COURSE MANUAL
LEGAL METHODS
Instructors:
Dipika Jain, Sushant Chandra, Sandip Suresh, Vishavjeet
Choudhury, Sandeep Suresh, Faiz Tajuddin, Anubhav Dutt
Tiwari, Sourav Mondal
SEMESTER I (BBA. LL.B, B.A., LL.B & LL.B)
2019
PAGE 17
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COURSE MANUAL
LEGAL METHODS
Instructors: Dipika Jain, Sushant Chandra, Sandip Suresh, Vishavjeet Choudhury, Sandeep Suresh, Faiz Tajuddin, Anubhav Dutt Tiwari, Sourav Mondal
SEMESTER I (BBA. LL.B, B.A., LL.B & LL.B)
CONTENTS
PART I
General Information…………………………………………………………………………… …..
PART II
Course
Description……………………………………………………………………………
……..
Course
Aims………………………………………………………………………………………
…….
Intended Leaning Outcomes
……………………………………………………...................
Grading of Student
Achievement…………………………………………………...............
PART III
Keyword
Syllabus…………………………………………………………………………………
..
Course
Policies…………………………………………………………………………………
…….
Detail
Syllabus…………………………………………………………………………………
……
PART IV
Course Title: Legal Methods I
Course Code: LW
Course Duration: One Semester
No. of Credit Units: 4 credits (BA, LLB; BBA, LLB and LLB)
Level: Under-graduate level (Foundational)
Medium of Instruction: English
Pre-requisites: Nil
Pre-cursors: Nil
Equivalent Courses: Nil
Exclusive Courses: Nil
The above information shall form part of the University database may be uploaded to Dspace into the KOHA Library system and catalogued and may be distributed amongst the first-year students.
PART II
A. Course Description
This introductory course covers legal methods for students of law in their first year. In this course, one learns to critically read statutes, cases and other legal and legally-relevant material, and to identify and resolve issues that involve the law. The syllabus includes selected analytical legal materials and aims to provide a familiarity with the context, syntax and grammar of law that is vital to address situations
that lawyers, judges and legal institutions have to regularly engage with. Through the detailed study of selected legal materials, the course also hopes to provide students of law with a picture of the different approaches, attitudes, theories and philosophies that make law such an exciting subject of scholarly studies.
Materials studied include classic and modern legal cases from the Indian, Anglo-American and continental European legal systems in the fields of tort, contract, criminal law, public law and property. In addition to working directly with selected original and appellate decisions (and the arguments and pleadings involved in these), students will also learn to use important texts and writings that hold a strong influence on contemporary legal method and the law. A few of the cases and texts in the syllabus have been specifically chosen to build a foundation for the sustained study of legislative history, institutional roles, statutory interpretation, and legal reasoning.
Stories and literary excerpts, films, workshop-format interactions with experts, and field trips to institutions will contribute to the holistic treatment of the subject matter.
B. Course Aims
The course: .
- provides familiarity with legal structures, processes, and institutions.
- fosters ability to identify, read, analyze and formulate substantive arguments in favor of or against a legal proposition
- develops critical understanding of the processes of law-making by legislative, judicial, administrative and informal law-making bodies
- Introduces importance of court craft and legal reasoning
- Introduces the terminology, syntax and meaning of law through a step-by-step systematic approach
- approach legal issues in a structured manner and frame responses to the issues as a lawyer would do
C. Intended Learning Outcomes
Course Intending Learning Outcomes
Weight Teaching and Learning Activities
Assessment Tasks/ Activities
By the end of the course,
students should be able to:
Students’ ability to grasp and critically evaluate the topics/issues discussed in the syllabus will be tested through continuous assessments through the semester as well as an end-term written examination.
I. Critically read court decisions, statutes, scholarly legal opinions, and other legal material. II. Comprehend the principles and policies supporting legal decisions from multiple perspectives informed by various theories of Law.
40% (i) Lectures: Students will be introduced to a set of key texts and ideas in the critical tradition. These texts and ideas will be presented in conversation with each other and with the analytical tradition that has been covered in Jurisprudence I.
(ii) Reading: Students will acquire the skills to do critical readings of texts.
(iii) Writing: Students will learn to draft case briefs, legal opinions, critical briefs and reflection papers/ short opinion pieces/case comments.
