LEGAL RESEARCH
What are the components of good research in law?
Components of good research in law—Legal research involves identifying, finding, and cite-checking information and applicable laws needed to support our decision-making on some legal issue. Legal researchers do make systematic research in to social, political and other fact conditions, thus, prompting the legislatures to enact laws. They also examine the socio-legal and other effects of those enactments. Well-conducted legal research empowers our arguments and gives substance to our legal work.
An appealing legal research should essentially have the following components—
(1) Introduction and statement of the problem—A good introduction states the main research problem and thesis argument. What precisely are you studying and why is it important? How original is it? Will it fill a gap in other studies? Never provide a lengthy justification for your topic before it has been explicitly stated.
(2) Comprehensive and precise—Legal research must be comprehensive and precise. The researcher must know the relevant theories in the fields, reports and records. Once a problem is formulated, a brief summary of it should be prepared. The researcher must undertake an extensive survey of the available literature on the subject, preferably connected with the problem.
(3) Proper organization of the content—Legal research plays an important role in proposing reforms to enhance the efficacy and relevance of the existing legal systems. This involves analyzing the causes of legal problems, evaluating alternative solutions, and formulating recommendations for legislative or policy changes.
The material collected must be organized and the notes prepared based on that material should be properly arranged. The research information must be logically analyzed and represented in the correct sequence.
(4) Division of content into sections—The central point of the research paper is the main body. Since it is the most extensive part, it should be divided into sections. In order to present the material in a clear and understandable manner for the reader, each section should begin with a heading and the purpose it is expected to pursue. Paragraphing will help to organize the thoughts so that the reader can easily follow what is being conveyed.
(5) Providing of abstract—Not every education paper requires an abstract. However, for longer, more complex papers, abstracts are particularly useful. Comprising of around 250 words, the abstract generally provides a broad overview. It describes the essence, the main theme of the paper. It includes the research question posed, its significance, the methodology, and the main results or findings. Footnotes or cited works are never listed in an abstract.
(6) Appendices—Education research papers often contain one or more appendices. An appendix contains material that is appropriate for enlarging the reader’s understanding. Such material might include tables, charts, summaries, questionnaires, interview questions, lists of terms, glossaries and such other supplementary material.
(7) Writing of conclusion—The final part of the research paper should be a brief summary of the main points stated in the research paper. However, the conclusion should not be made of the phrases copied from the main body or the introduction. Logical consistency with the arguments explained in the main part is vital.
Define research methodology. Discuss the importance of research methodology.
Research methodology—A method is a structured procedure for bringing about a certain goal, like acquiring knowledge or verifying knowledge claims. This normally involves various steps, like choosing a sample, collecting data from this sample, and interpretation of the data. The study of methods concerns a detailed description and analysis of these processes. It includes evaluative aspects by comparing different methods. This way, it is assessed what advantages and disadvantages they have and for what research goals they may be used.
In other words, research methodology is a structured and scientific approach used to collect, analyze, and interpret quantitative or qualitative data to answer research questions or test the hypotheses. A research methodology is like a plan for carrying out research and helps keep researchers on track by limiting the scope of the research.
IMPORTANCE OF RESEARCH METHODOLOGY
(1) Advantageous for the students—Teaching research methodology to students has become more critical than ever because of the changing nature of data. Research methodology provides students with the needed knowledge to embark on better research. It plays a crucial role in the academic and professional fields, providing structured processes to gather, analyse, and interpret data. It is imperative for developing precise, reliable, and valid conclusions.
(2) Collection and analysis of relevant data—Research methodology helps researchers collect and analyse data that are relevant, reliable, and valid to answer the research question. It also helps researchers avoid or minimise errors, biases, and ethical issues that may compromise the research findings. It also helps researchers to report and communicate their research in a transparent and accurate way.
(3) Evaluation of validity of research—A well-defined methodology allows to evaluate the research for its rationality and reliability, which is essential for its acceptance and credibility.
(4) Scientifically sound findings—Research methodology gives research legitimacy and provides scientifically sound findings. It also provides a detailed plan that helps to keep researchers on track, making the process smooth, effective, and manageable. A researcher’s methodology allows the reader to understand the approach and methods used to reach conclusions.
