Law, Literature and Judicial

Process
 Reference Books
T. K. Sinha, Textbook on Legal Methods, Legal
Systems and Research, 1st Edition, 2010, Universal
Law Publishing Co. Ltd.
V D Mahajan, Jurisprudence and Legal Theory, Eastern
Book Co., 5th edn., Reprint 2010
William Glanville, Learning the Law, 15th edn. Sweet
and Maxwell, 2011.
S.R. Myneni, Legal Systems in the World, Asia Law
House, 1st edn., 2007
Sharon Hanson, Legal Method and Reasoning,
Cavendish Publishing Ltd., 2nd edn, 2003
Rattan Singh, Legal Research & Methodology, Lexis
Nexis, 1st edn., 2013
S K Vermam&AfzalWani, Legal Research and
Methodology, Indian Law Institute, 2nd edn., 1st
Reprint 2006
 SYLLABUS
UNIT-I: LAW: MEANING, CLASSIFICATION AND
SOURCES

UNIT 2: INTRODUCTION TO READING AND

UNDERSTANDING OF LEGAL TEXT

UNIT 3:UNDERSTANDING STEPS TO JUDICIAL

PROCESS

UNIT 4: BASIC CONCEPTS OF INDIAN LEGAL

SYSTEM

UNIT 5: LAW, MOTION PICTURES AND LITERATURE

 UNIT -1

Meaning of law

Functions & Classification of Law

Sources of Law
 LAW
Law can be defined as a rule of human conduct,
imposed upon and enforced amongst the members of a
State.

Law:-
● Rule of human conduct
● Imposed and enforced by the state
● Amongst the members of a state
Necessity of social order-orderly conduct of the society

Larger the society- number and complexity of rules

increases

Compulsion/enforcement
Two ideologies underlying the concept of law:

● Order- set of rules and regulations

● Compulsion- Obedience of these rules and regulations

❑ Law means a body of rules that regulates the

conduct, action and behavior of a person, which is
made and enforced by the state.

• Regulates the actions and behavior of people

• Made by the state
• Enforced by the state
Three Components of Law
1. A body of legal principles which exists in a
politically organized society

2. There is systematic application of force by the

politically organized society which adjusts relationship
and ensures orderly conduct.

3. Law is an official control in a politically organized

society.
According to Salmond,

◦ “ Law can be defined as the body of principles, recognized and

applied by the state in the administration of justice.”

● Body of principles/set of rules

● Recognized by applied by the state
● Aim- administration of justice
Law according to different School of
Jurisprudence

Natural Law:

◦ Rights are inherent by virtue of human nature

◦ Endowed by nature or God or a Superior force
◦ Human reasoning capacity
◦ The natural law school is considered the oldest school of
jurisprudence. It views law as derived from universal principles of
justice and morality that are inherent in human nature.
◦ Propounders: Plato, Aristotle, St.Thomas Acquinas, Kant etc…
 Positive School:

◦ Law is a command of the sovereign.

◦ Sanction/Enforcement is the essence of law
◦ Law should be separated from morals and religion
◦ Positive law, also known as legal positivism, focuses on
human-made laws enacted by a governing authority, regardless
of their moral content.
◦ Propounders: Austin, Bentham etc…
 Historical School of Jurisprudence

● Derived partly from social habits and partly from experiences

● Silent growth of customs/unformulated public opinion
● Law develops like language
● Not Universal
● Law is not made but found
● Customs, traditions, and social practices are seen as the primary
sources of law
● Propounded by: Savigny
● Savigny, posits that law is not a product of abstract reasoning or
divine commands, but rather a reflection of a nation's unique "spirit
of the people," or Volksgeist
 Sociological School of Jurisprudence
● Law is a body of principles recognized and enforced by public and
regular tribunals in the administration of justice.

