Professional Documents
Culture Documents
LEGAL
METHO
DS
3rd Semester
It is my imperative duty to thank the following people for the successful completion of
my Legal Methods project,
- Professor Eqbal Husain for the clarity he brings into teaching thus enabling us
to have a better understanding of his subject. I also feel obliged to thank him for
providing us with such easy topics to choose from.
- Tushar Gupta & Syed Nusrat Geelani, My resourceful classmates, who I ran
into in the library, thus un-expectedly starting and successfully completing a
rough handwritten draft of this project within the next ten hours. Though it is
possible for our language to seem similar, it has to be noted that given some of
our group members insistence on not depending on one single book led to all of
us giving in equal contribution to the completion of this project.
- The very cooperative and friendly staff members in the Central and Law Library
who were instrumental in our finding the necessary books without wasting much
time. It has to be noted that their contribution is essential as our University is yet
to get a fully functional centralized database for its libraries.
Table of Contents
1. Jurisprudence Definition and explanation...4
2. The Sources of law.6
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It is the name given to a type of investigation into law, an investigation of an abstract, general and
theoretical nature, which seeks to lay the essential principles of law and legal system. It, as
philosophy of law attempts to correlate with Social values and provides practical solutions by way
of fusion of facts, justice and value. The people of this world have formed certain ideas and
conceptions about the nature if justice and law. It involves the study of general theoretical questions
about the nature of law and legal systems, about the relationship of law to justice, morality and
about the social nature of law. It, as a science of law is primarily concerned with regulation of
human conduct in accordance with the set values, needs and goals of each society. As the values,
needs and goals are of a changing character, the nature of jurisprudence also keeps on changing to
cater to the need of a particular society.
Jurisprudence is the most important and the most useful of legal studies as it deals with the
fundamental principles on which rests the superstructure of law. It is very helpful as it provides an
opportunity to bring the theory and life into focus and how to think rather than just to know. It
furnishes such materials which ultimately help in cultivating ones own ideas in relation to a
particular theory.
Jurisprudence is a subject whose knowledge is the basis and the foundation of the whole legal
studies and that is why it has considerable importance for the law students, law teachers, practicing
lawyers and even the judges. It is not mere knowledge of law; it is something more than that.
It may be concluded that the only recognized legal sources of law at present arei.
ii.
iii.
Custom,
Precedent, and
Legislation.
To these may be added one more viz., Agreement which are valid under the law and which give
rise to conventional law. It cannot, however, be defined that the above authentic sources of law
may draw their content and matter from diverse channels, may it be religion, morality, equity,
professional opinion, views of text writers, foreign law, foreign judgments, etc.
Meaning
A precedent means a previous instance or case which is or may be taken as an example or rule for
subsequent cases. In common parlance it means something said or done that may serve to authorize
or justify further acts of the same or similar kind. According to Keeton, judicial precedent is a
judicial decision to which authority has, in some measure, been attached. 12 In the words Gray, a
precedent covers everything said or done which furnished a rule for subsequent practice. 13
According to Jenks, a judicial precedent, in a decision by a competent court of justice upon a
disputed point of law, becomes not merely a guide but an authority to be followed by all courts of
inferior jurisdiction administering the same system until it has been overruled by superior court of
justice or by a statute e.g., the Act of Parliament. 14 In short, we can say precedent means the
guidance or authority of past decisions for future cases.
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Article
141 of the
16 Selection from the records of the East India house, Vol. 11, at 20, adopted from Morely,
Administration of Justice in India.
17 Yajnavalkya, Ch. I, verse 7.
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Constitution of India provides that the law declared by the Supreme Court shall be
binding on all courts within the territory of India. In Article 141 the expression all
courts has been used. Now the question comes whether all courts include Supreme
Court also. That is to say whether Supreme Court is bound by its own decision or not.
In 1954, an important case Dwarkadas v. Sholapur spinning and wearing Co.,19 came
before the SC, where Mr. Justice Das expressed the view, Accepting that the SC is not
bound by its own decision and may reverse a previous decision especially on
constitutional questions the court will surely be slow to do so unless such previous
decision appears to be obviously erroneous.
The High Courts in India are bound by the law declared by the Supreme Court.
Decisions of Supreme Court are binding only so long as they have not been overruled
by the Supreme Court. The Decisions of a High Court are binding on all the courts
below it within its jurisdiction. The judgments of a particular High Court, is not binding
on other High Courts. The High Courts are the courts of Co-ordinate jurisdiction.
