1) What do you understand by law?

Describe function and purpose

of law?

What is Law?
Many legal scholars have tried to answer the essential, but difficult
question, “what is law?” In his 1881 book The Common Law, US
Supreme Court Justice Oliver Wendell Holmes stated that “the Law
embodies the story of a nation’s development through many centuries,
and it cannot be dealt with as if it contained only the axioms and
corollaries of a book of mathematics.” Accordingly, because the law is
not math, a precise definition may be unattainable.

According to A Dictionary of Basic Legal Terms, law is “[t]he regime

that orders human activities and relations through systematic application
of the force of politically organized society, or through social pressure,
backed by force, in such a society." This definition of the law, while true,
is too abstract and long for our needs. We should therefore think of the
law in more basic terms as rules that govern and guide actions and
relations among and between persons, organizations, and governments.
This is the short and easily understandable definition that we will use.

Classifications of Law
There are many ways to classify laws. We will discuss two of them. To
classify means to put types of law into distinct categories (or buckets).
Envision two buckets side by side. A law may be the type that goes in the
first bucket or the second. Let’s look at some classification buckets.

Substantive Law or Procedural Law

The first way to classify law is substantive or procedural. That is, a law
belongs in the substantive bucket (because it is a substantive law) or in
the procedural bucket (because it is a procedural law). A substantive law
is a law that creates and controls the rights and duties of parties. General
examples include the laws regarding torts, contracts, and real property. A
specific example of a substantive law is a law prohibiting trespassing on
another’s property. Why? Because such a law creates and defines
trespassing and puts would-be trespassers on notice regarding the liability
(if it is civil trespassing) or punishment (if it is criminal trespassing) that
they face for violating the law.

A procedural law, on the other hand, is a law that creates and controls
the process of enforcing the rights and duties under substantive law.
General examples include the rules of evidence, jurisdiction, and pleading

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and practice (which are referred to as either civil procedure or criminal
procedure, depending on the type of proceeding). We will discuss civil
procedure (i.e., steps in a civil case) in chapter 9. A specific example of a
procedural law is a statute of limitations. A statute of limitations is a
statute (see chapter 5) that creates a time limit for bringing a civil case
(i.e., filing a lawsuit) or a criminal case (i.e., initiating a prosecution);
typically, the time limit is measured from the date of the event giving rise
to the lawsuit or prosecution. This means that in personal injury cases, for
instance, a lawsuit must be brought within a certain period of time after
the injury occurred; otherwise, it will be time-barred. The case could be
very strong substantively; but that is immaterial because a court will
dismiss the case on procedural grounds.

4 Civil Law or Criminal Law

A second way to classify law is civil or criminal. That is, a law belongs
in the civil bucket (because it is a civil law) or in the criminal bucket
(because it is a criminal law). Civil law is the law of private rights and
duties. As with substantive law, general examples include the laws
regarding torts (see chapter 15), contracts (see chapter 18), and real
property (see chapter 25). A specific example of a civil law is a law
providing that all contracts for the sale of real property must be in
writing. Why is it a civil law? Because it deals with duties between
private parties; and any violation of it is a wrong between the parties, not
a wrong against the whole community.

Criminal law, on the other hand, is the law of public rights and duties;
put another way, it is the law that creates and controls wrongs committed
against the whole community. Criminal law violations are called crimes.
Specific examples include laws against assault, burglary, and robbery.
There are many differences between civil law and criminal law, including
concerns, party bringing the case, burdens of proof, and goals. We
will spend a lot of space discussing these differences, in part because it is
easy to confuse aspects of the civil law and criminal law. And by gaining
a firm grasp of the differences, we will be in a better position to
understand fully later material in this text. After discussing the
differences, we will then cover the overlap between civil law and
criminal law.
Concerns. Civil law is concerned with private rights and remedies, that
is, the duties that exist among and between persons, organizations, and
governments (other than, of course, the duty not to commit crimes).
Conversely, criminal law is concerned with public rights and remedies,
that is, with wrongs committed against the public or whole community.

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Party bringing the case. In a civil case, the party bringing the case (i.e.,
suing) is the plaintiff. The plaintiff is a party who claims to have been
injured by the wrongful conduct of the defendant. The plaintiff can be a
person, a business or other artificial entity, or a federal, state, or local
government entity or agency. The case appears in court documents with
the heading Plaintiff v. Defendant; the heading is referred to as a
“caption.”
In a criminal case, the party bringing the case (i.e., prosecuting), is the
government—local, state or commonwealth, or federal. In a state or
commonwealth prosecution, the case is normally captioned State (or
Commonwealth) v. Defendant; in a federal prosecution, the case is
captioned United States v. Defendant.

Burdens of proof. The burdens of proof are also different for civil law
and criminal law. A burden of proof is a party’s duty to prove a claim or
defense to a certain standard. In a typical civil case, the burden of proof
that the plaintiff must satisfy is “preponderance of the evidence.” There
are other ways of expressing this standard, including “more likely than
not,” “by greater than 50% weight,” and “by the greater weight of the
evidence.” If the plaintiff does not satisfy its burden during trial, the fact-
finder (i.e., the judge or jury, depending on the case) will decide the case
in favor of the defendant.
In a criminal case, the burden of proof that the prosecution must satisfy is
“beyond a reasonable doubt.” The defendant is presumed to be not guilty
unless the prosecution proves the defendant’s guilt to the reasonable
doubt standard. While this standard is impossible to quantify in
mathematical terms (unlike in civil law), it does not require the absence
of doubt in the minds of the judge or jury. But the judge or jury should
find the defendant guilty only if firmly persuaded of the defendant’s guilt
based on a fair and full consideration of the evidence presented; there is
no reasonable doubt if this is the case.

Purposes and Functions of Law

The law serves many purposes and functions in society. Four principal
purposes and functions are establishing standards, maintaining
order, resolving disputes, and protecting liberties and rights.

1 Establishing Standards

The law is a guidepost for minimally acceptable behavior in society.

Some activities, for instance, are crimes because society (through a
legislative body) has determined that it will not tolerate certain behaviors
that injure or damage persons or their property. For example, under a

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typical state law, it is a crime to cause physical injury to another person
without justification—doing so generally constitutes the crime of assault.

2 Maintaining Order

This is an offshoot of establishing standards. Some semblance of order is

necessary in a civil society and is therefore reflected in the law. The
law—when enforced—provides order consistent with society’s
guidelines.

3 Resolving Disputes

Disputes are unavoidable in a society made of persons with different

needs, wants, values, and views. The law provides a formal means for
resolving disputes—the court system. There is a federal court system and
each state has its own separate court system. There are also various less
formal means for resolving disputes—collectively called alternative
dispute resolution (ADR). We will learn about the federal and state court
systems in chapters 6 and 7, respectively, and about ADR in chapter 9.

4 Protecting Liberties and Rights

The constitutions and statutes of the United States and its constituent
states provide for various liberties and rights. A purpose and function of
the law is to protect these various liberties and rights from violations or
unreasonable intrusions by persons, organizations, or government. For
example, subject to certain exceptions, the First Amendment to the
Constitution prohibits the government from making a law that prohibits
the freedom of speech. Someone who believes that his free speech rights
have been prohibited by the government may pursue a remedy by
bringing a case in the courts.
You have probably realized that laws may serve more than one principal
function and there are obviously more principal functions than the four
that we have identified.

