CLM 2024-25.pdf

For Internal Circulation Only The NaTioNal law iNsTiTuTe uNiversiTy, Bhopal CommoN law meThod Dr. Ghayur Alam Senior Professor of Business and Intellectual Property Laws...

For Internal Circulation Only The NaTioNal law iNsTiTuTe uNiversiTy, Bhopal CommoN law meThod Dr. Ghayur Alam Senior Professor of Business and Intellectual Property Laws & DPIIT Chair Professor for B. A. LL. B. (Hons.)/B. Sc. LL. B. (Hons.) [Cyber Security] I Semester Academic Session 2024-25  B. A. LL. B. (Hons.)/B. Sc. LL. B. (Hons.) [Cyber Security] Common Law Method I Semester Academic Year 2024 – 25 Syllabus Course Teachers: Ghayur Alam ***** iNTroduCTioN Common Law Method is course about learning how (not) to learn and apply law. The words ‘how (not)’ capture the essence of this course. Knowing ‘how to do’ a thing is a condition necessary but not a condition sufficient to do it efficiently and effectively unless one also knows how not to do it. We can take example of a quote by Thomas Alva Edison, “I have not failed 10, 000 times. I have successfully found 10, 000 ways that will not work.” There are several versions of this quote and some also question the authenticity of it. Nonetheless, at least two lessons may be drawn from this quote. One, failure is not failure if one makes one’s best endeavor and learns from it, failure is just a step towards success. Two, if one 10, 000 ways (methods) that will not work and knows one or some ways that will work then one will not take the way that will not work and will take the way which will work. This approach will save time, money, and resources and will also yield desired result. As students of B. A. LL. B. (Hons.)/B. Sc. LL. B. (Hons.) [Cyber Security], you are mostly in your teens and have studied for around fourteen years including in KG I & II. You may not be described as completely tabula rasa. Further, you must have acquired some knowledge of law and legal aptitude while preparing for CLAT. Can it be said that you, therefore, are tabula inscripta for the purposes of legal education? The answer to this question may be both ‘yes’ and ‘no’. Yes, because you have been trained to read, understand, think, comprehend, write, speak, and listen. So, we can build on your existing abilities. No, because you are not trained to read, understand, think, comprehend, write, speak, listen, and do things like a lawyer. Therefore, your mind requires further nurturing. A nurturing which helps develop legal frame of mind. A mind trained in how (not) to learn and apply law. Training defines who do we become. Persons of average intelligence – like most of us with due respect to some of the geniuses in this class – may be classified into two broad categories: trained and untrained. Perhaps, no one can be trained in everything. Persons may be trained in skill, or knowledge, or both. Those who are trained, have acquired skill sets, and/or specific knowledge through hard-work over a long period of time, generally under the guidance of a trained person. Trained persons have nurtured their artificial reasoning – neither natural reasoning nor artificial intelligence – in their chosen field of endeavor including useful art and science. Certain human skill sets and specific knowledge to do things are increasingly performed by generative artificial intelligence (gAI) such as ChatGPT4, Midjourney, Stable Diffusion, DAAL-E and other Apps. These Apps are increasingly changing the nature job done and have the potential to replace humans. In some jobs gAIs are more efficient and more effective than humans. gAIs are increasingly becoming more ubiquitous, better, faster, efficient, and effective every moment. Pace of change is not only unprecedented and too fast but is also disruptive to existing skill sets and human ability. The opportunities thrown up by technology need be tapped to save time and human efforts. Similarly, the challenges thrown up by technology must be squarely faced and the new skill sets must be acquired. i In other words, if a job can be performed by a technology with lesser cost, lesser time, better precision in more efficient and effective manner then will there be a demand in the job market for humans? It is imperative to know what can and what cannot be done by a technology; learn how (not) to use that technology; and equip oneself with the abilities and new skill sets to do what a technology cannot do at least for the time being. Technology will keep on evolving. We the homo sapiens should not and cannot lag behind technology. We must keep on evolving intellectually to keep pace with the technological development at the least and try to be ahead of technology. We must remember that every technology is a child of some human endeavor. It is unavoidable to equip ourselves with newer skills and newer knowledge to become worthy our existence. Technology functions with the help of logic and science. Law functions with the help of logic, experience, and reasonableness. Technology may reason. Law reasons with reasonableness. This distinction between law and technology leaves enough space for lawyers to do reasonable reasoning to solve a problem. To become worthy of our existence we must do something worth living. Knowledge is one of the most cherished and noble things worth seeking. Knowledge may be described as a tree having root, stem, branches, sub-branches, leaves, flowers and fruits. For reasons of convenience, possibility, limitation of mind and other human limitation knowledge is divided into departments and disciplines. Every discipline of human knowledge, including the discipline of law, function with certain vocabulary and method unique to that discipline and also learns from the methods and vocabulary of other disciplines. It is cliché to state that human knowledge, its methods and vocabulary are continuously evolving. However, every discipline has certain vocabulary, methods, and principles peculiarly associated to it which had stood the test of time. The discipline of law has evolved and is evolving its own methods – known as Common Law Method (CLM) for our purposes. What (not) to learn and how (not) to learn are two different but related aspects of learning. A student of law knows that she has to learn law. But it is not possible for anyone to learn all the laws in five years. Even the entire life is not enough for learning all the laws. Reason is plenty of laws – both existing and evolving. Existing laws in India are in the form of Ordinance, order. Bye-law, rule, regulation, notification, custom or usage, Acts (both Central and State), and judicial decisions having in the territory of India the force of law. In addition to existing laws in India there are foreign laws, and international law. Then there are law books, law journals, and other legal materials. Law is not static. She is always evolving. Law evolves by amendments, repeals, new enactments, overruling, reversal and judicial law making. Therefore, it is humanly impossible to learn all the laws. The question, therefore, is: what can be done? The answer is very simple: by leaning the method of learning law. Can a student learn method of learning law and some of the laws in five years? Answer is a categorical YES because learning is an art of possible at the cutting edge of impossibility – not an art of impossible. Method of learning how (not) to learn law may be easily learnt and the student can efficiently and effectively deploy the method to find the relevant law and understand it. A student can easily learn method of learning law and some of the laws in five years. Method of learning how (not) to learn law may be easily learnt and the student can efficiently and effectively deploy the method to understand any law. This course seeks to prepare the students to study law both efficiently and effectively. It is clarified that this course is not a course on law. It is a course about other courses of law. Learning in this course is expected to help better understand the simplicities, niceties, nuances, interstices and intricacies of other courses offered to students in five years. It is iterated above that very discipline has certain method of learning unique to it. Some disciplines are predominantly theoretical. Some disciplines are predominantly pragmatic and practical. Law is a discipline predominantly theoretical and practical at once. A mind trained in law is equipped with the faculty to use theoretical framework for making practical choices. Conditions precedent building and ii developing a legal frame of mind are: (i) belief in the liberty and equality of oneself and others; (ii) ability to listen, think, read, write and speak or express oneself; (iii) enthusiasm and willingness to learn; (iv) awareness of one’s strengths and weaknesses; (v) knowledge of one’s ignorance and conditionings – prejudices, preferences, liking and disliking; (vi) persistently striving to overcome such ignorance and conditionings to set one’s self free; (vii) inquisitiveness, dispassionate and questioning approach; and (viii) willingness and courage to transcend the existing by letting one’s imagination run wild. A learning mind is a critical and creative mind. Critical and creative mind cannot be built or developed by a non-comprehending mind. Learner should know both ‘is’ and ‘is not’ of an intellectual exercise. A mind trained in law is equipped with the faculty of how to listen and hear like a lawyer and how not to listen and hear like a lawyer, how to think like a lawyer and how not to think like a lawyer, how read like a lawyer and how not to read like a lawyer, how to understand like a lawyer and how not to understand like a lawyer, how to write like a lawyer and how not to write like a lawyer, how to speak like a lawyer and how not speak like a lawyer, how to apply law to a given fact situation like a lawyer and how not to apply law to a given fact like a lawyer. Similarly, such a mind knows what to think like a lawyer and what not to think like a lawyer, what read like a lawyer and what not to read like a lawyer, what to understand like a lawyer and what not to understand like a lawyer, what to write like a lawyer and what not to write like a lawyer, what to speak like a lawyer and what not speak like a lawyer. Such a mind also knows when to think like a lawyer and when not to think like a lawyer, when read like a lawyer and when not to read like a lawyer, when to understand like a lawyer and when not to understand like a lawyer, when to write like a lawyer and when not to write like a lawyer, when to speak like a lawyer and when not speak like a lawyer. Why and why not to and where and where not to questions are equally relevant. In law there are essentially three things that one must learn how (not) to learn: facts, law, relationship between facts and law. A lawyer should be able to understand facts of every type. Facts may be simple. Facts may be complex. Facts may be relating to day to today life. Facts may relate to complex technologies like biotechnology, information technology, robotics, artificial intelligence, quantum computing. A lawyer should be able to learn new and newest fact. For example, in patent matters understanding technological facts described as ‘invention’ may be a challenging job because invention was unknown to everyone but the inventor was the first one to bring it to fore. Invention may relate to any field of technology. A lawyer, therefore, must have the method and tools to understand whatever comes her way. In legal practice, it is said that approximately sixty percent of lawyer’s job involves