Legal Method LLB 101 Unit II PDF

LEGAL METHOD LLB 101 UNIT-II Ms. Navjot Suri Singhal Assistant Professor DME Law School [email protected]  Programme Outcomes INTEGRATED PROGRAMME OF BBA LLB (H) PO1: The integrated programme of BBA L...

LEGAL METHOD LLB 101 UNIT-II Ms. Navjot Suri Singhal Assistant Professor DME Law School [email protected]  Programme Outcomes INTEGRATED PROGRAMME OF BBA LLB (H) PO1: The integrated programme of BBA LLB (H) helps the students to choose their domain of expertise in either of the realms and to enhance potential career and business options in both the disciplines - Management and Law. PO2: Management and Law Programme is important in an extremely competitive area and challenging area of Corporate Law which requires strong communication skills and sharp interpersonal skills, and provide insights into organizational behavior, working in a team and building a team. 2  Course Objective and Course Outcomes Course Objectives This paper aims to enable students – To acquire essential lawyering skills such as, research, writing, analytical thinking, and oral advocacy; and To have practical exposure and to acquire skills that is necessary to be an effective, ethical, and professional member of the legal community. Course Outcomes CO1: Trained in identifying legal problems and issues in a client-centered legal environment, with an approach towards problem solving. CO2: To be able to exhibit a comprehensive understanding of a variety of methods and materials for conducting effective legal research. CO3: To prepare briefs and summaries. 3  Syllabus Unit-II: Sources of Law (Lectures-10) a. Custom i. What is custom? Kinds of customs ii. Essentials of a valid Custom to become a law b. Precedent i. Concept of Precedents ii. Types a)Authoritative and Persuasive b)Original and Declaratory iii. Difference between Custom, Precedent and Legislation c. Legislation i. Legislation and kinds of legislation ii. Delegated legislation and its Kinds iii. Reasons for growth of Delegated Legislation iv. Delegated Legislation and its permissible limits in India 4  Unit-II : Sources of Law 1.1 Custom 1.2 Precedent 1.3 Legislation 5  1.1 Custom 6  Suggested Readings Text Books: 1. Author: Nomita Aggarwal Book title: Jurisprudence-Legal Theory, Central Law Publications, Delhi, 2014, 10th Edition. 2. Author: V.D. Mahajan Book title: Jurisprudence and Legal Theory, Eastern Book Company, Lucknow, 2020, 5th Edition. 3. Author: B.N.M Tripathi Book Title: An Introduction to Jurisprudence (Legal Theory), Allahabad law Agency. Reference Link: 7  Introduction Custom has been recognized as an important source of Law. It has it’s roots in ancient civilization. The word custom generally means practice, belief A custom is a habitual course of conduct observed uniformly & voluntarily by any community or a group of people. Oldest form of Law making. Jus non scriptum (Unwritten Laws) Law based on custom is known as customary law Origin of Custom Customs are believed to be originated from the common consciousness of people, owing to the necessity and convenience. Some say that the man’s nature of imitation is the main cause of origin of customs. Any particular conduct, imitated by a group of people for a long time becomes a custom. There is a series of reputed jurists who assert that judicial decisions are the basis of custom. 8  What is Custom According to Lord Halsbury (1823-1921), “A custom is a particular rule which has existed either actually or presumptively from time immemorial and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm.” According to Sir John Salmond (1862-1924), “custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility”. 9  Classification of Custom 1. Customs without sanction 2. Customs with/having sanction 10  Essentials of a valid Custom to become a law 1. Antiquity (Ancient times) 2. Continuance 3. Peaceful enjoyment 4. Obligatory force 5. Certainty 6. Consistency 7. Reasonableness 8. Conformity with statute law  Conclusion Custom was the most important source of law in ancient India. Even the British initially adopted the policy of non-intervention in personal matters of Hindus and Muslims. After independence and the enactment of the Constitution, the Indian Parliament took many steps and abrogated many old customary practices by some progressive legislation. 12  1.2 Precedent 13  Suggested Readings Text Books: 1. Author: Nomita Aggarwal Book title: Jurisprudence-Legal Theory, Central Law Publications, Delhi, 2014, 10th Edition. 2. Author: V.D. Mahajan Book title: Jurisprudence and Legal Theory, Eastern Book Company, Lucknow, 2020, 5th Edition. 3. Author: B.N.M Tripathi Book Title: An Introduction to Jurisprudence (Legal Theory), Allahabad law Agency. Reference Link: 14  Introduction A precedent is a previously decided case which establishes a ‘rule’ or ‘principle’ that may be applied by a Court or a judicial body in deciding cases that are similar in facts or issues or both. The concept of precedent is based on the doctrine of stare decisis, which means ‘let the decision stand’. Meaning of State Decisis – ‘to stand by things decided’ It is a legal principle that directs courts to adhere to previous judgments (or judgments of higher tribunals) while resolving a case with allegedly comparable facts. It is a doctrine of binding/authoritative precedent,. The doctrine of stare decisis signifies that the judicial decisions must be followed in appropriate subsequent cases. 15  The concept of Precedent has its roots in Common law. The common law system of law relies on case law to interpret legislation as well as to declare the law in case the statute law is silent on the point. Since Indian Legal System is based on Common Law, we have retained this concept. How precedents are followed? SC HCs Subordinate Courts  Theories of Precedent 1. Declaratory Theory This theory was propounded by Sir Mathew Hale in 1713, but formally enunciated by Sir William Blackstone. The judges can only declare the law, and never make or give new law. Criticism With the evolution of Legal system, this has been observed that Judges do not merely declare the law, but decide the cases in accordance with the public policy to make it effective.  