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2) What are the sources of law? & Define custom as a source of law?

& Define precedents as a source of law? What are merits and

demerits of precedent?

Sources of Law

Analytical Positivist School of Thought- Austin said that the

term ‘source of law’has three different meanings:

1. This term refers to immediate or direct author of the law which means
the sovereign in the country.
2. This term refers to the historical document from which the body of
law can be known.
3. This term refers to the causes that have brought into existence the rules
that later on acquire the force of law. E.g. customs, judicial decision,
equity etc.

Sociological Jurists- This group of scholars protest against the orthodox

conception of law according to which, law emanates from a single
authority in the state. They believe that law is taken from many sources
and not just one.

Salmond on Sources of Law- Salmond has done his own classification

of sources of law:

1. Formal Sources- A Formal Source is as that from which rule of

law derives its force and validity. The formal source of law is the will
of the state as manifested in statutes or decisions of the court and the
authority of law proceeds from that.

2. Material Sources- Material Sources are those from which is derived

the matter though not the validity of law and the matter of law may be
drawn from all kind of material sources.

a. Historical Sources- Historical Sources are rules that are subsequently

turned into legal principles. Such source are first found in an
Unauthoritative form. Usually, such principles are not allowed by the
courts as a matter of right. They operate indirectly and in a mediatory
manner. Some of the historical sources of law are:
i. Unauthoritative Writings

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ii. Legal Sources- Legal Sources are instruments or organs of the state by
which legal rules are created for e.g. legislation and custom. They are
authoritative in nature and are followed by the courts. They are the gates
through which new principles find admittance into the realm of law.
Some of the Legal Sources are:

a. Legislations
b. Precedent
c. Customary Law
d. Conventional Law- Treatises etc.

Charles Allen said that Salmond has attached inadequate attention to

historical sources. According to him, historical sources are the most
important source of law.

Keeton said that state is the organization that enforces the law. Therefore,
technically State cannot be considered as a source of law. However,
according to Salmond, a statute is a legal source which must be
recognized. Writings of scholars such Bentham cannot be considered as a
source of law since such writings do not have any legal backing and
authority.

Legal sources of English Law- There are two established sources of

English Law:

1. Enacted Law having its source in legislation- This consists of

statutory law. A Legislation is the act of making of law by formal and
express declaration of new rules by some authority in the body politic
which is recognized as adequate for that purpose.

2. Case Law having source in Judicial Precedence- It consists of

common law that we usually read in judgments and law reporters.
Precedent could also be considered as a source of law as a precedent is
made by recognition and application of new rules by the courts whilst
administering justice. Thus, Case Laws are developed by the courts
whereas enacted laws come into the court ab extra.

3. Juristic Law- Professional opinion of experts or eminent jurists. These

are also sources of law. Though, they are not much accepted.

Sources of Law: Are they sources of Right too?

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A Legal Right means a fact that is legally constitutive of a right. A Right
is the de factoantecedent of a legal right in the same way as a source of
law is de facto antecedent of a legal principle.

Legislation- ‘Legis’ means law and ‘latum’ means making. Let us

understand how various jurists have defined legislation.

1. Salmond- Legislation is that source of law which consists in the

declaration of legal rules by a competent authority.

2. Horace Gray- Legislation means the forma utterance of the legislative

organs of the society.

3. John Austin- There can be no law without a legislative act.

Analytical Positivist School of Thought- This school believes that

typical law is a statute and legislation is the normal source of law
making. The majority of exponents of this school do not approve that
the courts also can formulate law. They do not admit the claim of
customs and traditions as a source of law. Thus, they regard only
legislation as the source of law.

Historical School of Thought- This group of gentlemen believe

that Legislation is the least creative of the sources of law. Legislative
purpose of any legislation is to give better form and effectuate the
customs and traditions that are spontaneously developed by the people.
Thus, they do not regard legislation as source of law.

Types of Legislation

1. Supreme Legislation- A Supreme or a Superior Legislation is that

which proceeds from the sovereign power of the state. It cannot be
repealed, annulled or controlled by any other legislative authority.

2. Subordinate Legislation- It is that which proceeds from any

authority other than the sovereign power and is dependant for its
continual existence and validity on some superior authority.

Delegated Legislation- This is a type of subordinate legislation. It is

well-known that the main function of the executive is to enforce the law.
In case of Delegated Legislation, executive frames the provisions of law.
This is also known as executive legislation. The executive makes laws in
the form of orders, by laws etc.

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Sub-Delegation of Power to make laws is also a case in Indian Legal
system. In India, the power to make subordinate legislation is usually
derived from existing enabling acts. It is fundamental that the delegate on
whom such power is conferred has to act within the limits of the enabling
act.

The main purpose of such a legislation is to supplant and not to

supplement the law. Its main justification is that sometimes legislature
does not foresee the difficulties that might come after enacting a law.
Therefore, Delegated Legislation fills in those gaps that are not seen
while formulation of the enabling act. Delegated Legislation gives
flexibility to law and there is ample scope for adjustment in the light of
experiences gained during the working of legislation.

Controls over Delegated Legislation

Direct Forms of Control

1. Parliamentary Control
2. Parliamentary Supervision

Indirect Forms of Control

1. Judicial Control- This is an indirect form of control. Courts cannot

annul subordinate enactments but they can declare them inapplicable in
special circumstances. By doing so, the rules framed do not get repealed
or abrogated but they surely become dead letter as they become ultra
vires and no responsible authority attempts to implement it.

2. Trustworthy Body of Persons- Some form of indirect control can be

exercised by entrusting power to a trustworthy body of persons.

3. Public Opinion can also be a good check on arbitrary exercise of

Delegated Powers. It can be complemented by antecedent publicity of the
Delegated Laws.

It is advisable that in matters of technical nature, opinion of experts must

be taken. It will definitely minimize the dangers of enacting a vague
legislation.

Salient Features of Legislation over Court Precedents

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1. Abrogation- By exercising the power to repeal any legislation, the
legislature can abrogate any legislative measure or provision that has
become meaningless or ineffective in the changed circumstances.
Legislature can repeal a law with ease. However, this is not the situation
with courts because the process of litigation is a necessary as well as a
time-consuming process.

2. Division of function- Legislation is advantageous because of division

of functions. Legislature can make a law by gathering all the relevant
material and linking it with the legislative measures that are needed. In
such a process, legislature takes help of the public and opinion of the
experts. Thus, public opinion also gets represented in the legislature. This
cannot be done by the judiciary since Judiciary does not have the
resources and the expertise to gather all the relevant material regarding
enforcement of particular principles.

3. Prospective Nature of Legislation- Legislations are always

prospective in nature. This is because legislations are made applicable to
only those that come into existence once the said legislation has been
enacted. Thus, once a legislation gets enacted, the public can shape its
conduct accordingly. However, Judgments are mostly retrospective. The
legality of any action can be pronounced by the court only when that
action has taken place. Bentham once said that “Do you know how they
make it; just as man makes for his dog. When your dog does something,
you want to break him off, you wait till he does it and beat him and this is
how the judge makes law for men”.