I. Demonstrate an interest in an interdisciplinary approach to law and acquire basic knowledge on legal reasoning.
Communicate critically, both orally and in writing, various perspectives in law.
good critical and analytical skills. A- 65 to 69.75% Adequate Adequate knowledge of the subject matter to go to the next level of study and reasonable critical and analytical skills. B+ 60 to 64.75% Marginal Limited knowledge of the subject matter, irrelevant use of materials and poor critical and analytical skills. B 55 to 59.75% Poor Poor comprehension of the subject matter; poor critical and analytical skills and marginal use of the relevant materials. B- 50 to 54.75% Pass “Pass” in a pass- fail course. “P” indicative of at least the basic understanding of the subject matter. F Below 50% Fail Fails in the subject
PART III
a. Keyword Syllabus
Critical thinking, Law and Morality, Legal Reasoning, Law is Politics, Case Briefs, Logic, Judicial Activism, Legal Theories, Legal Systems, Civil Law and Common Law, Justice, Statutory Interpretation etc.
b. Course Policies
Academic Integrity and Honesty
Learning and knowledge production of any kind is always a collaborative process. As such, collaboration demands an ethical
responsibility to acknowledge who we have learnt what from, and how reading and learning from others have helped us shape our own ideas. Even originality requires an acknowledgement of the sources and the
processes that helped you achieve it. Thus, any idea, sentence or paragraph you refer to or are inspired by must be cited in the piece of
writing or any presentation being made. Any source from the internet, articles, books, journals, magazines, case law, statute, photographs, films, paintings, etc. must be credited with the original source. If the
source or inspiration for your idea is a friend, a casual chat, something that you overheard, or heard being discussed at a
conference or in class, even these must be credited. If you paraphrase or directly quote from a web source in the exam, presentation or essays, the source must be explicitly mentioned. The university has
strict rules with consequences for students involved in plagiarism. This is an issue of academic integrity on which no compromise will be
made, especially as students have already been trained in the perils of lifting sentences or paragraphs from others and claiming authorship of them.
Cell Phones
Students must keep their cellphones on switched off/ flight mode. Any student found using a cellphone while class is ongoing will be liable to face disciplinary action.
restrained about what you feel and what you want to say. Conversely, this is about creating a safe space where everyone can speak and
learn without inhibition and fear. This responsibility lies not only on students, but also the instructor.
B. Detail Syllabus
This introductory course aims to familiarize students with using cases, statutes, and secondary materials in their education. Much of the emphasis is placed on the general structure of the law and legal methods. The detailed syllabus is as follows:
- What are the sources of law? What are the concepts and principles underlying the law? What is the proper role of judges and how would they accommodate competing values while adjudicating disputes?
- Introduction to India’s legal system, its organization and administration; Study of the foundational aspects of the Indian legal system, its evolution as a common law system, the role of the Constitution. The role of courts in the Indian legal system in contrast with the roles of legislatures and other agencies; Comparative aspects of other legal systems and legal traditions.
- Examination of different types of dispute resolution such as adversarial and inquisitorial methods, rules of evidence; rules of procedure-civil &criminal, burden of proof, etc.
- (^) An introduction to logic: How to think like a lawyer? How to make distinctions between “fact” and “law”, “material facts”, etc? Introduction to forms of legal reasoning (analogic, syllogistic, deductive and inductive) and their proper application in the elaboration and application of legal resources.
- Statutes and Fundamentals of Statutory Interpretation. How to use the statutory text and secondary legislation? To what extent preparatory material and considerations of policy and equity influence the text? What are the canons of statutory interpretation.
- Meaning and application of the concept of stare decisis ; when and how courts overrule precedents? concept of ratio decidendi and the techniques of identifying and extracting the holding of a case; what is the importance of dicta and how to use it properly?
- Judicial role in creating case law; how much creative power does- must –should a judge have?
- Important critical questions will be raised throughout the course: Is Law Neutral, Stable and Universal. Is Law Political?
- Legal Research- Legal skills in finding, using and citing various resources of law.
PART IV- WEEKLY TEACHING OUTLINE
LECTURE PROGRAMME
Module Lecture Topic Teaching
Week
1 UNDERSTANDING THE LAW AND ITS
SOURCES
2 INTRODUCTION TO LEGAL SYSTEMS AND
INSTITUTIONS & INTRODUCTION TO
- What is the correct philosophy of law? That is, what is the law and how do we know it?
- What is the proper role of judges?
- What is the relationship between justice, the law, and the various agencies of the government?
- How should judges rule in this case?
Essential readings:
(1) “Speluncean Explorers”, Harvard Law Review , vol. 62, no. 4 (1949) pp. 616-645.
(2) Chapter 1 in GLANWILLE WILLIAMS, LEARNING THE LAW ( 16th Edn ).
(3) Chapter 2 in SALMOND ON JURISPRUDENCE, (12TH^ Edn), pp. 109-140.
Recommended Readings:
(1) Manik Bandopadhyaya, The Thief (A short story)
(2) Saadat Hassan Manto, The New Constitution ( A short story)
(3) Ian Mcleod, “Natural Law and Positivism in Context: the Case of the Speluncean Explorers, in LEGAL THEORY, Palgrave Macmillan Law Masters ( 4th^ ed.,), pp- 34-39.
(4) Orrin S. Kerr, “How to Read a Legal Opinion: A Guide for New Law Students”, 11 Green Bag Journal (1).
(5) Ian Mcleod, “Natural Law and Natural Rights in English and European Community Law”, in LEGAL THEORY , Palgrave Macmillan Law Masters ( 4th^ Edn). Pp- 61-62.
