Chapter 1
Legal Methods
"TRUISMS" ABOUT HUMAN NATURE
SOCIAL ORDER AND LAW
Law whether a system or process?
Normative character of law and morality.
Rules
Principles
Standard
Concept or categories
Morality and Law
Legality
The legitimacy of law
Western philosophy and transcendental philosophy.
Is it necessary to define law ?
Elementary approach.
Definition of Law.
Why not conduct ?
Scriptural law (revealed law) and cosmic law and process of reading law (dharma)
Philosophy of law
Application of the term ‘Jurisprudence’; not confined only to the law
Jurisprudence whether specific?
Difference between general and specific jurisprudence.
Jurisprudence whether science of law or philosophy of law
Meaning of science and philosophy
Science of law and philosophy of law? Are they different?
Jurisprudence and Legal Method
Expansion of the scope of the traditional jurisprudence to juri-metrics (computer jurisprudence) and to the transcendental Jurisprudence
Ideological reactions and 20th century
Relevance of cosmic Law
Cosmic law : basic law of creation
Interpretation of the Cosmic Law and Vedic Jurisprudence
Mahabhuts : (Total 5)
Prerequisites for comprehension of Vedant
Transcendental jurisprudence and scriptural jurisprudence.
Belief and traditional jurisprudence
JURISPRUDENCE AND OTHER SOCIAL SCIENCES
Kinds of LAW
Research as Legal method—Basic and applied research
Priori (Deductive reasoning) and Posteriori (Inductive reasoning) methods
Descarte’s discourse on methods : A priori method
A Priori Knowledge
A Posteriori or Inductive reasoning [Latin, from the effect to the cause.]
Difference between Priori and Posteriori Method
(1) Characterization Knowledge
(2) Analytic distinction (Synthetic)
(3) The necessary/contingent distinction
(4) The relevant sense of "Experience"
(5) The relevant sense of "Independent"
(6) Positive characterizations of the A Priori
Difficulties in way of priori justifications
Objections
Deductive and Inductive Methods
Deductive method
Inductive method
Difference between Deductive and Inductive methods
Legal Type and Social Type
Legal type questions
(1) Legal question includes; Suits of civil nature
(2) Jurisdiction of Court raises legal type question?
(3) Stay of suit; the application there for raises a legal type question?
(4) Res judicata
Res judicata : escalation cost
Distinction between "issue estoppel" and "res judicata"
(5) TEMPORARY INJUNCTIONS
Cases in which temporary injunction may be granted (Rule-1)
Grant of anti-suit injunction—Principles
Prima facie case and prima facie title
Temporary injunction granted
Injunction suit—cause of action
(ii) Injunction to restrain repetition or continuance of breach (Rule 2)
(iii) Consequence of disobedience or breach of injunction (Rule 2-A)
(iv) Before granting injunction, Court to direct notice to opposite party (Rule 3)
(v) Court to dispose of application for injunction within thirty days (Rule 3-A)
(vi) Order for injunction may be discharged, varied or set aside (Rule 4)
(vii) Injunction to corporation binding on its officers (Rule 5)
(6) INTERLOCUTORY ORDERS
(1) Power to order interim sale (Rule 6)
(2) Detention, preservation, inspection, etc. of subject- matter of suit [Rule 7(i)]
(3) Application for such orders to be after notice (Rule 8)
(4) When party may be put in immediate possession of land the subject-matter of suit (Rule 9)
(5) Deposit of money, etc., in Court (Rule 10)
Legal questions and Political questions
Judicial deference and public law adjudication : These are
Institutional reason and Principled reason; Difference
Judge’s job description
Functions of legal system
(1) Normative functions of law
(2) Legal functions of law.
(3) Social functions of Law.
Legal techniques
Judge, Jurist and Lawyers
Kinds of social function
Direct functions.
Direct primary social function.
Direct secondary social functions
Indirect social functions.
SOCIAL CONTROL
FUNCTIONS OF LAW
Uniformity, and flexibility of law and society
POWER AND LEGAL SYSTEM
Power
Law and public opinions
Interests and demands : What they mean?
Legal system
Authority or legitimate domination : What does it mean?
Legal Culture
Kinds of legal culture
Stages of lay legal culture.