(5) Advancement and propagation of knowledge—Research methodology helps in the advancement and diffusion of knowledge. It helps researchers contribute to the existing body of knowledge in their field and beyond. It also helps researchers compare their research with other studies and identify gaps and opportunities for further research.
(6) Preparation of research design—Research methodology helps in the preparation of a blueprint for the research design. It lays out the framework within which the research work will be conducted, determining the approach, methods of data collection, and analytical techniques to be used.
What are the points of differences between research method and research methodology?
Differences—The main points of differences between research method and research methodology may be summarized as following—
(a) Research methods are individual tools, techniques, or behaviors, a researcher uses to collect information.
A research methodology is a specific way of conducting research that may incorporate multiple research methods. It details the what, where and how of data collection and analysis.
(b) The objective of research methods is to provide systematic information of research design, participants, equipment, materials, variables, and procedures.
The objective of research methodology is to determine the accuracy and efficiency of the methods opted by the researchers for a particular experiment.
(c) Research methods describe the method of data collection and analysis.
Research methodology relates to the academic and philosophical foundation of research.
(d) Research method is specific to a certain research project or study.
Research methodology is applicable across diverse research projects and studies.
RESEARCH DESIGN
What are the processes involved in research design?
Research design—Research design is a planning of detailed outline of whole research work. It contains steps and process to be followed in the research, which include how data is to be collected, what instruments will be employed, how the instruments will be used and the intended means for analyzing the collected data. Research design provides a direction to researcher so that he can accomplish his research work in a well-planned and logical manner.
The start of any research project, in view of Hannah Bliersbach, lies with whatever it is you are interested in. It could be a specific topic, an event, and a piece of legislation or any collection of facts and phenomena that puzzles you and triggers questions. The key is then to determine the research question that will guide your research. As with many parts of the research process, the research question can change and develop as you engage with the relevant literature and data. You do not have to form a fixed research question at the very beginning of the research process. Nonetheless, it is essential to never lose sight of your research question. Your research question has implications for which methods will be used during the analysis and which central goals the study is set up to accomplish.
“When designing your research, you need to have a clear idea of what type of data you are going to collect or create. This will make you aware of the possible limiting factors of your data. Once you have identified these factors, you can think about which ones you can mitigate, and which ones you will have to accept. This will reduce the need for major changes during the project, as well as the risk of not making the estimated deadline or budget.”
—Mareike Boom
PROCESS OF RESEARCH DESIGN
The research design process is a systematic and structured approach to conducting research. The process is essential to ensure that the study is valid, reliable, and produces meaningful results.
Various processes involved in research design include the following—
(a) Determination of the research questions and objectives, and identification of the theoretical framework and methodology for the study.
(b) Choosing a suitable research design, such as experimental, correlational, survey, case study, or ethnographic, based on the research questions and objectives.
(c) Determination of the target population and sample size.
(d) Choosing of the sampling method, such as random, stratified random sampling, or convenience sampling.
(e) Determination of the data collection methods, such as surveys, interviews, observations, or experiments, and selection of the appropriate instruments or tools for collecting data.
(f) Preparaiton of a plan for data collection, including the timeframe, location, and personnel involved, and ensuring ethical considerations.
(g) Selection of applicable data analysis techniques, such as statistical analysis, content analysis, or discourse analysis, and the manner of the interpretation of the results.
RESEARCH TECHNIQUES
How will you prepare a reference list for a research paper in law?
Reference list—A reference page lists all the sources that are used in the research paper. Whether the information is taken from the book, websites, or journals, it should be correctly referenced, so that the reader can easily retrieve it. It is necessary for a writer to make sure to note every source for the paper. A reference list may be provided in alphabetical order of authors’ names, or numerically, depending on the referencing system you are using.
Bibliography—A bibliography usually contains all the works cited in a paper, but it may also include other works that the author consulted, even if they are not mentioned in the text. Some bibliographies contain only the sources that the author feels are most significant or useful to readers.
If you have been asked to include a reference list, you may also include a bibliography which lists works that you have read but not cited.