(6) Chapter 1: “Persistent Questions from HLA Hart” in THE CONCEPT OF LAW, pp. 1 – 17.
(7) Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Legal Reasoning
(8) Hart-Fuller Debate
Hart, H. L. A. (1958). "Positivism and the Separation of Law and Morals". Harvard Law Review. 71 (4)
Fuller, Lon L. (1958). "Positivism and Fidelity to Law — A Reply to Professor Hart". Harvard Law Review. 71 (4): 630–
Films/Series
Tokyo Trial (2016) Series
Week III
LIBRARY RESEARCH ASSIGNMENT (coordinated by the JGU Library)
Week IV
INTRODUCTION TO LEGAL INSTITUTIONS AND PROCESSES
This session will provide an introduction to India’s legal system, its organization and administration. Key attributes of a legal system will be identified and discussed, and comparative perspectives on legal systems in other countries will be explored. A brief introduction to the United Nations system and other systems of international law will also be included.
Fact finding and dispute resolution will be an important focus of this session. This session will examine the role of various tools available to the courts and the litigants in the discovery of facts. The students will be introduced to the process and methods of collection of evidence; adversarial and inquisitorial methods, concepts of examination- in- chief and cross-examination, etc.
Case discussion: K.M.Nanavati v. State of Maharashtra , AIR 1962 SC 605 , which was the last case in India to be tried under a jury system. Students will familiarize themselves with concepts such as allocation of burden of proof, application of exception to a general rule, process of collection and establishment of evidence, role of witnesses, acquittals and convictions, etc.
Case discussion: French Cour de Cassation case (on complete reparation for injuries)), Cass. 2e civ., Feb 22, 1995, 1996 D. Jur. 69 – discussion of this case will provide an introduction to the continental civil law tradition. The following cases may be discussed: (1) Geman : W. v. B-M, Bundesgerichtschof, Sixth Civil Senate, 4 November 1953, 11 EBGHZ 151, (2) French: The Latour case, Conseil d’Etat , 9 July
considerable detail, and explain the law through a reasoning process that includes examining the existing body of decisions before arriving at conclusions.
This session will discuss the nature and evolution of common law in India and other Anglo-American legal systems and will compare it with civil law( e.g., the law of most nations of Continental Europe).
Discussion of the case Priestly v. Fowler ; also read the article by Michael Stein entitled Priestly v. Fowler (1837) and the Emerging Tort of Negligence , 44 BCLR, 689.
Read M C Mehta v. Union of India (1987) and examine how the Supreme Court created a doctrine of liability in respect of inherently hazardous activities in the background of the rule in Rylands v. Fletcher (1868 LR 3 Ex 330).
Essential Readings:
(1) Cases mentioned above
(2) Chapter 2 in GLANVILLE WILLIAMS, LEARNING THE LAW ( 11th Edn ) , pp. 24-30.
(3) Vishaka & Ors. v. State of Rajasthan, AIR 1997 SC 3011
(4) D.K Basu v. State of West Bengal, (1997) 1 SCC 416
Recommended reading:
Reinhard Zimmerman, “Civil Code or Civil Law – Towards a New European Private Law”, 20 SYRACUSE J. INT’L L. & COM. 217 (1994).
Weeks VI-VII
LEGISLATION AND SUBORDINATE LEGISLATION
The class will examine how legislative activity is organized in India, particularly in the framework of the Constitution of India. This session will combine elements on case law analysis, reading statutes and statutory interpretation.
Articles 245 to 255 of the Indian Constitution distinguishes between the legislative powers of the Union of India and the states. The Indian
Parliament has the exclusive power to make laws with respect to any of the matters included in the Union List and the Seventh Schedule, whereas the state legislatures exercise authority over the matters included in the State List.
Case discussion: (1) V. Sudeer v. Bar Council of India (1999) 3 SCC 176 for the proposition that delegated legislation (in this case, pre- enrolment regulation legal trainees) that is beyond the rule making powers under the parent act is invalid; (2) State of Tamil Nadu v. Sabanayagam and another (1998) SCC 318- where the Supreme Court discusses the procedure for exercising conditional legislative power; please read Soni Babubhai v. State of Guajrat , to understand the prospective application of criminal statutes.
Essential Readings:
- (^) Cases mentioned above
- Right to Information Act, 2005.
- Chapter 3, GLANVILLE WILLIAMS, LEARNING THE LAW ( 16th Edn ) , pp. 44-46.
- Legislation- Passage of Legislative Proposals in Parliament [ extracts from the Parliament website: http://164.100.47.132/ LssNew/Legislation/Legislation.aspx].
Recommended Readings:
(1) Dipika Jain, “Law-Making by and for the People: A Case for Pre-
legislative Processes in India”, 20(20) Statue Law Review 1 (2019)
(2) Tarunabh Khaitan, “Reforming the Pre-Legislative Process”,
Economic and Political Weekly, Vol. 46 No. 25 (2011)
Weeks VIII-IX
CANONS OF STATUTORY INTERPRETATION