Introduction
In this unit, you will learn what it is about legal method and analysis that requires you to approach legal problems in a different manner. You will gain a basic understanding of legal systems and the classification of legal rules. You will also learn about the different sources of law, and when they apply to a given situation. You will learn how to identify the important facts of a case and to discard facts that are not relevant. You will also learn how to identify the issue that is important for the resolution of a case, and to correlate this to the facts at hand. You will learn how to analyse legal issues using the “Issue Rule Application Conclusion” (IRAC) method, which you can apply to any case you might be dealing with.
OBJECTIVES
After going through this unit, you should be able to:
explain the nature of the legal system and the classification of legal rules;
use legal method and analysis in any given case;
adopt the “IRAC” method, as one of the methods for analysis; and identify the different sources of law and their relevance.
explain the nature of the legal system and the classification of legal rules;
use legal method and analysis in any given case;
adopt the “IRAC” method, as one of the methods for analysis; and identify the different sources of law and their relevance.
What is Legal Method?
Legal method is the study of how to approach law and legal problems, in order to analyse a legal issue in depth and effectively put forward an argument. The term ‘legal method’ means the manner and approach of assessing the case facts and issues, and how you will present your case. It is the background for all cases and disputes that you may come across, regardless of the type of legal issue and the nature of the case. This is the fundamental building block that you need to be thorough with to appreciate any legal dispute or case.
The manner of approaching law and legal issues also depends on perspective and the legal system that we are part of.
Classification of Law
In order to understand legal method and to appreciate the context in which disputes and cases arise, it is important for you to understand the foundations of the legal system and classifications of law. The legal system comprises the laws that govern and the method of applying these laws. It includes the legitimacy of the law and its source. There are different classifications and ways to assess the legal system.
While the following is not an exhaustive list, it will give you an idea of the various ways of approaching law.
The first major difference in legal systems around the world is the classification into common law and civil law. A common law country derives its legal system largely from the traditions and heritage of the British legal system. This includes countries such as India, the United States of America, Canada, and Britain.
This system relies upon judge-made law and law as it evolves through case law. While there is reliance upon legislation, this varies across different common law countries. The adversarial nature of the system, i.e. the role of the lawyers to argue a legal issue, contributed to the development of the law.
This is the means of evolution of the law. The idea of ‘precedent’, where once a legal issue in a case is decided it binds other parties also, is an essential part of the common law system and the development of the law in a cohesive manner. This is important for a level of certainty and predictability of legal outcome in such a system.
In the civil law system, in countries such as France, Germany and Italy, the main source of the law is statutes. The role of lawyers and judges is limited to interpreting statutes, and is not the same as the adversarial system. The role of the judge is also different — the judge is less of a referee between parties and plays a more proactive role in decision making during the course of proceedings. Further, there is no precedent value for case law, and each case is determined on an individual basis.
In India, the legal system that we follow is the common law system, due to our legal heritage from the British. This means that we follow judge-made law, but we also have a number of statutes that have codified much of the law of the land. Hence, while we not only rely upon our Constitution and statutes, we also follow
This system relies upon judge-made law and law as it evolves through case law. While there is reliance upon legislation, this varies across different common law countries. The adversarial nature of the system, i.e. the role of the lawyers to argue a legal issue, contributed to the development of the law.
This is the means of evolution of the law. The idea of ‘precedent’, where once a legal issue in a case is decided it binds other parties also, is an essential part of the common law system and the development of the law in a cohesive manner. This is important for a level of certainty and predictability of legal outcome in such a system.
In the civil law system, in countries such as France, Germany and Italy, the main source of the law is statutes. The role of lawyers and judges is limited to interpreting statutes, and is not the same as the adversarial system. The role of the judge is also different — the judge is less of a referee between parties and plays a more proactive role in decision making during the course of proceedings. Further, there is no precedent value for case law, and each case is determined on an individual basis.
In India, the legal system that we follow is the common law system, due to our legal heritage from the British. This means that we follow judge-made law, but we also have a number of statutes that have codified much of the law of the land. Hence, while we not only rely upon our Constitution and statutes, we also follow
Substantive and Procedural Law
Another division in law is that of substantive law and procedural law. Substantive law means the rights or obligations that are placed on individuals or entities by the law. For example, the right to contract or transfer property is stipulated as per the law.
On the other hand, procedural law is the process and method of enforcement of rights that are conferred by the substantive law. For example, in order to ensure a person’s right to practise his or her religion as per the Constitution, there is a mechanism stipulated whereby the person can approach the courts to enforce this right and to obtain a remedy from the court. This manner of approaching the court is regulated by procedural law.
Another example can be found in the area of criminal law. In India, the Indian Penal Code of 1860 lays down the crimes and punishment for various crimes. The Code of Criminal Procedure, 1973 lays down the procedure to be followed in the investigation of cases, as well as the course of the trial. This includes the filing of a First Information Report (FIR) and charges, and the procedures during the trial.
On the other hand, procedural law is the process and method of enforcement of rights that are conferred by the substantive law. For example, in order to ensure a person’s right to practise his or her religion as per the Constitution, there is a mechanism stipulated whereby the person can approach the courts to enforce this right and to obtain a remedy from the court. This manner of approaching the court is regulated by procedural law.
Another example can be found in the area of criminal law. In India, the Indian Penal Code of 1860 lays down the crimes and punishment for various crimes. The Code of Criminal Procedure, 1973 lays down the procedure to be followed in the investigation of cases, as well as the course of the trial. This includes the filing of a First Information Report (FIR) and charges, and the procedures during the trial.
Civil and Criminal Law
Yet another classification of law is that of civil and criminal law. In this case, civil law is not to be confused with the civil law system, as described in Sub-section 1.3.1.1 above. Here, civil law describes the rights of an individual nature or private rights. This means, for example, the rights that arise out of a contract entered into by a person.
When a person seeks to enforce these rights, either against another person, or the government, then the nature of this dispute is civil. Also, the nature of the remedies that may be asked for is different in a civil case from a criminal case. In a civil case, remedies such as compensation, injunction and may be requested.
On the other hand, a criminal case is the enforcement of rights by the State against a person, on behalf of the society as a whole. The underlying idea is that it is in the interest of the entire society in ensuring that such crimes are not committed. Hence, the State has the power to pursue justice and to ensure that the perpetrator is punished.