understanding, analyzing, and marshalling of facts, around thirty percent of the job involves finding, understanding, and applying law to given fact situation, and around ten per cent of the job requires knowledge and skill of court craft. This is a rough estimate. No empirical account is available to support this claim. This course seeks to build a strong, aesthetic and useful foundation for legal studies so as to equip the students with the ability to marshal the legal learning to identify, diagnose, preempt, minimize or solve problems within the framework of law by employing appropriate common law method. Students are encouraged to develop their intellectual and rational skills along with social and emotional skills to achieve a reasonable and fair decision to solve a problem. Thinking clearly, analytically, critically, creatively about something of social value are the hallmarks of legal thinking. Recent studies show that decision making is also informed and influenced by social conditioning and emotional state. iii Efforts will be made to make students conscious of these realities so that they can clearly think to take appropriate and fair decision. To achieve the objectives of this course stated herein below, primary method of learning will be done through reading and discussion. There are at least two conditions precedent for a meaningful and dignified discourse and discussion. Firstly, we must remember and firmly believe in the freedom and equality of all the participants in the discourse for each one of us is free and equal not only politically, socially and legally but also intellectually. No one is superior and no one is inferior. Secondly, because we are free and equal people, we must respect the dignity of others. Making fun of others is, the surest prescription for disastrous learning or no learning at all, destructive to the very purpose of education. As your teacher, I will play the role of intellectual midwife to help you how (not) to read, think, discuss and build upon the existing knowledge. Discussion, debate, dialogue, disputation, argumentation, counter-argumentation, how to build arguments and how to identify flaws and loose ends in arguments and how to demolish an argument will be the principal methods of discourse in the classroom. Lecture and monologue will be avoided as far possible. Efforts will be made to train you in creating new knowledge. Classroom will be used not merely as the market place of ideas but also as the manufacturing hub of ideas. Efforts will be made to develop dispassionate critical and creative faculty of students with a view to yield new ideas and new knowledge. Stories and contemporary events will be used to make the discussion contextual and relevant. What to learn (content learning) will take place only to the extent it is necessary to how (not) to learn. Quality of learning in the classes will be determined by quantity and quality of questions put by the students. Higher the quantity and quality of questions, better the learning outcome of the classes. Students must note that knowing one’s question is more necessary and profound than knowing the answer to the question. One who knows one’s question and makes an honest and sincere effort to find answer to that question will definitely succeed in getting the answer. Mark of an intelligent mind is that questions are coming to it. Even what appears to be obvious may have some non-obvious dimension to it. Participation of and by the students is indispensable for meaningful discussion and learning. In short, our learning and teaching method will be reading, discussion, rereading and further discussion and the show will go on. Need and salience of reading cannot be overemphasized in legal education and practice. In law, every other type of learning, is just a logical consequence of learning by reading. Discipline of law is a discipline singularly empty of born geniuses. In law one may become a genius, or at least a professional, only by reading law. Learning of law primarily begins by reading. One can never learn law without reading law and other texts. One who hates reading is not cut to be lawyer. Students are expected to come prepared for the class after reading the relevant part of this reading material and discussing it with other students in informal and unstructured environment. There are three players in the learning game: students, teachers and the text. It is the interplay and interaction between and among these three players that decide the quality of learning. A few words about the course content are quite in order. Many a times, text or the idea of the reading material becomes repetitive. At times, repetition is necessary for three related reasons. First, if a student has missed a class or has not read a particular portion of the reading material, she/he will get another opportunity to learn it. Second, if a student has not been able to learn something in the first reading or first listening, she/he may learn it the second time. Three, someday someone will listen iv and understand. As a teacher, I have not lost hope either in myself or in my students. I have THE HOPE that WE shall and WE will be successful in helping each other to learn new things. Course oBjeCTives Objectives of the course are to equip the with the abilities to learn:  Basic taxonomy of common law and its historical development.  How to understand and marshal facts.  How to read and understand law.  How to think clearly, dispassionately, logically, analytically, rationally, creatively and critically.  How to apply law to a given fact situation. learNiNg ouTCome On the completion of this course, students are expected to: Write and present quality research paper with proper citation; State, explain, distinguish and discuss the methods of learning law and will be able to explain meaning of law, common law, civil law, writ system, forms of action, legal system, judicial system, sources of law, classification of law, separation and distribution of power, and other fundamental principles of law discussed in this course. State: (i) the hierarchy of courts, (ii) meaning and types of ‘Bench,’ (iii) meaning and types overruling, (iv) difference between overruling and reversal, (v) characteristics of precedent, (vi) material and immaterial facts of a case, and will acquire the ability to (i) read a case, (ii) compare two or more cases, (iii) generalize the facts of a case, (iv) distinguish cases, (iv) find similarity in cases, and finally (v) the ability to use case method. Formulate the ratio of a case; generalize the concrete decision of a case to an appropriate abstract level so as to determine the ratio and demonstrate how ratio may be broadened and narrowed down. The student will also equip herself with basic skills in legal research. Apply the given ratio to a given fact situation and demonstrate how application of different rules on the same statutory provisions produces different and opposite results. Draw and state valid conclusions deductively, inductively, analogically, and dialectically and identify the strengths and shortcomings of an argument. Course ouTliNe uNiT – i: researCh paper (projeCT) wriTiNg (06 hours) Meaning and Significance of Research – Steps of Research – Problem – Legal Problem – Researchable Problem – Problem Identification – Topic Identification – Literature Survey – Literature Review – Difference between Literature Survey and Literature Review – Research Gap – Narrowing Down the Topic – Formulation of Topic – Formulation of Problem – Statement and Sentence – Hypothesis – Relationship of Hypothesis with Statement of Problem – Formulation of v Hypothesis – Formulation of Research Questions – Objectives of Study –Scope of Study – Research Method – Research Design – Citation – Footnotes and Bibliography – Table of Cases – Table of Statutes – List of Abbreviations – Structure and Format of Project Report – Use of gAI in Legal Research. uNiT – ii: learNiNg how (NoT) To learN law (06 hours) Meaning of Method and Technique – Difference between Method and Technique – Meaning of Common Law – Meaning of Common Law Method/Legal Method. Meaning and Purpose of Learning. Stages of Learning: Novice – Mason – Architect – Judge. Types of Learning: Scientific Learning – Critical Learning – Creative Learning – Policy Suggestions for Reform. Methods of Learning in Oscillated Fashion – Moving Forward, Backward, Forward and Transcend: Reading – Understanding – Thinking – Analyzing – Critical Analysis – Further Research – Thinking within the Box – Thinking out of the Box – Creative Thinking – Writing – Organizing – Presenting. Two Stories ‘The Cat and the Fox’ and ‘Judge and the King’. Learning how to learn law. uNiT – iii: law aNd legal sysTem (06 hours) Meaning of Law, System and Legal System – Classification of Legal System – Civil Law System – Common Law System – Origin and Development of Common Law - Early Common Law Courts – Court of Equity – Meaning and Relevance of Writ System and Forms of Action – Methods of Introduction of Common Law in India – Characteristic Features of Indian Legal System. uNiT – iv: Key CoNCepTs iN law (06 hours) Sources of Law: People – Custom – Precedent – Legislation. Meaning of Power – Separation and Distribution of Power. Relationship of Law, Power and Justice. Rule of Law. Role of Fiction at Common Law – Independence of Judiciary – Hierarchical System of Courts in India – Jurisdiction and its Types – Principal Courts Exercising Civil and Criminal Jurisdiction in India – Judicial Process – Judicial Hierarchy – Judicial Discipline – Judicial Accountability – Judicial Restraint – Judicial Activism – Judicial Overreach – Meaning and Types of Bench in the Supreme Court and High Courts –Master of Roster –Composition of Bench –Recent Controversies regarding Formation of Bench. uNiT – v: doCTriNe of preCedeNT – sTare deCisis (06 hours) Doctrine of Stare Decisis. Precedent: Meaning – Characteristics – Advantages and Disadvantages. Meaning of Overruling –Types of Overruling – Effect of Overruling –Difference between Overruling and Reversal – Distinguishing –Per Incuriam – Eviscerating and Reading Down – Some Landmark Judgments of Supreme Court of India on Precedent and Overruling. Legislative Override. uNiT – vi: judiCial deCisioNs (06 hours) Structure of Judicial Decision – Name of Judgment – Bench – Types of Opinion: Unanimous Opinion – Separate but Concurring Opinion – Dissenting Opinion. Parts of Judgment: Facts –Reasoning – Concrete Judgment (judgment in personam) – Ratio Decidendi (judgment in rem)– Obiter Dicta– Process of Comparing Facts of Two Judgments –Generalization of Concrete Facts to Abstract Level – Method of Distinguishing – Finding Ratio Decidendi of a Judgment – Determining Ratio Decidendi of a Judgment – Problem in Finding/Determining Ratio Decidendi of a Judgment having Multiple vi Opinions – Some Illustrative Judgments. Difference between Finding and Determining Ratio Decidendi. uNiT – vii: Case meThod aNd Case sTudy meThod (06 hours) Case Method: Meaning – Advantages and Disadvantages –Comparison of Case Method with Case Study Method – How to Find Relevant Judgments – How to Cite Judgment – How to give Pinpointed Citation – Reading and Misreading of Judgments: Some Illustrative Judgments. How (not) to Read Judgment. Socratic Method – Problem Method. uNiT – viii: sTaTuTes (06 hours) Statutes: Meaning and Structure – Law Making Power in the Constitution of India –Parent Legislation and Delegated or Subordinate Legislation – Legislative Process: Bill – Act – Law. Reading and Misreading of Statute – Relationship of Precedent and Statute. How (not) to Read Statute. Difference between Reading and Interpretation-Construction of Statute. uNiT – iX: reasoNiNg aNd logiC (06 hours) Why Reasoning? Reasoning – Logic – Syllogism – Difference between Reasoning and Logic – Types of Reasoning: Deductive –Inductive –Analogical –Dialectical – Demonstration – Contentious – Mis- reasoning. Syllogism: Major Premise–Minor Premise – Conclusion – Fallacy of Undistributed Middle – Validity of Syllogistic Conclusion – Aristotelian Reasoning. uNiT – X: legal reasoNiNg (06 hours) Natural Reason – Artificial Reason – Rationality and Reasonableness – Rational Man and Reasonable Man – Legal Reasoning: Reasoning by Example –Inadequacy of Reasoning by Example – Choice of Major Premise a Pre-logical Choice –Process of Subsumption – Dialectical Reasoning –Difference between Dialectics of Aristotle, Marx and Hegel – Problem of Competing and Coordinate Premises – Novel Situations – Plurality of Opinions – Choice of Major Premise – How to Select and Formulate Major Premise – How to Formulate Minor Premise – When Valid Conclusion cannot be Drawn – How to Draw Valid Conclusion. Use of Reasoning in Law. readiNg lisT esseNTial readiNgs 1. M C Setalvad, The Common Law in India (Stevens & Sons Ltd 1960). 