Sunday, May 19, 2019

Custom as a Source of Law – M P Jain

INTRODUCTION TO THE sub judice bidding Note Only minimum development materials atomic number 18 reproduced here. Students atomic number 18 advised to familiarize themselves with every(prenominal) last(predicate)(prenominal) the recommended indi sack upts and put d proclaim in tidingss in the con ramify. (a) The object of Law Study (b) Studying Law nether the Case system (c) The Case Method from Students point of project. The sp atomic number 18-time activity extracts argon from (a) Stanley V. Kinyon, How to Study Law and import Law interrogative sentences (1951) (b) Edward H.Levi, An origination to wakeless Reasoning (1949) University of Chicago Press. (c) Paper from Professor Jackson, Michigan University Law complaisantise (Un-published ) (The essay is based on comments do or whollyy to a Faculty Colloquium of the Faculty of Law, University of Delhi in January and February, 1969 eyepatch the author was Visiting Professor of Law) THE OBJECT OF LAW STUDY W put on is this thing Law which you are around to study? What is the nature of the subject and what are you sup dumbfoundd to uplift ab over reign appear it?In atomic number 53 sense, the jurisprudence is a large body of die hards and regulations, based primary(prenominal)ly on prevalent principles of judge, fair play and convenience, subscribe been worked out by governmental bodies to regulate human activities and de in all effective what is and what is non per lamible conduct in unlike situations. We utilise the term in this sense when we say that a person obeyed the constabulary or broke the natural natural even up and a big(p) deal of your work volition be devoted to a study of the rules and regulations applicable to divergent areas of human activity. such(prenominal)(prenominal) rules and regulations are to a greater extent or less judgment of convictions found in our state and national constitutions, more a lot in statutes, al nightimes in administrati ve rulings, and in m any exemplars make up been real by the woos themselves in the parade of deciding the controversies that come forward them. The term justness, however, is as substantially as utilise in a much broader sense to de none the whole touch on by which organized society, by dint of and through government bodies and personnel (legislatures, judicatorys, administrative tribunals, constabulary-enforcement agencies and officers, penal and corrective institutions and so forth strives to bear these rules and regulations and at that placeby establish and bind ataraxisful and orderly relations between the bulk in that society. For example, when at that place is evidence that some person has killed another, or has robbed or stolen or d wholeness some other act disruptive of the reality peace of welfare, not only do we assert that he has broken the uprightness however we expect that the scoop up a bearing agencies of government im fraction in accordance with the rules of justness, apprehend and 2 ratified Profession and the Advocates fleck, 1961 ring him in front the proper motor hotel, conduct a fair and orderly audition to determine his guilt or innocence, and if he is guilty, prescribe and withstand out appropriate corrective or punitive measures. Even where no public offence is elusive, as where John Smith has an automobile collision with Joe Jones, or breaks a compact made to Joe & interferes with his post, or does something else to cause a dispute between them which they cannot peaceably settle between themselves, we expect them to usurp it to tribunal for a peaceable conclusion in accordance with the established rules of uprightness.This whole heavy surgical process is carried on through the various organs of government by a large number of people legislators, justnessyers, justices, police officers, administrative officials, and many others, most of whom moldiness be intensively trained in various flavo urs of the system. Law schools are engaged primarily in training future rightyers, tastes and others who give operate on this sanctioned system. Thus the study of fair play necessarily involves not only a study of legal rules but in addition a study of the whole legal system through which society attempts to respect law and order.For, too many schoolchilds get off on the wrong foot in law school because they dont extrapolate the real object of their law study. They get the idea that all they are supposed to do is memorize a flock of rules and decisions just as they memorized the multiplication tables in school. Such a notion is fatal. Even though you go by heart all the decisions and rules you have canvass in a course you can dormant flunk the exam. afterward all, you learned the multiplication tables-not besides to be able to recite them like a poem but to enable you to solve enigmas in arithmetic.Likewise, you are study rules of law and studying the law philander decisions and legal proceedings in which they are applied, to enable you to solve legal problems as they are solved by our legal system. It doesnt make any departure whether you are studying law in order to become a lawyer or judge, or merely for the help it will be to you in business, politics or some other field. In any cause you are after something you can use and support.To be grumpy(prenominal) you must learn how to take a finicky problem accurately classify it as it would be classified by a legal tribunal, discover and apply to it the rules and principles generally applied to controversies in that class, so far as possible, draw the like conclusions and arrive at the same resolving power as the legal tribunal would, to carry on your testify affairs properly, but also to advise others as to their legal rights and liabilities and otherwise take part in the activities of the legal system itself.If, on the other hand, you fuck a lot of legal rules but cant apply them an d work out a reasonably accurate solution of the everyday legal problems you run into, you simply havent learned what a lawyer has to realize. Consequently, whenever you are empathiseing a law intensity or discussing a problem in class or re conceiveing, keep this one thing in soul youre not merely memorizing what the courts and legislatures have said and done in the past. Thats historyYoure experimenting to learn how the legal system works and how to solve future legal problems in accordance with the principles that have been established. Introduction To The Legal Process 3 STUDYING LAW UNDER THE pillow character METHOD OR CASE SYSTEM The Case system is based on the idea that the richly hat substance to study law is to study the actual court decisions in various eccentrics of human faces and to derive from them, by inductive reasoning, an understanding of the main fields or classifications in the law and the general rules and principles of law applicable in those fields . The procedure is to have the scholar articulate selected flakes in fountbooks which have been prepared by slap-up legal scholars and past supplement his moorage reading by lectures, class discussions and a authentic sum total of outside reading in texts, law review comments and the like. The students work under this system consists mainly of reading and outlineing the movements, attending classes and taking notes, and periodically reviewing the work in each course). Consequently, if you are studying law under this system you should know the best systems of doing these. Cases and Case Books Before you can properly read and instruct the illustrations in your expressionbook, it is essential that you understand what they are, how they came to be create verbally, where the author of your episode book got them, and what is in them. In some schools this is adequately explained when you start the first familys work. In others it is not, and