LEGAL METHODS
Submitted to – Mrs. Sai Ramani
Submitted by – Jasween Singh Gujral
Roll no. – 27
B.A.LL.B (Hons.)
1st year, 1st semester
Table of contents
Page no.
List of Cases (iii)
List of Abbreviations (iv)
Chapter I: Introduction 1-4
1.1 Meaning and Importance of ‘Law’
1.2 Meaning and Importance of ‘Society’
1.3 Central Question
1.4 Research Methodology
1.5 Research Scheme
Chapter II: Relationship between law and society 5-8
Chapter III: Conclusion 9-10
Bibliography (v)
List of Cases
Page no.
iii
List of Abbreviations
A.I.R. India Reporter
H.C. High Court
p. Page no
S.C. Supreme Court
iv
CHAPTER – I
INTRODUCTION
The question “What is Law?” haunts almost all the promising lawyers. The meaning of
law is subjective and varies from one person to another. It can be construed as a regulatory
mechanism, a code of conduct, a set of normative rules and regulations. Though all these
statements are true, yet they provide an incomplete picture of law.
Law is an instrument of social change, or a means to achieve justice in the society.
History is replete with many situations where law has acted to bring about social reformation.
For example social evils such as sati, purdah, dowry, child marriage have been strictly
brought under control through legal sanction. Not only can these but various other examples
can be cited where law has impacted the society in order to usher in social change.
Law may be considered as an abstract set of rules and regulations backed by an authority as
said by John Austin ‘Law is the command of sovereign’. The preamble of our constitution
reads “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure to all its
citizens”1, makes us, all citizens, an actively participates in the law making process. In other
words the process of law making is directly or indirectly related to each and every individual
in the society. Thus, in this project we try to understand the various areas where law impacts
society as well as the life of all those who are a part of it.
1
Preamble to the Constitution of India
6
There are many perspectives regarding Law. From one outlook, law can be said as an
abstract body of rules and statues. And from the other, it could be seen as a social method of
dispute resolution of the conflicting interests of the people living in the society. Law may also
be considered as of having a coercive character, or can also be seen as made by the customs,
traditions or religion. Law can also be said to inherently exist in the society.
Some thinkers have made an attempt to clear the picture of the concept of law. In the
words of Kant law is the ‘sum total of the conditions under which the personal wishes of one
man can be combined with the personal wishes of another man in accordance with the
general law of freedom’ . Hegel explains law as the, ‘the abstract expression of the general
will existin and for itself’. John Austin says, Law is the command of Sovereign, Savigny
considers law as Volksgeist i.e. the spirit of the people. While, Roscoe Pound, a thinker of
Sociological school of law, considers law as ‘Social Engineering’.
Similarly various others thinkers have coined law in their own different perspectives.
Therefore, it can be observed that law is a vast subject of study and defining it in limited
words would be restricting its scope and would not construe the correct picture. Law is ever
evolving and keeps on growing with the development of the society.
individuals within it. Such revolutionary change comes about when the cognitive, cultural,
and functional systems have accumulated so much change, together or independently, that
they are no longer commensurate with the ideology that served to interpret them. When the
problems confronted no longer seem capable of solution within the existing systems of
information organization then comes revolutionary change2. Such revolutionary changes were
experienced in the medieval and some Western Societies in modern ages.
In the project we will study as how changes are brought about in a society, by using law
as an instrument of social change. Law and society are integral to each other. In order to
maintain disciplines in the society, law plays a substantial role. Though instances show
situations where law lags society, but as we all know that society is ever evolving and so ins
the law both cope up with each other and remain in consonance with each other.
2
Dr. Alston'Economic History of the U.S.