2. ‘Oxford University Standard for the Citation of Legal Authorities (OSCOLA)’ (4th edn, Hart Publishing 2012). accessed 20 October 2020. 3. ‘The Bluebook: A Uniform System of Citation’ (20th edn, Claitor’s Law Books and Publishing 2015). reCommeNded readiNgs 1. Raimo Siltala, A Theory of Precedent: From Analytical Positivism to a Post-analytical Philosophy of Law (Hart Publishing, 2000). 2. H Patrick Glenn, On Common Laws (OUP 2007). 3. ‘Logic and Growth in Law’ in Julius Stone, Legal System and Lawyers’ Reasonings (first published 1964, Universal Law Publishing Co Pvt Ltd 1999) 209. vii 4. ‘Categories of Illusory Reference in the Growth of the Common Law’ in Julius Stone, Legal System and Lawyers’ Reasonings (first published 1964, Universal Law Publishing Co Pvt Ltd 1999) 235. 5. F W Maitland, The Forms of Action at Common Law (first published 1909, CUP 1997). 6. Edward H Levi, An Introduction to Legal Reasoning (CUP 2009). 7. A K R Kiralfy, Potter’s Historical Introduction to English Law and its Institutions (Universal Law Publishing Co Pvt Ltd 1999). 8. N C Singh and A Duraiappah (eds), Rethinking Learning: A Review of Social and Emotional Learning for Education System (MGIEP 2020). viii learNiNg plaN We will be learning together from each other through preparation, discussion, and disputation. We are expected to be prepared ready for each class at least before entering the classroom. Time is an essence of everything. We will respect the time of each other and will not disturb the class by coming late or leaving early. We are expected to interact for at least sixty hours to complete this course. Following is our learning plan and we will try to execute it by making our sincere efforts. Class Topics Class Days Topics Class Topics Days Days Day One Meeting the Class of Day Two Discussion on Syllabus Day About the Course Title 2024 to Know Each and Learning Plan Three and Brief Journey of Other Common Law Method at NLIU Day Four Learning: An Day Five Learning: An Day Six The Cat and the Fox Introduction Introduction (Contd.) Day Learning How (not) to Day Eight Learning How (not) to Day Nine Judge and the King Seven Learn Law Learn Law (Contd.) Day Ten Judge and the King Day Project Writing Day General Principles of (Contd.) Eleven Twelve Project Writing and Few Tips about Project Writing Day Schemes of Project Day Structure of Projects Day Mode of Citation and Thirteen Writing Fourteen and Formatting of Fifteen Popular Modes of Projects Citation Day Types of Citation: Day Meaning of System and Day Characteristic Features Sixteen Footnote; Endnote; Seventeen Legal System Eighteen of Indian Legal System Bracket Notes; References; and Bibliography Day Classification of Day A Comparison of Day Early Common Law Nineteen Legal Systems Twenty Common Law and Civil Twenty- Courts Law One Day Writ System and Day Types of Writs at Day Methods of Twenty- Forms of Action at Twenty- Common Law Twenty- Introduction of Two Common Law Three Four Common Law in India Day Meaning of Concept Day Separation of Powers Day Rule of Law and Role Twenty- and Sources of Law Twenty- and Distribution of Twenty- of Fiction at Common Five Six Power Seven Law Day Independence of Day Principal Courts Day Meaning and Types of Twenty- Judiciary and Twenty- Exercising Civil and Thirty Bench and Decisions of Eight Hierarchical System Nine Criminal Jurisdiction in Supreme Court on the of Courts in India India and the Supreme Relative Authority of Court of India Bench Day Judicial Discipline Day Judicial Restraint and Day Judicial Overreach and Thirty- and Judicial Thirty- Judicial Activism Thirty- Legislative Override One Accountability Two Three ix  Class Topics Class Days Topics Class Topics Days Days Day Meaning of Precedent Day Characteristics of Day Distinguishing and Thirty- and Doctrine of Thirty- Precedent; Advantages Thirty- Overruling Four Precedent Five and Disadvantages of Six Precedent Day Retrospective and Day Types of Prospective Day Decisions of Supreme Thirty- Prospective Thirty- Overruling Thirty- Court of India on Seven Overruling Eight Nine Precedent Day Decisions of Supreme Day Forty- Meaning of Ratio Day Determining Ratio Forty Court of India on One Decidendi (judgment in Forty- Decidendi of a Case Precedent (Contd.) rem) and Meaning of Two Obiter Dicta Day Determining Ratio Day Forty- Determining Ratio Day Process of Comparison Forty- Decidendi of a Case Four Decidendi of a Case Forty- Three (Contd.) (Contd.) Five Day Generalization of Day Forty- Case Method and Day Tools and Techniques Forty-Six Concrete Facts to Seven Characteristics of Case Forty- of Case Method Abstract Level Method Eight Day Merits and Demerits Day Fifty Case Method: An Day Case Method: An Forty- of Case Method Illustration Fifty-One Illustration (Contd.) Nine Day Relationship between Day Fifty- Statutes; Structure of Day Relationship of Statute Fifty- Case Method and Three Act and How to Read a Fifty- and Precedent; Parent Two Case Study Method Statute Four Legislation and Delegated Legislation Day Reasoning and Logic Day Fifty- Syllogism and Sentence Day Aristotle: Topoi Fifty-Five and Holmes, The Six and Proposition Fifty- Common Law (Statement) Seven Day Legal Reasoning and Day Fifty- Levi’s Model of Day Sixty A Neglected Theory of Fifty- Types of Legal Nine Reasoning: Reasoning Legal Reasoning Eight Reasoning by Example and Evolution of Legal Reasoning Day A Neglected Theory Day Sixty- A Neglected Theory of Day Conclusion and Sixty- of Legal Reasoning Two Legal Reasoning Sixty- Students’ Feedback One (Contd.) (Contd.) Three x xi  CoNTeNTs Syllabus.................................................................................................................................................. i Learning Plan...................................................................................................................................... ix UNIT I.................................................................................................................................................... INTRODUCTION................................................................................................................................. About the Course Title......................................................................................................................... 1 A Brief Journey of Common Law Method at NLIU, Bhopal.............................................................. 2 Learning: An Introduction................................................................................................................... 4 The Fox and the Cat - A Story............................................................................................................. 9 Learning How (not) to Learn Law..................................................................................................... 11 The Judge and the King - A Story...................................................................................................... 20 UNIT – II............................................................................................................................................... PROJECT WRITING............................................................................................................................ Project Writing................................................................................................................................... 26 General Principles of Project Writing................................................................................................ 29 Few Tips about Project Writing......................................................................................................... 30 Schemes of Project Writing............................................................................................................... 31 Structure of the Projects..................................................................................................................... 39 Formatting of the Projects.................................................................................................................. 40 Mode of Citation................................................................................................................................ 40 Popular Modes of Citation................................................................................................................. 42 Types of Citation................................................................................................................................ 43 Footnote............................................................................................................................................. 43 Endnote.............................................................................................................................................. 43 Bracket Notes with References.......................................................................................................... 43 Bibliography....................................................................................................................................... 44 UNIT – III.............................................................................................................................................. LEGAL SYSTEM, COMMON LAW SYSTEM AND INDIAN LEGAL SYSTEM........................... Meaning of System and Legal system............................................................................................... 45 Characteristic Features of Indian Legal System................................................................................ 48 Classification of Legal System.......................................................................................................... 49 1. Application and Enforceability................................................................................................... 50 1.1 Municipal Legal System......................................................................................................... 50 1.2 International Legal System..................................................................................................... 52 1.3 Foreign Legal System............................................................................................................. 