at that placefore it is pr obably worthwhile to explain these things here concisely even though some of you whitethorn already known them. You obviously cant read cocktail dresss intelligently unless you know what they are.Cases, as we shall use the term in this discussion, are the published reports of controversies which have come in the beginning the courts, including the courts decision and its reasons for the decision. These reports roughhewnly deal with the decisions and opinions of appellate courts (courts deciding sideslips appealed from lower courts). Trial court decisions (those rendered in the first court to which the controversy was taken) are not ordinarily recorded in printed volumes for public statistical distribution, except in the national courts, New York and a few other states. In most jurisdictions the pleadings, orders, verdicts, judgements, and so forth n the trial courts are merely tied in bundles in the office of the clerk of the court, and the record of the proceedings in trial r emains in short hand in the court reporters notebook unless a sheath is appealed, in that event, however, the appealing party has the record transcribed, printed and sent to the proper appellate court. Printed briefs are also normally submitted by each party to that court setting forth the melodic phrases pros and cons and the authorities relied on. Each party hence has an opportunity for oral argument onwards the appellate court judges at a time prescribed by them.After the arguments have been heard the judges meet in conference and come to some conclusion as to their decision. oneness of them is delegate the t select of composing a statement of the decision and the courts reasons for making it. This is called the opinion, and when he has finished judicial writing it, he submits it to the other members of the court who either approves it, kindle changes, or dissent, in which case they may hold unmortgaged a dissenting opinion of their own. After the volume of judges have approved an opinion, it is handed over together with any dissenting opinions.Then, it is given out to the parties and made public in the one government agency or another. 4 Legal Profession and the Advocates act upon, 1961 After they are published, these opinions of cases are customarily referred to or cited by giving the progress to of the case, the volume number, comprise and rascal of the state report in which it is published if it was sinkd by a state court, the volume number, name and page of the particular unit and series of the National Reporter System in which it is reported, the volume number, name and page of any other selected case series in which it may have been published and the involution it was decided.The Case books which you use in school are made up principally of selected cases taken from these reports (or from face or British Empire reports) and arranged or grouped match to the fibre of controversy pertain in the case, sometimes the author of the case book reproduces the whole opinion verbatim as primarily published, sometimes he omits parts of it not seeed as significant, or substitutes a brief statement of his own as to some part which is omitted, but this is al expressions indicated.Therefore a case you read in your case book is normally, an exact copy of what some judge has compose in explanation of his courts decision in a particular law lawsuit brought to that court for decision. Reading Cases The fundamental thing in reading cases is to know what to look for. Otherwise you may concentrate on the wrong thing or miss an important point. Perhaps the best way to explain what to look for is to point out what you can normally expect to dominate in a case and what the judge normally puts or tries to put in his opinion. 1.The first thing you will unremarkably find in a case is a brief statement of the kind of controversy involved. That is, whether it was criminal prosecution, an process of tort for damages, an action for breach of contract, or to resume land, etc. This is usually accompanied by an explanation of how the case got to this particular court whether it started there, or if it is a matter on appeal (as it usually is), how and why it happened to get there whether plaintiff or suspect appealed, and to just what action of the lower court the appealing party is objecting. . The future(a) thing you will usually find is a statement of the points of the controversy, who the parties were, what they did, what happened to them, who brought the action and what he wanted. Normally, the judge writing the opinion starts off with a complete statement of the facts, but judges are not always careful to do this and you will oft find the facts, strewn throughout the opinion. Thus you can never be sure you know all well-nigh the controversy until you have read the whole opinion.Sometimes the statement of facts is made categorically on the grounding of the courts or jurys findings of fact sometimes it i s made by stating what the plaintiff and suspect alleged in their pleadings and sometimes it is in the form of a resume of the evidence produced at trial, wherever they may appear, however, and in any(prenominal) form they may be, determine circumstances out of which the controversy arose. 3. Next comes a statement of the head teacher or apparent movements the court is called upon to decide the various subject fields (either of law or fact) which must be settled before a decision on the controversy can be reached.Any of you who have done any debating, understand issues, the breaking up of Introduction To The Legal Process 5 a general problem into specific sub-problems. Some judges are very careful to state the issues cl advance(prenominal) others will leave them to proof from the discussion, or else wander around from one thing to another and leave the slender top dogs they are deciding in doubt. 4. After the issues comes the arguments, on them a discussion of the pros and con s. This is where logic comes into play. You will recall that there are two main types of dianoetic reasoning inductive and deductive.Inductive reasoning involves the formulation of general pro vexs from a attachment of specific problems or observations deductive reasoning involves the application of a general proposition already explicate to some specific situation or problem so that a conclusion can be drawn as to it. In each case the court, having these definite and specific issues or problems to decide, decides or purports to decide them by first concluding what the general rule or proposition of law is as to this type of issue, and then deducting the decision on the issue from the general rule.If there happens to be a statute or constitutional provision prescribing a general rule as to questions like those involved in the case, the judge has his major premise and will devote his argument to a consideration of its s cope and applicability to the issues in the case. If there is no statute or other prescribed general rule, the judge will try by induction to derive one from the decisions and opinions to previous cases involving issues kindred to those in the lay case, or from general principles of fairness, policy and common sense, and then apply it to the issues at hand and deduce his conclusion. . Finally, after the argument on all the issues (and sometimes good deal of irrelevant argument and discussion), the judge states the general conclusion to be drawn therefrom, and winds up the opinion with a statement of the judicatorys decision. For example Judgement affirmed, Judgement converse, Case remanded, New trial ordered, etc. It is to be remembered, of course, that legal opinions do not all honour the same order and are not all cut from the same pattern. They are written by many different judges, each of whom has his own style of writing and