In criminal cases the punishment is usually imprisonment, with monetary fines in certain cases. In the rarest of the rare cases, the maximum penalty that is imposed is death.
When a person seeks to enforce these rights, either against another person, or the government, then the nature of this dispute is civil. Also, the nature of the remedies that may be asked for is different in a civil case from a criminal case. In a civil case, remedies such as compensation, injunction and may be requested.
On the other hand, a criminal case is the enforcement of rights by the State against a person, on behalf of the society as a whole. The underlying idea is that it is in the interest of the entire society in ensuring that such crimes are not committed. Hence, the State has the power to pursue justice and to ensure that the perpetrator is punished.
In criminal cases the punishment is usually imprisonment, with monetary fines in certain cases. In the rarest of the rare cases, the maximum penalty that is imposed is death.
Municipal and International Law
Municipal law refers to the domestic law of a country, whether this is criminal law or civil law, substantive or procedural. This is the body of laws and rules that govern conduct within a country, including its Constitution, statutes, rules and case law. Different countries have their own domestic law and legal systems. While there may be commonality of certain laws and concepts, municipal law is still the law unique to each country’s jurisdiction.
By contrast, international law refers to legal rules formulated at the international level by states. According to Article 38 of the Statute of the International Court
of Justice, there are different sources of international law, such as when states agree to certain obligations in the form of a treaty, or else by customary international law, which develops due to the practice of states. Another source is laws within different states.
As a secondary means, international law also includes decisions of international courts and tribunals, such as the International Criminal Court, the International Tribunal for the Law of the Sea and the Dispute Settlement Board of the World Trade Organisation.
It also refers to the writings of eminent jurists and publicists. As you can see, international law includes a wide range of subjects such as, international criminal law, law of the seas and international trade law etc.
By contrast, international law refers to legal rules formulated at the international level by states. According to Article 38 of the Statute of the International Court
of Justice, there are different sources of international law, such as when states agree to certain obligations in the form of a treaty, or else by customary international law, which develops due to the practice of states. Another source is laws within different states.
As a secondary means, international law also includes decisions of international courts and tribunals, such as the International Criminal Court, the International Tribunal for the Law of the Sea and the Dispute Settlement Board of the World Trade Organisation.
It also refers to the writings of eminent jurists and publicists. As you can see, international law includes a wide range of subjects such as, international criminal law, law of the seas and international trade law etc.
FORMAL SOURCES OF LAW -
Every legal system has different sources of law that you need to know, in order to analyse a given legal problem and to find a solution. Formal sources of law are those that indicate the authority or weight that is to be given, when assessing a given legal problem. This has an impact on the outcome of cases. In India, the formal sources of law are:
Constitution of India
The Constitution of India is the most important source of law in India, which came into effect on 26 January 1950. It is the supreme law of the land and has a status higher than that of ordinary legislation. The Constitution not only contains the substantive laws that govern the republic, but is also the source from which many of the laws of the land are derived. By virtue of the Constitution, there is distribution of powers between the Legislature, the Executive and the Judiciary.
The Constitution contains Articles that cover subjects such as centre-state relations, powers of the president, fundamental rights and directive principles. The rights under the Constitution can be enforced by approaching the courts. The law-making power of the legislature and the procedure for the passage of a bill into a binding law or legislation is also contained in the Constitution.
The Constitution contains Articles that cover subjects such as centre-state relations, powers of the president, fundamental rights and directive principles. The rights under the Constitution can be enforced by approaching the courts. The law-making power of the legislature and the procedure for the passage of a bill into a binding law or legislation is also contained in the Constitution.
Statutes/Acts
Statutes/Acts are legislation passed by Parliament/state legislature, and have the status of law of the land. Examples of this are the Energy Conservation Act, 2001 or the Right to Information Act 2005. These enactments stipulate laws and rules that are to be followed by courts and individuals, and reflect the will of the legislature in formulating the laws.
The Constitution of India stipulates the procedure for the passage of bills into legislation. Further, there are some subjects that only the central legislature can formulate into law, and there are others that are left to the state legislatures to pass into law. The Seventh Schedule of the Constitution of India has three lists: the Union List,
which contains all the subjects that only Parliament can enact laws on, the State List, which contains those that the state legislature can enact laws on, and the Concurrent List, which contains subjects that both the central and state legislature can legislate upon. State legislatures may further devolve some powers to local governance bodies by virtue of the 73rd and 74th Amendments to the Constitution in 1992.
Once a Bill is passed by the legislature, it acquires the status of an ‘Act’. Usually, when an Act is passed by a state or the centre, it contains a provision to enable the government to formulate rules that will give effect to the enactment. These rules are for effective implementation of the provisions of the enactment, and are also binding in nature. This is known as ‘subordinate legislation’.
Another law that is of temporary nature is an ordinance that may be promulgated by the President, or the Governor of a state, under Article 123 and Article 213 of the Constitution of India respectively. Ordinances are promulgated in case the legislature is not in session, and a law needs to be formulated. This is a temporary occurrence, and must eventually be replaced by a law from Parliament or state legislature. The ordinance also has the force of law when in force.
The Constitution of India stipulates the procedure for the passage of bills into legislation. Further, there are some subjects that only the central legislature can formulate into law, and there are others that are left to the state legislatures to pass into law. The Seventh Schedule of the Constitution of India has three lists: the Union List,
which contains all the subjects that only Parliament can enact laws on, the State List, which contains those that the state legislature can enact laws on, and the Concurrent List, which contains subjects that both the central and state legislature can legislate upon. State legislatures may further devolve some powers to local governance bodies by virtue of the 73rd and 74th Amendments to the Constitution in 1992.
Once a Bill is passed by the legislature, it acquires the status of an ‘Act’. Usually, when an Act is passed by a state or the centre, it contains a provision to enable the government to formulate rules that will give effect to the enactment. These rules are for effective implementation of the provisions of the enactment, and are also binding in nature. This is known as ‘subordinate legislation’.
Another law that is of temporary nature is an ordinance that may be promulgated by the President, or the Governor of a state, under Article 123 and Article 213 of the Constitution of India respectively. Ordinances are promulgated in case the legislature is not in session, and a law needs to be formulated. This is a temporary occurrence, and must eventually be replaced by a law from Parliament or state legislature. The ordinance also has the force of law when in force.