53 2. Principle Based or Rule Based Legal System............................................................................. 54 3. Origin and Structure of Legal System........................................................................................ 54 4. A Comparison of Common Law and Civil Law......................................................................... 58 5. Early Common Law Courts........................................................................................................ 59 5.1 Common Pleas........................................................................................................................ 59 5.2 King’s Bench........................................................................................................................... 60 5.3 Exchequer................................................................................................................................ 60 6. The Writ System and Forms of Action at Common Law........................................................... 61 Statute Westminster II, 13 Edw. 1, c. 24 (1285), inter alia, provided as under:............................... 62 7. Types of Writs at Common Law................................................................................................ 64 7.1 Replevin.................................................................................................................................. 64 7.2 Detinue.................................................................................................................................... 64 7.3 Debt......................................................................................................................................... 65 7.4 Covenant................................................................................................................................. 65 7.5 Trespass................................................................................................................................... 66 7.5.1 Trespass on the Case........................................................................................................... 66 7.5.1.1 Trover.............................................................................................................................. 67 7.5.1.2 speCial assumpsiT.................................................................................................... 67 7.1.5.3 General Assumpsit........................................................................................................... 68 7.1.5.4 ejeCTmeNT.................................................................................................................... 69 8. meThod of iNTroduCTioN of eNglish CommoN law iN iNdia................................... 70 UNIT – IV.............................................................................................................................................. KEY CONCEPTS OF LAW AND INDIAN JUDICIAL SYSTEM..................................................... Meaning of Concept........................................................................................................................... 78 Sources of Law................................................................................................................................... 78 Separation of Powers and Distribution of Powers............................................................................. 80 Rule of Law........................................................................................................................................ 80 Role of Fiction at Common Law........................................................................................................ 81 Independence of Judiciary................................................................................................................. 82 Hierarchical System of Courts of India.............................................................................................. 83 Principal Courts Exercising Civil and Criminal Jurisdiction in India............................................... 87 Supreme Court of India................................................................................................................... 87 Meaning and Types of Bench............................................................................................................ 87 Binding Nature of the decision of the Federal Court on Supreme Court of India............................. 89 When Supreme Court is bound by its own decision.......................................................................... 90 Binding Nature of the Obiter of the Supreme Court on the Subordinate Courts............................... 91 Conflict of views in Supreme Court decision – High Court is bound to follow later pronouncement............................................................................................................................. 91 Nature of obiter of the larger Bench of Supreme Court whether binding on smaller Bench............. 91 Full Bench decision of High Court not in conformity with the Supreme Court decision – Judicial discipline............................................................................................................................................ 92 Conflicting views of the Division Benches of the same High Court................................................. 92 Binding Nature of Interlocutory orders of High Courts..................................................................... 92 Judicial Discipline.............................................................................................................................. 93 Judicial Accountability...................................................................................................................... 93 Judicial Restraint, Judicial Activism and Judicial Overreach............................................................ 95 Legislative Override........................................................................................................................... 95 UNIT – V............................................................................................................................................... DOCTRINE OF PRECEDENT, DISTINGUISHING AND OVERRULING...................................... Introduction........................................................................................................................................ 97 Meaning of Precedent...................................................................................................................... 100 Doctrine of Precedent....................................................................................................................... 102 characteristics of precedent.............................................................................................................. 103 ADVANTAGES AND DISADVANATGES OF PRECEDENT.................................................... 104 Distinguishing.................................................................................................................................. 105 Overruling and Retrospective Overruling........................................................................................ 105 prospeCTive overruliNg, a. r. BlaCKshield,................................................................ 107 Supreme Court of India on Precedent and Overruling..................................................................... 115 UNIT – VI.............................................................................................................................................. RATIO DECIDENDI OF A CASE AND OBITER DICTA.................................................................... Ratio decidendi................................................................................................................................ 126 deTermiNiNg The raTio deCideNdi of a Case.................................................................. 127 Obiter Dicta..................................................................................................................................... 145 Process of Comparison: Generalization of Concrete Facts of Cases to Abstract Level – Similarity or Distinction........................................................................................................................................ 146 UNIT – VII............................................................................................................................................. CASE METHOD................................................................................................................................... Case Method.................................................................................................................................... 148 Characteristics of Case Method....................................................................................................... 149 Tools and Techniques of Case Method............................................................................................ 149 Merits of Case Method..................................................................................................................... 150 Demerits of Case Method................................................................................................................ 150 Case Method – An Illustration......................................................................................................... 151 UNIT – VIII........................................................................................................................................... STATUTES............................................................................................................................................ Statutes............................................................................................................................................. 166 Structure of Act................................................................................................................................ 168 How to Read a Statute...................................................................................................................... 169 Relationship of Statute and Precedent............................................................................................. 170 Parent Legislation and Delegated Legislation................................................................................. 170 UNIT – IX.............................................................................................................................................. REASONING AND LOGIC.................................................................................................................. Reasoning and Logic........................................................................................................................ 172 Syllogism......................................................................................................................................... 173 Aristotle – Topoi.............................................................................................................................. 175 Sentence and Proposition (Statement)............................................................................................. 