lOMoARcPSD|46946146
Legal Method Notes pdf - law
b.a.ll.b (Christ Academy Institute of Law)
Scan to open on Studocu
Studocu is not sponsored or endorsed by any college or university
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
LEGAL METHODS
Nature, classification and sources of law
It aims at equipping a law student with different skills that will help a law student to be
capable to study law.
LAW: there are different definition of the term law meaning that there are many authors
who have different definitions.
The encyclopedia says that law comprises of all principals, rules and enactments that are
applied in courts and enforced by the the state
From oxford English dictionary says that law is the body of rules whether proceeding from
formal enactment or from customs which a particular state or community recognizes .
Law is a body of principals recognized and applied by the states in the administration of
justice.
According to Blackstone he says law is a rule of civil conduct prescribed by the supreme
power in the state, commanding what is right and prohibiting what is wrong.
According to Simonton he says that law is the body of principals and rules recognized and
enforced by the courts by which the relations of the members of the community with each
other are regulated
Generally law is a body of rules and principals recognized by a particular state and enforced
by It to administer justice and regulate social behavior. By regulating social behavior the law
brings about equilibrium by balancing the conflicting interests in a particular community.
For the law to be in a position to achieve this it must set a standard of behavior that ought
to be complied by every citizen, this standard is enforced by the state through imposition of
penalties for those who go against it, this is known as normativity character of law.
NORMATIVITY CHARACTER OF LAW: this is the character of law that
differentiate law from other things where by it establishes standards where by when
someone goes against those standards a punishment is given to him or her. But law is
created and regulated by a state while others are just created by customs.
FUNCIONS OF LAW
Law has mainly three basic functions which are as follows
PERMISSIVE FUNCTION
This is the function of law that actually allows or permits the subjects of it to do or engage in
a range of transactions for example entering into marriage, entering into contracts, in
cooperative companies etc.
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
DIRECTIVE FUNCTION
This is the function of law where by the law allows a subject to to enter into various
transactions or relations but it directs the subjects as to what to do should be done or
complied with for the purpose of validating the transaction or relations in question. Example
the element of a valid contract, the necessary documents for formulating a company
PROHIBITIVE FUNCTION
This is the function of law where by the law prohibits certain defiant behavior by terming
them as crimes and providing sanctions or punishment on contravention example the penal
code which provides for various offensives and punishment the economic and organize
crimes and contract act
THE NATURE OF LAW
There are basically two thoughts of law
IDEALISM
HISTORICAL MATERIALISM/MARXI’SISM
IDEALISM
This is a school of thought which maintains that law originate from God and it was written
no where but imprinted on people’s hearts this was known as natural law. The supporter of
this were Plato, Cicero , St. Thomas Aquinas e.t.c they are maintaining that natural law was
superior, unchanging, universal and the kings were under this law.
HISTORICAL MATERIALISM/MARXI’SISM
Origin of law nearly came from God but it came from human beings, they are also saying
that law is the result of social relations and production relations, they are adding that during
primitive communalism there was no law, it started to develop during class societies. When
people were in a position to produce in surplus, due to that two classes emerged “the
haves” and “the not haves”, “the haves” wanted to dominate “the have not’s” so they
introduced leadership in the form of a state and laws enforced by the states so as to
continue their dominance over “the have not’s” and that is why state and law are in
separate according to Marxist’s law is an oppressing instrument by the ruling class to
impose their wishes over the ruled ones.
METHODS OF SOCIAL CONTROL THROUGH LAW
This basically refers to the various systems a legislature can adopt to achieve social earns
through law prof Robert S summers an American tourist has identified five basic techniques
used in modern law to control social behavior
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
The penal technique:
it involved rules prohibiting certain defiant behaviors, the maintenance of a police force
and other enforcement agencies to detect and prosecute violations, together with a system
of courts to adjudicate question of criminal liability. It also involves the maintenance of
prisons, custody centers and other such places as a penal system N.B the existence of the
penal system deters people from committing crimes. It prescribes certain conduct and
terms them as crimes, A crime considered to be committed against the state and it is the
state itself that will prosecute you. This only deals with criminal matters
Grievance remedial technique;
This shows or prescribes specifies remedies and provides for enforcement of remedial
awards it involves the statement of substantive legal rules, principals and standards which
creates rights and duties and remedies to backup those rights. It involves the existence of
civil courts to process claims for the establishment of particular rights and machinery for
enforcement of remedies. While this only deals with civil matters not criminal matters. It
+nalso establishes courts.
The private arranging technique
It deals with a providing a frame work of rules which primarily determines the validity of the
transaction. It deals with private arrangements such as marriages, purchase and sale, gifts,
making a will, the creation of leases, formation of a club e.t.c. the law also provides a system
for the determination of rights and duties and other liabilities although this may subsume
under the previous remedial technique N.B as the society becomes more and more
correctives there is a movement towards direct government intervention in the private
arrangement. This deals with private arrangement but it sets a frame work or standard to be
followed for those who will engage themselves in a particular transaction. Lawyers say that
when you formulate a will you die responsibly.
