by Mani Agarwal.“I can see what the law is like. It’s like a single-bed blanket on a double bed and three folks in the bed and a cold night. There ain’t never enough blanket to cover the case, no matter how much pulling and hauling, and someone is going to nigh catch pneumonia. Hell the law is like the pants you bought last year for a growing boy, but it is always this year and the seams are popped and the shankbone’s to the breeze. The law is always too short and too tight for growing humankind. The best you can do is do something and then make up some law to fit and by the time the law gets on the books you would have done something different.”.—Willie Stark, All The King’s Men.Introduction.For the past year or so there has been significant buzz within the Indian legal community about the process of Restatement of the law. It began in 2009, when a Supreme Court appointed panel was set up, under the guidance of then Chief Justice of India K G Balakrishnan to “remove uncertainties in Indian laws and to remove ambiguities surrounding various legal principles and their applicability. Indian Express reports that the job of the panel would be to sift through the maze of hundreds of prevailing laws, including those that owe their genesis to court rulings, and come up with simpler to understand but more acceptable laws.”.According to reports, the project would comprise of “three separate committees headed by Judges of the Supreme Court and comprising law officers of the Government of India, legal luminaries and academics have been constituted to prepare restatements of law on these three subjects, which would be models for the future.” These so called Restatements gained further affirmation, when Ex-President Pratibha Patil in her July 2010 speech stated that “[t]here cannot be better governance without better laws and there cannot be better laws if antiquated ones remain..Archaic laws and outdated administrative regulations must be scrutinized and if necessary scrapped or amended. Making the language of law simple can prevent unnecessary litigation. It is appreciable that the Supreme Court through the Indian Law Institute has embarked on a pilot project for preparing Restatements of Law on Legislative Privileges, Contempt of Court and PIL towards promoting simplification of law.”.The question hence begets what exactly is a restatement is and why are certain sections of our legal community so eager to embrace them..Origin.The concept of Restatements originated in the United States and dates back to the early twenties when a. a “[c]ommittee on the Establishment of a Permanent Organization for the Improvement of the Law” was established in 1923. The Committee observed that there was a growing sense of “uncertainty, complexity and general dissatisfaction with the administration of justice.” According to the Committee “part of the uncertainty of the law, as it then existed, was due to the lack agreement among members of the profession on the fundamental principles of the common law and therefore, recommended the recommended the establishment of an organization comprising of lawyers, judges and legal academia to “improve the law and its administration”..The American Law Institute, was set up in 1923 and aimed to “promote the clarification and simplification of the law and its better adaption to social needs, to secure the better administration of justice and to encourage and carry on scholarly and scientific legal work.” The Institute undertook the task of addressing the issue of uncertainty by publishing a restatement of basic legal subjects, which aimed at informing judges and lawyers what exactly the law was..Development.From 1923 to 1944 the Institute published its various restatements of the law. From 1952, the Institute started to publish restatements of the ‘original restatements.’ Restatements of the law guide, Oklahoma City University Law Library reports that restatements are considered the “most authoritative of secondary sources have been cited over 161,000 times by courts.”.Although, they have no binding legal authority, restatements are considered a persuasive authority and are often cited by courts. Restatements are written in the form of a statute and include sections in a simplified manner, followed by case commentary. They are arranged according to a chapter, topic, title and section, with each chapter contain a list of sections and an introductory note. A restatement section consists of the following:.“A statement of the principle of law, or the “black letter” rule;explanatory comments;Illustrations of the principle in the form of hypotheticals; andReporter’s notes, which provide background information on the development of the rule, including citations to cases which were used in formulating the rule, statutes, treatises, and journal articles.”.In one of his articles, famous US law professor, Mortimer Sellers says “restatements resemble codifications, while purposely avoiding the statutory form, to preserve the flexibility which is characteristic of the common law. Restatements seek to anticipate the direction in which the law is tending and to assist this development by building on previously established principles. In effect, they often promote changes in the law which makes the law better adapted to the needs of life.”