his own particular mode of resenting a legal argument. Some opinions are not as easy to understand as others a nd it would be erroneous to assume in reading them that they are all absolute. coquettes frequently disagree as to the principles that ought to be applied in authorized types of controversy and occasionally the same court will change its view as to the law on a particular point. In reading these cases, you are not essay to find the reasoning from what various courts have actually decided in particular cases the rules and principles most frequently applied and most in all likelihood to be applied by them in future cases of that type. instantly, having in mind what you can expect to find in the cases, and also the fact that they are not necessarily perfect and seldom embody an unchanging principle or universal truth, you are in a position to read them intelligently. Its not a bad idea, however, to adopt a systematic rule of reading them The following has proved effective, and you efficiency try it as a starter. First get a clear externalize of the controversy involved. Get all the facts and issues straight. Consider the following 6 Legal Profession and the Advocates Act, 1961 What kind of an action it is,Who the parties were, What they did and what happened to them, Who brought the action, what he wanted, What the defence was, What happened in the lower court (if its a case of appeal), How the case got to this court, Just what this court had to decide. At this point, stop for a moment. Look at the problem first from the plaintiffs point of view, then from the defendants. pick out yourself how you would decide it, what you think the decision ought to be. Compare this case with others you have studied on the same topic. What end point do they indicate ought to be reached here.By doing this you put yourself in a better position to read the courts argument critically, and spot any fallacies in it. We are all somewhat prone to accept what we read in print as the Gospel, and this little device of considering the problem in your own mind before reading the co urts argument is a rather effective means of keeping a critical attitude. Now read the argument and the courts conclusions. Consider the various rules and propositions advanced on each issue and the reasons given for adopting them. See whether the conclusions drawn follow logically from those rules.Then ask yourself whether you agree with the court, and if not, why not. Consider also how the result in this case railroads up with other corresponding cases you have studied. In thus analyzing the courts argument and conclusions it is important to distinguish carefully between the rules and propositions of law actually relied upon by the court in deciding the issues involved in the case (these are called holdings) and other legal propositions and discussion which you may find in the opinion but which are not relevant nor applicable to the issues before the court (these are called dicta).When the case was before the court, counsel for the opposing parties probably availed themselves of the opportunity to prepare fully and present to the court their arguments, pros and cons upon the issues involved in it, and the court thus had the opportunity to consider all aspects of each issue, choose the better result and hold with that view. Dicta, however, not universe relevant to the issues before the court, was probably not argued by counsel nor thoroughly considered by the court. It was not necessary to the decision of the case and the court may have stated it nonchalantly without considering all aspects of the problem.Courts in each jurisdiction get a line their own prior holdings as creating binding precedents which they experience obliged to follow in later cases involving the same issues. This is called the doctrine of stare decisis and makes for stability and auspicateability in the law. Dicta, on the other hand, being casual and not a matter of actual decision, is not regarded as establishing law which will be binding on the court in a subsequent case. Thus th e originator case containing the dictum is not a controlling authority on the question although it may be followed in later decisions. Introduction To The Legal Process 7THE CASE METHOD FROM THE STUDENTS POINT OF VIEW One of the important developments of Indian Legal Education in the last few years is the introduction of the case method of teaching in several Indian Law Faculties. The case method sometimes called the discussion method is a term that has been apply to describe a wide variety of teaching methods, but the one common element of these methods usually is the use of actual court opinions as the priming of compend and discussion in the law classes. The advantages of the case method do not have to be perennial at length here. Eminent Indian scholars have already commented on those advantages.Suffice it to say that one elemental purpose of the method is to engage the student himself in the process of view through the meaning and tax write-off of legal principles as se t mow in court cases. Instead of the passive role which the student may often take when his teacher 1ectures, in the case method the student must himself actively engage in considering the innovation of legal rules and the teacher assumes more the role of protagonist and discussion leader, request question to students, debating points with them, sometimes playing the devils advocate to force students to think for themselves.The sine qua non of good classes using the case method is prepared by students who have had access to cases prior to class, and who have and analysed those cases. Further more, the students activity in reviewing his subject matter and preparing and writing examinations will often be different when the case method is utilise, from that which it would be under a lecture method. For one thing the examinations themselves are usually different. When the case method is utilise as a teaching technique, examinations usually take the form of hypothetical fact situatio ns, i. e. hypothetical case, vocation upon the student to decide the case and give his reasons, or calling upon the student to play the advocates role and write the best possible arguments for one side or another of the case. Each student has his own extraordinary way of studying, which suits him and is most productive for him. He will adapt his study habits for the case method. However, it competency be helpful for him to know how students who have been studying under the case method for some time, go about their studies. If the Indian student knows this, he may find some aspect or other useful and adaptable for his commands.These study methods can be divided into five parts 1) study before class 2) the classroom discussion 3) study or review study after class 4) preparing for the examination 5) writing the examination 1. Study before class Assuming one or more cases have been assigned to students to read and prepare for discussion in the next class, how can one best understan d that case or these cases? He can, of course, simply read them and take notes. But one of the important aspects of the case method is 8 Legal Profession and the Advocates Act, 1961 learning a method of analysis for law cases.If the student tone-beginninges his case reading with a framework for such analysis, he is likely to derive more benefit from his reading, and be able to contribute more in the classroom discussion. Students practice in the case method is often to use a key or move for analysing law cases. The key or guide has cardinal parts the facts, the essential question, the answer or court decision on that question, and the reasons for that decision. Each law case can be analysed into these four parts, and such analysis is often called a case brief. let me be more