● Body of Principles
● Enforced by Courts of Tribunals
● Administration of Justice

● Functional aspect of law

● Law should be understood and evaluated based on its impact on
society, serving as a mechanism for social control, order, and
progress
● Control social activity of humans
● Sanction behind the law is not the force but awareness of people
● Obey law-to realize their needs
● Propounded by: Roscoe Pound, Montesquieu etc..
Societal /Public Interest

State Interest

Individual
Interest
Realist School of Jurisprudence

● Separation of Powers (3 wings)

● Judge made laws

● What Courts decide

● Certainty of law is a myth and predictability depends on facts and

circumstances of each case.

● Propounders: Gray, Cardozo etc…

 Functions of Law
Law is an instrument of social change

Functions of Law

◦ Roscoe Pound attributed four major functions of law,

namely:
◦ (1) maintenance of law and order in society;
◦ (2) to maintain status quo in society;
◦ (3) to ensure maximum freedom of individuals; and
◦ (4) to satisfy the basic needs of the people.
 Classifications of law

◦ Public and Private Law

◦ Substantive and Procedural Law
◦ Civil and Criminal Law
◦ Municipal and International Law
◦ Codified & Uncodified
 Public and Private Law

If you saw a man run from a convenience store with a few

pilfered products under his arm, he is violating public law. He
committed the crime of theft, and that affects everyone.
On the other hand, if your neighbor filed suit against you
because your barbeque smoke traveled to his yard, you may be
violating private law. You infringed on your neighbor's right to
peaceful enjoyment of his property.
Essentially, the difference between public law and private law
is whether the act or acts affect society as a whole or is an
issue between two or more people.
 To simplify things, public law deals with issues that
affect the general public or state - society as a whole.
Some of the laws that its wide scope covers are:
• Administrative law - laws that govern government
agencies, like the Department of Education and the
Equal Employment Opportunity Commission
• Constitutional laws are laws that protect citizens'
rights as afforded in the Constitution
• Criminal laws are laws that relate to crime
• Municipal laws are ordinances, regulations and by-laws
that govern a city or town
• International laws are laws that oversee relations
between nations
Brown v. Board of Education, 347 U.S. 483 (1954) to better
understand public law as it relates to an administrative agency.
In Brown v. Board of Education, Linda Brown, the plaintiff (brought
about by her father, Oliver), contended that his daughter was not being
protected under the Constitution. Since Brown was suing the Board of
Education, this falls under constitutional law, but an administrative
agency was sued for the violation.
Linda had to walk several blocks to the school bus stop even though a
closer whites-only school existed within a few blocks from her home.
Brown's parents believed that Linda's 14th Amendment rights were
violated when she was banned from a white school closer to home
because of her race.
The case was won because the U.S. Supreme Court declared
segregation a violation of Brown's constitutional rights. This falls
under public law because issues of segregation and discrimination
affect society as a whole, not just this particular child.
 Private law affects the rights and obligations of individuals, families,
businesses and small groups and exists to assist citizens in disputes that
involve private matters. Its scope is more specific than public law and covers:
• Contract law - governs the rights and obligations of those entering into
contracts
• Tort law - rights, obligations and remedies provided to someone who has
been wronged by another individual
• Property law - governs forms of property ownership, transfer and tenant
issues
• Succession law - governs the transfer of an estate between parties
• Family law - governs family-related and domestic-related issues
In the case of Carvajal v. Hillstone Restaurant Group, Inc. (No. 10-57757),
Carvajal ordered and consumed a grilled artichoke at a local Houston
restaurant. It was his first time consuming this vegetable. Unaware of the
proper way to scrape the flesh against one's teeth, he chewed and
swallowed the entire artichoke including all the leaves.
He alleges ordering a special item offered by a server, “which Plaintiff
advised he had never seen or heard of previously.” According to the
complaint, plaintiff Arturo Carvajal was not instructed that the outside
portion of the leaf should not be eaten, although the restaurant “had a
duty to use reasonable care with respect to the serving and explanation
of items not described on the menu; which by their appearance as
served appeared wholly consumable.” He is seeking damages in excess
of $15,000.
 Substantive and Procedural 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.
Substantive law, with regard to a specific subject, defines the legal rights and
relationship of people between themselves or between them and the State.
Any wrongdoing of an individual, group of persons or the state against
another will hold him liable to the others accordingly. For the purpose of any
substantive law, the wrongs could be either civil or criminal. Substantive law
refers to all forms of law both, public and private including the law of
contracts, property, torts and crimes of all kinds.
The law of procedure is that branch of law that deals with the process
of litigation. It embodies the rules and procedures pertaining to the
institution and prosecution of any kind of civil or criminal proceeding.
Procedural law consists of a set of rules by which a court hears cases
and decides the proceedings. Historically, the law that many know is
substantive law, and procedural law has always been a matter of
concern only to those who preside over as judicial officers or those
advocating law. But, over a period of time, the courts developed a
system of evidence and procedure, that fall within the purview of
procedural law relating to the fairness and transparency of such
process.
Bharatiya Sakshya Act (The Indian Evidence Act), the Limitation Act,
the Code of Civil Procedure, the Bharatiya Nagarik Suraksha Sanhita
(BNSS) (CrPC), 2023 are instances of procedural law.
 Civil and Criminal Law