Common Law and Case Law
As mentioned previously, common law is the law that is derived from case law and has evolved over time. This is also called English common law, and is applied in India. Common law is essentially judge-made law that applies to issues. Over time, in India, there has been greater development of statute-made law, to overcome gaps in the common law.
However, the common law principles continue to govern several critical areas and have an impact on our daily lives. For example, the groundwater in this country continues to be governed by the common law principle of ownership vesting with the land owner, resulting in over-exploitation of groundwater across many districts in the country.
Case law decided by the Supreme Court is given the status of law of the land, as per Article 141 of the Constitution of India. This means that it has a binding effect and is applied throughout the country.
However, the common law principles continue to govern several critical areas and have an impact on our daily lives. For example, the groundwater in this country continues to be governed by the common law principle of ownership vesting with the land owner, resulting in over-exploitation of groundwater across many districts in the country.
Case law decided by the Supreme Court is given the status of law of the land, as per Article 141 of the Constitution of India. This means that it has a binding effect and is applied throughout the country.
Custom and Usage
Custom is a practice that courts have held to be ‘immemorial, uninterrupted and certain’. When a practice has these characteristics, it has the force of law if so determined by a court. This is distinct from usage, which means something that has been done uniformly in a particular area. Large sections of society continue to be governed by their traditional laws, and these have been given legitimacy.
For example, several tribal rules and customs govern their way of life, and this isupheld by the law of the land. Both custom and usage can be interpreted by the courts to apply to a particular legal situation, but the courts exercise caution in doing this. Further, these principles are applied usually in the absence of common law or statute law on the point.
For example, several tribal rules and customs govern their way of life, and this isupheld by the law of the land. Both custom and usage can be interpreted by the courts to apply to a particular legal situation, but the courts exercise caution in doing this. Further, these principles are applied usually in the absence of common law or statute law on the point.
Justice, Equity and Good Conscience
According to the English law tradition, in case of a gap in the law, the rules of justice, equity and good conscience must be used. In the context of India, in case there is no constitutional provision, legislation or common law on a particular issue, then the court must adjudicate keeping these principles in mind.
The principles of justice, equity and good conscience ensure that the court arrives at a decision that is fair and just to the parties to the dispute. It is in the power of a court to apply such principles in the absence of other rules or laws on the point. The application of the principles to the case at hand is left to the discretion of the judge, keeping in mind the aim of the principle.
The principles of justice, equity and good conscience ensure that the court arrives at a decision that is fair and just to the parties to the dispute. It is in the power of a court to apply such principles in the absence of other rules or laws on the point. The application of the principles to the case at hand is left to the discretion of the judge, keeping in mind the aim of the principle.
International Law
International law is a source of law that applies between nations and also to persons in a country. The method of application of international law is through domestic law in the case of India. This means that, for example, when India signs an international treaty agreeing to certain obligations under international law, these obligations must then be enacted in a legislation for it to have direct effect and to apply as law of the land.
The Constitution of India stipulates that international obligations must be adhered to. Article 51(c) of the Constitution emphasises the respect for international treaties keeping in mind peace and comity of nations, and Article 253 places an obligation on Parliament to legislate in respect of any international treaty or agreement.
An example of the application of international law is as follows: India has signed the Geneva Conventions of 1949, which are international treaties that govern the conduct of hostilities. In order for this to be implemented as per the treaty, India has enacted the Geneva Conventions Act of 1960 for this purpose.
The Constitution of India stipulates that international obligations must be adhered to. Article 51(c) of the Constitution emphasises the respect for international treaties keeping in mind peace and comity of nations, and Article 253 places an obligation on Parliament to legislate in respect of any international treaty or agreement.
An example of the application of international law is as follows: India has signed the Geneva Conventions of 1949, which are international treaties that govern the conduct of hostilities. In order for this to be implemented as per the treaty, India has enacted the Geneva Conventions Act of 1960 for this purpose.
INTRODUCTION
In this unit, you will learn the method whereby you can conduct effective and thorough legal research. It is a step-by-step approach to identifying the correct questions and issues, the law applicable and the materials that will help you in this process. The ability to know where to look and how to conduct legal research is crucial for any legal work, and you will learn these skills. To start with, this unit will help you identify how and where to proceed with research. Further, you will learn to identify the material sources of law – primary and secondary – which are essential to analyse any legal issue before you. You will learn how to find primary and secondary sources, and also how to use them. The details of case analysis and how to interpret the law are also part of this unit.
OBJECTIVES
After going through this unit, you should be able to:
conduct effective legal research;
What is Legal Research?
1. Background Research
The first question you need to ask and answer is: Why is legal research important? As a paralegal, you will be faced with issues and problems, which may be complex or relatively simple. But for each situation, you must have the ability to address the issues and be sure of the answers to the questions of your clients. When you are working with a lawyer, she will depend upon you to research and find the answers to many of the questions that come up in a legal situation. In the absence of a lawyer, these skills will help you build a cogent case in your representations before a government agency or any other grievance redressal forum. In all such instances, it is essential that you are clear on the basics of legal research and have the ability to search for and find the right answers.
The most important part of legal research is to assess what you are looking for, and where to look for it! In order to begin your research, you first need to address the legal problem by using the IRAC method, which you learnt in the previous unit. As a first step, make a clear assessment of the factual situation. Then formulate the issues in question for the particular situation. At this stage, you will need to research the rules that are applicable, only then would you be able to apply the facts to the rules, and come to a conclusion and argument regarding your case.
The most important part of legal research is to assess what you are looking for, and where to look for it! In order to begin your research, you first need to address the legal problem by using the IRAC method, which you learnt in the previous unit. As a first step, make a clear assessment of the factual situation. Then formulate the issues in question for the particular situation. At this stage, you will need to research the rules that are applicable, only then would you be able to apply the facts to the rules, and come to a conclusion and argument regarding your case.
2. How and Where to Start
Once you have identified the issues, you need to look for the law. One of the first questions is: Where will I find the relevant material? Upon identification of the issues in your case, you will have a general idea with regard to the subject matter and area or areas of law that you will need to inquire into. There are two important places where you can find material and information for your research: the library and the internet. It is advisable to begin your research at a legal library that has a sufficient collection of books, cases and journals for your research.
At the library, as a first step, locate the index of books (which could also be digitised and available online). Using this will help you locate which books will be relevant to your research, as well as the exact location of these books in the library. Once you have identified the books you require relating to the areas of law that you need to research, you should proceed to read and assimilate the information in the books. This information will help you refine your questions and the issues, and will probably result in more research questions that you will need to address. The library is also a source of legislation, case law, books including legal dictionaries and encyclopaedia.