Downloaded by Ashya Agarwal ()
Legal Method Notes pdf - law
b.a.ll.b (Christ Academy Institute of Law)
Scan to open on Studocu
Studocu is not sponsored or endorsed by any college or university
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
LEGAL METHODS
Nature, classification and sources of law
It aims at equipping a law student with different skills that will help a law student to be
capable to study law.
LAW: there are different definition of the term law meaning that there are many authors
who have different definitions.
The encyclopedia says that law comprises of all principals, rules and enactments that are
applied in courts and enforced by the the state
From oxford English dictionary says that law is the body of rules whether proceeding from
formal enactment or from customs which a particular state or community recognizes .
Law is a body of principals recognized and applied by the states in the administration of
justice.
According to Blackstone he says law is a rule of civil conduct prescribed by the supreme
power in the state, commanding what is right and prohibiting what is wrong.
According to Simonton he says that law is the body of principals and rules recognized and
enforced by the courts by which the relations of the members of the community with each
other are regulated
Generally law is a body of rules and principals recognized by a particular state and enforced
by It to administer justice and regulate social behavior. By regulating social behavior the law
brings about equilibrium by balancing the conflicting interests in a particular community.
For the law to be in a position to achieve this it must set a standard of behavior that ought
to be complied by every citizen, this standard is enforced by the state through imposition of
penalties for those who go against it, this is known as normativity character of law.
NORMATIVITY CHARACTER OF LAW: this is the character of law that
differentiate law from other things where by it establishes standards where by when
someone goes against those standards a punishment is given to him or her. But law is
created and regulated by a state while others are just created by customs.
FUNCIONS OF LAW
Law has mainly three basic functions which are as follows
PERMISSIVE FUNCTION
This is the function of law that actually allows or permits the subjects of it to do or engage in
a range of transactions for example entering into marriage, entering into contracts, in
cooperative companies etc.
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
DIRECTIVE FUNCTION
This is the function of law where by the law allows a subject to to enter into various
transactions or relations but it directs the subjects as to what to do should be done or
complied with for the purpose of validating the transaction or relations in question. Example
the element of a valid contract, the necessary documents for formulating a company
PROHIBITIVE FUNCTION
This is the function of law where by the law prohibits certain defiant behavior by terming
them as crimes and providing sanctions or punishment on contravention example the penal
code which provides for various offensives and punishment the economic and organize
crimes and contract act
THE NATURE OF LAW
There are basically two thoughts of law
IDEALISM
HISTORICAL MATERIALISM/MARXI’SISM
IDEALISM
This is a school of thought which maintains that law originate from God and it was written
no where but imprinted on people’s hearts this was known as natural law. The supporter of
this were Plato, Cicero , St. Thomas Aquinas e.t.c they are maintaining that natural law was
superior, unchanging, universal and the kings were under this law.
HISTORICAL MATERIALISM/MARXI’SISM
Origin of law nearly came from God but it came from human beings, they are also saying
that law is the result of social relations and production relations, they are adding that during
primitive communalism there was no law, it started to develop during class societies. When
people were in a position to produce in surplus, due to that two classes emerged “the
haves” and “the not haves”, “the haves” wanted to dominate “the have not’s” so they
introduced leadership in the form of a state and laws enforced by the states so as to
continue their dominance over “the have not’s” and that is why state and law are in
separate according to Marxist’s law is an oppressing instrument by the ruling class to
impose their wishes over the ruled ones.
METHODS OF SOCIAL CONTROL THROUGH LAW
This basically refers to the various systems a legislature can adopt to achieve social earns
through law prof Robert S summers an American tourist has identified five basic techniques
used in modern law to control social behavior
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
The penal technique:
it involved rules prohibiting certain defiant behaviors, the maintenance of a police force
and other enforcement agencies to detect and prosecute violations, together with a system
of courts to adjudicate question of criminal liability. It also involves the maintenance of
prisons, custody centers and other such places as a penal system N.B the existence of the
penal system deters people from committing crimes. It prescribes certain conduct and
terms them as crimes, A crime considered to be committed against the state and it is the
state itself that will prosecute you. This only deals with criminal matters
Grievance remedial technique;
This shows or prescribes specifies remedies and provides for enforcement of remedial
awards it involves the statement of substantive legal rules, principals and standards which
creates rights and duties and remedies to backup those rights. It involves the existence of
civil courts to process claims for the establishment of particular rights and machinery for
enforcement of remedies. While this only deals with civil matters not criminal matters. It
+nalso establishes courts.
The private arranging technique
It deals with a providing a frame work of rules which primarily determines the validity of the
transaction. It deals with private arrangements such as marriages, purchase and sale, gifts,
making a will, the creation of leases, formation of a club e.t.c. the law also provides a system
for the determination of rights and duties and other liabilities although this may subsume
under the previous remedial technique N.B as the society becomes more and more
correctives there is a movement towards direct government intervention in the private
arrangement. This deals with private arrangement but it sets a frame work or standard to be
followed for those who will engage themselves in a particular transaction. Lawyers say that
when you formulate a will you die responsibly.
Downloaded by Ashya Agarwal ()