The civil law deals with the private rights and duties which
arise between individuals in a country. The object of a civil
action is to correct the wrongdoing that has been committed.
Enforcement of civil law is the accountability of the
individual who has committed the wrong and the state is
responsible to provide for the procedure to resolve the
dispute. In case of civil proceedings, the person who claims,
sues the defendant in the civil court and asks for a remedy.
The claimant will be successful in his claim if he is able to
prove his case. If the claimant is not successful, the
defendant will not be made liable for his actions.
Criminal law is the law that is connected with the act of forbidding
particular forms of wrongful conduct and imposing punishment on
those who engage in such acts. Criminal proceedings are usually
brought in the name of the State and are known as ‘prosecutions. It
should be noted that prosecutions may be assessed by a private
individual or other bodies, such as the trading standards department of
the local authority but cannot undertake the case of the prosecution.
In criminal cases there is a prosecutor who prosecutes the defendant for
the offence committed. The consequences of being proved guilty are so
extreme that the standard of proof is higher in criminal cases as
compared to civil scenarios. The allegations of a criminal conduct need
to be proved beyond reasonable doubt. If the prosecution successfully
proves the guilt of the defendant, he might be punished by the court
respectively.
Punishments that are available to be imposed on the convict are
imprisonment and fines. If the prosecution is unsuccessful in proving
the guilt of the accused defendant, he is acquitted.
Municipal and International Law

Municipal or Domestic law is that facet of law that

springs from and has an effect on the members of a
particular state. An example of a municipal law is the
Constitution of India that applies only in India.
On the other hand, International law is the law that
governs laws between different countries. It regulates
the relationship between various independent countries
and is usually governed by treaties, international
customs and so on.
Examples of International law include the Universal
Declaration of Human Rights, the African Charter on
Human and People’s Rights etc.
 Codified & Uncodified

Codified law is simply the body of statutes and

ordinances — written laws passed by the
legislative and administrative bodies
To codify means to arrange laws or rules into a
systematic code. The process of codification can
involve taking judicial decisions or legislative acts
and turning them into codified law. This process
does not necessarily create new law, it merely
arranges existing law, usually by subject, into a
code.
Uncodified laws are those that originated from
sources such as court decisions, customs and
principles of jurisprudence (such as legal
concepts enshrined in Roman law in the European
context).
torts is not completely codified, there is lack of
precedents for every situation.
THANK YOU
SOURCES OF LAW
One must know as to what are the sources of law and
on which of the sources one can rely upon for justice. It
is very important to understand that the law of every
land is derived from the sources so one has to know
what are the sources of law before getting into any
concept of law.
Legislation