specific.The case brief (which many law teachers require students to prepare on radical in their notes, and to bring to class) should be a short synopsis of the law case organised along the four parts mentio ned above, as follows F (Facts a brief two or three line summary of the essential facts of the case i. e. those facts necessary for the decision. ) Q (Question a one line question formed to pose the major issue in the case). D (Decision The courts holding Something this can be Yes or no in answer to the question. The courts order can then be stated, e. g. affirmed, appeal pink-slipped, etc. R (Reasons Here the reasons can be listed in number dodging form). The whole case brief should be indeed brief, that is, it should not be a long type written or handwritten affair which attempts to include everything which the case itself includes. It should contain only the most salient points, in abbreviated form. Often the page number in the case-book can be jotted in the brief next to relevant reasons, to remind the student where he can find that point in the book so that he wont feel it is necessary merely to copy out, word by word, any portion of the case.The emphasis in all such preparat ion should be on thinking an analysis, not on copying or memorizing. The brief should always be available to the student to refer to in the classroom, and also at a later stage when he is reviewing. Now let us turn to an example. Let us take the case of Abdul Azis vrs. Masum Ali, an Indian contract case reported at 36 Allahabad 268 (1914). The following might be one students case brief of this case. You will note that abbreviations are used whenever possible. (df = defendant pl = plaintiff lc = lower court tc = trial court ap = appeal, etc. ) F Subscription for mosque f MAK was treasurer He supportd Rs. 500/- to subscription JM gave cheque to MAK for Rs. 500/MAK presented cheque which was refused as irregular. 1 year later MA, presented it again as corrected, but now refused as too old. MAK died. PL mosque committee sues MAKs heirs twain for MAKs pledge and for JMs cheque amount. Later MJK died. Introduction To The Legal Process 9 P facts (procedure facts) tc for pl on MAK pledge, for df on JMs cheque question App. Ct for pl on both. Q Can pl recover on charitable promise here? Can pl recover on cheque mishandling here? D No to both (Dismiss both causes)R Ist Cause of Action, the pledge mere gratuitous promise, no consideration. MAK as Treasurer? but he did not set aside funds. 2nd Cause of Action cheque mishandling No duty to comprehend correctly. Voluntary office of treasurer could cease anytime. Now in the classroom discussion many facts of this case can be brought out, and attention may be directed to provisions of the Indian fill Act which the court may have overlooked. Nevertheless, the student can prepare the above case brief before class, and if he does so he will be forced to look for the key facts and the key question in the case.He may, particularly at the beginning, often be wrong in his case to judge as to what are the key facts or questions, but during classroom discussion this should become apparent to him, and he will learn by this process . This is the first step of effectively learning through the case method. 2. The Classroom intelligence In class, the student should have his brief in front of him. The teacher may call on a particular student to begin the discussion by stating the case, i. e. by stating in turn the facts, question, decision, and reasons, from his case brief.Discussion can proceed on each of these, as to whether the student has been correct in his analysis, whether another way to analyse the case might be better, whether the existence of particular facts were essential to the holding and if so why, what is the precise holding or precedent value of the case, and whether the court was correct either in its holding or in its reasoning. The student should try to take brief notes during class to jot tear down the important points brought out in class. One way which some students find useful in doing this, is to prepare each case brief on a new page of notebook, paper.If the brief takes about one- half( a) page, then the student can lay down his notes from the classroom discussion just below his case brief, and on the book of the page. Thus both his case brief and his classroom notes are located together for easy write at a later stage. 3. Study or Review after Class It is always useful, if there is time, to review the subjects which were discussed in class immediately after that class, to add to ones notes, and to clear up any questions one has in his mind. When the classes have completed each section or each chapter of a case book, i. e. t the end of each sub-division of the course material, the student should begin the vitally important process of outlining the subject matter of that portion of the course. At this stage he will have before him all his case briefs and classroom notes on all the cases assigned for that portion of the course. He will also have his case book, with its questions and notes. He should then try to inductively assimilate this raw material into a logical consistent set of principles. This is a key 10 Legal Profession and the Advocates Act, 1961 step in his thinking and learning, and one vitally different from the lecture method.Here the student must himself take the raw data of the law, the court opinions and derive from them the general rules, exceptions, and reasons which in the lecture method might simply have been presented to him for memorization. It is the process of doing this for himself that brings cleverness and understanding to the student. He can, of course, turn to treatises and text books to assist him in this process (in a sense, his outlining is a process of writing his own text book), but it is always better to try to outline himself first, before bend to someone elses work.If this outlining is short circuited, then the student misses the understanding and he will be unable to cope with a well constructed examination which should attempt to test his understanding and not just his memory. 4. Preparing for the Exam ination At the end of the term, the student should complete his outlining for any portions of the course for which he has not completed it before. He then can use these outlines for review purposes, dipping back into his case briefs, classroom notes and case book as postulate to refresh his recollection.One effective technique of studying at this stage, which many students use, is a small discussion group, usually of three students in the same course. These students can compare their outlines, explain to each other the points they include in them, and test each other orally by posing questions and hypothetical cases to each other, for discussion. 