176 Holmes, The Common Law............................................................................................................. 177 UNIT – X............................................................................................................................................... LEGAL REASONING.......................................................................................................................... Legal Reasoning............................................................................................................................... 178 Types of Legal Reasoning................................................................................................................ 178 1. Deductive Reasoning................................................................................................................ 178 2. Inductive Reasoning................................................................................................................. 178 3. Reasoning by Analogy.............................................................................................................. 178 4. Dialectical Reasoning............................................................................................................... 179 Levi Model of Legal Reasoning – Reasoning by Example............................................................. 179 EVOLUTION OF LEGAL REASONING...................................................................................... 183 Bodenheimer, A Neglected Theory of Legal Reasoning................................................................. 184  uNiT i iNTroduCTioN aBouT The Course TiTle Course title is a combination of two terms: common law and method. An understanding of both the terms is necessary before we proceed with the course. In brief, common law started its journey in 1066 AD with the Normans’ Conquest of England. In England, it evolved slowly and gradually but steadily through some perceptible and some imperceptible steps of kings, courts and parliament. It has been shaped and reshaped mainly by courts and in some cases by the legislature in incremental fashion. Common law is still evolving and shall continue evolving. As England became Colonial and Imperial Power, common law was introduced slowly and gradually through perceptible and imperceptible steps to the colonies. When the colonies became independent, they more often than not resolved to continue with the common law and its legacy reserving the power to bring about suitable changes in the colonial laws from time to time. The fundamental method of common law both in England and her colonies has been introduction and development of law slowly and gradually through imperceptible steps. In other words, common law method has been and is “evolutionary” and not “revolutionary” method. Evolutionary method of change is not only natural but is also more sustainable than revolutionary method of change. Evolutionary process has the capacity to accommodate both continuity and change. As is life so being law and common law. Old principles either die or get modified or supplanted by new principles. Mores of yesterday may be mores of today as they were or they may get modified, buried or supplanted by new mores. The second term of course title is method. We will begin with a discussion on method of learning law. “Learning How (not) to Learn Law” is our main focus. Dictionary meaning of method is “a particular form of procedure for accomplishing or approaching something, especially a systematic or established one.” Method is about orderliness of thought or behavior; systematic planning or action. The course, therefore, seeks to cultivate in the students the ability to know the law on a given point by equipping them with methods, techniques and tools of learning how to learn law. In short it may be said that that the course seeks to train the students ‘how to fish’ rather than ‘giving a fish’. If students learn the methods of learning how (not) to learn law, they will be able to learn any law with the help of these methods. In this course, therefore, we will be learning how (not) to learn law. Our endeavor will be to acquire knowledge and skills necessary to accomplish our purpose by equipping ourselves with particular form of procedure for accomplishing or approaching something, in our case this something is law. If “there is method in one’s madness”1 so is there a method in one’s wisdom. 1 Shakespeare’s Hamlet (Act 2 Scene 2). Page 1 of 191 In short, Common Law Method employs method on both patent and latent legal and extra-legal resources and primarily uses case law to ensure both continuity and change. a Brief jourNey of CommoN law meThod aT Nliu, Bhopal The Title “Common Law Method” to this course has been given by Professor Virendra Singh Rekhi, the Founder Director of NLIU in 1998. At that time National Law School of India University, Bangalore was the only National Law University offering a course to the students B. A. LL. B. (Hons.) with the title “Legal Method”. Professor Rekhi was of the opinion that the nomenclature Legal Method is generic and too wide. Hence, it will be more relevant and meaningful to do only Common Law Method as Indian Legal System is based on common law. This course completed its Silver Jubilee in the Academic Year 2022-23. Academic Year 2024-25 is the twenty-seventh year of this course at NLIU. Because of this course, I feel honored. privileged, and happy to interact with the newly admitted students at the commencement of every academic year. The last twenty-six years of my life at NLIU have been making me learn in ways more than one. The most cherished way has been learning from the students. Their questions, and their views and opinion always provide food for new insight. Their contribution helped me refine and re-refine course structure, course content, method of interaction and mode of assessment and evaluation. This is the 27th edition of the reading material on Common Law Method. This batch of students like pervious batches will help improvise the 28th edition of this course. I got the unique opportunity to take the first class of this course on 1 September 1998. This was the first class at least in three senses. One, it was the first class by a teacher at NLIU. Two, it was the first class of Common Law Method at NLIU. Three, it was the first class of my teaching career. I must confess that I could not get time to prepare for the first class of my teaching career. There were lot of preparatory and administrative work. Students were to be admitted. Reading Materials for Courses of First Trimester were to prepared and photocopied. Teaching was to commence. Academic Calendar and Time Table were to be prepared and notified. Many things were to be done without staff and infrastructure. A make shift building was allotted to NLIU and possession was given on 4 August 1998 and we made all the preparation in 26 days and organized the Inaugural Function 1 September 1998. Immediately after the Inaugural Function my ‘first’ class of Common Law Method was scheduled. In his Inaugural Address Hon’ble Mr. Justice Venkatachelliah, Former Chief Justice of India, had said that cook of Bishop of Rochester cannot be boiled to death because the law says so. This statement gave me a sense of relief as I knew the historical and legal basis thereof. I went to my class and took the attendance and stood up to interact with the students. After a brief introduction, Page 2 of 191 one student asked: what Justice Venkatachelliah meant by what he said. As I had read the story of King Henry VIII and Cook of Bishop of Rochester, I narrated the story and linked it to the decision of the Supreme Court of India on interpretation of Article 21 of the Constitution of India in A K Gopalan. This question was the first question I was responding as a teacher and I will never forget it. First class on the first day of first academic year of NLIU took place on the First Day of September Nineteen Ninety-Eight. It was the 244th day of the year 1998 in the Gregorian Calendar. The day of the week was Tuesday. As per the Time Table the first class was assigned to me. I must admit that I could not find time to read anything for my scheduled class since 25 July 1998. It was not that I was not desirous of reading. I love and enjoy reading. However, the works preparatory to the commencement of NLIU and her first academic year in a make shift building allotted to NLIU by the Government of Madhya Pradesh kept me away from reading. My class was scheduled immediately after the Inaugural Function. During the function I was listening to speeches of dignitaries and was also thinking about first class of my career which would mark the beginning of my life as a law teacher – an unprecedented moment that happens in the life of a teacher only once. The saving grace was that I had designed the syllabus and had prepared the reading material of Common Law Method. During the function one of statement by Hon’ble Mr. Justice Venkatachelliah, Former Chief Justice of India, was ‘cook of Bishop of Rochester cannot be boiled to death because the law says so’. After the function was over, I went to my class, took attendance of the students and stood up to interact with the students. After a brief introduction and ice-breaking, one student asked about as to what Justice Venkatachelliah meant by what he said. I was elated for a student asked a question in the class. I had read the story of King Henry VIII and Cook of Bishop of Rochester. I narrated the story and linked it to the decision of the Supreme Court of India on interpretation of Article 21 of the Constitution of India in A K Gopalan. This question was the first question I was responding as a teacher and I will never forget it. I realized that had I prepared for my class just before the scheduled class would that preparation been sufficient to address the question had I not been preparing and reading all through my life. That day I realized that preparation for classes or examination cannot be done in an hour or a day. Preparation is life long process. Ultimately, we prepare for meaningful and dignified life. It may be said that there are two types of people: prepared and not prepared. It gives me a great sense of satisfaction that from the time of its birth at NLIU, the relevance of this course has been appreciated by the students. The students of first batch graduating in 2003 and successive graduating batches have found this course meaningful in their professional life and some of them have described this course as the distinguishing feature of NLIU curriculum. The announcement of National Education Policy 2020 (NEP) in July 2020 has given me additional sense Page 3 of 191 of immense satisfaction. What we have been doing since 1998 in this course has been reaffirmed in the Introduction of NEP in fourth paragraph at page 3 as under: [I]t is becoming increasingly critical that children not only learn, but more importantly learn how to learn (emphasis added) Education thus, must move towards less content, and more towards learning about how to think critically and solve problems, how to be creative and multidisciplinary, and how to innovate, adapt, and absorb new material in novel and changing fields. Pedagogy must evolve to make education more experiential, holistic, integrated, inquiry-driven, discovery-oriented, learner-centered, discussion-based, flexible, and, of course, enjoyable. This shift in the learning method as announced in NEP has added to the significance and prestige of this course. Hope I am not becoming narcissist about