lOMoARcPSD|46946146
Legal Method Notes
Legal Method (Maharashtra National Law University, Mumbai)
Scan to open on Studocu
Studocu is not sponsored or endorsed by any college or university
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
LEGAL METHOD AND INTRODUCTION TO LEGAL SYSTEM
Semester – I
B.A.LL.B. (Hons.)
STUDY MATERIAL:
Module – I Nature and Function of Law
Unit-I
a) Meaning and Definition of Law
b) Function and Purpose of Law
c) Classification of Law
i) Public and Private Law
ii) Substantive and Procedural Law
iii) Municipal and International Law
d) Hart’s Concept of Law and the Indian Constitution
(2002) 2 SCC (J) 1
Introduction:
Law, in its widest sense, means and involves a uniformity of behavior, a
constancy of happenings or a cause of events, rules of action, whether in the
phenomena of nature or in the ways rational human beings. In its general sense law
means an order of the universe, of events, of things or actions. In its judicial sense law
means an order of the universe, of events, of things or actions. In its judicial sense,
law means a body of rules of conduct, action or behavior of person, made and
enforced by the State. It expresses a rule of human action.
The different meanings of the word ‘law’ may be classified as follows:
1. Law means justice, morality, reason, order, righteousness etc., from the point
of view of society;
2. Law means Statutes, Acts, rules, regulations, orders, ordinances, etc. from the
point of view of society;
3. Law means titles, written laws, judicial precedents and customs as evidence of
law.
Generally the term law is used to mean three things:
First, it is used to mean ‘legal order’. It represents the regime of adjusting
relations, and ordering conduct by the systematic application of the force of organized
political society.
Definition of Law
1. Idealistic Definitions:
1
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
According to Salmond “the law may be defined as the body of the principles
recognized and applied by the State in the administration of justice”.
According to Gray, “The law of the State or of any organized body of men is
composed of the rules which the Courts, that is, the judicial organ of the body lays
down for the determination of legal rights and duties.
2. Positive Definition:
According to Austin, “A law, in the strict sense, is a general command of the
sovereign individual or the sovereign body, issued to those in subjectivity and
enforced by the physical power of the State. According to Austin, “law is the
aggregate of rules set by men as politically superior or sovereign to men as politically
subject”. He says, “A law is a command which obliges a person or persons to a course
of conduct”.
3. Historical Definition:
Savigny says that law is not a body of rules set by a determined authority but
is rules consist partly of social habit and partly of experience. It is not the product of
direct legislation but is due to the silent growth of custom or the outcome of
unformulated public or a professional opinion.
4. Sociological Definition:
According to Duguit, law is essentially and exclusively a social fact. It is in no
sense a body of rules laying down rights. Foundation of law is in the essential
requirements of the community life.
Ihering defines law as “the form of the guarantee of the conditions of life of
society, assured by State’s power of constrain”.
According to Pound, “Law is the body of principles recognized or enforced by
public and regular tribunals in the administration of justice.”
5. Realistic Definition:
Holmes J. says that “the prophesy of what Courts will do, in fact, and nothing
more pretentious, are what I mean by law”. According to realists, the formal law is
simply a guess as to what the Courts would decide and the law is that what the Courts
actually decide.
The modern definition given by Dias is “Law consists largely of ‘ought’
(normative) propositions prescribing how people ought to behave. The ‘oughts’ of
laws are variously dictated by social, moral, economic, political and other purposes”.
Subject-matter of Law
2
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
Dias lists out the subject material of laws as follows:
1. duties prescribed how people ought, or ought not, to behave with regard to
others who are said to have corrective claims or rights,
2. liberties or freedom to act and not to act;
3. powers to alter existing legal situations,
4. immunities form having existing legal situations altered;
5. means of achieving legal ends;
6. definitions;
7. location of legal relationships;
8. principles, doctrines and standards.
Function and Purpose of Law
Law is an instrument of society and its objects are achievement of justice,
stability and peaceful change.
1. Justice and Law
The ultimate purpose of law is justice. Salmond says that law is “the body of
principles recognized and applied by the State in administration of justice.
According to Salmond, justice consists in giving to every man his own. The
rule of justice determines the sphere of individual liberty in the pursuit of individual
welfare, so as to confine that liberty within the limits which are consistent with the
general welfare of mankind, within the sphere of liberty so delimited for every man
by the rule of justice, he is left free to seek his own interest in accordance with the
rule of wisdom.
2. Stability
Law must aim at stability in society. To achieve stability a balance has to be
struck not between persons, but between interests. The law has to maximize the
fulfillment of the interests of the community and its members and to promote the
smooth running on the machinery of society. Indeed, the motion of law represents the
need of uniformity and certainty to achieve stability. The stability and security for
maintaining the social order is derived from uniform unchanging and certain rules of
law.
3. Peaceful Change
The existing rules may not provide solution to the cases of changed times and
no rule can provide for every possible case. There is need for flexibility. Flexibility is
necessary to enable the law to adapt itself to social change. As society alters, new
social, political and economic requirements creep in and the needs of the people
change from time to time.