8
9
CHAPTER 2
In this chapter we study the relationship between law and society in relation to their
interdependence on each other. Law and society share a symbiotic relation. In every society
we find complexity in the action of the individuals and conflicting interests. This is because
the needs and wants of humans are infinite, but the resources to fulfil those demands are
limited and exhaustible. Therefore, in order to achieve and maintaining optimum utilization
of resources by providing maximum satisfaction to maximum people and by creating
minimum friction, law comes in the picture.
Society can be viewed from various perspectives. Some may view it as autonomous
social reality independent of those who form it, giving rise to social forces that act upon,
control and determine the conduct of its constituents. Here the view of man as a product of
social forces is called ‘determinism’. While others view it as an association of individuals, in
which every constituent participates as an active agent in the creation of social reality. This
view is known as voluntarism3.
Social control mainly takes place through customs, traditions, religion, social mores,
etc. But these are informal and non-institutionalised. But law can be considered as the most
specialised form of social control. Durkheim views law as the direct embodiment of the
‘conscience collective’. This view seems to ignore the coercive character of law. Even while
accepting the coercive character of law; it is important to remember that law does not operate
as an exclusively coercive mechanism. If law is effective as a method of social control, it
must have legitimacy, and value consensus as the root of legitimacy4 .
According to Max Weber, Power is the probability that one actor within a social
relationship will be seen in a position to carry out his own despite resistance, regardless of the
basis on which this probability rests. Though law constraints misuse of arbitrary power, it
prevents a state of anarchy. In order to achieve this purpose it has set up the ‘Rule of Law’.
Rule of law means governance of laws, and not of man. It totally restraints any part of the
society to act arbitrarily on its own will. Everyone is below the law and must abide by the law
of the land.
This creates, maintains, and regulates a state of peace and order in a society. Due to
the presence of law in the society justice is prevailed. It prevents the elements of tyranny,
3
N K Jayakumar, LECTURES ON JURISPRUDENCE. 2nd ed. 2008, p. 14.
4
Ibid.,p-15.
10
5
AIR 1967 SC 1643
6
(1952) SCR 89
7
1965 AIR 845 1965 SCR (1) 933
8
AIR 1973 SC 1461
11
the validity of the 24th, 25th and 29th amendments, and more basically the correctness of the
decision in the Golak Nath case. This time, the court held that although no part of the
Constitution, including fundamental rights, was beyond the amending power of the
Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not
be abrogated even by a constitutional amendment".
Nani Palkhivala, assisted by Fali Nariman, presented the case against the government
in both cases. The following can be said:
1. All the Judges held that 24th, 25th and 29th amendments acts are valid.
2. 10 Judges held that Golak Nath's case was wrongly decided and that an amendment to
the Constitution was not a Law for the purposes of Article 13.
3. 7 Judges held that the power of amendment is plenary and can be used to amend all
the articles of the Constitution (including the Fundamental Rights).
4. 7 Judges held (six Judges dissenting on this point) that "the power to amend does not
include the power to alter the basic structure of the Constitution so as to change its
identity"
5. 7 Judges held (two Judges dissenting, one leaving this point open) that "there are no
inherent or implied limitations on the power of amendment under Article 368."
However 9 Judges (including 2 dissentients) signed a summary stating that "the view of the
majority" in the case was that:
1. Golak Nath's case was overruled.
2. Article 368 did not enable Parliament to alter the basis structure or framework of the
It follows, therefore, that this case established the principle that the basic structure
cannot be amended on the grounds that a power to amend is not a power to destroy. This
shows how law not only enforces the rules and regulation and delegates duties to the
constituents of the society but even guarantees as well as safeguards their rights and protect
them from the harsh edges of the legislature, executive and even judiciary itself.
In the above mentioned cases we see impact of law on the society where the court
seven overrules its own judgement, for safeguarding the fundamental rights to the citizens.
The way law safeguards its citizens shows the concern of law for the society.