Another means of collecting information is through the internet. There are specific websites that will provide information on legislation, as well as case law and law journals. However, many of these websites require paid subscription. Some
At the library, as a first step, locate the index of books (which could also be digitised and available online). Using this will help you locate which books will be relevant to your research, as well as the exact location of these books in the library. Once you have identified the books you require relating to the areas of law that you need to research, you should proceed to read and assimilate the information in the books. This information will help you refine your questions and the issues, and will probably result in more research questions that you will need to address. The library is also a source of legislation, case law, books including legal dictionaries and encyclopaedia.
Another means of collecting information is through the internet. There are specific websites that will provide information on legislation, as well as case law and law journals. However, many of these websites require paid subscription. Some
3. MATERIAL SOURCES OF LAW
Material sources of law essentially mean where to look to find the relevant law that is applicable. This is different from formal sources of law, which you studied in the previous unit, and which related to the authority of the source. Material sources refer to where we can find these sources. These are divided into primary and secondary sources.
The division of sources of law into primary and secondary also has an impact upon the binding nature and value of the source of law to the court. A primary source has mandatory or binding authority, when deciding the outcome of a case. Hence, when searching for authority on a point, it is important to find primary sources.
In case you are unable to find a primary source, then you must ascertain secondary sources on the point in question, though this is not of mandatory authority. In such a case, it has persuasive value to the court, which it may rely upon. There is a hierarchy in the use of sources, with primary sources being relied upon first and secondary sources being used only later.
The division of sources of law into primary and secondary also has an impact upon the binding nature and value of the source of law to the court. A primary source has mandatory or binding authority, when deciding the outcome of a case. Hence, when searching for authority on a point, it is important to find primary sources.
In case you are unable to find a primary source, then you must ascertain secondary sources on the point in question, though this is not of mandatory authority. In such a case, it has persuasive value to the court, which it may rely upon. There is a hierarchy in the use of sources, with primary sources being relied upon first and secondary sources being used only later.
4.Primary Sources of Law
Primary sources of law are the first and most important source of the legal rule in question. These sources include the Constitution, Statutes, as well as judgments decided by courts. In coming to a decision, a court would need to first look at theprovisions of the Constitution and any interpretations of these provisions in case law. In case there is no constitutional provision, legislation and common law are authorities that the court must refer to.
5. Secondary Sources of Law
Secondary sources include those sources that can be used in order to interpret and analyse the primary sources of law. This includes digests, law journals, treatises and books. These sources will not only give you a comprehensive picture regarding the legal issue at hand, but will also direct you towards case law on the point and analyse various cases and interpretations of an issue. In a court, however, these may be relied upon to persuade the court, but are not mandatory for the court to follow. They may also be used in conjunction with mandatory authority in order to advance an argument more forcefully. In other words, in a court of law, secondary sources have only a persuasive value.
How to Find Statute
As you have learned in Unit 1 (Sub-section 1.4.1) there is a process in which laws are created by the Parliament or state legislature. Statutes are found in the Official Gazette of the Government of India, in case they are central legislations. State legislations will be found in the State Gazette. Further, these are usually also available on government websites. Books relating to a particular area of law will usually also contain the legislation on the point in its entirety, as a schedule or appendix at the end of the book.
While the statute or legislation that is formulated should have clarity and serve the purpose for which it has been enacted, there are times when there is a difference in interpretation of the same legislation. It is in this situation that the judges are called in, to resolve the dispute and clarify the meaning of a term or provision. So, what happens if you are relying on a provision of a statute, and you are not clear of the exact meaning of the term?
While the statute or legislation that is formulated should have clarity and serve the purpose for which it has been enacted, there are times when there is a difference in interpretation of the same legislation. It is in this situation that the judges are called in, to resolve the dispute and clarify the meaning of a term or provision. So, what happens if you are relying on a provision of a statute, and you are not clear of the exact meaning of the term?
Rules of Interpretation
The ‘rules’ or methods that judges use in the interpretation of the statute is what is known as statutory interpretation. These provide guidance to the judges in the manner in which they approach a particular provision, in order to interpret it in the light of the case at hand. However, these approaches do not provide ready answers, and it is up to the judges to interpret the law using these rules.
It is important for you to know the methods of statutory interpretation as you may come across provisions and are unsure of how they are to be interpreted. Once you assess this, you will need to supplement your understanding by checking case law on the point or amendments to the enactment, in case the meaning has been clarified by these means.
The Literal Approach
The ‘literal approach’ emphasises that the words of the statute are to be read and this is to be taken into account. What the literal reading of the sentence actually means is the interpretation that is to be given to the law.
For example, “There were only red roses in the garden”, would be interpreted to mean that the only flowers present in the garden were red roses. There is no other interpretation possible for this sentence.
The Golden Rule
What would happen if, when applying the literal rule, the result were absurd? How is this to be remedied? In such a situation the ‘Golden Rule’ is applied, which means that an alternative interpretation is to be used when faced with a situation of absurdity. However, what this alternative interpretation should be, is left to the judge on a case-by-case basis.
For example, “There were only red roses in the garden.” The next sentence states, “The white and pink roses were in full bloom”. In this case, the first sentence means that there are only red roses. However, the second sentence gives the impression that there are also white and pink roses. While it does not explicitly state ‘in the garden’, applying the golden rule would lead to the interpretation that there were also white and pink roses in the garden
For example, “There were only red roses in the garden.” The next sentence states, “The white and pink roses were in full bloom”. In this case, the first sentence means that there are only red roses. However, the second sentence gives the impression that there are also white and pink roses. While it does not explicitly state ‘in the garden’, applying the golden rule would lead to the interpretation that there were also white and pink roses in the garden
The Mischief Rule
The ‘Mischief Rule’ refers to the rule by which the legislation is to be assessed, keeping in mind the state of the law prior to the formulation of the legislation. When a determination is to be made regarding whether an action is prohibited by a particular legislation, the court will look into what “mischief” the legislation was meant to rectify and prevent.
In case the action did not fall into the mischief that the legislation was meant to prevent, the court would be able to make a decision keeping this in mind. Looking back at what the law was, and what this legislation is supposed to rectify or change, will be of guidance when interpreting a provision of the legislation. It seeks to rectify mischief in the law and this is theguiding principle when interpreting the law. Using the Mischief Rule entails looking at the previous common law and the context of past laws.