5. Writing the Examination Here a few simple guidelines may help. First, allocate your time wisely. If the examination is three hours in duration and five questions must be answered, allocate one-half hour to choose your questions, and then one-half hour to write each answer.Be ruthless about stopping at the end of a half hour on a questio n, because if you are forced to leave out (or hurry through) any question, this is likely to penalize you in your score more than leaving out a few final fine points of another question. Second, outline your answer before you begin to write. Particularly with the problem or hypothetical type examination question, it is important to spend about one third of your allocated time in analysing and thinking through the problem. Jot down on a spare piece of paper a rough outline of your answer, and only then begin to write.Third, write legibly. These are a few of the methods which many good students have used for year and years, when they have studied law by the case method. You may find some of these methods useful in your own study. The important thing to remember, is that the purpose of the whole processstudying, classroom discussion, examinations, etc. is to give you a basic understanding of the law, its sources, its rules and their limitations and the reasons for those rules. Now let me turn to a few additive points that may be useful in studying under the case method.It is important to realise that there are a variety of view points from which a case or rule of law can be approached. It is not enough to simply ascertain what is the law, in some general arise sense. There are other relevant questions which can be posed also, such as What should Introduction To The Legal Process 11 be the law. For example, consider the following four approaches to a particular case or fact situation, taken partly from the actual work of a practicing lawyer. First might be called the planning transacting approach.In a given situation, a lawyer may be called upon to advise a client about the best way to go about some business or ain activity. At this stage the prime consideration is getting the objectives accomplished with the least risk of something going wrong. If the problem is drafting a contract, or preparing a will then the lawyer will need to know what the problems and pi tfalls are so that he can word the language of the instrument in such a manner as to avoid future controversy or litigation.He may not, at this stage, need to know precisely what the law is regarding each of his problems (the law may, indeed, be unsettled on those points), but he must be able to spot the problem so that he can avoid it. Second might be called the predicting approach. In some circumstances the lawyer is called upon to perform a task which basically is to predict how a court might rule on a question. Justice Holmes, in the U. S. is quoted as saw that law is nothing more nor less than a prediction of what the courts will do in a particular circumstance.The situation like this arises when a client comes to a lawyer with a dispute which has already arisen, and asks the lawyer whether he should sue in court. The lawyer may advise the client partly on the basis of his prediction whether the client will win. To a certain degree this is stating to the client what the law is , since the lawyer knows that the courts decision will be based on that law. Third might be called the advocacy approach. For instance a client has decided to bring a law suit (either with or against his lawyers advice).Now it is the lawyers task to do the best job of advocacy which he can do for his client. Under the adversary system of courts which we have, this is a very important function, because the philosophy is that if each side presents their best possible arguments, the courts will be able to rule more justly on the issue. But here the lawyers function is different from that of the two previous approaches. In this approach it is his task to marshal the strongest arguments, not to predict, nor to avoid problem issues. Fourth, and finally, comes the discriminatory or legislative approach.In this instance the lawyer (as a judge, legislator, member of a commission or committee, etc. ) is called upon to give his view as to what the law should be. Once again, this approach dif fers from the previous ones depict. Each of those tasks or approaches requires skills a bit different from the other. It is important for the law student to develop his talents in each of these directions. One way of doing this is to occasionally analyse a case, either in his private studies or in classroom discussion, according to each of these four approaches.As your self, in connection with a particular case on contracts or wills, how could I prepare a similar will or contract, which would have avoided the litigation described in this court opinion? Ask yourself if presented with this case today, or a similar case, how would I predict the courts would decide? Ask yourself, if given the task to argue for the plaintiff which arguments would I use? (Then ask the same question for arguments for the defendant). Finally, ask yourself, what should be the rule of law in that situation? The same analysis can be used in almost any law subject. THE INDIAN LEGAL SYSTEMJoseph Minattur INTROD UCTION To delve among the laws of India is like clean in the holy waters of Triveni. It leaves one refreshed and delighted refreshed from the pleasant contact with almost all the legal systems of the contemporary world, and delighted at the hopeful realisation that here in the Indian legal system lie the seeds of a unified, eclectic legal order which may soon pay back into maturity and spread its branches, like a banyan tree, all over south and southeast Asia. leash main streams join together to form the Indian legal system. That of the common law is perhaps the most dominant among them.Then there is the stream of laws springing from religion. The third is that of the civilised (romanist) law which energizes the system with unruffled ethical vital force and accords comeliness to its contours. Trickles of prevalent laws cherished by tribal societies and other ethnic communities also flow into the main stream. Like the Sarasvati near Prayag, the element of the civil law is not e asily perceptible, though it permeates the entire structure. So a word of explanation is perhaps warranted. The very idea to a scratch appears to have been derived from the codes of Continental Europe.When in 1788 a codification of Hindu law on contracts and succession was proposed by Sir William Jones to Lord Cornwallis, it was conceived to be on the model of the inestimable Pandects of Justinian. On 18 May 1783 A Regulation for forming into a perpetual computer code, all Regulations that may be enacted for the Internal Government of the British territories in Bengal was passed by the Governor-General and Council, some eighter years earlier, in 1775 Warren Hastings had A grave of Gentoo Laws or Ordinations of the pundits prepared and translated by Halhed a Judge of the peremptory Court at Calcutta.The same year Bentham offered to act as a sort of Indian Solon and thought of constructing an Indian musical compositional code. James Mill, one of his disciples at India support thought that his Draught of a New Plan for the France was applicable to India. Speaking on the Charter measurement of 1833 Macaulay said I believe that no country ever stood so much in need of a code of laws as India, and I believe also that never was a country in which the want might so easily be supplied. Section 53 of the Charter Act, 1853 declared that it was useful that such laws as may be applicable in common to all classes of the inhabitants ue regard being had to the rights, feelings and peculiar usages of the people, should be enacted and that all laws and customs having the force of law should be ascertained and consolidated and, as occasion may require, amended. The first Law Commission immediately after its appointment in 1833 with Macaulay as its President took up the task of codification. Under Macaulays individualised direction it prepared its first draft of the Indian Penal engrave and submitted it to the Governor-General in Council on 14 Legal Profession and th e Advocates Act, 1961 3 October 1837. When there were complaints that the progress of the Commissions work was unsatisfactory, Macaulay compared its progress with that of the authors of the cut codes. He pointed out that though the French Criminal Code was begun in March 1801, the Code of Criminal turn was not completed till 1810. It is also kindle to find half of the last century were on the same branches of law as were the French codes enacted earlier. incomplete in India nor in France was enacted a code on the law of civil wrongs.It is true that there