Custom as a Source of Law - M P Jain

Topics: Common law, Law, Civil law Pages: 230 (83119 words) Published: March 23, 2013
Note: Only minimum reading materials are reproduced here. Students are advised to familiarize themselves with all the recommended readings and participate in discussions in the class.
(a) The object of Law Study
(b) Studying Law under the “Case Method”
(c) The Case Method from Student’s point of view.
The following extracts are from:
(a) Stanley V. Kinyon, How to Study Law and Write Law Examinations (1951) (b) Edward H. Levi, An Introduction to Legal Reasoning (1949) University of Chicago Press.
(c) Paper from Professor Jackson, Michigan University Law School (Un-published ) (The essay is based on comments made orally to a Faculty Colloquium of the Faculty of Law, University of Delhi in January and February, 1969 while the author was Visiting Professor of Law)

What is this thing “Law” which you are about to study? What is the nature of the subject and what are you supposed to learn about it?
In one sense, the “law” is a large body of rules and regulations, based mainly on general principles of justice, fair play and convenience, have been worked out by governmental bodies to regulate human activities and define what is and what is not permissible conduct in various situations. We use the term in this sense when we say that a person “obeyed the law” or “broke the law” and a great deal of your work will be devoted to a study of the rules and regulations applicable to different areas of human activity. Such rules and regulations are sometimes found in our state and federal constitutions, more often in statutes, sometimes in administrative rulings, and in many instances have been developed by the courts themselves in the process of deciding the controversies that come before them.

The term “law”, however, is also used in a much broader sense to denote the whole process by which organized society, through government bodies and personnel (legislatures, courts, administrative tribunals, law-enforcement agencies and officers, penal and corrective institutions etc.) attempts to apply these rules and regulations and thereby establish and maintain peaceful and orderly relations between the people in that society. For example, when there is evidence that some person has killed another, or has robbed or stolen or done some other act disruptive of the public peace of welfare, not only do we assert that he has "broken the law" but we expect that the appropriate agencies of government will in accordance with the rules of law, apprehend and


Legal Profession and the Advocates Act, 1961

bring him before the proper court, conduct a fair and orderly trial to determine his guilt or innocence, and if he is guilty, prescribe and carry out appropriate corrective or punitive measures. Even where no public offence is involved, as where John Smith has an automobile collision with Joe Jones, or breaks a promise made to Joe & interferes with his property, or does something else to cause a dispute between them which they cannot peaceably settle between themselves, we expect them to “take it to court” for a peaceable decision in accordance with the established rules of law. This whole legal process is carried on through the various organs of government by a large number of people - legislators, lawyers, judges, police officers, administrative officials, and many others, most of whom must be intensively trained in various aspects of the system.

Law schools are engaged primarily in training future lawyers, judges and others who will operate this legal system. Thus the study of law necessarily involves not only a study of legal rules but also a study of the whole legal system through which society attempts to maintain “law and order”.

For, too many students get off on the wrong foot in law school because they don't understand the real object of their law study. They get the idea that all they are supposed to do is memorize a flock of rules and decisions just as they memorized...
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