The question arises as to how the judiciary can safeguard the rights of the individuals
against it. The answer to this is the power of judicial review, which confers each court the
power to intervene when the executive or the legislature tries to overstep their power. The
statutory provisions that give rise to the jurisdiction to consider claims for judicial review do
not, however, define its scope. it is ‘a remedy invented by the judges to restrain the excess or
12
abuse of power’9 and ‘secure that decisions are made by the executive or by a public body
according to law’.
9
Hugh Southe, Adrian Fulford, JUDICIAL REVIEW: A PRACTICAL GUIDE.
13
CHAPTER 3
CONCLUSION
From the above readings, it can be concluded that in the last sixty years, we have seen many
changes such as progress and rehabilitation agitation and classification of social interactions
and social reforms in the society. This workshop’s main objective is to study different aspects
of the criminal justice system in the United States and abroad (including a special session on
Brazil), and their impact on the construction of social and cultural identities, life options and
conditions, and human interactions.
Law is the most important element of the society. It reflects not the professed customs but the
inherent beliefs of the social beings. The statement reveals the eternal bonding of law and
society. Law is a cohesive force providing coordination to the society. If a society is devoid of
law and order, there can be no discipline with chaos and confusion throughout the land and
every person claiming superiority over the other. Law is a system of regulatory activity and it
expresses the will of the entire population.
In the absence of law, people would always be justifying their acts and frequent strider would
crop up which is definitely unhealthy for a society and would prevent the growth of
civilisation.
We all have to agree that law aids in social coordination. Law is an intervention agency (an
instrument for social change and welfare). It is a catalyst for soci-economic development.
Law is basically a complete non- arbitrary institution by itself providing near justice(or total
justice is just an unattainable ideal of state) and ensuring healthy relationship between social
neighbours.
Law is justice-oriented and it provides coordination in the sense that it resolves disputes and
friction in the society as well as wrongs committed against its constituents. In the society
where law get priority conflicts can be settled through natural justice without disturbing the
social integrity or hurting the morality.
Social coordination (or inter relationship between the several social institutions or parties, ne
it individuals, companies, religious groups, political entities and so on) can be achieved,
when peace thrives in a society which can happen when justice is delivered properly. To
14
avoid complexity several laws have been framed for separate crimes which aims ar natural
justice.
Certain examples in support of the notion could be:
1. In case of demolition of Babri masjid, the Supreme Court intervened and brought
coordination between the two conflicting religious groups by passing the interim
order of maintaining ‘status quo ante’.
2. Though we establish the intimate relationship between law and liberty, yet it is to be
kept in mind that liberty is not improper unrestrained power of the people amounting
to anarchy. Even the fundamental rights provided in our constitution have reasonable
restrictions. So, we regulate liberty and other social facets like religious groups,
linguistic groups, social groups, economic groups and bring parity among them.
3. Law is the essence of human development as it holds the nation views together. It was
the will of the people which made light to education a fundamental right.
4. The aim of law is to establish a Welfare State. Various laws like environment laws,
consumer protection Act, Domestic Violence Act have emanated for the general good.
5. Non-arbitrariness in the sense that people can always appeal to the higher courts and
the judicial decisions are always for the general good and welfare.
6. Law always strives to provide justice in the human society. unjust laws cannot be
called laws as they pose to the civilization.
7. Law is the mirror reflection of the society. For knowing the ideology of a country or
how its reacts to various problems, one must study the law of the land.
Hence, it could be inferred that law impacts the society at a very large scale. And the relation
between law and society inalienable, where exists a society, law has to come into existence.
And the impacts of law on the society can be clearly seen in every day to day working of us.
xv
Bibliography
Books -
N.K. Jayakumar, LECTURES ON JURISPRUDENCE, 2ND ed., Lexis Nexis Butterworths
Hugh Southe, Adrian Fulford, JUDICIAL REVIEW: A PRACTICAL GUIDE
Dr. Alston, ECONOMIC HISTORY OF THE U.S.
Internet –
http://www.google.co.in/
http://www.books.google.co.in/
http://www.wikipedia.org/