A reference list and a bibliography look a lot alike—They are both composed of entries arranged alphabetically by author, for example, and they include the same basic information. The difference lies not so much in how they look as in what they contain.
Basic requirements of the reference page—The basic requirements of the reference page are the following:
- Each reference should be formatted according to the appropriate style guide (MLA, APA, Chicago, etc.) The styles peculiarities should not be mixed.
- The reference page should be organized in alphabetical order according to the authors’ last names.
- Every resource that is used in the paper should be on the reference page. If one item is missing from the list, the paper can be considered plagiarism.
Correct formatting, namely spacing, and indentation, should be taken into account.
LEGAL LANGUAGE
Write short notes on the following— (a) Archaic words; (b) Circumlocution.
(a) Archaic words—Archaism is an old and outdated word or expression that is still in use in legal writing. It is an English lexical feature, which translated from countries like France, Greece, and Latin in old English period or Middle English period around AD 450 to 1150.
Archaisms, according to Veretina-Chiriac, are typical examples of legalisms and lawyerisms belonging to formal style and making the document concise and precise, but unfortunately causing comprehension problems for non-lawyers.
Archaic or old words are now used infrequently in most written and spoken language, so they have become rather obscure over the course of time. There are many old words used in legal English, primarily to avoid repeating names or phrases; such as “the parties hereto” instead of “the parties to this contract,” “hereafter” instead of “later referred to in this document,” and “wherein” meaning either “in which” or “in which place, or “in which respect.”
“Traditional legal language is archaic legal language that is full of legalese, illogical word order because of Law French and Law Latin, complex grammatical structures, and sentences of excruciating length. [European Academic Research, Volume 1, Issue 4 July 2013]
It has become a ritual amongst the lawmen to use the old English which they consider a style symbol of the lawyers. The fact remains the same that it becomes a horrifying experience for a non-professional to go through each word of the letter, which he finds beyond his capacity to understand and answer.
(b) Circumlocution—Circumlocution (from the Latin words circum, “circle,” and loqui, “to speak”) is a common characteristic of legal language, and simply means “talking around.”
Circumlocution is common in legal documents because many legal draftspeople follow traditional ways of writing or use circumlocution to reduce possible ambiguities. Examples of circumlocution include the “adequate number of” instead of “enough,” “for the duration of” instead of “during,” “in the event that” instead of “if,” “similar to” instead of “like,” and “until such time as” instead of “until.”
LEGAL WRITING
What should be the main consideration for a student of law or a lawyer while drafting a legal document?
Legal writers usually seek to provide precision, clarity and simplicity in the language they use during the course of their work, but what is precise is often not simple. The language used to write a legal document usually contains a number of unusual features related to terminology, linguistic structure, linguistic conventions, punctuation, and long usage. Due to its rich vocabulary, there are many problems in legal language such as “ambiguity,” “multiple meanings,” and “doubtfulness in its contents,” etc.
The principles for writing documents relating to legal issues are based on each lawyer’s training, personal practical experience, and the observation of legal writing of judges, eminent lawyers, senior colleagues and books of known legal authors. There are certain fundamental principles for legal writing, and, specifically, relating to the drafting of legal documents and agreements, including the use of reference material and document formats.
Main considerations—A student of law or a lawyer while drafting a legal document, in view of Mark von Dadelszen, should take into account the following—
(a) Short sentences give a reader space to pause and understand what is written. A paragraph containing three to five short sentences in a sequence is easier to understand than a paragraph containing long sentences with several related phrases.
(b) A new paragraph should follow the previous paragraph logically. Continuity is important and what is written should have some linkage with the previous text.
(c) Headings are usually (or should be) descriptive of the content that follows.
(d) As with any document written in English, a legal document should be grammatically correct. A legal document once written may be used and examined by a number of different people, especially by clients, by other people affected by the document, by lawyers, by civil servants, and by judges. It may continue to be of relevance for many years after it was written.