was no comprehensive enactment on torts in England, but then there were no comprehensive enactments in England on any of the subjects covered by the Indian codes. It is not only in cherishing the idea of codification that the British Indian authoritiesexecutive as well as legislative bodies-appear to have been indebted to continental codes. As early as 1686 in a letter sent to Bombay the directors of the East India Company had evince the view that you are to govern our people there, being subject to us under His Majesty by the law martial and the civil law, which is only proper to India.The first Law Commission which drafted the Indian penal Code acknowledged its indebtedness to the French Penal code. In a letter of 2 May 1837 intercommunicate to the GovernorGeneral the Commission stated that it derived much valuable assistance from the French code and from the decisions of the French courts of justice on questions touching the construction of that Code. It derived assistance still more valuable from the code of Louisiana prepared by the late Mr. Livingston. The second Law Commission which sat in London from 1853 to 1856 expressed its view that hat India wants is a body of substantive civil law, in preparing which the law of England should be used as a basis. It, however, emphasised that such a body of law ought to be prepared with a constant regard to the conditions and institutions of India, and the ch aracter, religious and usages of the population. It also stated that in the social condition existing in India it was necessary to will certain general classes of persons to have special laws, recognised and enforced by our courts of justice, with respect to certain kinds of exertion among themselves.The Commission gave final shape to Macaulays Penal Code it also prepared drafts of the Code of Civil Procedure and the Code of Criminal Procedure incorporating into them materials left by the first Law Commission. The Legislative Council espouse the Code of Civil Procedure in 1859, the Penal Code in 1860 and the Code of Criminal Procedure in 1861. The third law Commission, appointed in 1861, was enjoined to prepare for India a body of substantive law, in preparing which the law of England should be used as a basis. The fourth law Commission expressed a similar view when it recommended in 1879 that slope law should be 4 Legal Profession and the Advocates Act, 1961 made the basis in a great measure of our future Codes, but its materials should be recast rather than adopted without modification. It, however, added that in recasting those materials due regard should be had to Native habits and modes of thought. The influence of Scots and their law on the framing and adoption of the early British India codes and other enactments deserves to be mentioned. For a number of Scots in the 19th century their prospects were not only along the highway to London, but from there across the high seas to Indian ports.Macaulay himself was of Scottish descent. Even when Scots were members of the English Bar, they were imbued with concepts derived from the civil law system. In the same way a they would prefer to preserve Scots law unsullied by English notions of Legal rule, they were inclined to keep Indian law unsullied by intrusions and erosions to English rules of law and tended to give due regard to native habits and modes of thought. We shall refer to few instances where the influence of the civil law is clearly discernible.Section 11 of the Indian evidence Act adopted in 1872 could not have been enacted in a fit of absent-mindedness. The section which lays down guidelines to determine relevance in the admissibility of evidence is a clear, and presumably a deliberate, departure from the English rule and brings the Indian law in this respect very relevant and fair. Another provision which is of pastime in this regard is section 165 of the Act. Commenting on it, Stephen has said Section 165 is intend to arm the judge with the most extensive power possible for the purpose of getting at the truth.The effect of this section is that in order to get to the bottom of the matter before it the court will be able to look at and enquire into every fact whatever. The Indian judge appears to be invested with ample powers under the Act to get at the truth and form his own conviction at time. It is not unfamiliar learning that the framers of the Indian Contract Act adopted several provisions of the Draft New York Civil Code. The Contract Act which does not purport to be a complete code only defines and amends certain parts of the law of contract, so that a rule of the Hindu law of contract like Damdupat is not abrogated.The rule stipulates that interest exceeding the amount of principal cannot be recovered at any time. It is still in force in some parts of India. The reason for not interfering with a rule like this must have been the sense of fairness cherished by the framers of the Act, though no such rule existed in English law. In the law of contract, consideration plays a significant role in India as in England. But the words of section 25 of the Indian Contract Act which accords boldness to a registered agreement, even though without consideration, appear to reflect the concept of cause in French law.In this brief introduction it is not intended to indicate all departures from English law in the Indian statutes. It may, however, be empha sised that when such departures were made, the legislators were generally induced to do so on consideration of what they thought suit Indian conditions or on considerations of equity. Legal Profession and the Advocates Act, 1961 15 It is generally assumed that India is a common law country. This assumption may have been justified to a certain extent if applied to British India. It is true that many of the concepts and most of the judicial techniques are of common law origin.But there is more than a sprinkling of other concepts and techniques, which cannot be overlooked. Indian codes or judicial procedure owe a great deal to procedure in England. But with the introduction of nyaya panchayats (village tribunals) which are indigenous in origin the English procedure has been virtually replaced at the grass root level. The functioning of nyaya panchyats may not be as widespread as is desired the fact however remains that at present there is a less formal procedure than the one followed until recent years.There is also general dissatisfaction, if not hostility to the complex, lengthened procedure derived from the common law system. With the reign of dharma which may be equated with equity while it comprises the concept of law unopposed to justice, there was no need in India to think of a separate branch of law known as equity detached from common law. We have already adverted to certain departures from English law even when rules of English law were believed to have been codified for the benefit of the Indian people.Neither the expression justice and right in the Charter of 1726 nor the phrase equity and good moral sense or justice, equity and good conscience in several regulations and Acts could have meant principles of English law. The Judicial Committee of the Privy Council was careful in its use of words when it pointed out that equity and good conscience had been generally interpreted to mean rules of English law if found applicable to Indian society and circu mstances. It has been observed that from 1880 or there about to the present day the formula has meant consultation of various systems of law according to the context.At present the Supreme Court of India is inclined to think that the phrase has given a connotation consonant with Indian conditions. In the early nineteen sixties a number of territories where the civil law prevailed became parts of the Indian Union. In the Union territory of