Therefore, the decisions of one high court are only of persuasive value for other high
courts. However, in practice the decisions of one High Court are cited in other High
Courts and they have Persuasive value. The full bench decisions of one High court
command great respect in other High court.
All District Courts, Magistrate Court and Munsif Courts are bound by the decision of
Supreme Court and High Courts (within its jurisdiction). Again, Munsif courts and
Magistrate courts are bound by the decision of District Court (within its jurisdiction).
decision is the principle of law formulated by the judge for the purpose of deciding the
problems before him.
A judicial decision has a binding force for subsequent cases but the whole judgment is
not binding only a part of the judgment is binding. Only that part of the judgment in an
earlier decision is binding which constitutes the ratio decidendi of that case. Statements
which are not partaking of the character of ratio decidendi can be ignored while
deciding the latter case. Eminent Jurists like Goodhard, Llewellen, Paton and Sawer.
According to Goodhard, ratio decidendi is to be found by taking into consideration all
the facts treated as materials by the judge who decided the case. For him what is
binding is the conclusion reached by the judge on the basis of, materials facts.
According to Salmond a precedent is a judicial decision which contains in itself a
principle. The underlying principle which thus forms its authoritative element is often
termed the ratio decidendi. The view of Salmond is quite correct in the sense that the
judge will hold that the ratio decidendi of a case to be found in the general principle
governing an earlier decision as long as the formulation of this principle was necessary
to the decisions of the actual issue between the litigants. He further adds that the
principle of the case must be rationally laid down; it should not be boarder than
necessary.
down a rule for any case other than the one before him and precisely similar cases. If he
does lay down a rule for kinds of cases other than that before him, the validity of the
propositions for other cases must be considered if and when those other cases arise,
when the rule may be regarded as too widely and generally stated.
Some of the methods are listed below:i.
ii.
iii.
iv.
Obiter dicta
The term obiter dicta literally mean statements by the way. In Halsbury Laws of
England20 it has been defined as Statements which are not necessary to the decision,
which go beyond the occasion and lay down a rule that is unnecessary for the purpose
in hand (usually termed dicta) leave no binding authority on another court, though they
may have some merely persuasive efficacy. According to Talbot, J.,21 an obiter dictum
is an opinion on some point which is not necessary for the decision of the case. The
20 Vol. XIX, at p. 251.
21 Expressed in the case of Dew v. United British Steamship Co. Ltd., (1928) 139 LT 628
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emphasis is not only on the opinion but also on the point. It is not merely an expression
of opinion unconnected with the cases for determination. According to Keeton obiter
dictum are observations made by the judge but which are not essential for the decision
reached.
In Jaiwant Rao and other v. State of Rajasthan,22
The court observed dicta which do not form the integral part of the chain of reasoning
directed to the questions decided may be regarded as obiter.
In England an obiter dicta has no binding effect either upon a co-ordinate court or upon
a subordinate court. An obiter dicta of the House of Lords would undoubtedly be
entitled to the highest respect. But a judge in England would not feel that he would be
bound by an opinion expressed by the higher tribunal. In India, a departure has been
made of the principle operating in England with regard to obiter dicta. The High courts
have held almost uniformly that they are bound by the obiter dictum of the Supreme
Court of India.
In Mohandas v. Sattanathan23
Their Lordship observed that the Supreme Court is the highest judicial tribunal in India
and it is as much necessary in the interest of judicial uniformity and judicial discipline
that all the High Courts must accepts as binding the obiter dicta of the Supreme Court
in the same spirit as the High Courts accepted the obiter dicta of the Privy Council.
But if the obiter dicta is on a question that did not arise for determining by the Supreme
Court and is a mere expression of opinion given by the way then it is not binding.
In Nuruddin Ahmed v. State of Assam24
22 AIR 1961 Raj 250.
23 56 Bom LR 1160.
24 AIR 1956 Assam 48.
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It was laid down that The observations of their Lordships of the Supreme Court if they
were made obiter would be entitled to the highest esteem from the High Court. This
would be more so when the High Court finds itself in respectful agreement with the
view which prevailed with their Lordship.
ii.
iii.
iv.
Bibliography
1.
2.
3.
4.
5.
6.
7.
8.
Jurisprudence by Salmond
T.E. Holland, The Elements of Jurisprudence (13 th Ed.)
Salmond, Jurisprudence (10th Ed.)
E.W. Patterson, Jurisprudence (1st Ed.)
Julius Stone, The province and Functions of Law
Austin, Jurisprudence Vol. II
C.K. Allen, Law in the making (7th Ed.)
Gray, The Nature and sources of law (2nd Ed., New York, 1921)
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