(e) It is good practice for a legal draftsperson to check and revise a document at least five times. Such revision and editing should make the document more readily understood by its users and eliminate every possible mistake in expression, grammar, spelling, commas, parenthesis, chronology etc. That revision process also enables the draftsperson to improve the choice of words, sentence structure, paragraph length, and even the document sequence.
(f) A lawyer creating a document for a client from a library of precedents must adapt the precedent to fit what the client requires, and that process also means that such precedents are also subject to regular refinement.
CONCEPT OF LAW
Briefly discuss the role and purposes of law in human life?
Role or purposes of law—Laws create a norm of conducts in the society we live in. They are enacted to protect the citizen from harm. According to one school of thought, the main object of law is to maintain law and order in country. It has to perform police functions. Without law, our society would be chaotic, uncivilized mess and anarchy would reign supreme.
According to Plato, “Mankind must either give them a law and regulate their lives by it or live no better than the wildest of the wild beasts.”
According to Hobbes, “Law was brought into the world for nothing else, but to limit natural liberty of particular men in such a manner as they might hurt, but assist one another and join together against a common enemy.”
According to Dr. PN Sen, “The province of law is the establishment of rules for the regulation of human conduct amidst diversities of inclinations and desires so as to reconcile and harmonize the wishes of the individual with the interest of the community in which ultimately the interest of the individual is also involved. It curtails the fictitious freedom of unregulated desires by subordinating the particular nature of individual man to the discipline of the community acting upon universal principles.”
According to POUND, there are four purposes of law—
(a) In the first place, the purpose of law is to maintain law and order within a given society and has to be done at any cost. There was too much of emphasis on this aspect of law in primitive society as the problem of security was all-important.
(b) Secondly, the purpose of law is to maintain the status quo in society.
(c) In the third place, the purpose of law is to enable individuals to have the maximum of freedom to assert themselves; such a view prevailed during the 17th, 18th and 19th centuries. Thus, the object of law is to enable the people to have natural liberty.
(d) Fourthly, the purpose of law is the maximum satisfaction of the needs of the people. The function of law is to satisfy the needs of people living in society.
Why laws are required—According to Pollock, there are five main reasons that laws are required in society—
(a) The harm principle: to prevent the serious physical assault against others that would be victimized.
(b) The offence principle: to prevent behaviour that would offend those who might otherwise be victimized.
(c) Legal paternalism: to prevent harm against everyone in general with regulations.
(d) Legal moralism: to preventing immoral activities such as prostitution and gambling.
(e) Benefit to others: to prevent actions that are detrimental to a segment of the population.
Write short notes on the following— (a) Legal presumptions; (b) Legal fictions.
LEGAL PRESUMPTIONS—Presumptions are inferences, which are drawn by the court with respect to the existence of certain facts. When certain facts are presumed to be in existence the party in whose favor they are presumed to exist need not discharge the burden of proof with respect to it. This is an exception to the general rule that the party, which alleges the existence of certain facts, has the initial burden of proof but presumptions do away with this requirement.
Presumption as used in law is a conclusion derived from a particular set of facts based on law, rather than positive reasoning. It is a rule of law, which allows a court to assume as fact to be true until there is a preponderance of evidence, which disproves the presumption.
Phipson defines a presumption as—
“A conclusion which may be drawn until the contrary is proved. Sometimes the presumption only arises if some basic facts are proved; sometimes it arises in all cases without proof of any particular fact.”
The word ‘presumption’ inherently imports an act of reasoning, a conclusion of the judgment; and it is applied to denote such facts or moral phenomena, as from experience we known to be invariably, or commonly, connected with some other related facts. [Wills on Circumstantial Evidence]
A presumption is an inference as to the existence of a fact not actually known arising from its connection with another, which is known. [Ramanatha Aiyar’s Advanced Law Lexicon]
KINDS OF PRESUMPTION
Presumptions are of two kinds—
(1) Presumption of fact—Presumptions of fact are those inferences, which are naturally and logically derived on the basis of experience and observations in the course of nature or the constitution of the human mind or springs out of human actions.