Goa, Daman and Diu, Portuguese civil law was in force, even after the extension of several Indian enactments to the territory, it is generally the provisions of the Portuguese Civil Code which apply to the people of this territory in matters of personal law.In the former French settlements of Pondicherry. Karaikal, Mahe and Yanam which, when ceded, were formed into the Union territory now known as Pondichery, there are Indian citizens who are governed in matters of personal law by the provisions of the French civil code as they existed at the time of the cession. There are also other renoncants who are French citizens live in Pondicherry to whom provisions of the French Civil Code relative to personal law will apply with all subsequent amendments.In these circumstances, the element of the civil law in the fabric of Indian law cannot be brushed aside as negligible. And this element affects domestic relations which are on negligible part of a citizens carriage. The customary laws of various tribal communities and other ethnic groups also form part of the law administered in India. To cite one instance matriliny among the Mappila Muslims of Kerala, though not favoured by the tenets of Islam, is permitted to play a important role in the rules of succession applicable to them.In the light of the presence and prevalence of French and Portuguese laws, customary law of various ethnic groups and laws based on religion of the several communities, the introduction 16 Legal Profession and the Advocates Act, 1961 of indigenous judicia l procedures in village tribunals and several other factors, one cannot possibly death ones eyes and regard the Indian legal system as belonging to the common law family. It would be more justified to regard it as a mixed system.If Indonesian law with its admixture of customary laws based on religion could be regarded as a mixed system there is no reason why Indian law should not be so regarded. though the provisions of the French and the Portuguese civil codes relative to domestic relations are in operation in certain regions only, laws grounded in religion or custom are followed all over the country. The mosaic of Indian law may have a large number of common law pieces but marble quarried from France and Portugal, gilt leaves brought from Arabia and clusters of Precious stones gleaned form Indian fields do deserve to be discarded.When India adopts a civil code, under the directive in the Constitution it is likely to be eclectic in character, it may have in it a harmonious admixt ure of various laws based on religion and customary laws, as well as provisions derived from western codes and the English common law. Owing to its eclectic character and especially because it would attempt to harmonise provisions of personal laws derived from religion prevalent in the region, the civil code may be found worthy of emulation in south and southeast Asia.It may thus pave the way for unification of laws, though perhaps limited geographically in extent. If in ancient days, Indian assimilation was permitted, without any hitch or demur, to permeate social and political institutions and life in general in this region, there is no reason why Indian legal culture cannot play a similar role in the near future as well. The Indian Prime Minister recently expressed his hope that during the next nine years, India would achieve significant progress in every field and would leave behind guidance and inspiration to other countries.He also stressed that Indias influence had been inc reasing in Southeast Asia and westmost Asia. Even when one is not sure whether the mention of nine years has any special significance, one can hopefully assume that if an Indian civil code is adopted soon, it may tend to guide and inspire legislators in the neighbouring states. What the Napoleonic code has done for continental Europe, the Americas, and parts of Asia and Africa, a well-framed Indian civil code may easily do for south and Southeast Asia. ***** Legal Profession and the Advocates Act, 1961 17 OUR LEGAL SYSTEM N. R. Madhava MenonThe legal system of a country is part of its social system and reflects the social, political, economical and heathenish characteristics of that society. It is, therefore, difficult to understand the legal system outside the socio-cultural milieu in which it operates. It is true in the case of India also even though the legal system we now have is for the most part the gift of the British rulers. There is a view that the system is still alien to the majority of Indians whose legal culture is more indigenous and whose contact with the formal legal system (the imported British model) is marginal if not alone non-existent.The language, technicality and procedure of the inherited legal system are indeed factors which limit access to justice for the illiterate, impoverished masses of our country. Nevertheless, the rights and benefits conferred by the laws and the Constitution offer the opportunity for those very people to enjoy the fruits of a welfare democracy which the people of India have given unto themselves on the 26th January 1950. It is in this context familiarity with law and its processes becomes essential to every Indian, rich or poor, man or woman, young or old. Components of a Legal SystemA legal system consists of certain basic principles and values (largely outlined by the Constitution), a set of functional norms including rights and duties of citizens spelt out in the laws -Central, disk operating system a nd local, institutional structures for enforcement of the laws and a cadre of legal personnel empower with the responsibility of administering the system. The Constitution The perfect Law of the Land The Constitution of a country is variously described depending upon the nature of the policy and the aspirations of the people in a given society.It is generally a written memorandum and assumes the character of a federal (several independent units joined together) or unitary form of government. India is declared to be a Socialist, Secular, Democratic Republic. It is said to have a quasi-federal structure. The Constitution of India represents the collective will of 700 million Indians and, as such, the reservoir of enormous power. It describes the methods by which this power conferred on the State is to be exercised for the benefit of the people.In other words, it is a political document which distributes State power amongst different organs (Central and State Governments, Legislativ e, Executive and Judicial move of each Government) and regulates its exercise in its incidence on the people. The form of government is democratic and republican and the method is parliamentary through adult franchise. The coatings are spelt out in Preamble itself which seeks to secure to all citizens Justice, social, economic and political Liberty of thought, expression, faith and worship Equality of status and of opportunity, and to promote among them all. Fraternity assure dignity of the individual and the unity and integrity of Nation. 