this course. I am happy. I was not on a wrong path for the last twenty-five years. Learning how (not) to learn has been the signature style of this course from day one. Though I have been revising and updating the course material every year but have kept the heart and soul of the course intact, that is, learning how (not) to learn law. I have been telling my students that we must develop the ability to learn anything and everything quickly. I hope that in this twenty-sixth year, we will be able to undertake this course in a more meaningful way. I will definitely learn from you and hope that you will learn from me. It is expected that after the completion of this course, we will be different people not only intellectually but also emotionally and socially. learNiNg: aN iNTroduCTioN Learning may be defined as a continuous process of the acquisition of knowledge or skills through observation, experience, practice, experimentation, study, imagination, or by being taught. At the same time, learning involves unlearning. Learning is not an event. It is a continuous and unending process. It goes on and on and is never complete. Recent studies in Neuroscience and Neurotechnology demonstrate that human brain has the capacity to rewire itself by diverse and continuous learning and training. This capacity of brain is described by neuroscientists as neuroplasticity. Learning brings about fundamental changes in the thinking process. It equips an individual to be educated. However, no one can claim to have completely learned and overeducated. A learner is always in the state of accomplishing and always in doubt about one thing or the other. Nonetheless, one can be a learned soul. Page 4 of 191 We all learn. Learning starts in the womb of the mother. Just after birth, a new-born starts searching for food and cooperates with its mother to be breast fed. Searching and cooperation, therefore, may be described as natural and inherent ability as against nurtured ability of a child. Can it be said that every child comes to this world with certain preprogrammed (default) set of learning? Answer seems to be in affirmative. As the child grows up it starts learning by observation. It starts doing what its parents and members of family do. It starts speaking the language spoken in its family. In the initial days of learning, child learns without teaching and it learns many things very well merely by observing its surroundings. Initial stage of learning is seamless, imperceptible and effortless yet effective. It generally remains unnoticed that the child is learning. This is precisely the reason why mother’s lap is the most congenial, conducive, and comfortable seat of learning. All mothers deserve our salute and reverence for the contribution that they make to our lives. Educational institutions across the world and from time immemorial also known as alma mater and not as alma pater. However, it will be non sequitur to say that fathers do not play a role in the life of child. They do it their own way. Curiosity and the desire to learn seems to be at its peak during early childhood. The desire is too intense that learning happens without a teacher. I often wonder whether teaching and teachers come in the way of our learning and entry of teachers in our lives teaches us away from learning instead of teaching towards it. School and its classrooms at least for majority of the students do not appear to be a place happily to be in. However, wisdom handed down from generations to generations tells us that intervention by teachers in the process of learning is indispensable. First, a teacher brings in her life-long knowledge and experience to the classroom and tries to explain complex and difficult ideas in simple language with suitable examples of contemporary relevance. If a student seeks to learn the same idea on his own, he may take longer time to understand it. Second, after explaining the complex and difficult ideas a teacher seeks to build upon the existing knowledge and try to fire the imagination of the students. Third, once the minds of students are ignited, a teacher tells the student to use the fire for a valuable purpose. As we grow up, the fortunate one’s get admitted to schools to get educated. Early stages of teaching involve understanding of concrete physical facts as they are. Slowly and gradually, we are trained to generalize from concrete to abstract with the use of inductive method. We are also trained to arrive at valid conclusion by deducing from general to the particular with the use of deductive method. We may also be trained to move from particular to particular. After graduating from schools, we may enter college or university life where we are made to learn some specific subjects and enter the field of specialization and super specialization. We start leaning more and more about less and less. Page 5 of 191 Even in higher education, learning is not firsthand learning but generally secondhand learning. Second hand knowledge is either told knowledge or acquired knowledge. We are told by our parents, family and friends, teachers and others. We acquire knowledge by listening, reading, doing, practicing, observing, thinking and in many other ways. Even in higher education, teaching is more emphasized than learning. Students are generally taught what is already known. Students are not made to learn on their own under the guidance of the teacher. It is a necessity that we must know what is already known so that we can try to know what is unknown or less known. Learning in a class room situation, as I understand, is a critical, creative, and cooperative exercise conducted by the students where efforts are made to build upon the known, to transcend beyond the existing. To take and learn from all existing sources so as to take them to create new knowledge and new learning. There are at least eight types of learning: (i) by observation, (ii) by reading and rereading, (iii) by doing and redoing, including by trial-and-error method, (iv) by thinking, rethinking and imagination, (v) by unlearning and de-learning, (vi) by discussion, (vii) by listening to others, and (viii) by combining two or more above-mentioned types in any order. Factors common to all the types of learning are hard work, persistence, perseverance, grit and emotional management. Reading, doing, thinking etc. the same things repeatedly are the surest method of learning and building upon of the existing knowledge. One who is hardly working is hardly learning. Learning by reading is essential to learning of law. Goal of learning is to equip the learner to make appropriate, efficient, quick, meaningful, reasonable and fair decision both in performing daily chores and professional assignments. Process of learning involves at least the following steps. First, learner must know what she wants to learn. Second, learner must know the appropriate method of learning what she wants to know. Third, learner must know her prior conditionings about what she wants to learn. Many a times ignorance of one’s prejudices, preferences, liking, disliking heavily color the learning process and learning outcome. Fourth, learner must know why she wants to learn what she wants to learn. These steps of learning are neither exhaustive nor are they arranged in the best order but these four questions are essential in the learning the process. Acquisition of knowledge and skills is done to enable the learner to enable her to take most appropriate decision or perform some tasks in the most efficient and effective manner. A person learned in knowledge knows what can be done and what cannot be done, how it can be done and how it cannot be done. A skilled person is a well-trained person. She is able to apply her knowledge and training to do the task without wasting time and resources. Law is both a knowledge and skill driven enterprise. A lawyer must have the knowledge of law and the skill to apply this knowledge in a meaningful and purposive manner. We employ two of our natural abilities - the ability to perceive and the ability to conceive - to know. Page 6 of 191 The ability to perceive is the ability to know through sense organs: ears, eyes, nose, tongue, and skin. We conceive through our brain (mind). We can perceive only phenomena (facts). We cannot perceive noumena or essences. Our ability to perceive is necessarily dependent on our ability to conceive but the converse is not necessarily true. In other words, our ability to perceive cannot work if our ability to conceive is impaired. Our ability to conceive, however, may work independently of our ability to perceive. Think of the persona of Stephen Hawking! Our conception may be either a conception of a fact or a conception of a pure idea. An idea may be about a fact or it may be independent of any fact. Besides these two abilities, there is a third ability that we have, i.e., the ability to relate. This ability is the ability to relate the ability to perceive and the ability to conceive, the ability to relate one idea with the other, the ability to relate one fact with the other, and the ability to relate idea with fact. For example, apples were falling from tree before Newton saw an apple falling. Newton was not the first person to see an apple falling for the first time. Newton was, however, the first person to see for the first time that no one before him had seen in the phenomenon of a falling apple. What distinguishes Newton from other fellow human beings is the ability to relate one phenomenon with other phenomena and construct a grand theory. This means that every normal human person has the ability to perceive and the ability to conceive almost in equal measure but the ability to relate emerges as the ability which brings about the distinction between a genius and a person of average intelligence. How do we know? We know the unknown with the help of a known. We cannot know an unknown without the aid of a known. For example, we can know the meaning of a word with the help of other word(s) if we know the meaning these other words. If we do not know the meaning of these other words, we cannot know the meaning of the word the meaning of which is unknown to us. In such a situation the unknown remains unknown. The amount of knowledge that we have at our disposal is sufficient to help us know all the knowable. Therefore, we must: (i) separate your knowledge from your thinking, (ii) have full faith, trust and confidence in yourself, (iii) believe that you are born free and liberated - neither you need to fear anyone nor should you frighten anyone, (iv) believe that you are born equal to others - neither you are superior nor inferior to anyone else, (v) work hard and do not be hardly working - come prepared for the class discussion, (vi) ask questions in the class, (vii) feel free to agree or disagree with your teacher and fellow students and put forward your views, (viii) be ready and willing to change your position and perspective if more convincing, clinching, clear and cogent, and more plausible explanation or answer is coming from the other side, (ix) your teacher is your mentor, loco parentis, and intellectual parent - have faith in him/her but no fear, and finally (x) remember the saying, “one Page 7 of 191 can lead a horse to water, but one cannot make it drink.” Your parents have made their contribution and got you admitted to this University now it is upon you to take right decisions. How do we learn? We learn through experience, practice, study, or by being taught. The primary method of learning in our class room will be learning through study and discussion. This method I describe for reasons of brevity as R & D (Reading and Discussion) method of learning. In a class room setting, the lecture method is the least effective method of learning. The discussion method, on the other hand, is the most effective method. Discussion method requires planned reading by and active participation of both the teachers and the students. The more the teacher and the student read and reread the more the meaningful and insightful discussion in the class room. The role of the teacher in the classroom, according to Socrates, is that of ‘intellectual midwife.’ The teacher helps the students to develop the ability of comprehending the ideas by (i) building an argument, (ii) identifying the strengths and weaknesses in the argument, (iii) demolishing an argument, (iv) constructing a new argument on the basis of discussion, and finally (v) arriving at a conclusion - the conclusion arrived at are generally tentative and relative and may become a premise for further discussion and debate. Hence, the process of discussion, argumentation, and counter argumentation is a continuous and an unending process. The more the discussion, the more the learning. The word ‘discussion’ is derived from Latin discuss to mean ‘dashed to pieces.’ The words: discuss, dialogue, discourse, dialectics are related to but separate from each other. These words share a common prefix ‘di’ which means ‘two’ in Greek. Therefore, every discussion, every dialogue, every discourse, and every dialectic require at least two persons having at least two different views. We may (not) be wiser than we know about our wisdom quotient. One’s knowledge about what one knows and what one does not know may not be known to one. This gap primarily happens because of one’s thinking particularly when one does not make a distinction between one’s knowledge and one’s thinking. In hindsight of my twenty-five years of teaching, I have observed that many a times a student may know the answer, but she may think that she does not know the answer. Conversely, it may be possible that a student may not know the answer, but she may think that she knows the answer. In my classes, many a times no student is giving answer to a question. Then I tell them that I know that you know the answer but you think that you do not know the answer. After this stimulus, one or the other student is able to come up with an answer. Similarly, many a times students may be very quick in answering the question. Their answer may be based on correct information, it may also be baseless. The answer may be baseless for several reasons including: (i) it is based on wishful thinking, (ii) it is based on unverified second-hand knowledge, and (iii) the source of information lacks authority. Page 8 of 191 We must know whether our knowledge relating to a particular thing is valid or invalid. Can we state what is known to us clearly and lucidly in a language which can be understood by the audience. We must also know what we do not know. If we have some knowledge and not the full knowledge about a particular thing, we must try to know the whole of it for half knowledge is no knowledge. False consciousness of and about one’s own knowledge is the surest ticket not only for one’s failure but it also has the potential to harm others. Knowing the unknown, revealing the unrevealed, making un- obvious obvious, and exploring the unknown or less trodden territory is the nature of homo sapiens. We must know clearly. We must say it clearly. We must write it clearly. Following story tells us about knowing many things and knowing one thing big. The foX aNd The CaT - a sTory Let us begin with a popular story “The Fox and the Cat.” Fox and the cat were boasting about tricks, ploy, and ruse known to each of them. During their dialogue they were as high as Georgia pine. The fox claimed to have many tricks and dodges. The cat claimed to know only one big trick. While their discussion was in progress, hunters arrived with their hounds. The cat quickly climbed a tree. The fox started thinking of and evaluating different tricks, to dodge the hounds, but could not escape the hounds. One of the morals of the story may be that fox knew many things, but the cat knew one big thing. The other related moral of the story may be that when it is the time for action, one should act rather than being engrossed in thinking and evaluation of alternatives. The third moral may that one convincing and clinching approach may be better than tens of cunningness. However, when this binary is applied to people, it does not fully capture the intellectual cunningness or wisdom of every individual or the same individual in different situations. But it does tell us that there are at least two ways of handling situations. Whether to be a fox, or be a cat or be both is a choice to be made depending on the facts and circumstances of each case and situation. Whether a lawyer is a fox or a cat? Whether the role of the lawyer is to help find truth and administer justice? Isaiah Berlin (1909-1997), a philosopher who was mainly concerned with the history of ideas used this story, to classify thinkers, in his seminal essay “The Hedgehog and the Fox” published in the year 1953. He noted as under: [W]ords can be made to yield a sense in which they mark one of the deepest differences which divide writers and thinkers, and, it may be, human beings in general. For there exists a great chasm between those, on one side, who relate everything to a single central vision, one system, less or more coherent or articulate, in terms of which they understand, think and feel – a single, universal, organizing principle in terms of which alone all that they are and say has Page 9 of 191  significance – and, on the other side, those who pursue many ends, often unrelated and even contradictory, connected, if at all, only in some de facto way, for some psychological or physiological cause, related to no moral or aesthetic principle. These last lead lives, perform acts and entertain ideas that are centrifugal rather than centripetal; their thought is scattered or diffused, moving on many levels, seizing upon the essence of a vast variety of experiences and objects for what they are in themselves, without, consciously or unconsciously, seeking to fit them into, or exclude them from, any one unchanging, all-embracing, sometimes self- contradictory and incomplete, at times fanatical, unitary inner vision. The first kind of intellectual and artistic personality belongs to the hedgehogs, the second to the foxes; and without insisting on a rigid classification, we may, without too much fear of contradiction, say that, in this sense, Dante belongs to the first category, Shakespeare to the second; Plato, Lucretius, Pascal, Hegel, Dostoevsky, Nietzsche, Ibsen, Proust are, in varying degrees, hedgehogs; Herodotus, Aristotle, Montaigne, Erasmus, Molière, Goethe, Pushkin, Balzac, Joyce are foxes. Our thinking and response to a particular situation is generally conditioned by our genes, personality type, time, environment, education, training, and socio-economic-politico-cultural factors. Our response to a given situation may be spontaneous, it may be a reflex action, or it may be a well- thought out action. Our thinking process is not uniform, unilinear, and unidirectional. At times we take only one factor as the determinant of all other factors. At times we consider various factors as mutually dependent where each factor is influencing and is getting influenced by the other. In other words, at times we are foxes and at times we are hedgehogs. It is not necessary that we must be necessarily either foxes or hedgehogs. After all we are humans and not animals. Humans and animals both are evolving. The evolution of humans, however, is not merely biological but inter alia it is also intellectual. The intellectual evolution brings about changes in one’s life and world view. Not only humans’ nature is different from animals’ nature, but also individual nature of individuals is different from each other. Individuals may be classified on several bases including on the basis of education and training. Some people are educated trained and some are not. Those who are trained, they have put in their time, resources and energy in mastering a particular type of knowledge and/or skill. For example, we are being trained in law. Those who are not trained in law are not lawyers. Lawyers are intellectuals. Lawyers are trained in law. They acquire knowledge and skill of law over of a period of time by long training. You are going to become lawyers. Therefore, you require training in law. You require at least five years for acquiring the knowledge and skill necessary to become a lawyer. Must you know one thing big? Must you know many things? Must you know both one thing big and many things? During the course of journey, you will learn many things both big and small. Page 10 of 191 One thing big that every lawyer must know is that she has to put in hard work particularly in reading. However, reading without understanding and comprehension, without critical and creative thinking, without imagination is raw and futile. Reading is not an effective tool for acquiring skills. Nonetheless, lawyering is impossible without reading. Reading, therefore, must be our passion. But not all of us may be passionate for and enthusiastic about reading. Some of us may have a hatred for reading. What can be done for those who do not have or lack passion for or have hatred towards reading? If you hate reading, neither law is cut for you nor you are cut for law. It does not mean that those who do not read or hate reading are not cut to do anything worthwhile. They are definitely cut to do something else other than law and excel therein. To conclude this part, it may be said that learning is both an art and a science. Learning involves not merely acquisition and accumulation of knowledge but also unlearning and de-learning. Learning is ever-greening of mind with a deciduous character. Learning begins with doubt. Doubt begets questions. If you know your question, you will find the answer. Having the question is more important than having the answer. Never hesitate or have fear in speaking your mind. Never judge your question. Speak up and speak out. learNiNg how (NoT) To learN law Law was not a discipline at early common law. There was a time when people from the other disciplines particularly social scientists were opposing the idea of law being included in the university curricula. According to them law lacked intellectual rigor hence was not worthy of the tag discipline. Things change. With the appointment of William Blackstone at Oxford University things started to change. Jeremy Bentham also tried to establish law as a discipline but with little success. Our salute to John Austin who was successful in establishing law as a discipline. Introduction of interdisciplinary approach in law schools and establishment of law universities in India provided an additional employment opportunity to social science graduates. Had social scientists succeeded and law teachers failed in establishing law as a discipline, this additional employment opportunity now available to social science, science, technology, management teachers in law universities would not have been available. Law is now a discipline. Since it is a discipline, it must have intellectual rigor. Perhaps, it is the only discipline which has integrated and is striving to integrate other disciplines with it. Discipline of law has thrown an open