Presumptions of fact are inferences of certain fact patterns drawn from the experience and observation of the common course of nature, the constitution of human mind, the springs of human action, the usages and habit of society and ordinary course of human affairs. It is not obligatory for the court to draw presumption of facts. In respect of such presumptions, the Act allows the judge, discretion in each case, to decide whether the fact may be presumed. In case of presumption of law, no discretion has been left to the court, and it is bound to presume the fact as proved until evidence is given by the party interested to rebut or disprove it. [Gitika Bagchi vs Subhabrota Bagchi, AIR 1996 Cal 246]
(2) Presumption of law—Presumptions of law are those inferences, which are said to be established by law. It can be sub-divided into rebuttable presumptions of law and irrebuttable presumptions of law—
(a) Rebuttable presumption—Rebuttable presumptions of law are those presumptions, which hold good, until they are disproved by evidence to the contrary.
A rebuttable presumption is an assumption of fact accepted by the court until disproved. All presumptions can be characterized as rebuttable. It is an assumption that is made in the law that will stand as a fact unless someone comes forward to contest it and prove otherwise.
(b) Irrebuttable presumption (conclusive presumptions)—Irrebuttable presumptions of law are those presumptions of law, which are held to be conclusive in nature. Any sort of contrary evidence, however strong it is, cannot overturn irrebuttable presumptions.
LEGAL FICTIONS—Another method by which the law sometimes deliberately departs from the truth of things for sufficient or insufficient reasons is the use of the device known as “legal fiction”.
Maine said that “the law is brought into harmony with social needs by three instrumentalities—legal fictions, equity and legislation which appear to be in historical order in which they are enumerated.”
To hold a thing to exist which does not exist in fact is a fiction. A thing is assumed to exist only to meet certain needs in the social development, which necessitates certain charges in the law. However, when the change in law is not desirable and expedient, certain assumptions are made on the basis of which the law assumes certain things to exist, which do not exist in reality and thus adopts itself to new circumstances. Such legal assumptions are fictions.
SOURCES OF LAW
Do judges make law? Discuss.
Judges make, and do not just find and apply law—Judge Richard A. Posner argues that even though judges are not supposed to and generally do not make law with the same freedom that legislatures can and do; the fact remains that judges make, and do not just find and apply law.
Benjamin Cardozo in his accomplished work ‘The Nature of Judicial Process’ accepts that a judge is not a legislator in general, but highlights how the judge does legislate new law in close cases to fill gaps between existing rules.
View of Bhagwati, C.J.—Chief Justice Bhagwati’s view in this regard is in tune with the jurists mentioned above. His Lordship holds as under—
“It is recognized on all hands that judges do not merely discover law, but they also make law. Even when a judge is concerned with interpretation of a Bill of Rights or a statute, there is ample scope for him to develop and mould the law. He infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society. And by thus making and moulding the law, he takes part in the work of creation and this is much more true in the case of interpretation of the Constitution. Greatness of the Bench lies in creativity and it is only through bold and imaginative interpretation that the law can be moulded and developed and human rights advanced. To meet the needs of the society, the judges do make law. It is now recognized everywhere that judges take part in this law making function and, therefore, judges make law.”
View of Sabyasachi Mukharji, C.J.—The law-making role of Hon’ble Supreme Court of India has also been acknowledged in various decisions as well. In this context, one must appreciate the scope and ambit of Articles 141 and 142 of the Constitution of India.
As far as Article 141 is concerned, Sabyasachi Mukharji’s, C.J., view is of primary importance. In Delhi Transport Corporation vs DTC Mazdoor Congress, AIR 1991 SC 101, the learned judge notes that “we must do away with the childish fiction that law is not made by the judiciary” and cites Austin’s description of the Blackstonian Principle in this regard.
Mukharji J. also refers to the observations made by Chief Justice Subba Rao in Golak Nath vs State of Punjab, AIR 1967 SC 1643, wherein it was pointed out that, “Article 141 and Article 142 are designedly made comprehensive to enable the Supreme Court to declare law and to give such directions or pass such orders, as are necessary to do complete justice.”
View of Subba Rao C.J.—Subba Rao C.J. had made the following observation—
“The expression ‘declared’ is wider than the words ‘found or made’. To declare is to announce opinion. Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by this court is the law of the land. To deny this power to this court on the basis of some outmoded theory that the court only finds law, but does not make it, is to make ineffective the powerful instruments of justice placed in the hands of the highest judiciary of this country.”