The term ‘Legislation’ is derived from the Latin words ‘Legis’ meaning
regulation and ‘latum’ which means making. The legislation is
considered as a primary source of law in India, legislation has a wide
ambit and it is used to regulate, authorize, to enable, to provide
funds, to prescribe, to sanction, grant, declare or to restrict. The
legislature is framed by the parliament in the form of new acts, new
laws, repeal and amendment of old laws. The procedure for this is
prescribed in the constitution of India.
So legislation as one of the source of law is further divided into two
parts :
Supreme legislation: It is the parent law that originates from the
sovereign strength of the nation. It cannot be repealed, annulled or
managed by other legislative authorities.
Subordinate Legislation: The subordinate legislation is dependent on
the supreme legislation for their validity and existence
 Customs
Customs is an established mode of social behavior within a
community. It is one of the main and oldest sources of law in
India.
Ingredients of customs as one of the sources of law in India:
• Antiquity
• Continuous
• Obligatory in nature
• Consistency
• Reasonability
• Peaceful Enjoyment
• Certainty
 Judicial Precedents
Judicial Precedents lays on the doctrine ‘stare decisis’, it simply
means adhering and relying on earlier decisions made by the
courts; i.e., for instance if a high court decides on a particular
case and a similar situation comes to the lower court, the lower
court will treat the case alike and pass the judgement same as
done by the high court. This is because the high court has set a
precedent for the lower court and the lower courts are bound
to follow it
Key principles of judicial precedent
• Consistency
• Hierarchy
• Bound by their own decisions
Justice, Equity And Good Conscience

This principle is applied only in cases where the judges feel

that the law seems to be inadequate or out of date or unjust. In
such cases the judges make decisions based on equity, good
conscience, fairness and justice using their commonsense.
 Conventional Law - International Treaties/Agreements
/Conventions

With the emergence of globalization, there was an increased

need for countries to interact with one another, this means that
there’s a requirement for countries to be bound by a single set
of laws. Such laws are made by way of treaties, agreements,
etc., and these are harmonized by the United Nations.
Countries who are members of the United Nations have to
accept such rules or norms laid down by the organization, and
abide by such statutes or rules and also such members also
have to frame laws in conformity with such rules. And hence
International conventions have an important role in framing
new laws or making amendments to existing laws.
Main types of legal
systems
Civil Law vs. Common Law
Legal System Legal system originating Legal system
in Europe whose most characterized by case law,
prevalent feature is that which is law developed by
its core principles are judges through decisions
codified into a referable of courts and similar
system which serves as tribunals.
the primary source of
law.
Role of judges Chief investigator; makes Makes rulings; sets
rulings, usually precedent; referee
non-binding to 3rd between lawyers. Judges
parties. In a civil law decide matters of law
system, the judge’s role and, where a jury is
is to establish the facts absent, they also find
of the case and to apply facts. Most judges rarely
the provisions of the inquire extensively into
applicable code. Though matters before them,
the judge often brings instead relying on
the formal charge. arguments presented by
the part
 Countries Spain, China, Japan, United States,
Germany, most England, Australia,
African nations, all Canada, India
South American
nations (except
Guyana), most of
Europe

Constitution Always Not always

Precedent Used rarely, but Used to rule on

used future or present
cases
History The civil law tradition Common law systems
developed in have evolved primarily
continental Europe at in England and its
the same time and was former colonies,
applied in the colonies including all but one
of European imperial US jurisdiction and all
powers such as Spain but one Canadian
and Portugal. jurisdiction. For the
most part, the
English-speaking
world operates under
common law.
Components/Parts of a Statute and
their significance
Short title
The short title of the Act is only its name and
is given solely for the purpose of facility of
reference.

Long title
A statute is headed by a long title whose
purpose is to give a general description
about the object of the act. Normally, it
begins with the words An Act to…
 Preamble
The Preamble to the Act contains the aims
and objectives sought to be achieved, and is
therefore, part of the Act. It is a key to
unlock the mind of the law makers.