4. Nature of assignment- The nature of job and assignment of a

legislator is such that he/she is in constant interaction with all sections of
the society. Thereby, opportunities are available to him correct the failed
necessities of time. Also, the decisions taken by the legislators in the
Legislature are collective in nature. This is not so in the case of Judiciary.
Sometimes, judgments are based on bias and prejudices of the judge who
is passing the judgment thereby making it uncertain.

5. Form- Enacted Legislation is an abstract proposition with necessary

exceptions and explanations whereas Judicial Pronouncements are
usually circumscribed by the facts of a particular case for which the
judgment has been passed. Critics say that when a Judge gives Judgment,
he makes elephantiasis of law.

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Precedent as a Source of Law

In India, the judgment rendered by Supreme Court is binding on all the

subordinate courts, High Courts and the tribunals within the territory of
the country.

In case of a judgment rendered by the High Court, it is binding in nature

to the subordinate courts and the tribunals within its jurisdiction.

In other territories, a High Court judgment only has a persuasive value. In

Indo-Swiss Time Ltd. v. Umroo, AIR 1981 P&H 213 Full Bench, it was
held that “where it is of matching authority, then the weight should be
given on the basis of rational and logical reasoning and we should not
bind ourselves to the mere fortuitous circumstances of time and death”.

Union of India v. K.S. Subramanium- AIR 1976 SC 2435- This case held
that when there is an inconsistency in decision between the benches of
the same court, the decision of the larger bench should be followed.

What is the meaning of Precedent as a source of law?

Till the 19th Century, Reported Court Precedents were probably followed
by the courts. However, after 19th century, courts started to believe that
precedence not only has great authority but must be followed in certain
circumstances. William Searle Holdsworth supported the pre-19th century
meaning of the precedence. However, Goodheart supported the post-
19th century meaning.

Declaratory Theory of Precedence- This theory holds that judges do not

create or change the law, but they ‘declare’ what the law has always been.
This theory believes that the Principles of Equity have their origin in
either customs or legislation. However, critics of this theory say that most
of the Principles of Equity have been made by the judges and hence,
declaratory theory fails to take this factor into regard.

Advantages:
 Consistency and predictability – the system provides fairness and
justice as similar cases will be treated and decided in the same way
as a past case. This allows lawyers to advise their clients with some
certainty as to their position and whether to take a case to court
 Flexibility – judges in the higher courts are able to develop and
update the law to take account of changing social conditions. Their

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 decisions may influence Parliament to introduce or update new
statutory rules
 New precedent – new situations may arise which are not covered
by any statutory rule or previous precedent. Judges will be able to
consider past similar cases or perhaps cases from other countries
and make rules for the case before them which can operate as a
precedent for future cases

Disadvantages:

 Complexity and volume – a judgement from an appeal courts may

contain three or five separate judgements which may differ from
each other. A judgement may be extremely long and it is for
lawyers and judges in future cases to work out the ratio decidendi.
There may be differing opinions on what the ratio is and what the
obiter is.

 Uncertain – the result of a court case can be uncertain until the

final (appeal) judgement is made. Some judges may be unwilling
to depart from a precedent to make a change in the law

 Rigid – a rule can remain in place for a long time, even if it is

outdated, as change requires a case to come to a higher appeal
courts before new rule can come about.

 Retrospective effect – precedent has to be backward looking in the

case that sets the precedent. This could be unfair in criminal cases
if an offence is made by the judgement. When the offender
committed the action it was not unlawful. This is unlike statutory
law when an offence is created for the future by an Act of
Parliament.

Types of Precedents
1. Authoritative Precedent- Judges must follow the precedent whether
they approve of it or not. They are classified as Legal Sources.

2. Persuasive Precedent- Judges are under no obligation to follow but

which they will take precedence into consideration and to which they will
attach such weight as it seems proper to them. They are classified as
Historical Sources.

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Disregarding a Precedent- Overruling is a way by which the courts
disregard a precedent. There are circumstances that destroy the binding
force of the precedent:

1. Abrogated Decision- A decision when abrogated by a statutory law.

2. Affirmation or reversal by a different ground- The judgment

rendered by a lower court loses its relevance if such a judgment is passed
or reversed by a higher court.

3. Ignorance of Statute- In such cases, the decision loses its binding

value.

4. Inconsistency with earlier decisions of High Court

5. Precedent that is sub-silentio or not fully argued.

6. Decision of equally divided courts- Where there is neither a majority

nor a minority judgment.

1. Precedent
Precedent is meant by anything said or done which is quoted and cited as
authority for subsequent conduct. Precedent is created by judicial
decision pronounced by courts which may be given either by a superior
or a subordinate Court. A judicial decision is a precedent when is creates
a new rule; otherwise it is a judgment as between the parties.

2. Nature of Precedent
A precedent is purely constitutive and in no degree abrogation. This
means that a judicial decision can make a law but cannot alter it. Where
there is a settled rule of law, it is the duty of the judges to follow the
same. They cannot substitute their opinions for the established rule of
law.
Precedent occupies in important position on English Law. Much of the
English law has been created by the Judges. It is only in the British legal
system that precedent is recognized as of binding authority if before the
time of James. Precedents were cited merely indicating true law.
3. Binding force of Precedent
Precedent has binding force because:-
 Administration of Justice has been concentrated in the hands of
judges.

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 The judges as a body of legal experts can properly law down the
law for the bar.
 When a case is decided, it is presumed that the decision is correct.
A point once decided between the parties become a re judicta and cannot
again be litigated upon, even if a decision be incorrect.
 The rule that the law as previously laid down must be followed
induces confidence in the minds of the litigants.
 Administration of justice becomes even handed and fair for a rule
already laid down is followed in all subsequent cases.

Custom as a Source of Law

Salmond said that ‘Custom is the embodiment of those principles which

have commended themselves to the national conscience as the principles
of justice and public utility’.

Keeton said that “Customary laws are those rules of human action,
established by usage and regarded as legally binding by those to whom
the rules are applicable, which are adopted by the courts and applied as
a source of law because they are generally followed by the political
society as a whole or by some part of it”.

However, Austin said that Custom is not a source of law.

Roscoe Pound said that Customary Law comprises of:

1. Law formulated through Custom of popular action.

2. Law formulated through judicial decision.
3. Law formulated by doctrinal writings and scientific discussions of
legal principles.

Historical School of Jurisprudence- Von Savigny considered that

customary law, i.e. law which got its content from habits of popular
action recognized by courts, or from habits of judicial decision, or
from traditional modes of juristic thinking, was merely an expression
of the jural ideas of the people, of a people’s conviction of right – of its
ideas of right and of rightful social control.

However, it is the Greek historical School that is considered as the

innovator of custom as source of law.

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Otto Van Gierke, a German Jurist and a Legal Historian, said
that “every true human association becomes a real and living entity
animated by its own individual soul”.

Henry Maine believed that custom is the only source of law. He said
that “Custom is a conception posterior to that of themestes or judgment.”