In case the action did not fall into the mischief that the legislation was meant to prevent, the court would be able to make a decision keeping this in mind. Looking back at what the law was, and what this legislation is supposed to rectify or change, will be of guidance when interpreting a provision of the legislation. It seeks to rectify mischief in the law and this is theguiding principle when interpreting the law. Using the Mischief Rule entails looking at the previous common law and the context of past laws.
The Purposive Approach
The ‘purposive approach’ means looking at the purpose and idea behind the legislation, and interpreting the legislation in such a way that the purpose is achieved. While this may sound similar to the Mischief Rule, it is not. Unlike the Mischief Rule, which is primarily backward looking and assesses the history and previous tradition of the law, the purposive approach means looking ahead at the intention and aim of the legislation.
Stare Decisis and Precedent Value
Black’s Law Dictionary defines the doctrine of stare decisis as “to abide by, or adhere to, decided cases”. This doctrine is used by a court in order to decide cases in a consistent manner, in keeping with its own previous decisions. Such previous decisions of the court are referred to as ‘precedents’. In the common law system such as in India, a court cannot usually depart from precedent and is bound by the doctrine of stare decisis. This doctrine is particularly important, given that much of common law was not codified previously, and so, in order to have greater certainty of legal decision making, the doctrine of stare decisis developed.
The idea behind stare decisis is that there is some certainty in the application of the law. It should not be the case that in a similar situation, with a similar fact scenario, the legal outcome of two cases is totally different. This doctrine ensures that parties are reasonably certain of the state of the law, and that similar cases do not keep appearing before the same court for adjudication
There is also a co-relation between stare decisis and the hierarchy of the courts. Simply put, when there is a decision of a higher court that decides a particular issue or point of law, it is binding on lower courts. For example, the decision of the Supreme Court of India on a particular point of law will be binding on the High Courts.
However, when the Karnataka High Court makes a decision, this will not be binding on the Supreme Court or another High Court. It may be used in order to make a point or persuade the High Court, but is not a mandatory authority on the legal issue in question. Essentially, a decision of a lower court cannot bind a higher court or an equal court.
The idea behind stare decisis is that there is some certainty in the application of the law. It should not be the case that in a similar situation, with a similar fact scenario, the legal outcome of two cases is totally different. This doctrine ensures that parties are reasonably certain of the state of the law, and that similar cases do not keep appearing before the same court for adjudication
There is also a co-relation between stare decisis and the hierarchy of the courts. Simply put, when there is a decision of a higher court that decides a particular issue or point of law, it is binding on lower courts. For example, the decision of the Supreme Court of India on a particular point of law will be binding on the High Courts.
However, when the Karnataka High Court makes a decision, this will not be binding on the Supreme Court or another High Court. It may be used in order to make a point or persuade the High Court, but is not a mandatory authority on the legal issue in question. Essentially, a decision of a lower court cannot bind a higher court or an equal court.
Ratio Decidendi and Obiter Dictum
Ratio decidendi essentially means the reason for the decision or the principle that is used to determine the decision. This is the reasoning that is used in the judgment that correlates the facts and the law, and upon analysis determines the outcome of the dispute. This is also specific to the case before the court.
Obiter dicta means a reference or discussion by the court, but which is not a determining factor in reaching a decision. It is an observation and is not central to the decision or determination of the dispute.
These are two significant and essential differences that need to be understood, as when you read a case, you must be able to separate the obiter from the ratio decidendi. This is crucial, as when you place reliance upon a case to build an argument, it must be upon the ratio of the case, and not remarks that are not crucial to the decision at hand. While the obiter may be important nonetheless, it would not be of use in determining the precedent value of the decision. The value of a case as precedent lies in the ratio of the case, and this is what must be followed.
Example: The court delivered a judgement related to the following situation: Mr. X was walking across the street, when a cyclist knocked him down. Mr. X was on his way for an appointment with a client, and was in a hurry to cross the road. He was not at the zebra crossing. The cyclist was cycling at 30 km per hour, on a busy street. Mr. X sustained injuries on his head, and as a result, was hospitalised for a month.
He lost his income for that time. The Court was asked to determine whether the cyclist was negligent, and if Mr. X was entitled to compensation for his injuries and loss of income. In this situation, the court held that due to the negligence of the cyclist, who was travelling at a high speed, he was liable to Mr. X for injury and loss of income. The court also noted that while Mr. X was in a hurry, this was not material to the case.
Here, the ratio decidendi of the court is that as the cyclist was travelling at a high speed, there was the likelihood of an accident, which makes the cyclist liable. The observation regarding Mr. X’s hurried state was not a determining factor for the case.
Obiter dicta means a reference or discussion by the court, but which is not a determining factor in reaching a decision. It is an observation and is not central to the decision or determination of the dispute.
These are two significant and essential differences that need to be understood, as when you read a case, you must be able to separate the obiter from the ratio decidendi. This is crucial, as when you place reliance upon a case to build an argument, it must be upon the ratio of the case, and not remarks that are not crucial to the decision at hand. While the obiter may be important nonetheless, it would not be of use in determining the precedent value of the decision. The value of a case as precedent lies in the ratio of the case, and this is what must be followed.
Example: The court delivered a judgement related to the following situation: Mr. X was walking across the street, when a cyclist knocked him down. Mr. X was on his way for an appointment with a client, and was in a hurry to cross the road. He was not at the zebra crossing. The cyclist was cycling at 30 km per hour, on a busy street. Mr. X sustained injuries on his head, and as a result, was hospitalised for a month.
He lost his income for that time. The Court was asked to determine whether the cyclist was negligent, and if Mr. X was entitled to compensation for his injuries and loss of income. In this situation, the court held that due to the negligence of the cyclist, who was travelling at a high speed, he was liable to Mr. X for injury and loss of income. The court also noted that while Mr. X was in a hurry, this was not material to the case.
Here, the ratio decidendi of the court is that as the cyclist was travelling at a high speed, there was the likelihood of an accident, which makes the cyclist liable. The observation regarding Mr. X’s hurried state was not a determining factor for the case.