Legitimacy and lay legal culture;
KIND OF LEGAL REASONING
Legal System, Kinds of,
Language of law.—three
Chapter 3
CURRENT POPULAR APPROACHES to what law is;
Vedic Law School—Indian approach;
Greek approaches
Law of nature and natural law : the difference
SCIENTISTS AND SOCIAL SCIENTISTS
NATURAL LAW AND LAW OF NATURE
Theological attitudes (revelation, intuition and inspiration as source of law) : Judaic view of Law Pre-Socrates thinkers; structure of world in terms of
Christian Approach to Law; Law of Holy Bible
Augustine (354-430) (Stoics)
St. Thomas Acquinas (1225-1274) (Eternal law)
Machiabelli, Niccolo (Political power is the end in itself)
Grotius (1583-1645)
Hobbes (The impersonal state and the individualism)
Locke (1632-1704)
Natural rights and natural law, Individual rights and Majority Government
Early 20th century views
Stammler and Geny;
Natural Law with a Changing Content—Stammler
Social Solidarity—Duguit
Democratic Legal Relativism—Radbruch
Legal Institutionalism—Hauriou
Natural Law and Existentialism—Maihofer
Restatement of Natural Law Traditions
German Approach (Philosophical)
Re-action of Anthropologists to Natural Law
Reaction of Continental Jurists to Natural Law—
Historical School;
Communist Approaches : Soviet Jurisprudence
WITHERING AWAY OF LAW
Continental Jurisprudence and English Jurisprudence : Difference
English Jurisprudence
Positivism
Hume distinguished between ‘Is’ and ‘Ought’
How far there is Separation (Separation Thesis)
Whether Separation between is and ought desirable?
Sociological approaches Continental-american Jurisprudence
Sociology of Law and Legal Sociology
Growth of the Sociological school
Realist approaches—Scandanavian approach
Pure theory approach : Kelsen
American realists
The Status of Contemporary Philosophy of Law
Chapter 4
Supra-national political systems
(i) Empires
(ii) Colonial Empires;
(iii) Leagues
(iv) Confederations
(v) Federations
(vi) N.A.T.O.
(vii) The United Nations Organisation
National political systems
Unitary nation-states
Federal systems
Subnational political systems
(a) Tribal communities
(b) Villages
(c) Cities
(d) Regions
Types and models
Monarchies and Republics;
The acquisition and transfer of power
The exercise and control of power
Constitutional democracy in U.S.A. and U.K.;
Separation of power
The divisions of Government
Legislative procedure; difference;
Legislative parties;
The Executive
Role of Chief Executive;
How Chief Executive enters in office;
The Judiciary
Court System;
Local Courts;
The functions of Government
Historical stages;
(a) The indispensable functions of Government
(b) Police functions
(c) The supervisory functions of Governments
(d) The Regulatory functions of Government
(e) The enterprising functions of Government
(f) Public Administration
Chapter 5
—Custom
When does a custom become law ?
Kinds of Custom.
(1) Legal customs may be.
(2) Conventional custom or usage or custom of the trade
(3) Custom of the court.
Habit, convention, custom.
Relationship between Custom and Law.
Trade usage
"Goes too far Standard" Mahon case
Physical taking;
Chapter 6
Judicial Methods—Precedent
The meaning and operation of precedent
The relevant enquiries into case law
Precedent in—English Courts.
Precedent means two things
Utility of binding precedent
Following, distinguishing, and limiting Precedent
A. The "Taxpayer Standing" Example
B. The "Presidential Power" decisions
Concurring separate opinion acquired status of Precedent
Separate but equal doctrine
Advantages and Disadvantages of Precedent
Precedents in continental countries
Precedents in India—(Article 141)
Judicial decisions as a source of law in common law and civil law countries
Form of Judicial Precedent in Common Law and Civil Law Countries
Prospective overruling
Chapter 7
Legislative Methods; Legislation
What is legislation?
The passage of legislation
Primary and Secondary Legislation
Law making in society.
Legislative law making procedure; Act and statute.
Procedure for making Act
Assent of Chief executive
What makes a statute?
Administrative law making procedure
Administrative legislation; laying procedure
The impact of social forces on the law making processes
Two theories
Delegated Legislation.
Intelligible Principles
Chevron Step Zero
Review of cases on delegation of legisalture to executive branch
External and internal illegality
Internal illegality
Judicial review of administrative decisions in U.K.