Ingredients of Custom

1. Antiquity
2. Continuous in nature.
3. Peaceful Enjoyment
4. Obligatory Force
5. Certainty
6. Consistency
7. Reasonableness

3) What are the requisites of valid customs?

Following are the essential elements of a custom:

1. Antiquity:
A custom must be in existence from time immemorial. English law fixed
the year 1189 to test the antiquity of a custom. A custom must be in
existence prior to 1189, only then it can prove the consideration of
antiquary. Under Hindu law also immemorial customs are transcendental
law. However India law does not fix any particular year to test the
antiquity of custom.
2. Continuance:
A custom must be practiced without interruption; continuity is an
essential feature of the custom. Continuity does not mean that it should be
in operation all the time. It means that there should be a continuous
availability of the terms of the customs to deal with particular rule of
conduct with which it deals. Presence 6f custom if fact and its
enforceability both are essential to prove antiquity. If a custom becomes
legally unenforceable even for a short time it would not the recognized as
a valid' custom.
3. Peaceable enjoyment:
It is essential that custom must have been enjoyed peacefully by the
concerned people.

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4. Matter of right:
Custom must have been enjoyed as a matter of right. This right should be
enforceable. Thus custom must result in creating obligatory force at the
one hand and related claim on the other hand. If a practice is observed as
a courtesy and not as a matter of right then it can be termed a "custom" in
legal sense.
5. Certainty:
Custom must be certain. If the nature of the custom is not certain then it
loses its validity. Custom originate from general consent, it is hard to
determine existence of consent, on something which is not certain.
6. Consistency:
A custom must not be in conflict with other prevailing customs. The
customs must be in consistency with other custom. Difference or
inconsistency in custom will amount to different rule of conduct for a
given situation; it will negotiate the general consent.
7. Conformity with statute law:
Custom should be conformity with statute law. A legislative enactment
can abrogate a custom. In case of inconsistency between custom and
statutory provision, former must give way to the latter. Thus, custom
yield legislative enactment.
4) What are the external and internal aids of interpretation of

statues?

INTRODUCTION
“By interpretation or construction is meant”, says Salmond, “the process
by which the courts seek to ascertain the meaning of the legislature
through the medium of authoritative forms in which it is expressed”.
A statute is an edict of the Legislature and the conventional way of
interpreting and construing a statute is to seek the intention of its maker.
A statute is to be construed according “to the intent of them that make it”
and “the duty of judicature is to act upon the true intention of the
legislature- the mens or sentential legislation.”

There are two types of aids to interpretation- The internal and the
external aids. The following are considered internal aids to interpretation-
Long Title

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it is now settled that Long Title of an Act is a part of the Act and is
admissible as an aid to its construction.

The title although part of the Act is in itself not an enacting provision and
though useful in case of ambiguity of the enacting provision, is
ineffective to control their clear meaning.

Preamble
the preamble of a statute like the long title is a part of the Act and is an
admissible aid to construction. Although not an enacting part, the
preamble is expected to express the scope, object and purpose of the Act
more comprehensively than the long title.
Preamble of the Constitution
the majority judgments in Keshavananda Bharti and Minerva Mills relied
upon the Preamble in reaching the conclusion that the power of
amendment conferred by Art 368 was limited and did not enable
parliament to alter the basic structure of the Constitution.
Headings
the view is now settled that the Headings or Titles prefixed to Sections or
group of Sections can be referred to in construing an Act of the
legislature.
Marginal Notes
one cannot ignore the fact that the headings and sidenotes are included on
the face of the Bill throughout its passage through the legislature. They
are there for guidance. They provide a context for the examination of
those parts of the Bill that are open for debate.

Punctuations

Illustrations
They form part of the statute and although forming no part of the section,
are of relevance in the construction of the text of the Section.

Interpretation Clauses
it is common to find in a statute “definitions” of certain words and
expressions used elsewhere in the body of the statute. These definitions
are generally very useful while interpreting the meaning of the
ambiguous terms.

Proviso
when one finds a proviso to a section the natural presumption is that, but
for the proviso, the enacting part of the section would have included the
subject-matter of the proviso.

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Explanation
an explanation is at times appended to a section to explain the meaning of
words contained in the Section.

Schedule
schedules appended to statutes form part of the statute. They are added
towards the end and their use is made to avoid encumbering the sections
in the statute with matters of excessive details

External aids to interpretation of statutes include Parliamentary History,

Historical Facts and Surrounding Circumstances, Later Scientific Inventions,
Reference to Other Statutes (pari materia) & Use of Foreign Decisions. Each
of the above mentioned constituents of external aids to construction have
been dealt briefly in the due course of my work

PARLIAMENTARY HISTORY
The ingredients of Parliamentary History are the bill in its original form
or the amendments considered during its progress in the Legislature,
Speech of the minister who introduced the bill in the Parliament which is
also referred to as Statements of Objects and Reasons, Reports of
Parliamentary debates and resolutions passed by either House of the
Parliament and the Reports submitted different Parliamentary
Committees.
According to the traditional English view the Parliamentary History of a
statute was not considered as an aid to construction. The Supreme Court
of India in the beginning enunciated the rule of exclusion of
Parliamentary History in the way it was traditionally enunciated by the
English Courts but on many an occasion, the court used this aid in
resolving questions of construction.

In Indira Sawhney v. Union of India

while interpreting Article 16(4) of the Constitution the Supreme Court
referred to Dr. Ambedkar ‟s speech in the Constituent Assembly as the
expression backward class of citizens’ is not defined. The court held that
reference to Parliamentary debate is permissible to ascertain the context,
background and objective of the legislatures but at the same time such
references could not be taken as conclusive or binding on the courts. Thus
in the
Mandal Reservation Case

17
the Supreme Court resorted to Parliamentary History as an aid to
interpretation. In the Ashwini Kumar’s Case
(1952), the then Chief Justice of India Patanjali Shastri quoted that the
Statement of Objects and Reasons should not be used as an aid to
interpretation because in his opinion the Statement of Objects and
Reasons is presented in the Parliament when a bill is being introduced.
During the course of the processing othe bill, it undergoes radical
changes. But in the Subodh Gopal’s Case(1954), Justice S.R. Das
although he fully supported Chief Justice Patanjali Shastri‟s views in the
Ashwini Kumar’s Case but he wanted to use the Statement of Objects and
Reasons to protect the sharecroppers against eviction by the new buyers
of land since zamindari system was still not abolished and land was still
not the property of the farmers. So Justice S.R. Das took the help of
Statements of Objects and Reasons to analyse the social, legal, economic
and political condition in which the bill was introduced.