2. Judges as lawmakers Theory As per this theory Judges make law. Law made by a judge is as real and effective as any statute. Prof. A. V. Dicey & Prof. Gray support this theory. Criticism Judges cannot overrule the authority of a Statute. Kinds of Precedent 1. Original Precedent 2. Authoritative or Mandatory Precedent 3. Persuasive Precedent 4. Conditionally authoritative Precedent  Parts of a Judgement 1. Ratio Decidendi (Reason) 2. Obiter Dicta (observations/extra sayings of judges)  Conclusion Precedent provides legal authority for an action precisely because it occurred before. These words are quoted by Ari melber. The precedents are the judge made law or that is also known as the judiciary's law. Through this writing clearly understand the importance of precedent as well the judiciary's role of making a law. The ratio decidendi is the binding part of a precedent. Its state the reason behind the judgment. Obiter dicta are the mere say things that are the discussions were made it and have no any binding value. Through this writing clearly understand that the importance of precedent in the current scenario in a legal perspective. 20  1.3 Legislation 21  Suggested Readings Text Books: 1. Author: Nomita Aggarwal Book title: Jurisprudence-Legal Theory, Central Law Publications, Delhi, 2014, 10th Edition. 2. Author: V.D. Mahajan Book title: Jurisprudence and Legal Theory, Eastern Book Company, Lucknow, 2020, 5th Edition. 3. Author: B.N.M Tripathi Book Title: An Introduction to Jurisprudence (Legal Theory), Allahabad law Agency. Reference Link: 22  Introduction The common meaning of legislation is the ‘making of law’. Promulgation of legal rules by an authority which has the power to do so. The Statute or Act enacted by the Parliament or a legal authority, who has the power to do so. It represents will of the State. Mark of legal development and a mature legal system. Supreme authority Welfare of People Legislation as a source of law is broadly classified in two types (Salmond): Supreme legislation Subordinate legislation Delegated legislation Supreme Legislation - Power of legislation vests in the sovereign authority of a political community. Legislation may be direct or indirect. It is direct when the sovereign authority itself makes the law, as the law made by the Indian Parliament (supreme legislation). Subordinate Legislation - It is indirect when the sovereign authority itself delegates powers to any other authority to make law, as the power delegated to a corporation to make law (subordinate legislation).  Subordinate legislation and its kinds Legislation by any other authority than the supreme authority in the state is known as subordinate legislation. Such legislation owes its existence, validity and continuance to the supreme authority. Subordinate legislation may be divided under the following classes - Autonomous Law Judicial Rules Municipal Law Colonial Law Executive/Delegated Legislation  DELEGATED LEGISLATION Law making is the duty of the legislature. When the power of law making is delegated/ transferred/outsourced, it is called delegated/subordinate legislation. The Broad sketch is created by the Legislation and minor details are filled in by the experts. Since the Parliament cannot deal with every aspect of the governance system by themselves, they delegate these functions to the authorities established by law. This delegation is noted in statutes, commonly called delegated legislations. E.g. - Regulations and bye-laws (law made by a local authority which applies only in its area) under legislations. Need for Delegated Legislation The rising complexities of administrative functions and social services, coupled with the requirement of specialist knowledge/expert in certain areas, have warranted the delegation of legislative powers. In modern governance, delegated legislation helps to ensure that the laws keep pace with societal changes and technological advancements. Reasons for Growth of Delegated legislation Pressure upon time of Parliament Technicality in the matters Flexibility Emergency Experiment Complexity of modern administration Constitutional Limitations on Legislative Delegation Legislature in India has been held to possess wide powers of delegation. This power is, however subject to one important limitation. The legislature cannot delegate essential legislative functions which consists: – determination or choosing of the legislative policy and – formally enacting that policy into a binding rule of conduct. The legislature cannot delegate ‘uncanalised and uncontrolled power.’ The Power delegated: – must not be unconfined and vagrant but – must be canalized within banks that keep it from overflowing.  Control Over Delegated Legislation In India The practice of delegated legislation today is now well-established. It is regarded as inevitable. But it does not imply that the executive and its rule making may be exercised arbitrarily. In order to ensure that the power of delegated legislation is not misused, it has been subjected to three-fold controls. These modes of control may be classified into: Procedural control Parliamentary control and Judicial control.  Conclusion Delegated legislation is generally a type of law made by the executive authority as per the powers conferred to them by the primary authority in order to execute, implement and administer the requirements of the primary authority. It can be said that it is the law made by any person or authority under the power of parliament. It is also known as subordinate legislation in administrative law. It allows the bodies beneath the primary authority or legislature to make laws according to the requirement. Through an act of Parliament, Parliament has full authority to permit any person or authority to make legislation. An act of parliament creates a framework of a particular law which tends to be an outline of the purpose for which it is created. The important object of this is that any legislation by such delegation should be according to the purposes as laid down in the act. 29