Distinguishing Cases
This is another important concept that is linked to the precedent value of the decision, as well as the ratio decidendi of the case. When there is a dispute that is to be determined by a court, it will assess precedents before it, in order to determine whether those cases are applicable. In such a situation, the court will look at the case being cited as precedent, and will determine the ratio decidendi and obiter dicta of the case. In case it finds that the ratio has been on the basis of different facts or situation, then that case is distinguished from the present case before the court. This means that the court will examine and differentiate the former case from the present case, and will thus not have to follow the prior decision.
In case the court is unable to distinguish the cases, it will be bound to follow the decision of the higher court. Now, keep in mind the above example in Sub-section 2.6.2. A case that has come up before another court has a similar fact situation in mind, with a few differences. The first is that the person crossing the road, Mr. P, crossed at an intersection. He noticed that the light indicated that a pedestrian should stop, and not cross. However, being in a hurry, he crossed at that time. At this instant, a cyclist was crossing that part of the road, and knocked him down. Mr. P also suffered injuries, and needed to be hospitalised for 2 days, with a concussion and a broken hand.
The court in this case is subordinate to the court that decided the case of Mr. X. It is bound to follow cases decided by the superior court unless it can distinguish the case. Here, the court assessed the case of Mr. P comparing it to the case of Mr. X. In this case, Mr. P has broken the law and crossed when he should not have. He contributed to the accident that occurred, and this was held to be contributory negligence. The court said that in this case, there is a difference in material facts and it can be distinguished from the previous case. As a result, the outcome in this case would be different – due to contributory negligence of Mr. P, he will not be entitled to compensation as claimed.
In case the court is unable to distinguish the cases, it will be bound to follow the decision of the higher court. Now, keep in mind the above example in Sub-section 2.6.2. A case that has come up before another court has a similar fact situation in mind, with a few differences. The first is that the person crossing the road, Mr. P, crossed at an intersection. He noticed that the light indicated that a pedestrian should stop, and not cross. However, being in a hurry, he crossed at that time. At this instant, a cyclist was crossing that part of the road, and knocked him down. Mr. P also suffered injuries, and needed to be hospitalised for 2 days, with a concussion and a broken hand.
The court in this case is subordinate to the court that decided the case of Mr. X. It is bound to follow cases decided by the superior court unless it can distinguish the case. Here, the court assessed the case of Mr. P comparing it to the case of Mr. X. In this case, Mr. P has broken the law and crossed when he should not have. He contributed to the accident that occurred, and this was held to be contributory negligence. The court said that in this case, there is a difference in material facts and it can be distinguished from the previous case. As a result, the outcome in this case would be different – due to contributory negligence of Mr. P, he will not be entitled to compensation as claimed.
How to Read a Case
An important skill that you need to learn is how to read and identify cases, and decide upon their relevance for your research. Cases are found in law reporters and further details regarding the law reporters are in Sub-section 2.6.5.
Please look at the following figure:
Books, Treatises and Legal Dictionaries
There is a variety of books that can be referred to when researching a particular legal problem. Usually, you will need to go through a variety of books, commentaries and different topics in order to find the information that will help you present a legal argument. Typically, books are organised according to the area of law, such as tort law, contract law, constitutional law, family law, corporate law, etc.
Once you have narrowed down your legal problem into issues, using the IRAC method you have studied, you will know what areas of law you need to look into. At this stage, go through the available books on that area of law.
There are standard textbooks that are available that will give you a broad overview of the area of law that you need to study. These books will also refer to cases and primary materials, which you should then look up. Another source of information is the legal dictionary, such as Black’s Law Dictionary, which will give you an idea of basic legal concepts relating to any area of law.
These will also refer to common law and statutes in English law, which will help in a better understanding of the subject matter. The usual citation style for books is as follows: Name of Author(s) or editor(s), Title and subtitle of the book in italics, Exact page referred to and in parentheses: Place of publication: publisher, volume, edition, date. For example: Mahendra P. Singh ed., V.N. Shukla’s Constitution of India (Lucknow: Eastern Book Company, 11th ed. 2008). H.M. Seervai, Constitutional Law of India (New Delhi: Universal, 4th ed. 2005).
Once you have narrowed down your legal problem into issues, using the IRAC method you have studied, you will know what areas of law you need to look into. At this stage, go through the available books on that area of law.
There are standard textbooks that are available that will give you a broad overview of the area of law that you need to study. These books will also refer to cases and primary materials, which you should then look up. Another source of information is the legal dictionary, such as Black’s Law Dictionary, which will give you an idea of basic legal concepts relating to any area of law.
These will also refer to common law and statutes in English law, which will help in a better understanding of the subject matter. The usual citation style for books is as follows: Name of Author(s) or editor(s), Title and subtitle of the book in italics, Exact page referred to and in parentheses: Place of publication: publisher, volume, edition, date. For example: Mahendra P. Singh ed., V.N. Shukla’s Constitution of India (Lucknow: Eastern Book Company, 11th ed. 2008). H.M. Seervai, Constitutional Law of India (New Delhi: Universal, 4th ed. 2005).
INTRODUCTION
This unit will introduce you to the basics of good writing and how to write effectively for a legal forum or client. You will learn the essential elements of good writing and how they are applicable to legal writing in general. The elements of who the audience is and why you are writing a particular document will influence the manner of writing. Clarity and simplicity are emphasised, and tools to achieve this will be taught to you. You will learn how to prepare for legal writing, including organisation of your research for purposes of writing, and how to cite material sources of law. The Unit will introduce you to three types of documents, viz. the case brief, legal memorandum and legal pleading. You will learn the approach taken towards each of these types of legal writing.
OBJECTIVES
After going through this unit, you should be able to:
develop writing skills;
apply these lessons to legal writing;
identify the types of legal writing and the differences; and
utilise your legal research skills, and translate them into the written medium.
What is Legal Writing
THE ESSENTIALS OF GOOD WRITING
The skill of writing well is of great importance in the presentation of legal issues.
You will be required to translate your research and findings on the law into
written form, either as an opinion for the client, as a representation to the
government, or as pleadings before a court. For any of these purposes,
it is crucial that you are able to write in a clear, precise and logical manner. The notion that legal writing is old-fashioned and not understandable by the lay person no longer holds true. It is an essential part of your legal training and basic legal skills as a paralegal that you are able to write in an effective, yet simple manner.