HISTORICAL FACTS AND SURROUNDING CIRCUMSTANCES

Historical facts are very essential to understand the subject matter of the
statute or to have regard to the surrounding circumstances which existed
at the time of passing of the statute. The rule of admissibility of this
external aid is especially useful in mischief rule. The rule that was laid
down in the
Heydon ’s Case (1584), has now attained the status of a classic. The
mischief rule enables the consideration of four matters in construing an
act:
What was the law before the making of the Act?
What was the mischief for which the law did not provide?
What was the remedy provided by the Act?
What was the reason of the remedy? This rule was applied in

LATER SCIENTIFIC INVENTIONS

The laws made in the past are applied in the present contemporary society
in the light of changed social, political, legal and economic circumstances
taking into consideration the advancement in science and technology.
Statutes must be interpreted in accordance with the spirit of the
Constitution of India even though the statutes were passed before
independence of India or before the commencement of our Constitution.
The case State v. J.S. Chawdhry relates to Section 45 of the Indian
Evidence Act, 1872 which only mentions about handwriting experts and
not typewriting experts for the reason that typewriters were invented
much later than 1872.In the instant case the state wanted to use the
opinion of a typewriting expert as evidence in a murder case. The
Supreme Court then overruled its decision in the case

18
 Hanumant v. State of Madhya Pradesh
which held that the opinion of the typewriting expert was inadmissible as
evidence in the court of law.
State of Maharashtra v. Dr. Prafulla Desai
case relates to Section 388 of the Indian Penal Code which deals with
gross medical negligence resulting in the death of the patient. The
prosecution wanted to produce the statements of a New York Doctor
Dr.Greenberg as evidence. The problem arose when Dr. Greenberg
refused to appear in the Indian Court to record his statements. There is no
such provision which can compel a witness residing outside the domestic
territory of India to come to an Indian court as a witness. Thus in such
circumstances video conferencing became the only viable option. But the
accused opposed video conferencing under Section 273 of Criminal
Procedure Code which clearly says that evidence can be recorded only in
the presence of the accused. The Supreme Court interpreted presence not
merely as physical presence but as a situation in which the accused can
see, hear and question the witnesses.

REFERENCE TO OTHER STATUTES

Statutes must be read as a whole in order to understand the words in their
context. Problem arises when a statute is not complete in itself i.e. the
words used in the statute are not explained clearly. Extension of this rule
of context permits reference to other statutes in pari material i.e. statutes
dealing with the same subject matter or forming part of the same system.
The meaning of the phrase pari materia was explained in an American
Case,
United Society v. Eagle Bank (1829) in the following words: “Statutes
are in pari materia which relate to the same person or thing, or to the
same class of persons or things. The word par must not be confounded
with the word similes.
It is used in opposition to it- intimating not likeness merely but identity. It
is a phrase applicable to public statutes or general laws made at different
times and in reference to the same
subject”.
In the case, State of Punjab v. Okara Grain Buyers syndicate Ltd.,
Okara, the Supreme Court held that when two pieces of legislation are of
differing scopes, it cannot be said that they are in pari materia. However
it is not necessary that the entire subject matter in the statutes should be
identical before any provision in one may be held to be in pari material
with some provision in the other.

8) What are the kinds of legislation precedents?

19
Classification of Precedent

Precedents may be classified into three divisions; (i) according to the

nature of the rule laid down, (ii) according to the influence exercised by
them on the course of future decisions, and (iii) according to the nature of
the authority. Those under (i) may be described as declaratory and
original precedents, those under (ii) as authoritative and persuasive
precedents, and those under (iii) as precedents of absolute authority and
of condition authority. A seriatim description of these forms is given
below;

a. Declaratory and Original Precedents

i. Declaratory precedents
Declaratory precedents are those which do not lay down a new rule of
law but only declare a principle of law already existing. When the law is
already sufficiently well evidence, as when it is embodied in a statute or
set forth with fullness and clearness is some comparatively modern case,
the reporting of declaratory decisions is merely a needless addition to the
great bulk of our case law. Such precedents merely declare the law.

ii. Original Precedents

Original precedents are those which lay down a new rule of law. These
are the outcome of the internal exercise by the courts of their privilege of
developing the law while sitting to administer it. Such precedents make
the law.

b. Authoritative and persuasive precedents

i. Authoritative precedents
Authoritative precedents are those which must be followed whether the
Judge deems the principle laid down as correct or not. Thus, the decisions
of the High Court are authoritative precedents for the subordinate Courts
and the decisions of the Supreme Court are authoritative precedents for
the High Courts and all other subordinate Courts.
ii. Persuasive precedents
Persuasive precedents are those which the Courts may or may not follow.
Thus, judgments of Indian high courts and the Supreme Court of India or
of other Foreign Courts are merely persuasive precedents for the Courts
in Pakistan.

c. Precedent of absolute authority and of conditional authority

i. Precedents of absolute authority

20
Precedents of absolute authority are those which are absolutely binding,
however, unreasonable or erroneous they may appear to be. In this sense
also the precedents of superior Courts are precedents of absolute
authority for the inferior or subordinate courts. Similarly, a decision of
the Full Bench is binding on a Bench consisting of two or more judges of
the same and subordinate courts.

ii. Precedents of conditional authority

Precedents of conditional authority are those which are binding but not
absolutely. Thus, a decision of a single judge of the High Court is only a
conditional authoritative precedent for a Judge of the same or another
High Court.

9) What are the theories of natural law

Natural law
The Principles of Natural Justice have come out from the need of man to
protect himself from the excesses of organized power man has always
appealed to someone beyond his own creation. Such someone is the God
and His laws, divine law or natural law, to which all temporal laws and
actions must confirm.

Natural Law is of the 'higher law of nature' or 'natural law'

Natural Law does not mean the law of the nature or jungle where lion
eats the lamb and tiger eats the antelope but a law in which the lion and
lamb lie down together and the tiger frisks the antelope.

Natural Law is another name for common-sense justice.

Natural Laws are not codified and is based on natural ideals and values
which are universal.

In the absence of any other law, the Principles of Natural Justice are
followed.

Earliest form of natural law can be seen in Roman philosophical

expressions (Jus Naturale). It is used interchangeably with Divine Law,
jus gentium and the common law of nations.

The Principles of Natural Justice are considered the basic Human Rights
because they attempt to bring justice to the parties naturally.
Giving reasoned decisions is a postulate and principle of Natural Justice.

21
Basic Pillars of Principles of Natural Justice
Two core points in the concept of principles of natural justice

Nemo in propria causa judex, esse debet - No one should be made a

judge in his own case, or the rule against bias.
Audi alteram partem - Hear the other party, or the rule of fair hearing,
or the rule that no one should be condemned unheard.
These two are the basic pillars of the Principles of Natural Justice. No
system of law can survive without these two basic pillars.

Principles of Natural Justice and India

The concepts of social and economic justice that can be seen in the
Preamble of the Constitution are based on the principles of natural
justice.

Article 311 incorporates many of the features of the natural justice

without explicitly mentioning it.

Violation of natural justice is equal to violation of Equality of the Article

14.
Principles of Natural Justice and India
The concepts of social and economic justice that can be seen in
the Preamble of the Constitution are based on the principles of natural
justice.
Article 311 of Constitution of India incorporates many of the features of
the natural justice without explicitly mentioning it.
Violation of natural justice is equal to violation of Equality of the Article
14 of Constitution of India.

The principles are followed in Administrative Adjudication

under Administrative Law.
Exception to the rule of Natural Justice
1.Exclusion in emergency
The need for notice and hearing is excluded in exceptional cases of
emergency in which prompt, preventive or remedial action is required.