Classification of Law
3
Downloaded by Ashya Agarwal ()
Legal Method Notes
Legal Method (Maharashtra National Law University, Mumbai)
Scan to open on Studocu
Studocu is not sponsored or endorsed by any college or university
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
LEGAL METHOD AND INTRODUCTION TO LEGAL SYSTEM
Semester – I
B.A.LL.B. (Hons.)
STUDY MATERIAL:
Module – I Nature and Function of Law
Unit-I
a) Meaning and Definition of Law
b) Function and Purpose of Law
c) Classification of Law
i) Public and Private Law
ii) Substantive and Procedural Law
iii) Municipal and International Law
d) Hart’s Concept of Law and the Indian Constitution
(2002) 2 SCC (J) 1
Introduction:
Law, in its widest sense, means and involves a uniformity of behavior, a
constancy of happenings or a cause of events, rules of action, whether in the
phenomena of nature or in the ways rational human beings. In its general sense law
means an order of the universe, of events, of things or actions. In its judicial sense law
means an order of the universe, of events, of things or actions. In its judicial sense,
law means a body of rules of conduct, action or behavior of person, made and
enforced by the State. It expresses a rule of human action.
The different meanings of the word ‘law’ may be classified as follows:
1. Law means justice, morality, reason, order, righteousness etc., from the point
of view of society;
2. Law means Statutes, Acts, rules, regulations, orders, ordinances, etc. from the
point of view of society;
3. Law means titles, written laws, judicial precedents and customs as evidence of
law.
Generally the term law is used to mean three things:
First, it is used to mean ‘legal order’. It represents the regime of adjusting
relations, and ordering conduct by the systematic application of the force of organized
political society.
Definition of Law
1. Idealistic Definitions:
1
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
According to Salmond “the law may be defined as the body of the principles
recognized and applied by the State in the administration of justice”.
According to Gray, “The law of the State or of any organized body of men is
composed of the rules which the Courts, that is, the judicial organ of the body lays
down for the determination of legal rights and duties.
2. Positive Definition:
According to Austin, “A law, in the strict sense, is a general command of the
sovereign individual or the sovereign body, issued to those in subjectivity and
enforced by the physical power of the State. According to Austin, “law is the
aggregate of rules set by men as politically superior or sovereign to men as politically
subject”. He says, “A law is a command which obliges a person or persons to a course
of conduct”.
3. Historical Definition:
Savigny says that law is not a body of rules set by a determined authority but
is rules consist partly of social habit and partly of experience. It is not the product of
direct legislation but is due to the silent growth of custom or the outcome of
unformulated public or a professional opinion.
4. Sociological Definition:
According to Duguit, law is essentially and exclusively a social fact. It is in no
sense a body of rules laying down rights. Foundation of law is in the essential
requirements of the community life.
Ihering defines law as “the form of the guarantee of the conditions of life of
society, assured by State’s power of constrain”.
According to Pound, “Law is the body of principles recognized or enforced by
public and regular tribunals in the administration of justice.”
5. Realistic Definition:
Holmes J. says that “the prophesy of what Courts will do, in fact, and nothing
more pretentious, are what I mean by law”. According to realists, the formal law is
simply a guess as to what the Courts would decide and the law is that what the Courts
actually decide.
The modern definition given by Dias is “Law consists largely of ‘ought’
(normative) propositions prescribing how people ought to behave. The ‘oughts’ of
laws are variously dictated by social, moral, economic, political and other purposes”.
Subject-matter of Law
2
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
Dias lists out the subject material of laws as follows:
1. duties prescribed how people ought, or ought not, to behave with regard to
others who are said to have corrective claims or rights,
2. liberties or freedom to act and not to act;
3. powers to alter existing legal situations,
4. immunities form having existing legal situations altered;
5. means of achieving legal ends;
6. definitions;
7. location of legal relationships;
8. principles, doctrines and standards.
Function and Purpose of Law
Law is an instrument of society and its objects are achievement of justice,
stability and peaceful change.
1. Justice and Law
The ultimate purpose of law is justice. Salmond says that law is “the body of
principles recognized and applied by the State in administration of justice.
According to Salmond, justice consists in giving to every man his own. The
rule of justice determines the sphere of individual liberty in the pursuit of individual
welfare, so as to confine that liberty within the limits which are consistent with the
general welfare of mankind, within the sphere of liberty so delimited for every man
by the rule of justice, he is left free to seek his own interest in accordance with the
rule of wisdom.
2. Stability
Law must aim at stability in society. To achieve stability a balance has to be
struck not between persons, but between interests. The law has to maximize the
fulfillment of the interests of the community and its members and to promote the
smooth running on the machinery of society. Indeed, the motion of law represents the
need of uniformity and certainty to achieve stability. The stability and security for
maintaining the social order is derived from uniform unchanging and certain rules of
law.
3. Peaceful Change
The existing rules may not provide solution to the cases of changed times and
no rule can provide for every possible case. There is need for flexibility. Flexibility is
necessary to enable the law to adapt itself to social change. As society alters, new
social, political and economic requirements creep in and the needs of the people
change from time to time.
Classification of Law
3
Downloaded by Ashya Agarwal ()