While the previous Units have taught you how to approach the law and legal system, as well as how to research properly, these skills will not be of use if you are unable to translate this understanding and research into legal writing. The principles in this Unit are applicable to legal writing in any language.
it is crucial that you are able to write in a clear, precise and logical manner. The notion that legal writing is old-fashioned and not understandable by the lay person no longer holds true. It is an essential part of your legal training and basic legal skills as a paralegal that you are able to write in an effective, yet simple manner.
While the previous Units have taught you how to approach the law and legal system, as well as how to research properly, these skills will not be of use if you are unable to translate this understanding and research into legal writing. The principles in this Unit are applicable to legal writing in any language.
What and Why
There are two points that you need to keep in mind when you are commencing with your writing:
First, what is the purpose for which you are writing? Second, who are you writing for? The first point refers to why you are putting your arguments and legal analysis into writing. In case you are giving your opinion on a particular issue to your client, you will be required to explain the problem, and the application of the law to that problem. You will need to highlight the strength and weakness of his/ her position under the law, and explain how it would impact the case. The other situation, in which you are required to write, is to present your case before a court. In such a situation, you will need to highlight the argument that would favour your client, and argue this persuasively in your brief or pleading.
When writing, you must be sure of who your audience is. When you are preparing pleadings for a court, you can use legal terminology and presume that this will be understood by the court. In case you are preparing an opinion, you will be required to present your argument in a manner that it is understandable and accessible by your client. This however, does not mean that you simplify legal argument to such an extent that the meaning of the argument is lost. The argument must not be sacrificed in the process of writing.
When writing, you must be sure of who your audience is. When you are preparing pleadings for a court, you can use legal terminology and presume that this will be understood by the court. In case you are preparing an opinion, you will be required to present your argument in a manner that it is understandable and accessible by your client. This however, does not mean that you simplify legal argument to such an extent that the meaning of the argument is lost. The argument must not be sacrificed in the process of writing.
Clarity and Simplicity
While writing, you must be clear and precise, regardless of whether you are writing a legal document or an essay on another subject. Further, keep sentences simple and not overly complicated. Avoid long sentences, and make use of punctuation effectively.
For example: “Sheila and Raj went for a walk and on the way found a lost puppy that they returned to the neighbour as they knew the puppy belonged to him.”
A more effective way of saying this is: “Sheila and Raj returned the neighbour’s lost puppy that they found while on a walk.”
Another point to remember is to use active voice, rather than passive voice, unless necessary. For example, “It was decided by the court that X had committed murder” can be better put as “The Court decided that X committed the murder”. Also, when the subject, the verb and the object are placed in sequential order in a sentence, it is easier for a reader to understand.
It is also important to understand the words that are used. In case you have any doubts regarding the meaning of a word, legal or not, you must check this in a dictionary. In case you are confident of a simpler word that conveys the same meaning, use that word instead.
While writing, always organise your writing into paragraphs that are numbered. This, along with the use of headings and sub-headings, makes a document easier to read as well as refer to later
For example: “Sheila and Raj went for a walk and on the way found a lost puppy that they returned to the neighbour as they knew the puppy belonged to him.”
A more effective way of saying this is: “Sheila and Raj returned the neighbour’s lost puppy that they found while on a walk.”
Another point to remember is to use active voice, rather than passive voice, unless necessary. For example, “It was decided by the court that X had committed murder” can be better put as “The Court decided that X committed the murder”. Also, when the subject, the verb and the object are placed in sequential order in a sentence, it is easier for a reader to understand.
It is also important to understand the words that are used. In case you have any doubts regarding the meaning of a word, legal or not, you must check this in a dictionary. In case you are confident of a simpler word that conveys the same meaning, use that word instead.
While writing, always organise your writing into paragraphs that are numbered. This, along with the use of headings and sub-headings, makes a document easier to read as well as refer to later
Preparation and Organisation
A first step in the course of legal writing is that of preparation and the work that you put in during the course of the previous stage, i.e. that of legal research. Prior to writing, it is helpful for you to organise your thoughts and arguments based on your research, in the form of an outline. This is essentially a well-planned list of issues, divided into sub-issues in accordance with the research on the point.
For example, research conducted on the crime of genocide could be outlined in such a manner
Once the preliminary research is completed, and the outline is prepared, it will be easier to put the arguments and the research material into written form, either as memorandum or pleadings.
Once you have started writing in accordance with the outline, you might find that either you have not done enough research on a particular topic and will need to further research a particular area. Further, you may also find that there are new issues that require further research as well.
Once this is done, you will revisit the outline, and might need to reorganise the list of issues: either in terms of more sub-issues, as well as further research material that needs to be added.
This is one of the important outcomes of the process of putting your legal research into writing: the loopholes and gaps become more evident and you are in a better position to strengthen your legal analysis and argument.
This is one of the important outcomes of the process of putting your legal research into writing: the loopholes and gaps become more evident and you are in a better position to strengthen your legal analysis and argument.
Citing to Authority
An important part of legal research is the ability to identify sources from citations, and to use the correct citations for authorities when citing them. This significant component of all types of legal writing involves citing authority and the use of authority in argument. There are two main points to remember here:-the first relates to the weight of the authority that you cite, which has been discussed in Unit 1. The second relates to the manner of citing of this authority and some of the rules in relation to it. While some of the modes of citation have been explained along with the sources in Unit 2, we will now examine how to use these in legal writing.
Once the preliminary research is completed, and the outline is prepared, it will be easier to put the arguments and the research material into written form, either as memorandum or pleadings.
Once you have started writing in accordance with the outline, you might find that either you have not done enough research on a particular topic and will need to further research a particular area. Further, you may also find that there are new issues that require further research as well.
Once this is done, you will revisit the outline, and might need to reorganise the list of issues: either in terms of more sub-issues, as well as further research material that needs to be added.
This is one of the important outcomes of the process of putting your legal research into writing: the loopholes and gaps become more evident and you are in a better position to strengthen your legal analysis and argument.
This is one of the important outcomes of the process of putting your legal research into writing: the loopholes and gaps become more evident and you are in a better position to strengthen your legal analysis and argument.
LEGAL MEMORANDUM AND PLEADINGS-
There are essentially three types of legal writing that you will be required to undertake. These are the case brief or summary, the legal memorandum, and legal pleadings. While all three involve legal research and writing, they are different in their aim as well as scope. We will examine all three types of legal documentation and how to approach them.