View of Hegde J.—In the context of Article 142, it is worthwhile to appreciate the observations made by Hegde J. in Kalyan Chandra Sarkar vs Rajesh Ranjan, (2005) 3 SCC 284, wherein His Lordship pointed out that Article 142 is an important constitutional power granted to the court to protect its citizens. The learned judge observed—
“In a given situation when laws are found to be inadequate for the purposes of grant of relief, the court can exercise its jurisdiction under Article 142 of the Constitution.”
Hegde J. refers to the decisions in Visakha vs State of Rajasthan, (1997) 6 SCC 241, and Vineet Narain vs Union of India, (1998) 1 SCC 226, to note that “the directions issued by the court under Article 142 form the law of the land in the absence of any substantive law covering that field. Such directions, according to His Lordship, “fill the vacuum until the legislature enacts substantive law.”
The requirements of justice give an occasion for the development of new dimension of justice by evolving juristic principles for doing complete justice according to the current needs of the society. The quest for justice in the process of administration of justice occasions the evolution of new dimensions of the justice.
View of JS Verma, J.—JS Verma, J., in his Article “New Dimensions of Justice”, observed that—
“The Constitution of India by Article 142 expressly confers, on the Supreme Court, plenary powers for doing complete justice in any cause or matter before it. Such power in the court of last resort is recognition of the principle that in the justice delivery system, at the end point, attempt must be made to do complete justice in every cause, if that result cannot be achieved by provisions of the enacted law. These powers are in addition to the discretionary powers of courts in certain areas where rigidity is considered inappropriate.”
Section 482 of the Code of Criminal Procedure, 1973, empowers the High Court to make such orders as may be necessary to secure the ends of justice in exercise of the inherent powers. Section 483 of the Code of Criminal Procedure, 1973, casts a duty upon every High Court to exercise its continuous superintendence over the Trial Courts to ensure that there is an expeditious and proper disposal of cases. Article 227 of the Constitution also confers on the High Court, the power of superintendence over all subordinate courts in relation to which it exercises jurisdiction. The paramount consideration behind vesting of such wide power of superintendence is to keep the path of justice clear of obstructions, which would impede it. It is the salutary duty of the court to prevent the abuse of the process, miscarriage of justice and to correct the irregularities in the judicial process. [Arvind Kejriwal vs Amit Sibal, Delhi High Court Judgment Dated 16-1-2014]
BASIC PRINCIPLES OF LAW
Define law and morality. What are the points of distinction between them?
Law—Law is a collection of legal rules meant for determining people’s behaviour. The State carries them into effect when someone infringes these rules. Law can be defined as “a body of rules and principles of procedure and conduct established and enforced by a political authority.” Laws, according to Sir John Salmond are “the body of principles recognized and applied by the State in the administration of justice.”
Morality—Morality is a set of values common to society, specifying the correct course of action in a situation and the limits of what society considers acceptable. Morals are normally just beliefs, values and principles that are set by society or part of a society, determining what is right and wrong. Observation of these norms will make one feel moral (or virtuous), while their breach will implicate feeling of guilt. Morality can be defined as a code of conduct advanced by a society or religion or adopted by an individual to guide his or her own behaviour.
In essence, as Kant asserts, morality is a personal concern, whereas law is a societal concern. Law governs conduct within our society. Morality influences personal decisions relating to individual conduct.
In very broad terms, the law and morality have a common goal, being the lessening of social harm or evil. The law is always guided, to some extent, by a moral compass. And morality continues to influence decision-making and the day-to-day administration of justice in every corner of the legal system.
Distinction between law and morality—Law can be distinguished from morality on the ground that a legal system is comprised of specific, written principles and rules interpreted by officials who are charged with the duty of applying appropriate penalties and awarding appropriate remedies.
Writers like Austin, Kelson and others have tried to makes a clear distinction between law and morality although the two are bound to be affected by each other. Law alone cannot regulate the whole of the life of man and the same is true of morality. Law is concerned with the external actions of individual and morality with their inner conscience.
