general word or
phrase will be interpreted to include only items of the same type as those listed’.

Example: In the phrase horses, cattle, sheep, pigs, goats, or any other farm animal, the general
language used is ‘any other farm animal’, despite its seeming breadth, would probably be held to
include only four-legged, hoofed mammals typically found on farms, and thus would exclude
chickens.
Follow (=go
after) Specifics
(=data)
General (=common or all
purpose) Phrase
(=expression)
Listed (=scheduled or
programmed) Despite
(=regardless)
Seeming (=apparent)
Breadth (=size or
wideness) Probably (=
almost certainly) Thus
(=therefore)
(2) Logical
Interpretation:
The term ‘logical’ means ‘rational’ or ‘based on reason’. Where grammatical interpretation is impossible,
logical interpretation takes its course and the true intention of the legislature is discovered by referring the
surrounding facts. Professor Allen grey says, ‘logical interpretation calls for the comparison of the statutes
with each other and with the whole system of law and with the consideration and circumstances in
which the statute was passed.

Rules of Logical
Interpretation:
Following are the rules of logical
interpretation:

a) The first rule is named as ‘golden rule’. Where court finds clerical mistake in the statute, to
rectify the errors it introduces saving clause therein for the following purposes:
a. To effectuate the intention of the legislature
b. To avoid absurd, unjust or immoral
interpretations c. To uphold the principles of law
Rectify (=correct)
Therein (=in the statute
or law) Intention
(=objective; plan)

b) The second rule is ‘mischief rule’. It states where a statute has been clearly enacted to suppress
mischief of one sort, the interpretation must not be sought to suppress mischief of different sort fall
outside the intention of the legislature.
Statute (=law)
Enacted (=passed)
Suppress (=
restrain) Mischief
(=Misbehavior) Sort
(=kind or variety)
Sought (=required or
wanted) Intention
(=target)

Relevant Case
Law:
In Cokery v Capenter 1950. It was held that a bicycle was a ‘carriage’ for the purpose of the licensing
Act
1872 where a defendant was charged with cycling whilst intoxicated. The purpose of the Act was to
prevent people who are in a state of intoxication from operating any form of transport on public roads.

c) The third rule is termed as ‘last antecedent rule’. This rules states that relative words or
phrases are to be applied to the words or phrases immediately preceding, and as not extending to or
including other words, phrases or clauses more remote unless such extension or inclusion is
clearly required by the intent and meaning of the context, or disclosed by an examination of the
entire Act.
Antecedent (=forerunner or
ancestor) Preceding (=
previous or earlier)
 Clause (=part)
Remote (=distant or
far off) Unless (=if
not)
Extension (=addition or expansion)
Inclusion
(=addition) Intent
(=aim or purpose)
Context (=surrounding circumstances)

d) The fourth rule is named as ‘four corner rule’. The rule states that intention of the legislature
must be gathered from the statute as a whole and not from the isolated part thereof.
Gathered
(=collected) Whole
(=total or entire)
Isolated (=lonely or
inaccessible) Thereof (=
related to statute)

Conclusion:
Interpretation of enactments is necessary as they are not flawless.

What are the Presumptions applied in interpretation of statute?

Presumption is a legal inference that something exists. It is understood, except the statute contains
express words to the contrary, that the following presumptions of statutory interpretation apply:
Except (=with the exception of;
excluding) Express words
(=articulated communication)
Contrary (=opposing)
Presumption (=supposition; deductions)

1) A statute cannot be enforced with retrospective

effect.
Retrospective effect (=extending in scope or effect to matters that have occurred in the
past.)

2) A statute does not bind the crown.

Bind (=to impose duty on a person)
3) A statute cannot impose criminal liability without proof of guilty intention. However certain
statutes rebut this presumption and impose strict liability without proof of guilty intention. For
example strict liability for dangerous driving under the Road Traffic Act.
Guilty intention (=intention for
committing crime) Rebut (=disprove;
refute)
 Strict liability (= liability that does not depend on actual negligence or intent to harm, but
that is based on the breach of an absolute duty to make something safe.
4) A statute does not have the effect of repealing the other statutes.
Repeal (=cancel; annul)

5) The scope of a statute in limited to the territorial boundaries of UK, however, statute involving
international contents must be construed in harmony with the International law.
Scope (=range;
capacity; scale)
Construe (=interpret)
Harmony (= agreement; synchronization)
International Law (= the legal system governing the relationship between nations.)

6) A statute does not intend to deprive a person of his liberty; however, if it wants to than clear words
must be used to make clear the situation and intention of the legislature. Example of such
legislation is legislation for mental health and immigration.
Liberty (=freedom from arbitrary or undue external)
7) On the plea of nationalization if a statute deprives a person from his property, the government is
supposed to compensate him.
Nationalization (= to put property of an individual or group of individuals under the
control of the government which becomes its owner.

8) A statute does not alter the existing common law.

Alter (=change)

Intrinsic & extrinsic aid in interpretation of statutes

Intrinsic aid:
The word intrinsic means built-in; inherent; basic. Thus the intrinsic aid is a built-in aid within the statute.
The intrinsic aid consists of the following:

(1) The title of the Act helps in determining the general objective of the enactment.
(2) The preamble of the Act usually contains information regarding the objective of the
enactment. (3) Interpretation sections of an act are also helpful in interpreting the statutes.
(4) Summary notes given in the margin are also helpful in interpreting the statute.

Extrinsic aid:
The term extrinsic aid means coming from outside; not built-in. Thus the extrinsic aid is an aid which is
not available within the statute. It consists of the following:
(1)Reports of the Law
Commission

(2) Reports of the Royal

Commissions

(3) Reports of the Law Reform

Committee

(4) Hansard; the UK Journal of UK Parliamentary debates. This follows a decision of the then House
of Lords in Papper v. Hart 1992 where it was decided that it is acceptable to look at the original speech
which first introduced a bill to ascertain its meaning, but only if the statute is ambiguous or obscure or
its literal meaning would lead to absurdity.
Journal (=periodical; magazine)
Absurdity (=illogicality; irrationality; silliness)