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Research Methodology GU3YRSLLB3SEM UNIT

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Research Methodology GU3YRSLLB3SEM UNIT
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    UNIT-2: LEGAL MATERIALS (Where to find and how to find these materials, how to check their validity) 1. What is legal research material? How to find and where to find the legal research material? (2018)-12 2. What is called legal material? Write the importance of Report of Commission as a legal material. (2016)-12 3. Write an exhaustive note on legal materials. How does it help in research? (2015)-12   4. What is legal material? How do you find legal materials? (2013)-6+6=12   What is legal research material (Page no.195)  Legal research materials help us find out what the law is. They include secondary and primary sources. Secondary sources explain the law. They include legal dictionaries, legal encyclopedias, legal periodicals, annotations, and treatises. Primary sources are the law. They include codes and cases. It is mandatory for us to follow primary authority from our jurisdiction. Authority that is merely persuasive includes all secondary authority as well as primary authority from other jurisdictions (and from courts that are lower than the one we’re dealing with, in our own jurisdiction). Many legal research materials have tables of contents and alphabetized topical indexes to help us find the information we need. Legal research materials are often updated with supplements. Some supplements are placed inside the back cover and are called “pocket parts.” Some supplements are separate additional or replacement volumes. Some legal research materials come in a “looseleaf” format and are updated by replacing outdated pages with new pages. Where and how to find legal research material Secondary sources:- 1. Legal Dictionaries:   Black’s Law Dictionary. Another is Words and Phrases. 2. Legal Encyclopedias:  Multi-volume sets with the topics arranged alphabetically. 3. Legal Periodicals:  Legal periodicals provide articles on a wide variety of law topics. 4. Annotations:  An annotation is a collection of case summaries on a certain topic. 5. Treatises: rich source of legal information written by highly respected authors. 7. Computerized Sources : Computerized sources include fee-based search engines such as http://web.lexisnexis.com/universe, etc. Each of these contains a table of contents that can lead to databases that can be searched by keyword. 8. Law Library:  A library is not merely a collection of books. It is a collection of legal literature properly housed and organised for service.” - Prof. Frederick Hick. Primary sources: 1 . Write notes on (a) Notification, (b) Enactment. (2018)-6+6=12   2. What do you mean by judgements? (2018)-2   3. Write short notes on, (a) Notification as legal material, (b) Judgement, (c) Enactment. (2016)-6x2=12 4. Write short notes on (a) Judgement and Decree, (b) Enactment and Covenant. (2015)-6x2=12 5. Write short notes on, (i) Enactment, (ii) Judgement, (iii) Reports of Commissions. (2013)-6x2=12   1.   ENACTMENTS: In modern time, State enacts law. The Constitution, central statutes, state law, rules and regulations framed under those laws are public records. The law that has its source by Legislation is called enacted law, written law or statute law. Bentham and Austin   signify the term ‘legislation’ as any form of law made by the State. Gray defines legislation as ‘the formal utterance’ of the legislative organs of the society. Legislation is of two kinds: (i) Supreme legislation:  This type of legislation proceeds directly from the Sovereign power of the State. In democracies, elected members of Parliament make law.  (ii) Subordinate legislation:  Enacted by some town municipality or University. According to Salmond, subordinate legislations are: (i) Colonial legislation; (ii) Executive legislations; (iii) judicial legislation; (iv) autonomous territorial council legislations; (v) municipal legislations. Salmond says that an enacted law is rigid, straightly bound within the limits of authoritative formulae. Validity of enactment, statute or legislation depends on the legislative competency and not be against the spirit of the Constitution. Enactments can be enforced either with prospective effect or retrospective effect. In democracy, what the State itself enacts cannot be unlawful because what the State says and provides is itself law, and the highest form of law that is known in the country. It is the law which prevails over every other form of law, and it is for the Supreme Court to say that a parliamentary enactment is invalid. 2.   JUDGEMENTS: According to  Salmond , “A precedent is a judicial decision which is in itself a principle.” Judicial precedent is a judgement or decision of a higher Court of Law cited as an authority for deciding a similar state of fact in the same manner or on the same principle or by analogy. According to Oxford Dictionary , a precedent is “a previous instance or case which is,  or may be taken as an example of rule for subsequent cases, or by which some similar act or circumstances may be supported or  justified.” Following past judicial decisions is termed “ration decidendi”  The precedents or judgements are adhered to because of the following reasons: i.   They promote uniformity and certainty in legal administration. ii.   They are proof of custom. iii.   They show respect for the opinion of elders. iv.   They tend to place the law in the straight jacket. v.   They settle the question and principle and lay them down not to be disturbed. vi.   They are controlled by learned judges. The precedents are of two kinds: a.   Original and declaratory. b.   Authoritative and persuasive. In India —  1.   Every court is absolutely bound by the decisions of the Courts superior to it. 2.   A single judge is bound by the decisions of a bench of two or more judges of the same Higher Court. 3.   A bench of two or more judges is bound by the decisions of the Full Bench of the same High Court or of the Supreme Court. 4.   All the Courts are absolutely bound by the decisions of the Supreme Court as per provisions of Article 141. 5.   Judgement of High Courts is binding on the subordinate Courts of the State. Merits and Demerits of Judgements/legal precedents: Sl. No. MERITS DEMERITS 1 More flexible than legislation and customs Likely to be arbitrary because the judges who make this kind of Law are responsible to none. 2 They are concrete in nature, for they are formulated to solve an actual problem. There is no certain accepted test to determine their validity. 3 They bring certainty in law They may be made in haste by persons who are not so much aware of social changes.  4 They create perfect harmony between new precedents and existing law. They are of irregular nature. 5 They are best precursors for statute law. The judges do not have the power to set right their own mistakes. 6 They require least interpretation. 7 They are more practicable due being made by judges 8 Bring about a scientific development in law. 3.   Notification Notification in legal research methodology denotes a formal announcement of a legally relevant fact. Action or intention such as notice of an intention to withdraw from a treaty or a Notification required by law to be published in the official gazette of the Government. Through notification intention of the notifying authority is to be announced. Government of India gazette Notification on withdrawal of Article 370 of the Constitution of India from the erstwhile Indian State of Jammu & Kashmir is one such example. 4.   Report of Commissions Report of Commission is the formal findings of a particular authority constituted for a particular event. Such Commissions are usually formed at the instance of the Government and sometimes by the High Court of a State. Report of the Commission is simple terms denotes the findings, the opinion, the actual report of the person or persons in exercise of their duties. Those may be of quasi- judicial nature or constituted purely for investigation. And the end they submit their findings before the appropriate authority so that to enable the authorities to arrive at a better conclusion. Examples are the Law Commission of India, the Commission for Scheduled Castes and Scheduled Tribes, the Commission for Backward Classes, Pay Commission, Finance Commission, Planning Commission etc.
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