Related Cases / Recent Cases / Case Law

Nathubhai v Municipal Corporation, AIR 1959 Bom 332: Dangerous
building is to be demolished

22
Jospeh v Reserve Bank of India, AIR 1962 SC 1371: Company has to be
wound up to save depositors

2.Exclusion in cases of confidentiality

3.Exclusion in cases of fairness

Recent Cases / Related Cases / Case Law

Avinash Nagra v Navodaya Vidyalaya Samiti, (1997) 2 SCC 534: When
a teacher of the Navodya Vidyalaya was dismissed on gross moral
turpitude without giving exhaustive hearing as per the CCA rules, the
Court held the termination valid on the ground that fairness cannot be
made counterproductive.

4.Exclusion in case of purely administrative matters

5.Exclusion based on impracticability
6.Exclusion in cases of interim preventive actions
7.Exclusion in cases of legislative action
8.Where right of no person is infringed
9.Exclusion in case of Statutory Exception or Necessity
10.Exclusion in case of contractual arrangement
11.Exclusion in case of government policy decision
12.'Useless formality' theory.

Constitutional Provisions relating to the ‘Principles of Natural

Justice’

2 (a) Article 14: as we know that this Article guarantees equality before
law and equal protection of law. It bars discrimination and prohibits both
discriminatory laws and administrative action. Art 14 is now proving to
be bulwark against any arbitrary or discriminatory state action. The
horizons of equality as embodied in Art 14 have been expanding as a
result of the judicial pronouncements and Art 14 has now come to have a
highly activist magnitude. It laid down general preposition that all
persons in similar circumstance shall be treated alike both in privileges
and liabilities imposed.

Art 14 manifests in the form of following propositions:

(i) A law conferring unguided and unrestricted power on an authority is
bad for being arbitrary and discriminatory.
(ii) Art. 14 illegalize discrimination in the actual exercise of any
discretionary power.
(iii) Art. 14 strikes at arbitrariness in administrative action and ensures
fairness and equality of treatment.

23
In some cases, the Courts insisted, with a view to control arbitrary action
on the part of the administration, that the person adversely affected by
administrative action be given the right of being heard before the
administrative body passes an order against him. It is believed that such a
procedural safeguard may minimize the chance of the Administrative
authority passing an arbitrary order. Thus, the Supreme Court has
extracted from Art. 14 the principle that natural justice is an integral part
of administrative process.

Art. 14 guarantee a right of hearing to the person adversely affected by an

administrative order. In Delhi Transport Corporation v. DTC
Mazdoor Union, SC held that “the audi alteram partem rule, in essence,
enforce the equality clause in Art 14 and it is applicable not only to quasi-
judicial bodies but also to administrative order adversely affecting the
party in question unless the rule has been excluded by the Act in
question.” Similarly in Maneka Gandhi v. Union of India SC opined that
Art 14 is an authority for the proposition that the principles of natural
justice are an integral part of the guarantee of equality assured by Art. 14
an order depriving a person of his civil right passed without affording
him an opportunity of being heard suffers from the vice of violation of
natural justice.
in Maneka Gandhi v. Union of India, SC by realizing the implications
of Gopalan during 1975 emergency took ‘U’ turn and held that “Art 21
would no longer mean that law could prescribe some semblance of
procedure however arbitrary or fanciful, to deprive a person of his
personal liberty. It now means that the procedure must satisfy certain
requisites in the sense of being fair and reasonable. The procedure
“cannot be arbitrary, unfair or unreasonable”. The concept of
reasonableness must be projected in the procedure contemplated by
Art.21. The Court has now assumed the power to adjudge the fairness and
justness of procedure established by law to deprive a person of his
personal liberty. The Court has reached this conclusion by holding that
Arts. 21, 19 and 14 are mutually exclusive, but are inter-linked.

Bhagawati, J., “the principle of reasonableness which legally as

well as philosophically is an essential element of equality or non-
arbitrariness pervades art 14 like a brooding omnipresence”. Thus, the
procedure in Art. 21 “must be right, just and fair” and not arbitrary,
fanciful or oppressive, otherwise, it would be no procedure at all and the
requirement of Art. 21 would not be satisfied. In the same case Iyer, J.,
opined procedure in Art. 21, means fair, not formal, procedure; ‘law’ is
reasonable law and not any enacted piece. This makes the words

24
“procedure established by law” by and large synonymous with the
‘procedural due process’ in the U.S.A. this makes the right of hearing a
component part of natural justice.
The Supreme Court has taken a gigantic innovative step forward in
humanizing the administration of criminal justice by suggesting that free
legal aid be provided by the State to poor prisoners facing a prison
sentence. When an accused has been sentenced by a Court, but he is
entitled to appeal against the verdict, he can claim legal aid: if he is
indigent and is not able to afford the counsel, the State must provide a
counsel to him. The Court has emphasized that the lawyer’s services
continued an ingredient of fair procedure to a prisoner who is seeking his
liberation through the Court’s procedure, Bhagwati, J., has observed in
Hussainara Khatoon case.

Article 22 (1) and (2) confers four following fundamental rights upon a
person who has been arrested:
i) Right to be informed, as soon as may be, of the grounds for such arrest.
ii) Right to consult and to be defended by a legal practitioner of his
choice.
iii) Right to be produced before the nearest magistrate within twenty-four
hours of his arrest excluding the time necessary for the journey from the
place of arrest to the Court of Magistrate.
iv) Right not to be detained in custody beyond the period of twenty four
hours without the authority of the Magistrate.

2 (d): Art 32, 226 and 227:

Art 32 and 226 of the constitution provides for constitutional
remedies for violation of fundamental Rights and other legal rights
respectively remedies, Under Art 32 and 226 can be exercised by issuing
appropriate Writ, Direction and Orders. Writs in the nature of Habeas
Corpus mandamus, prohibition quo-warranto and certiorari. Writ of
Habeas Corpus is invoked to prevent unlawful detention and Mandamus
is invoked to compel public official to perform his legal duties. Whereas
Writ of Prohibition and Certiorari are used to prevent Judicial and quasi-
judicial bodies from acting without jurisdiction, in excess of jurisdiction,
or where error of law apparent on face of record, violation of
Fundamental Right and on the ground of violation of Principles of
Natural Justice. However, in recent time it is new development that Writ
of Certiorari can also be invoked against Administrative authority
exercising adjudicatory function.

25
Apart from Art.32 and 226, it is Art 227 which can be used by High
Court as another extraordinary weapon to prevent violation principles of
natural justice in any of the lower courts or tribunals as the case may be.
Art 227 runs as follows,

Art.227. Power of superintendence over all courts by the High Court

(1) Every High Court shall have superintendence over all courts and
tribunals throughout the territories in relation to which it exercises
jurisdiction

(2) Without prejudice to the generality of the foregoing provisions, the

High Court may
(a) Call for returns from such courts;
(b) Make and issue general rules and prescribe forms for regulating the
practice and proceedings of such courts; and
(c) Prescribe forms in which books, entries and accounts shall be kept by
the officers of any such courts

(3) The High Court may also settle tables of fees to be allowed to the
sheriff and all clerks and officers of such courts and to attorneys,
advocates and pleaders practicing therein: Provided that any rules made,
forms prescribed or tables settled under clause (2) or clause (3) shall not
be inconsistent with the provision of any law for the time being in force,
and shall require the previous approval of the Governor

(4) Nothing in this article shall be deemed to confer on High Court

powers of superintendence over any court or tribunal constituted by or
under any law relating to the Armed Forces.
High Court may in exercise of its power of superintendence issue
direction, Order or writ in cases where it felt that there is violation of
principles of natural justice accordingly it is one of the constitutional
provisions framed in the spirit of principles of natural justice.