.Importance of Restatements.In 1924, Benjamin N. Cardozo, the then United States Supreme Court Judge excellently summed up the importance of restatements, when he stated that.“[w]hen, finally, it goes out under the name and with the sanction of the Institute, after all this testing and retesting, it will be something less than a code and something more than a treatise. It will be invested with unique authority, not to command, but to persuade. It will embody a composite thought and speak a composite voice. Universities and bench and bar will have had a part in its creation. I have great faith in the power of such a restatement to unify our law.” .Professor Seller further believes that,.“[r]estatements have had a tremendous influence on common-law judges, both in encouraging the coherence and consistency of their doctrine, and in encouraging uniformity between the otherwise entirely separate state jurisdictions across the North American continent. The Restatement assumes the perspective of a common-law court, attentive to and respectful of precedent, but not bound by precedent that is inappropriate or inconsistent with the law as a whole.”.The American Law Institute further emphasizes that Restatements.“represent the informed consensus of practitioners, judges and scholars. Restatements are addressed to courts and others applying existing law. Restatements aim not only to recapitulate the law as it presently exists, but also to reformulate it, thereby rendering it clearer and more coherent while subtly transforming it in the process. Restatements, like common-law judges, assume the existence of a body of shared doctrine enabling courts to render their judgments in a consistent and reasonably predictable manner. The Restatement project seeks to “restore the unity of the common law as properly apprehended.”.Criticism.Restatements have had their fair share of criticisms. US Law Professor James Gordley in his writings contends whether.“simple clarification of the law without undue distortion is even possible, given the rich and complex historical and contextual nature of the common law,” given that “the very nature of re-stating the law, publishing it in what is declared to be a summary form, requires some change, some artificial cleaning-up of the law.” As famously stated by Roscoe Pound, “the publication of the law necessitates changing the law by presenting the law as being more consistent than it truly is.”.Prof Gordley further believes that the adoption of a given rule of law by these Restatements.“may bait other courts to follow its analysis, even though such an analysis may be flawed.”.Even courts are often of the view that Restatements only constitute a remodeling of the law, instead of an accurate restatement of it. Critics also believe that the Restatement movement has not only changed over a period of time, also that “this change has been hidden from the public.” Restatements are also criticised on the grounds that the process of restating is limited to a few and represents the views of only those few, rather than what the law is..Restatement of laws in India.Given the Indian judicial scenario introducing a pilot Restatement project by the Apex Court committee seems encouraging and hopefully should be welcomed. Although a novel and academic concept, introducing Restatements in India could prove to be a herculean task and will require setting up a dedicated institute with credentials similar to the American Law Institute, where law can be “tested and retested” before it becomes a restatement..Pronouncements of the Indian courts are lengthy and essentially contain the previous or settled position of law..A Restatement on the subject, endorsing the view of the courts, judiciary, legal practitioners and academia will definitely help unravel the labyrinth of legal jargon and provide an accurate summary of a decided position of the law. Similarly, if the law is underdeveloped or not developed in India at all, i.e., the ‘law on ambush marketing’, ‘patents’ and other technical laws; a restatement, may prove to help set the precedent and help judges and lawyers to understand the law..Despite its criticisms, Restatements do tend to “enhance the predictability of the common law.” In fact, Professor Kristen David Adams from Stetson University College of law believes that “[a] court’s history of following the Restatements may make it easier for both litigants and other courts applying that jurisdiction’s law to predict the outcome of a matter of first impression.” Restatements can also be considered representatives of the law in a jurisdiction. The primary reason why the US courts often cite Restatements is that they reflect the state of the law..Mani Agarwal, a law graduate from Aligarh Muslim University is an expert in global contracting and currently working as Contracts Manager with Accenture. He can be reached at maniagarwal@gmail.com (The views expressed are strictly personal)