Marginal Notes
Marginal notes are those notes which are
inserted at the side of the sections in the Act
and express the effect of the sections. These
are also known as side notes.
 Headings
In all modern statutes, generally headings
are attached to almost each section, just
preceding the provisions. For example, the
heading of Section 437 of the Code of
Criminal Procedure, 1973 is “When bail may
be taken in case of non- bailable offence”.
 Exceptions and Saving Clauses
Exceptions are generally added to an enactment
with the purpose of exempting something which
would otherwise fall within the ambit of the main
provision.

Schedules
Schedules attached to an Act generally deals
with as to how claims or rights under the Act are
to be asserted or as to how powers conferred
under the Act are to be exercised. The Schedules
are appended towards the end of the enactment.
Punctuation
In ancient times, statutes were passed without
punctuation and naturally, therefore, the courts
were not concerned with looking at
punctuation.
But in modern times statutes contain
punctuation. Therefore, whenever a matter
comes before the courts for interpretation, the
courts first look at the provision as they are
punctuated and if they feel that there is no
ambiguity while interpreting the punctuated
provision, they shall so interpret it.
“Pardon impossible, to be sent to Siberia.”
“Pardon, impossible to be sent to Siberia.”
Definition or Interpretation Clauses
Definition or interpretation clauses are
generally included in a statute with the
purpose of extending the natural meaning
of some words as per the definition given or
to interpret such words, the meanings of
which are not clear, by assigning them the
meaning given in the definition clause.
Proviso
In some sections of a statute, after the
main provision is spelled out, a clause is
added, with the opening words “provided
that…”.
The part of the section commencing with
the words “Provided that…” is called Proviso.
A proviso is a clause which is added to the
statute to accept something from enacting
clause or to limit its applicability.
 Article 141
Law declared by Supreme Court to be binding on all

courts The law declared by the Supreme Court shall be

binding on all courts within the territory of India

 Meaning of Stare decisis

‘Stare decisis’ means ‘to stand by decided cases’. We

have hierarchy of courts. The Supreme Court is at the
top of pyramid. It decides cases with a seal of finality.
The decision is an authority for what it actually
decides. What is of essence in a decision is it ratio, and
not every observation found therein nor what logically
flows from the various observations made in the
judgment. The enunciation of the reason or principle on
which a question before a court has been decided is
alone binding as a precedent
 RATIO DECIDENDI
Ratio Decidendi is a Latin phrase meaning ‘the reason’ or ‘the
rationale for the decision’.
The Ratio Decidendi is ‘the point in a case that determines the
judgement’ or ‘the principle that the case establishes’. Ratio
Decidendi literally means ‘reason for deciding’.
In the judicial context, it is the reason which is cited for
arriving at a decision in a case. Such reason is not the law that
is getting attracted in the contemporary case but is the
necessary notion which helps the court arrive at a particular
decision.
 OBITER DICTA
Obiter dictum is the Latin phrase meaning “other things said”, that is, a remark
in a judgment that is “said in passing”. It is a concept derived from English
common law, whereby a judgment comprises only two elements: Ratio
Decidendi and Obiter Dicta.
For the purposes of judicial precedent, Ratio decidendi is binding, whereas
obiter dicta are persuasive only. However, obiter dicta of the Supreme Court
are binding on all courts and Tribunals within the territory of India
A judicial statement can be ratio decidendi only if it refers to the crucial facts
and law of the case. Statements that are not crucial, or which refer to
hypothetical facts or to unrelated law issues, are obiter dicta. Obiter dicta (often
simply dicta, or obiter) are remarks or observations made by a judge that,
although included in the body of the court’s opinion, do not form a necessary
part of the court’s decision. In a court opinion, obiter dicta include, but are not
limited to, words “introduced by way of illustration, or analogy or argument”.
Unlike ratio decidendi, obiter dicta are not the subject of the judicial decision,
even if they happen to be correct statements of law.