Wednesbury unreasonableness
Proportionality
Problem of understanding and reasoning
Problem of origin
Problem of the Separation between reasons and intention of legislator
Issues of fact
(1) Procedural Criteria
(2) Material Criteria
Two important perspectives
Perspective No. (1)
Perspective No. (2)
Chapter 8
find out sententia legis
Judge reads the law
Basic aims of interpretation
1. Distribution of power between the Legislature and the courts,
2. Distribution of responsibility between the Legislature and the courts.
3. Creation of certainty in the law.
4. To change and adapt the law to new and unforeseen conditions.
5. To decide the controversies of litigants before the courts.
6. Judges should make law when necessary to the ends of justice.
7. To the extent that judges make laws, they should do so with wisdom and understanding.
8. When judges make law, they should clearly and honestly set forth what the law is that they are developing and the reasons for it.
What are the rules of statutory interpretation
Rules of interpretation classified
Plain meaning rule—criticism.
(A) Primary rules.
Linga method of interpretation equivalent to the Golden rule
Difference between Literal, Golden and Mischief rule
(B) Secondary rules (Seven)
Conditions for applicability
(C) MIMANSA rules
(1) Axioms.—(Elementary rules)
(2) Maxims.—(General Principles) : These are 4
(3) Special rules (1-14)
Maxims of general experience
(D) PRINCIPLES OF BAR
(E) ORDER OF PREFERENCE
Current position
Suggestions for adjustment
Chapter 9
The meaning of Ownership—from physical custody, to no custody via possession;
Origin
Incidents of absolute owner
Concept of Property
Property;
The concept of things are property law;
Historical development of property rights and ownership
Property Rights in Different Types of Societies
Acquisition of Ownership (Nemo quod non habet)
Ownership by original acquisition
Ownership by derivative acquisition
TYPES OF OWNERSHIP
Legal distinctions between movable (personal) and immovable (real) property
Modern variations
Concept in U.S.A.; Land and movables
Concept in U.S.S.R.; Goods of production and Goods of consumption;
Legal distinctions between tangible and intangible property
Temporal Division of Ownership
Classification of Estates
Encumbrances
Perfect or Imperfect ownership
Obligations of the owner or successive heir
Ownership for the benefit of others; Trust Waqfs and Endowments;
Trusts as property
Vesting of titles.
Traditional ownership and non-industrial property
Buyer-seller jurisprudence and new forms of ownership
Industrial Property and Ownership
Control and Ownership : A separation
Material and spiritual;
Restrictions on the ownership of property
State ownership of certain minerals
Social consequences of ownership
Ownership — Hindu Concept;
Fitness for enjoyment.
Acquisition of Property
Adhigam (treasure trove)
Bijit or conquest of war
Prayog (accessio) application of already existing property
Alluvion
‘Karma yoga : employment of work
Transfer of ownership
Hindu law of gift
Can a gift be complete without corporeal acceptance?
Formalities for transfer of land according to Hindu jurists—Six
Exceptions, two,
Recognised sources of Islamic law.
Concepts of Law in Islam
Concept of ‘Mai’ (Property)
Classes of ‘mal’.—Two classes of mal are
Manqul (movables) may be
Mithli (similar) and qimi (dissimilar) property
Ayn (specific or determinate and dayn) (non-specific or Indeterminate
Possession.—Islamic concept.
Intention to exclude others.
Personality—(Dhimma)
Infants
Idiot
Slaves
Objective of Law in Islam
Kinds of acts
JURISTIC acts
Acts obligatory on Muslim community.
Spiritual acts
Distinction in three juristic acts.
Public and Private rights
Ownership and Airwaves, internet and the computers
(1) User and other stakeholders of the system
(2) Hardware.
(3) Business processes that are employed
(4) Softwares
Whether software; fits in conventional definitions of ownership?
Owning a relationship
(1) Third Party solution creates a problem
(2) Two parties solution is not satisfactory
(3) Joint ownership with mutual responsibility for maintenance
Dynamic system structure and dynamic system authority Economic issues
Ownership of the whole v. Ownership of the part; Ownership issues in actual systems of systems Three Ownership issues
(1) Pre-deployment : System A
(2) Operations and daily maintenance : System B
(3) Evolution and long-term maintenance : System C
Ownership Issue due to absence of modernisation projects;
Ownership issues due to the Technical nature of modernisation
Issues relating to Contracts
Twitter weighing options on verdict
Chapter 10
Property and Possession
Applications of the term property
Kinds of property
Possession
Why Possession is protected
The Concept of Possession
Detainer and possessor
Ihering’s idea of possession
Paul’s analysis
Ulpian and Gaius;
Taking Possession
First Possession : Principle of possession; first finder rule
(1) John Locke’s Labour theory Problems of Labour theory
(2) Consent Theory
(3) Common law approach
First possession principle Pierson case;
Majority view
Dissenting opinion in Pierson case
Principles laid down by Pierson case
Clear cut theory and reward to labour principle reconciled.