by Mani Agarwal.“I can see what the law is like. It’s like a single-bed blanket on a double bed and three folks in the bed and a cold night. There ain’t never enough blanket to cover the case, no matter how much pulling and hauling, and someone is going to nigh catch pneumonia. Hell the law is like the pants you bought last year for a growing boy, but it is always this year and the seams are popped and the shankbone’s to the breeze. The law is always too short and too tight for growing humankind. The best you can do is do something and then make up some law to fit and by the time the law gets on the books you would have done something different.”.—Willie Stark, All The King’s Men.Introduction.For the past year or so there has been significant buzz within the Indian legal community about the process of Restatement of the law. It began in 2009, when a Supreme Court appointed panel was set up, under the guidance of then Chief Justice of India K G Balakrishnan to “remove uncertainties in Indian laws and to remove ambiguities surrounding various legal principles and their applicability. Indian Express reports that the job of the panel would be to sift through the maze of hundreds of prevailing laws, including those that owe their genesis to court rulings, and come up with simpler to understand but more acceptable laws.”.According to reports, the project would comprise of “three separate committees headed by Judges of the Supreme Court and comprising law officers of the Government of India, legal luminaries and academics have been constituted to prepare restatements of law on these three subjects, which would be models for the future.” These so called Restatements gained further affirmation, when Ex-President Pratibha Patil in her July 2010 speech stated that “[t]here cannot be better governance without better laws and there cannot be better laws if antiquated ones remain..Archaic laws and outdated administrative regulations must be scrutinized and if necessary scrapped or amended. Making the language of law simple can prevent unnecessary litigation. It is appreciable that the Supreme Court through the Indian Law Institute has embarked on a pilot project for preparing Restatements of Law on Legislative Privileges, Contempt of Court and PIL towards promoting simplification of law.”.The question hence begets what exactly is a restatement is and why are certain sections of our legal community so eager to embrace them..Origin.The concept of Restatements originated in the United States and dates back to the early twenties when a. a “[c]ommittee on the Establishment of a Permanent Organization for the Improvement of the Law” was established in 1923. The Committee observed that there was a growing sense of “uncertainty, complexity and general dissatisfaction with the administration of justice.” According to the Committee “part of the uncertainty of the law, as it then existed, was due to the lack agreement among members of the profession on the fundamental principles of the common law and therefore, recommended the recommended the establishment of an organization comprising of lawyers, judges and legal academia to “improve the law and its administration”..The American Law Institute, was set up in 1923 and aimed to “promote the clarification and simplification of the law and its better adaption to social needs, to secure the better administration of justice and to encourage and carry on scholarly and scientific legal work.” The Institute undertook the task of addressing the issue of uncertainty by publishing a restatement of basic legal subjects, which aimed at informing judges and lawyers what exactly the law was..Development.From 1923 to 1944 the Institute published its various restatements of the law. From 1952, the Institute started to publish restatements of the ‘original restatements.’ Restatements of the law guide, Oklahoma City University Law Library reports that restatements are considered the “most authoritative of secondary sources have been cited over 161,000 times by courts.”.Although, they have no binding legal authority, restatements are considered a persuasive authority and are often cited by courts. Restatements are written in the form of a statute and include sections in a simplified manner, followed by case commentary. They are arranged according to a chapter, topic, title and section, with each chapter contain a list of sections and an introductory note. A restatement section consists of the following:.“A statement of the principle of law, or the “black letter” rule;explanatory comments;Illustrations of the principle in the form of hypotheticals; andReporter’s notes, which provide background information on the development of the rule, including citations to cases which were used in formulating the rule, statutes, treatises, and journal articles.”.In one of his articles, famous US law professor, Mortimer Sellers says “restatements resemble codifications, while purposely avoiding the statutory form, to preserve the flexibility which is characteristic of the common law. Restatements seek to anticipate the direction in which the law is tending and to assist this development by building on previously established principles. In effect, they often promote changes in the law which makes the law better adapted to the needs of life.”