QUE- What are the major of civil and criminal liabilities?

Civil law and criminal law are two broad and separate entities of law
with separate sets of laws and punishments.
According to William Geldart, Introduction to English Law 146
(D.C.M. Yardley ed., 9th ed. 1984),
"The difference between civil law and criminal law turns on the
difference between two different objects which law seeks to pursue -
redress or punishment. The object of civil law is the redress of wrongs by

26
 compelling compensation or restitution: the wrongdoer is not punished;
he only suffers so much harm as is necessary to make good the wrong he
has done. The person who has suffered gets a definite benefit from the
law, or at least he avoids a loss. On the other hand, in the case of crimes,
the main object of the law is to punish the wrongdoer; to give him and
others a strong inducement not to commit same or similar crimes, to
reform him if possible and perhaps to satisfy the public sense that
wrongdoing ought to meet with retribution.”
Examples of criminal law include cases of burglary, assault, battery and
cases of murder. Examples where civil law applies include cases of
negligence or malpractice.

Comparison chart

Civil Law Criminal Law

Definition Civil law deals with the disputes between Criminal law is the body of law
individuals, organizations, or between the that deals with crime and the
two, in which compensation is awarded to legal punishment of
the victim. criminal offenses.
Purpose To deal with the disputes between To maintain the stability
individuals, organizations, or between the of the state and society
two, in which compensation is awarded to by punishing offenders
the victim. and deterring them and
others from offending.
Jury opinion In cases of civil law, the opinion of the jury In the criminal justice
may not have to be unanimous. Laws vary system, the jury must
by state and country. Juries are present agree unanimously before a
almost exclusively in criminal cases; defendant is convicted.
virtually never involved in civil actions.
Judges ensure law prevails over passion.
Case filed by Private party Government
Decision Defendant can be found liable or not liable, Defendant is convicted
the judge decides this. if guilty and acquitted if
not guilty, the jury decide
this.
Standard of proof "Preponderance of evidence." Claimant "Beyond a reasonable
must produce evidence beyond the balance doubt":
of probabilities.
Burden of proof Claimant must give proof however, the "Innocent until proven

27
 burden may shift to the defendant in guilty": The prosecution
situations of Res must prove defendant
Ipsa Loquitur (The thing speaks for itself). guilty.
Type of punishment Compensation (usually financial) for A guilty defendant is
injuries or damages, or an injunction in subject to Custodial
nuisance. (imprisonment) or
Non-custodial punishment
(fines or community
service). In exceptional
cases, the death penalty.
Examples Landlord/tenant disputes, divorce Theft, assault, robbery,
proceedings, child custody proceedings, trafficking in controlled
property disputes, personal injury, etc. substances, murder, etc.
Appeals Either party (claimant or defendant) can Only the defendant may
appeal a court's decision. appeal a court's verdict.
The prosecution is not
allowed to appeal.
Commencement of State/People/Prosecution by summons or By way of pleadings,
proceedings indictment Representatives of the
state, Prosecutor,
Attorney General.

Cases
In civil law, a case commences when a complaint is filed by a party,
which may be an individual, an organization, a company or a corporation,
against another party. The party complaining is called the plaintiff and
the party responding is called the defendant and the process is called
litigation. In civil litigation, the plaintiff is asking the court to order the
defendant to remedy a wrong, often in the form of monetary
compensation to the plaintiff. In contrast, in criminal law, the case is filed
by the government, usually referred to as the State and represented by a
prosecutor, against a defendant. An individual can never file criminal
charges against another person: an individual may report a crime, but
only the government can file criminal charges in court. Crimes are
activities punishable by the government and are divided into two broad
classes of seriousness: felonies having a possible sentence of more than
one year incarceration and misdemeanors having a possible sentence of
one year or less incarceration.

One of the notable differences between civil law and criminal law is the
punishment. In case of criminal law a person found guilty is punished by
incarceration in a prison, a fine, or in some occasions death penalty.

28
 Whereas, in case of civil law the losing party has to reimburse the
plaintiff, the amount of loss which is determined by the judge and is
called punitive damage. A criminal litigation is more serious than civil
litigation, so the criminal defendants have more rights and protections
than a civil defendant.

Burdens of proof
In case of criminal law, the burden of proof lies with the government in
order to prove that the defendant is guilty. On the other hand, in case of
civil law the burden of proof first lies with the plaintiff and then with the
defendant to refute the evidence provided by the plaintiffs. In case of civil
litigation if the judge or jury believes that more than 50% of the evidence
favors the plaintiffs, then plaintiffs win, which is very low as compared to
99% proof for criminal law. In case of criminal law, defendant is not
declared guilty unless approximately more than 99% proof is against him.
What are the differences between Natural Person and Legal Person?

differences between Natural Person and Legal Person.

Natural Person

1. A natural person is a human being.

2. He has characteristics of the power of Thought speech and choice.
3. A natural person is a real and living person.
4. Slaves were also natural persons.
5. The layman does not recognize idiot, company, corporation, idol etc.
as persons.
6. The only natural persons are human beings.
7. He is also a legal person.
8. Natural persons perform their functions and also perform the function
of legal persons.
9. Man is the only natural person.
10. There is no such division in natural person.
11. Natural person can live for a limited period. i.e. he cannot live more
than 100 years.
Legal Person
1. Legal person is being, real or imaginary.
2. A legal person is any being whom the law regards as capable of rights or
duties.

29
3. Legal persons are also termed “fictitious”, “juristic”, “artificial” or
“moral”.
4. In older law, “slaves” were not recognized as persons.
5. In law, idiots, dead men, unborn persons, corporations, companies, idols,
etc. are treated as legal persons.
6. There are several categories of legal persons recognized by law.
7. “Although all legal personality involves personification, the converse is
not true”.
8. The legal persons perform their functions through natural persons only.
9. There are different varieties of legal persons, viz. Corporations,
Companies, Universities, President, Societies, Municipalities,
Gramapanchayats, etc.
10.There are two classes of corporation’s corporation sole and corporation
aggregate.
11.Legal person can live more than 100 years. Example: (a) the post of
“American President” is a corporation, which was created some three
hundred years ago, and still it is continuing. (b) “East India Company”
was established in sixteenth century in London, and now still is in
existence.