Communication needed for possession.
Doctrine of Adverse Possession.
Historical background of Adverse -Possession
Human right perspective of property and adverse possession
Bad faith adverse possession
Relevance of the Payment of tax, possession and community.
Notice and Possession.
First Possession; common law principle.
Acts of possession; text
Sub-texts in re first possession rule;
Exception to first possession principle; Johnson rule and International law.
Johnson v. McIntosh
Classical Economic perspectives and possession giving rise to proeprty rights;
The attitude that is important for possession.
(1) Larceny cases.
(2) The finding cases.
(3) Possessor has better title.
(4) Landlord and Tenant.
(5) Rent control laws.
(6) Bailment.
(7) Miscellaneous cases.
Chapter 11
Birth, growth and problems
Essential nature of legal personality
Capacity and personality
Gray and legal person;
Theories of juristic personality
The Fiction theory; Solmon view.
Concession theory.
Linked with philosophy of Sovereign National State
Purpose Theory.
Must be party to legal relations
Just like fiction and concession theory
The Symbolist Theory or Bracket Theory.
Rejected in Common Law
The Realist Theory; Gierke
Favoured more by sociologists and less by lawyers;
From separate entity principle (Solomon’s Case) to actuality of Group Organisation via flexible approach of U.S.A
Australian approach separate legal personality needs review;
Separate legal personality—A metaphor.
Seven attributes of legal person
The conception of the company as a person in particular has contributed towards two tendencies.
Whether limited liability is necessary attribute of legal personality?
Doctrine of piercing the veil; pierces in separate legal personality concept
Why and not how there is problem in this area
Diagnostic approach;
Categories analysis.
Ottolenghi’s Analysis
Criticism of category analysis of piercing the veil.
Veil can only blur any understanding of the area.
Beck’s analysis of Glazer case expanded.
Substantial reform needed
Capacity and personality.
Inanimate objects
Necessity of will;
Attributing personality.
Child in womb : whether person?
Animals and trees : can these be legal person?
Chapter 12
the right holders
Are legal rights conceptually related to other types of rights?
The conceptual analysis of legal rights.
Main divisions
(1) Choice theory.
(2) Benefit theory.
(3) Several functions theory of Wenar.
(4) Claim rights theory Sreenivasan’s view on right
(5) Right must have corresponding duty
Holder of legal right—what kind of entities can be?
Exclusivity of rights.
(1) Primary and remedial rights.
(2) Conditional rights.
(3) Property rights.
(4) Subjective rights.
Hohfeld’s analysis is speculative
Hohfeld’s Jural Relationships and Jural Correlatives.
Hohfeld’s Table of entitlements and burdens
Four sets of relations.
HOHFELD’S ANALYSIS OF LEGAL RIGHT—These are four,
Right, Liberty, Power and Immunity
ANTI-HOHFELD’ANS and Non-Hohfeldian Criticism
(1) MacCormick and his rejection of Hohfeld’s correlativity axiom.
Criticism assailed
Reply to MacCormick He is non-Hohfeldian rather than being called anti-Hohfeldian;
(2) Kant’s view and the conflation of permissibility and Inviolability
(3) Raz and his conception of Hohfeldian "Power".
Moral rights and the duty to express charitableness.
Chapter 13
Organisation of regular courts civil and criminal
Arbitrators, tribunals and special courts
Decline in position of regular courts and response of the court structure
Administrative agencies and the administrative process
Some recent development in criminal law
Legal profession and society
The autonomy of law and lawyers;
Organisation and discipline of the profession
The future of the legal profession
Formal Law enforcement agencies, their organisation, discretion and control
Informal Law Enforcement Agencies
Chapter 14
Methods of Law teaching
The aims of Legal Education
Teaching methods
Examinations and Qualifications
Levels of study
Post-graduate and research degree in law
Trends in legal education
Legal ethics and society
Conflicts of interests
Knowledge for practice and knowledge in practice.