18 Legal Profession and the Advocates Act, 1961 To achieve this goal of dignity of the individual with justice, liberty and equality the Constitution guarantees certain Fundamental Rights and provides for its enforcement through the High Courts and the Supreme Court. These basic Human Rights include (a) Equality before law, (b) Equality of opportunity in matters of public employment. (c) rampart of discrimination on grounds of religion, sex et c. (d) Protection of life and personal liberty. e) Protection of right to freedom of speech, of assembly, of association, of movement and of profession or occupation. (f) Prohibition of forced labour, (g) Right to freedom of religion, (h) Protection of interest of minorities, and (i) Right to constitutional remedies for enforcement of the above rights Further, towards achieving the goals set out in the Preamble, the Constitution gives certain Directives to State to follow in its policies and programmes. Principles of State Policy have been accepted to be as sacrosanct as Fundamental Rights.In other words, they together constitute a reference for State action in every sphere. The Constitution envisages a unique place for the judiciary. Apart from overseeing the exercise of State power by the Executive and the Legislatures of the State and the Central Governments, the Supreme Court, and the High Courts are charged with the responsibility of effectively protecting citizens rights thro ugh its writ jurisdiction. This offers a cheap and expeditious remedy to the citizen to enforce the guaranteed rights.The Supreme Court liberalized the rules so as to enable poor and illiterate citizens to have easy access to courts for enforcing their basic rights. The Rule of Law is supreme and the independency of judiciary is reality in our country. This forms the bulwork of democracy and compels every one to abide by the law in his own interest. Constitutional government principles involved in it ought to be understood and subscribed to by every Indian if we are to succeed in our declared goals. Laws, Civil and CriminalThe laws of the country are too numerous, alter and complex they are bound to be so because law is as large as life itself which is increasingly becoming complex in, every sphere. In a Welfare State like ours, laws are at the more so because they are expected to regulate a variety of social and economic activities so as to subserve the common good. Inspired by th e Constitution, Parliament, State legislatures and local councils make and unwrap the laws day in and day out as the occasion demands. Courts interpret them in specific fact situations and, in the Legal Profession and the Advocates Act, 1961 19 rocess, extend the scope and application of the laws. The common man may get lost in the maze of legislations coming from all sides and contribute to its complexity by creating his own laws through contracts and agreements with others he has to deal with. On the basis of the remedies sought and the procedure followed, all laws can be grouped into two categories, namely, Civil Laws and Criminal Laws. Broadly speaking, criminal law is concerned with wrongs against the community as a whole, while civil law is related to the rights duties and obligations of individual members of the community between themselves.Civil Law includes a number of aspects which may be grouped under six or seven major headings such as family law, the law of property, th e law of tort, the law of contract, the law relating to commerce and business, labour law, law of taxation etc. Family law, which in India has its source both on statute and religion, comprises of the laws governing marriage, divorce, maintenance, custody of children, adoption inheritance and succession. Though the Constitution envisages a Uniform Civil Code, each religious group at present follows largely its own norms in matrimonial and family relations.The law of property includes rights of ownership, transfer, mortgages, trusts, intestacy and similar matters. The law of contracts, is concerned with the enforcement of obligations arising from agreements and promises. This includes transactions such as sale of goods, loans of money, partnerships, insurance, guarantees, negotiable instruments, agency and the like. The law of torts deals with propriety of actions and infraction of duties. Injuries to person or property caused by failure to take reasonable care and caution leads to a ctionable wrongs under tort, which usually compensates the dupe of such injuries.Laws of commerce and business, which includes contract law, relate to economic operations of individuals, partnerships and companies and governmental regulation of them. Even law of taxation forms part of commercial laws. Labour law deals with the relationship between employer and employees in the production and distribution of wealth. Criminal law is concerned with public wrongs or wrongs against the order and well being of the society in general. The persons guilty of such wrongs are prosecuted and punished by the State.These wrongs are specific and are defined in the Penal Code and a few other special and local laws. One important aspect in this regard is that criminal laws insist (apart from a few exceptional offences) on a particular intent or state of mind as a necessary ingredient of a criminal offence. It also recognizes degrees of criminality and gradations of crime. Ignorance of law is never t aken as an excuse. Certain situations where guilty intention could not have been entertained such as infancy, insanity mistake of fact etc. they are recognized as defences to criminal responsibility. Offences are classified on the basis of the objective or otherwise. Thus there are crimes against the human body, property, reputation of the individual, against the State or against public rights. On a procedural basis they are classified as cognizable and non-cognizable (cognizable are those in which the police can investigate or arrest persons without judicial warrant), bailable and non-bailable, compoundable or otherwise. 20 Legal Profession and the Advocates Act, 1961Procedural Laws, Civil and Criminal close to proceedings in the Supreme Court and the High Courts are governed by Rules of Procedure made by the Courts themselves under powers given by statute. The Civil and Criminal Procedure Codes and the Evidence Act do apply to judicial proceedings in these courts as well. The wri t procedure under Articles 32 and 226 is unique to these courts and is intended for the quick enforcement of Fundamental Rights whenever they are threatened by the State or its agencies.In such situations citizens can approach these courts even through a letter sent by post as the Supreme Court has declared that procedure should not be allowed to come in the way of dispensation of justice. For the enforcement of civil rights and obligations a suit before a civil court is usually instituted. The procedures for trial and appeals including execution of decrees and orders are laid down in the Code of Civil Procedure. Valuation of suits for purposes of jurisdiction is made according to the Suits Valuation Act.The amount of court fees to be paid on plaints and appeals is determined by the Court Fees Act. The Limitation Act prescribes the periods of limitation with in which suits can be filed. The Evidence Act regulates the relevancy, admissibility and probative value of evidence led in co urts, civil and criminal. The trial is in the nature of adversary proceedings where two parties oppose each other in a suit or action between parties. The procedure commences with pleadings, which set out the precise question in dispute or the cause of action.The opposite party (the defendant) may file a written statement to admit or deny the allegations in the plaint. The pleadings may be supplemented by the parties by making admissions of fact, answers and interrogatories, oral statements before the court and by admissions and denials of documents filed by them. The hearing of a suit commences with the serving of a copy of the plaint to the defendant. A party can appear himself in court for the hearing or make appearance through an agent or a pleader. According to the Advocates Act right to employment law before courts is given to Advocates only.In the proceedings, parties have to summon their witnesses for deposing in court. The trial involves recording of evidence of witnesses on a day-to-day basis at the conclusion of which judgment is to be pronounced in open court. Because civil proceedings are private matters, they can

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