Case Brief/Summary
A case brief or summary is a synopsis of a case you have read, which contains all the relevant information and analysis of the case. This is an extremely useful tool not only in furthering your understanding of an issue or area of law, but also in helping you in legal research and analysis.
There are minimum requirements that must be fulfilled in order to write a comprehensive and useful case brief. These are the main points that you must keep in mind and include, while writing the brief:
- Identification of the Case
- Facts of the Case
- Procedural History of the Case
- Issues and Decision of the Case
- Reasoning: Rationale, Ratio and Obiter
Legal Memorandum-
A legal memorandum is a rather different legal document from that of a case brief. The aim of a legal memorandum is to put together the legal research done on a topic in a cohesive manner, presenting a complete picture. You must keep in mind that a memorandum is not a document that advances a particular argument or pleading. It instead looks at the entirety of the legal arguments, presents these and comes to a conclusion. It is meant to be more informative on the state of the law, rather than advocating a particular position.
A legal memorandum is usually written in the context of a particular dispute that is either about to enter litigation, or is part of litigation. It might also be for the purpose of advising a client on a particular course of action to take, without any litigation having commenced. The legal memorandum serves as a document that explains the legal position better, without an evaluation of the law. You may need to write this for the benefit of a client, a lawyer or an official. The essential elements of a legal memorandum are as follows:
A legal memorandum is usually written in the context of a particular dispute that is either about to enter litigation, or is part of litigation. It might also be for the purpose of advising a client on a particular course of action to take, without any litigation having commenced. The legal memorandum serves as a document that explains the legal position better, without an evaluation of the law. You may need to write this for the benefit of a client, a lawyer or an official. The essential elements of a legal memorandum are as follows:
Introduction
This section is useful in laying out the context of the memorandum. You should in brief describe the basics of the dispute and the legal context. This will help when reading the statement of facts and issues, and is particularly useful in complex situations. This section can be kept brief, as the other sections will elaborate upon the points.
You must also indicate who the memorandum is addressed to, who it is from, the subject matter in a sentence, and the date of the memorandum. Subsequently, this will be easier to refer to in discussions.
Statement of Facts
The statement of facts takes on significance in the memorandum. It is important to focus on facts that are material and relevant to the dispute or query at hand. It is also important to analyse the facts, and even if a particular fact does not seem particularly important, it might have significance at a subsequent point. In such a case, ensure that this fact is reflected in your statement of facts. Further, in case of facts that are unfavourable to the client and are material, these must be reflected in the statement of facts.
Statement of Issues
The statement of issues in the legal memorandum states the relevant legal questions at hand, and also could include a brief answer to the issue. Formulation of the issue must be done carefully, to ensure that the legal questions are addressed. It would be detrimental to leave out an issue that has significance to the dispute in question.
This should be a brief and concise statement, and the response should also be in the same format. This is because the lawyer or client may want, at a glance, to be able to tell in brief what the position on a particular issue is. The explanation of the law and the reasons will be presented in the next section.
Legal Pleadings and Drafting
Legal pleadings and drafting are a different type of legal writing, from the case brief and legal memorandum that you have studied. Legal pleadings are the documents that are submitted to court, presenting arguments on behalf of your client. In this sense, they are quite unlike a memorandum, which presents a more comprehensive picture, and includes the positive and negative aspects of a case. Legal drafting is the skill that is required in drawing up contracts, deeds and other legal documents that are not necessarily being submitted to a court for advocacy. These documents will have the rights and duties of both parties and are then negotiated upon.
Pleadings
Legal pleadings are the statements that each party makes to put forward its case in the course of civil proceedings or litigation. The idea behind a pleading is to afford the opportunity to present the facts and persuade the judge in the favour of your client. Hence, it is an extremely important legal document and the strength
of your argument, and ultimately your case, can rest on the pleadings. It is a document that puts forward your interpretation of the facts and law, in a manner to argue your case before the court.
There are formal rules that regulate the pleadings before a court, which are contained in Order VI of the Code of Civil Procedure (‘CPC’). The most important aspect of this is that if a plea of fact has not been raised, it is difficult to raise it in later proceedings. Hence, there must be utmost detail in the facts and analysis presented to the court upon submission of the pleadings. On the other hand, if the facts are provided for in the plea, but the legal argument is not made out properly, this would not be a bar to bringing up the argument later.
The aim of the pleadings is to ensure that the material facts are placed on record, and so all facts that are pertinent to your claim must form part of the pleadings. There must be a clear statement of the cause of action, or the grounds of defence. This means that all facts that would directly impact the conclusion of the court must be pleaded necessarily. These facts that relate to the cause of action must be clearly indicated, as opposed to the other facts that are not directly related to the cause of action. The pleadings should be concise and to the point. Also, the facts must record all the relevant details and must be specific in nature. The plaint should not be ambiguous and vague.
Further, there should not be inconsistencies between former and later pleadings, i.e. you should not contradict your interpretation of the facts or law in a subsequent pleading. In case you need to alter a pleading, this can only be done under Order VI, Rule 7 of the CPC, which stipulates that this can be done only if there is a new claim or fact. It is preferable that your original pleading contain all the facts and this must be drafted with due care.
There are formal rules that regulate the pleadings before a court, which are contained in Order VI of the Code of Civil Procedure (‘CPC’). The most important aspect of this is that if a plea of fact has not been raised, it is difficult to raise it in later proceedings. Hence, there must be utmost detail in the facts and analysis presented to the court upon submission of the pleadings. On the other hand, if the facts are provided for in the plea, but the legal argument is not made out properly, this would not be a bar to bringing up the argument later.
The aim of the pleadings is to ensure that the material facts are placed on record, and so all facts that are pertinent to your claim must form part of the pleadings. There must be a clear statement of the cause of action, or the grounds of defence. This means that all facts that would directly impact the conclusion of the court must be pleaded necessarily. These facts that relate to the cause of action must be clearly indicated, as opposed to the other facts that are not directly related to the cause of action. The pleadings should be concise and to the point. Also, the facts must record all the relevant details and must be specific in nature. The plaint should not be ambiguous and vague.
Further, there should not be inconsistencies between former and later pleadings, i.e. you should not contradict your interpretation of the facts or law in a subsequent pleading. In case you need to alter a pleading, this can only be done under Order VI, Rule 7 of the CPC, which stipulates that this can be done only if there is a new claim or fact. It is preferable that your original pleading contain all the facts and this must be drafted with due care.