Law Commission’s views on Legal Education-184th Report
Clinical legal education to society
Desirable curriculum for Legal education
A. The First Year Programme.
B. The Second Year Programme.
C. The Third Year Programme
Why have efforts to the prove legal Education not yielded desirable results?
Institutional inertia
Faculty autonomy
Inherited ideology
Faculty centered and student central teachings
Lack of incentives to good teachers
Chapter 15
Alternative Dispute Resolutions
Methods and techniques
Settlement of disputes outside the Court.
Order X, C.P.C.
(1) Arbitration
(2) Conciliation
(3) Convening
(4) Early neutral evaluation
(5) Facilitation
(6) Fact-finding or neutral fact-finding
(7) Interest based negotiation or Interest based bargaining
Litigation
Masters or special masters
Mediated arbitration (Med-Arb)
Mediation
Mini-trial (Mini-trial)
Ombudsman (Ombudsperson)
Partnering
Peer review panels or dispute resolution panels
Private judging
Settlement conference
Summary jury trial
Hybrid ADR
ADR; concept
Why is ADR gaining popularity
"ADR takes place within the shadow of the law".
Dispute and a grievance; difference.
Alternatives to litigation other than ADR.
Benefits and drawbacks to using ADR over litigation.
Who is using ADR.
Indicators for ADR usage.
Private ADR Provider.
ADR Obligations.
ABA Model Code in U.S.A.
Types of cases wherein ADR is pressed in to use;
Mediation
Chapter 16
Arbitration
ACT 26 of 1996.
Forms of Arbitration
Private Arbitrator
Judicial arbitration
Arbitration and mediation
Arbitration Process
Characteristics of arbitration.
Arbitration, fast adjudication.
Terms used in arbitration.
Arbitration and litigation difference
Arbitrator and Civil Judge;
The role of the attorney in arbitration.
Paralegal and arbitration.
International Arbitration
Mini-trials
Hybrid forms ADR
ADR and the specific dispute
Employment Disputes and ADR.
Family Disputes and Mediation
Criminal Law and Mediation.
Chapter 17
NEGOTIATION THEORY : foundations and approaches
In negotiations (both parties need each other)
Interdependent relationships are complex
Conflict
Distributive negotiation Strategy and tactics of
Integrative or co-operative negotiation Strategy and tactics of
Cooperative negotiation
Interest-based negotiating.
Competitive negotiating.
Difference in distributive/competitive negotiation versus interest-based/cooperative negotiating.
Phases of negotiation ; These are six
How mediation differs from negotiation.
Negotiation approaches : An overview
(1) Structural approach.
(2) Strategic approach.
(3) Behavioral approach.
Psycho-socials
(4) Concession exchange (Processual) approach.
(5) Integrative approach.
Conciliation
Arbitration No way out in this example
Conciliation only way out to parties
Conciliation.
Principles of conciliation.
The role of a conciliator
Conciliation vis-a-vis arbitration.
Conciliation and mediation.
(A) Under Code of Civil Procedure
(B) Under UNCITRAL
(C) Under ACAS
(D) Under NADRAC
Advantages of Conciliation.
Conciliation under the Civil Procedure Code, 1908 ("CPC").
Chapter 19
Mediation—Whether a facilitator
Steps in mediation;
Mediation and Panchayats system
Tribal and panch parmeshwar
Mediation whether challenge to court system
Mediation and Lok Adalat
Statutes dealing with mediation
Court’s responses to mediation
Mediation and CPC
Primary means by which mediation is initiated.
Critical matters that every mediator should stress to participants at the beginning of a mediation.
Attributes of a successful mediator
Functions of an attorney/advocate prior to the commencement of a mediation.
Role of the attorney/advocate in each phase of a mediation session.
Arbitration and mediation; difference
Chapter 20
Lok Adalat and Legal Aid
Legal Services Authority Act, 1987
Cognizance of pending cases and determination.
A. Application
B. Suo motu.
Procedure by Permanent Lok Adalat for determination
Aid to accused; Important decisions
Statutory legal aid—Cr. P.C.
Consent of parties must
A caveat, a word of caution
Legal Aid
Right to legal aid
Duties of the Police and the Courts
Services offered by the Legal Services Authority