.Importance of Restatements.In 1924, Benjamin N. Cardozo, the then United States Supreme Court Judge excellently summed up the importance of restatements, when he stated that.“[w]hen, finally, it goes out under the name and with the sanction of the Institute, after all this testing and retesting, it will be something less than a code and something more than a treatise. It will be invested with unique authority, not to command, but to persuade. It will embody a composite thought and speak a composite voice. Universities and bench and bar will have had a part in its creation. I have great faith in the power of such a restatement to unify our law.” .Professor Seller further believes that,.“[r]estatements have had a tremendous influence on common-law judges, both in encouraging the coherence and consistency of their doctrine, and in encouraging uniformity between the otherwise entirely separate state jurisdictions across the North American continent. The Restatement assumes the perspective of a common-law court, attentive to and respectful of precedent, but not bound by precedent that is inappropriate or inconsistent with the law as a whole.”.The American Law Institute further emphasizes that Restatements.“represent the informed consensus of practitioners, judges and scholars. Restatements are addressed to courts and others applying existing law. Restatements aim not only to recapitulate the law as it presently exists, but also to reformulate it, thereby rendering it clearer and more coherent while subtly transforming it in the process. Restatements, like common-law judges, assume the existence of a body of shared doctrine enabling courts to render their judgments in a consistent and reasonably predictable manner. The Restatement project seeks to “restore the unity of the common law as properly apprehended.”.Criticism.Restatements have had their fair share of criticisms. US Law Professor James Gordley in his writings contends whether.“simple clarification of the law without undue distortion is even possible, given the rich and complex historical and contextual nature of the common law,” given that “the very nature of re-stating the law, publishing it in what is declared to be a summary form, requires some change, some artificial cleaning-up of the law.” As famously stated by Roscoe Pound, “the publication of the law necessitates changing the law by presenting the law as being more consistent than it truly is.”.Prof Gordley further believes that the adoption of a given rule of law by these Restatements.“may bait other courts to follow its analysis, even though such an analysis may be flawed.”.Even courts are often of the view that Restatements only constitute a remodeling of the law, instead of an accurate restatement of it. Critics also believe that the Restatement movement has not only changed over a period of time, also that “this change has been hidden from the public.” Restatements are also criticised on the grounds that the process of restating is limited to a few and represents the views of only those few, rather than what the law is..Restatement of laws in India.Given the Indian judicial scenario introducing a pilot Restatement project by the Apex Court committee seems encouraging and hopefully should be welcomed. Although a novel and academic concept, introducing Restatements in India could prove to be a herculean task and will require setting up a dedicated institute with credentials similar to the American Law Institute, where law can be “tested and retested” before it becomes a restatement..Pronouncements of the Indian courts are lengthy and essentially contain the previous or settled position of law..A Restatement on the subject, endorsing the view of the courts, judiciary, legal practitioners and academia will definitely help unravel the labyrinth of legal jargon and provide an accurate summary of a decided position of the law. Similarly, if the law is underdeveloped or not developed in India at all, i.e., the ‘law on ambush marketing’, ‘patents’ and other technical laws; a restatement, may prove to help set the precedent and help judges and lawyers to understand the law..Despite its criticisms, Restatements do tend to “enhance the predictability of the common law.” In fact, Professor Kristen David Adams from Stetson University College of law believes that “[a] court’s history of following the Restatements may make it easier for both litigants and other courts applying that jurisdiction’s law to predict the outcome of a matter of first impression.” Restatements can also be considered representatives of the law in a jurisdiction. The primary reason why the US courts often cite Restatements is that they reflect the state of the law..Mani Agarwal, a law graduate from Aligarh Muslim University is an expert in global contracting and currently working as Contracts Manager with Accenture. He can be reached at maniagarwal@gmail.com (The views expressed are strictly personal)