According to Bentham, “the word law has just the same centre as morals, but it has by no means the same circumference.”
According to Pound, “law and morals have a common origin, but they are diverse in their development.”
According to Duguit, “law has its basis in social conduct; morals go on intrinsic value of conduct.”
According to Vinogradoff, “law is clearly distinguishable from morality. The object of law is the submission of the individual to the will of organized society while the tendency of morality is to subject the individual to the dictates of his own conscience.”
(1) Law and morality have different origins. Laws are created by Parliament. Morals evolve as a feeling within society. No formal creation exists. Laws can be instantly made and instantly cancelled. It can exist one minute and the next it does not, e.g., when the Act is repealed. Morals form slowly and change slowly as society’s attitudes change.
(2) Breach of law leads to some form of punishment or remedy enforced by the State. Breach of moral leads to some form of social condemnation; there is no involvement of the State.
(3) The law is created and enforced. Morality is taught and is engrained from the very childhood of a person. Thus, morality comes from within the human personality, and law comes from the outside to regulate people’s behaviors.
(4) In law, man is considered as a person because he has a free will; in morals, we have to do with determining the will towards the good.
(5) Law considers man only in so far as he lives in community with others; morals give a guide to lead him even if he were alone.
(6) Law has to do with acts in so far as they operate externally; morals look to the intention, the inner determination and direction of the will.
(7) Law governs the will so far as it may be external coercion; morals seek a free self determination towards the good.
What do you mean by question of fact and question of law? What are the points of distinction between them?
All questions that arise before a court of law can be divided into two kinds. Some of them are questions of fact and others are questions of law.
Question of fact—The term “question of fact” has more than one meaning. In a general sense, it includes all questions, which are not questions of law. Everything is a matter of fact, which is not a matter of law.
According to Salmond, “a question of fact means either any question which is not pre-determined by a rule of law or any question except the question what the law is or any question which is to be answered by the jury instead by the judge.”
It narrower sense, a question of fact is opposed to a question of judicial discretion which includes questions as to what is right, just, equitable or reasonable. Evidence can be led to prove or disprove a question of fact. A question of fact is a matter of fact as opposed to a matter of opinion.
Question of law—According to Salmond, the term “question of law” is used in three different senses—
(1) In the first place, it means a question the answer to which has already been declared by some rule or principle, which the courts consider; they ought to apply without regard to their personal opinions as to its desirability.
(2) Secondly, a question of law implies as to what the law is—which arise because of uncertainty of law on a particular point.
(3) As regards the third sense in which this term is used, reference is made to the general rule that questions of law are for the judges to decide.
According to Salmond, all matters and questions which come before a court of justice are of three kinds, viz.—
(1) Matters and questions of law;
(2) Matters and questions of judicial discretion;
(3) Matters and questions of fact.
In the first case, it is the duty of the court to ascertain law and decide the case accordingly.
In the second case, the court can exercise its discretion and decide dispute according to what it considers to be right, just or equitable or reasonable.
In the third place, it is the duty of the courts to weigh the evidence and then to come to its own conclusions.
Distinction—The distinction between the question of law and the question of fact may be given as under—
(1) Question of law is decided by the judge while the question of fact may be decided by the jury.
(2) Question of law for decision requires no evidence while the question of fact can be decided only on the basis of evidence of that fact.
(3) A question of law is a matter of opinion by the court while a question of fact is a matter of fact and not of opinion.
(4) Law consists of the abstract rules while the facts are the raw material on the basis of which law creates certain rights and duties.
Mixed question of law and fact— Mixed question of law and fact refers to a question which depends on both law and fact for its solution. In resolving a mixed question of law and fact, a reviewing court must adjudicate the facts of the case and decide relevant legal issues at the same time.
Questions of fact are questions about what actually took place between the parties. And questions of mixed law and fact are questions about whether the facts satisfy the legal tests. A simple example will illustrate these concepts. In the law of tort, the question what negligence means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. [Canada (Director of Investigation and Research) vs Southam Inc., (1997) 1 SCR 748]