invitation to all the disciplines to come to her home. Now we find that the disciplines of humanities, science, management, commerce, and technology are housed in the law schools and law universities. Further, at early common law, law was not a profession. It was vocation and apprenticeship. To become a Barrister or Solicitor one was required to join any of the three Inns Page 11 of 191 in England and work as an apprentice. With law becoming a university subject and establishment of regulatory bodies for legal profession, law has become a profession. Law as a discipline is a continuing enterprise. It is both a theoretical and practical discipline. Practice of law without knowledge of theoretical underpinnings of law is infertile. Theoretical or bookish knowledge of law is incomplete. This course seeks to translate scholastic traditions into practical legal enterprise by outlining general map of common law method. As a Chinese saying goes “Tell me, I forget. Show me, I may remember. Involve me and I will understand”. Keeping this in view the course is designed to help you develop insight into the institutions, concepts, percepts, doctrines and processes of law by encouraging, stimulating and involving you to learn how to learn law, learn law, learn how to apply law and apply law to a given problem. The course seeks to ignite your mind to learn how to learn imaginatively, critically, analytically, creatively and argumentatively. First year undergraduate law students are different from the students of other disciplines. The students of medical sciences, engineering and technology, science, humanities, art, and commerce are expected to build upon and go deeper into the subjects that they have already learnt in their school days. However, that is not the case with law students. Law as a subject is not taught in schools. First year law students, therefore, are uninitiated hence novices in learning law. No doubt they have heard the word ‘law’ and have some idea about the polity and law but they are not trained in law. It may be worthwhile to mention that by learning a subject over a period of time, one develops a particular frame of mind - what Lord Coke called artificial reasoning. The law students, therefore, have to begin learning law from the beginning. It is expected that in a period of five years they will be able to develop a frame of mind of a lawyer. After the successful completion of the law course, they will have the abilities of how (not) to: think and imagine like a lawyer; read and write like a lawyer; speak, argue and discuss like a lawyer; and finally preempt and/or solve problems like a lawyer. It always takes time to master the art of how (not) to...The five years at law schools are not sufficient to equip the students with all the abilities of a lawyer. Nevertheless, this period may be utilized to train the uninitiated minds to become legal mind. Each one of us must have had one or the other encounter with law. Our encounter may have been pleasant or otherwise. None of us can claim to be either ignorant of the word ‘law’ or the law as such. Law is, therefore, known, little known, or unknown. Our knowledge of law can be that of a lay man or of a law man. Law man for our purposes means a human being trained in law. Our journey of legal learning starts like a lay man who strives to become a law man. This journey is time taking. It requires continuous and persistent hard work and perseverance. Page 12 of 191 The intense desire to learn with enthusiasm is necessary condition precedent for learning law. Law is not a discipline for those who do not enjoy reading and derive pleasure out of it. Every discipline requires her disciples to be disciplined. So, if your discipline is law and you are not disciplined then you are not her disciple. If you do not like reading, that means that you are cut for something else and you are not cut for the discipline of law. In law acquisition of both knowledge and skill is necessary. Legal knowledge without legal skills is lame and useless. Legal skills include reading skill, writing skill, communication skill, managerial skill and most importantly the skill of handling and managing any unexpected situation calmly. Legal skill without legal knowledge can hardly be acquired. The first and foremost ability of a lawyer is the ability to sit tight with reading and writing materials for long hours. No one can know law without reading it. “Curiously enough” said Vladimir Nabokov, “one cannot read a book, one can only reread it. A good reader, a major reader, and active and creative reader is a re-reader.” Rereading is generally a boring exercise. Nevertheless, every rereading brings to our notice something new that we had overlooked in the earlier reading. When it comes to reading, the most effective mantra of reading is: read the whole text, word by word, clause by clause, sentence by sentence, para by para, page by page, punctuation by punctuation, over and over again. If you have difficulty in comprehending the meaning of the whole passage in the first go. Divide the whole into as small a part that you are able to comprehend. Try to understand the meaning of the individual parts. Try to understand the relationship between individual parts. Recombine the parts to constitute the same whole. Hopefully, you may be in a position to comprehend the whole. If you are not successful, repeat the exercise till you are successful. The mantra of success is: don’t abandon the enterprise of repetitive exercise. A time will definitely come, when you will be in a position to comprehend the whole in the first go itself without breaking it into parts. Remember that it is not only our genius, intelligence, and continuous endeavor to be successful that decides what we become. But it is also our courage, resilience, and anti-fragility to face and handle failure even after putting in all the best efforts that decides what we become. We should never ever be afraid of failure. We are never in the state of ‘being’. We are always in the state of ‘becoming.’ It is said that there are only three rules to learn law. First, read the law. Second, read the law. Third, read the law. No one can run and read law. One has to reread it, understand it, and understand its different meaning, both semantic and legal. Finally, one must know how to apply the law to a given fact situation in manner which serves the purpose of justice and fairness. If you have read the above paragraphs but are still thinking that you hate reading. Perhaps, you are mistaken about yourself. Page 13 of 191 It is a fact that not everyone is cut for everything. No one can be master of everything. At best one can be a jack of all trades, but will be master of none. Some people like reading, some don’t. They may have some other passion and interest. Those who do not like reading does not mean that they are good for nothing. They may be good at many a thing for each one of us has one or the other unique and special quality and ability that others may lack. Each one of us is not conscious of one’s distinctive and special capability inherent in oneself. I, therefor, must strive to discover myself to find out my unique and special ability. If the self-discovery reveals that reading is not my passion and my passion is something else, I must follow my passion. Possibility of excelling is very high if I know myself. This knowledge of ‘me’ by ‘me’ will help self- realize and self-actualize. My passion may be painting, dancing, music, creative art, science, technology, basketball, football, volley ball, cricket, hockey, badminton, table tennis, lawn tennis, squash, billiards, snooker, horse riding, wrestling, boxing, or any other games or sports, business, politics and/or anything else. As luck would have it, I have become a law student and find the subject of law too boring. In the alternative, the subject of law is too interesting but my law teachers have specialized themselves in making legal studies repulsive and boring. In such a situation, I must consult my dignity and take an appropriate decision before it is too late. But whatever career I choose, I must give my best to it. If I have decided that I will study law then I must pull my socks and tighten my belt and be ready and steady to go. First rule of learning law is that the learner must be desirous, enthusiastic and passionate about learning law. If I love what I do, I do not feel any pressure in doing what I do. We feel pressure only if we do not love what we do, but we have to do it. Either one falls in love or one does not. If I hate reading, there is no device to help me love reading. Second rule is that the learner must put in all her best efforts to learn. Thirdly, the learner must find a teacher in whom she has trust and confidence and whose intellectual prowess and superiority is either generally accepted or is accepted by the learner at the least. One of the fundamental problems in learning “law” is the problem of plenty. There are plenty of laws. It is humanly impossible to know all the laws. Law is not an art of impossible. It is an art of possible. Learning at the cutting-edge of possibilities presupposes the knowledge of possible. It is possible to know how to know law by learning the method of knowing law. Therefore, student of law must cultivate the ability to know the law both at a general level and at the particular level on a given point by equipping her with methods, techniques and tools of learning how to learn law. Page 14 of 191 Leaner of law must know what (not) to learn. This course does not seek to make students learn law. It is not a course like law of contract, law of contract, or law of crimes where the students are required to learn the statutory provisions and their interpretation-construction by courts. It is a course about other law courses in particular and about B. A. LL. B. (Hons.)/B. Sc. LL. B. (Hons.) Program in general. Law is too vast2 a subject to be learnt in one lifetime. There are thousands of Acts and Codes made by the Parliament of India and State Legislatures. Then there are thousands of Rules, Regulations, Bye- Laws, Notifications and Orders made by Governments under the Act and Codes. Then there are thousands of Court Judgments. If we add the international treaties, foreign statutes and foreign court judgments the list will go on and on and will always remain incomplete. Hence, no one can read all the laws even for once. Rereading all the laws, therefore, is both impossible and impractical. Hence one cannot know all the laws. This does not mean that one cannot know the law. Thousands of students, teachers, lawyers and judges have the ability to know the law on a given point. One can know “the law” by knowing how (not) to know laws. It is never expected of a lawyer that she must know all the laws. Nevertheless, it is expected of a lawyer that: (i) she knows how (not) to know the law; and (ii) her fundamentals in and of law is clear. This course does not seek to answer the question what is law. This question is reserved for a course known as Jurisprudence or Legal Theory. Learning law is only a means and not an end by and in itself. It is a means to avoid and solve problems that adversely affect individual, group of individuals and the society at large by applying law to a given fact situation. However, not every problem can be avoided and solved through law. But some problems can be avoided and solved with the help of law. Understanding the nature of problem so as to appreciate whether it is a problem in the legal sense of the term necessarily entails un