H.L.A Hart’s Theory of Law: - Primary & Secondary Rules

Jurisprudence is a name given to a certain type of investigation into law,

an investigation of an abstract, general and theoretical nature which seeks
to lay bare the essential principles of law and legal systems. The word
‘jurisprudence’ has been derived from a Latin word jurisprudentia which
means ‘knowledge of law’. ‘Juris’ means law and ‘prudentia’ means skill
or knowledge. Thus, jurisprudence signifies knowledge of law and its
application.[1] Jurisprudence is the study of fundamental legal principles.
Different jurists have given different definitions of the term jurisprudence
as per follows:-

 ·ccording to Salmond jurisprudence is the ‘Science of the first

principles of the civil law’.
 According to Austin jurisprudence is the ‘Philosophy of positive
law’etc.
Professor Herbert Lionel Adolphus Hart (H.L.A.Hart) is an influential
legal professor. Hart revolutionized the methods of jurisprudence and the
philosophy of law. He authored ‘The Concept of Law’ and made major
contributions to political philosophy.[3] He is regarded as the leading
contemporary representative of British positivism. From his book it
shows that he is a linguistic, philosopher, barrister and a jurist. To Hart,

30
law is system of rules. According to him: “Where there is law, the human
conduct non-optional or obligatory.”[4] Thus idea of obligation is at the
core of a Rule. Rules of obligation are supported by great social pressures
because they are felt necessary to maintain the society. To Hart, concept
of law is equivalent to the legal system. Hart mentioned that rules of law
fall into different logical categories that have distinct legal and social
functions. He distinguished primary rules from secondary rules or duty
imposing rules from power conferring rule. Primary rules are rules meant
to guide the conduct of the individuals and other legal persons and
secondary rules are rules about how primary rules are to be created and
recognized. The example of duty imposing rules are rules of Income Tax
Act, Wealth tax Act, etc. which requires that taxes must be paid. The
examples of power conferring rules are power to enter into a contract,
make will etc. These may be used or ignored.[5]

Concept of “Rule”
Law can be analysed in terms of rules which is largely based on Hart’s
theory of law. According to him, rules are concerned not with what
happens but with what is to be done. Rules are imperative or prescriptive
rather than indicative or descriptive. Rules have a certain independence or
self-legitimating character. Rules are different from commands.
Commands normally call for one unique performance whereas rules have
a general application and demands repeated activity. In some cases rules
are constitutive and define the activity in a question like rules of a game
while in others they regulate activities which would take place in any
case whether the rules existed or not like rules of grammar, of morals and
of law.[6]Rules of game, club, and societies share the feature of rule of
law in so far as these are of formal nature, are open to amendment by
bodies authorized for this purpose, and some sort of adjudicating process
is also found when there is any difficulty as to meaning or the application
of these rules. As against these rules of morality or law are not amenable
to legislative alteration and are not resolvable by adjudication.[7] Legal
and moral rules both are invitum. Obedience to them is non-optional.
Rules of game and club apply only within limited context, to players
during the game. Law and morals are concerned with much broader
aspects of life. Rules of games are not compulsory; withdrawal and
resignation are permanent possibilities. In case of morals, there is no such
choice and this is largely true of law also. Thus according to Hart, ‘Law
consists of rules which are of broad application and non-optional
character, but which are at the same time amenable to formalization,
legislation and adjudication.’[8]

Kinds Of Rules

31
Rules are of two kinds:-
· Primary Rules
· Secondary Rules

Primary rules regulate the behavior of man in the society. These rules
either grant rights or impose obligations on the members of the
society.[9]
Example:- Rules of criminal law forbidding murder, robbery, rash driving
are primary rules, tort rules, the individual right to freedom of speech ,the
provisions of contracts that define the primary obligations of the parties,
the environmental law rule that forbids discharge of toxic substances in
rivers and streams etc.[10]

Secondary rules are those that stipulate how and by whom the primary
rules may be formed, recognized modified or extinguished.[11]
Example: - Contract law rules that enable parties to form contracts, the
rules that allow testators to create a will, the constitutional rules that
confer legislative powers on Congress, the statute that authorizes the
Supreme Court to promulgate rules of practice and procedure for the
federal courts.[12]

Hart's basic idea is quite simple. Primary rules are rules of conduct; they
tell you what your are legally obligated to do (or refrain from) and what
consequences attach to obedience or disobedience. Thus, the criminal law
rules that prohibit theft, forbid certain conduct and provide for penalties
for violating the prohibition. Technically, the class of secondary rules
includes everything except primary rules. For example, secondary rules
are legal rules that allow for the creation, extinction, and alteration of
secondary rules; secondary rules are power-conferring rules. Thus,
contract law empowers individuals and firms to make contracts; contracts
themselves are usually collections of primary rules. More precisely,
primary rules are rules that govern conduct, and secondary rules are rules
that do not. Thus, the distinction between primary and secondary rules is
just a bit different than the difference between duty-imposing and power-
conferring rules: duty-imposing rules impose duties, whereas power-
conferring rules confer power. This leaves open the possibility that some
rules can regulate other rules, but do so by imposing duties. For example,
a secondary rule might impose a duty to legislate in a certain way or a
prohibition on certain kinds of rule creation. One of the really nifty things
about Hart's introduction of the distinction between primary and
secondary rules was his account as to why secondary rules are important.
We can certainly imagine a system in which there were primary rules, but
no secondary rules. This would be a system of customary law. Certain

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actions would be required; others would be taboo. But there would be no
mechanism by which the set of obligations could be changed. Of course,
customary law need not be completely static. It is possible that customs
might gradually change over time, but this process would require a
change in social norms. It could not be legislated. Secondary rules enable
relatively more rapid legal change at a lower cost. Moreover secondary
rules enable individuals to create customized primary rules that govern
their private relationships or privately owned resources.

Difference In Gist
· Under primary rules, human beings are required to do or abstain from
certain actions; secondary rules are in a sense parasitic upon or secondary
to the first.

· The primary rules bind people whether they like or not, wish or not;
secondary rules bestow facilities upon them for realizing their wishes.

· Primary rules are essential for social life whereas secondary rules are
necessary for the development of a legal system.[13]

Conclusion & Criticism Made On The Rule Theory

The view of Lord Lloyd is that Hart’s description of a developed legal
system in terms of a union of primary and secondary rules is undoubtedly
of value as a tool of analysis of much that has puzzled both the jurists and
the political theorists. Professor Hart himself seems to recognize that his
legal system is not necessarily as comprehensive as he appears to indicate
since he suggests that there are other elements in a legal system, and in
particular the “open texture” of legal rules as well as the relatiopnship of
law to morality and justice. Lord Lloyd asks the question whether it is
possible to reduce to reduce all the rules of the legal system to rules
which impose duties and to rules which confer powers. This is an over-
simplification of a point. It can be said that many of the so called rules of
recognition do not so much confer power but specify criteria which are to
be applied in particular cases, such as the rules of procedure and
evidence. It is doubtful whether all the so-called secondary rules can
properly be treated as a unified class. Professor Hart concedes that a full
detailed taxonomy of the varieties of law still remains to be
accomplished.

According to Hart, the rule of recognition is a secondary rule, but the

view of Prof. Dias is that it looks more like the acceptance of a special
kind of rule than a power. Hart’s concept is based on the distinction
between rules creating duties and rules creating powers on a legal system

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is constituted by their union, but the view of Dias is that it is questionable
whether such a sharp distinction can be drawn. The same rule can create a
power plus a duty to exercise it, or a power plus a duty not to exercise it.

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