Module 2

Introduction
Law is an instrument that regulates human conduct or
behaviour. Law means justice, morality, reason, order, and
righteousness from the view point of the society. Law is a
broader term which includes Acts, statutes, rules, regulations,
orders, ordinances, decrees and judgments.

Meaning of Law
The word “Law” is Scandinavian in origin. It is derived from
the Norse word “Lay”, meaning “which is laid down”. In old
English, “lagu” means law. In Hindu religion, Dharma implies
law and in Islam it is “hokum”. In Roman it is “jus”, while in
French, it is “droit” . In Arabic it is “alqanoon”, in Persian and
Turkish it is “kunoon” and in Latin it is “legam”.

Definitions
Aristotle, had said, “At his best, man is the noblest of all
animals; separated from law and justice, he is the worst.”
Thomas Hobbes had pronounced, “It is not wisdom but
authority that makes a law.”
John Austin, father of English Jurisprudence, defined law as
“a rule laid down for the guidance of an intelligent being by
an intelligent being having power over him. He also stated
that “law is the command of the Sovereign”.
According to Salmond, the law may be defined as the body of
principles recognized and applied by the state in the
administration of justice.
John Chipman Gray, belonging to the Realism School of
Jurisprudence, defined law as: “the law of the State or of any
organized body of men is composed of the rules which the
courts, that is the judicial organ of the body lays down for the
determination of legal rights and duties.”
Savigny, the proponent of the historical school, defined law
not as a body of rules set by determinate authority but as rules
consisting partly of social habitat and partly of experience. He
said law is found in society and in custom.
Roscoe Pound, who belonged to sociological school of
jurisprudence, defined law as a social institution to satisfy
social wants. He says law is a social engineering, which
means that law is an instrument to balance the competing or
conflicting interests in the society.

Origin of Law
Every society needs to have laws to protect itself and its
members. Even ancient civilisations had laws, which were
part of their religious, ritual and tribal customs. These laws
were publicised either by examples or by word of mouth.
Babylon: The oldest written set of laws known to us is the
Code of Hammurabi. It is the longest, best-organised, and
best-preserved legal text from the ancient period. Hammurabi
was the sixth king of the first dynasty of Babylon between
1792 BC and 1758 BC.
The Code of Hammurabi were carved on huge stone slabs and
placed all over the city so that people would know about
them. It was written in the Old Babylonian dialect of
Akkadian. The primary copy of the text was inscribed on a
basalt stele. The stele was rediscovered in 1901 at the site of
Susa in present-day Iran.
Their philosophy of law was “an eye for an eye and a tooth
for a tooth”. Whatever was done to the victim, then the
aggressor would be repaid in a similar fashion.

Rome: The most detailed legal code of any of the civilisations

was that of the Romans. The Roman law code was first drawn
up in 450 BC by the magistrates and was called the Twelve
Tables. All Roman citizens were expected to know the
Twelve Tables, which included laws such as:
 When anyone makes a formal promise or sells property,

then according to law, his promise must be carried out.

 If anyone sings abusive songs about somebody else, he

shall be put to death.

 If anyone breaks somebody else's limb and does not

apologise, then the other man can break the first man's
limb in return.
Whenever people had legal problems, they would ask for an
opinion from the jurists who studied different laws. Their
opinions were written down and collected to form part of the
law.
According to Roman law, people were considered to be
innocent until proven guilty. Lawyers would present their case
to a jury consisting of 32 men, who would decide on the
punishment to be imposed. Over the centuries, many changes
and additions were made to the laws as the Romans extended
their rule to the countries they conquered.

Nature of Law
What is the essence of law is a long-disputed question. There
are two aspects of law. One is based on justice and the other
based on social control.
Justice is a set of universal principles that help people analyse
what is right and what is wrong. Fiat justitia ruat caelum is a
Latin phrase which means, “let justice be done, though the sky
falls.”
Social control refers to mechanisms which regulate individual
and group behaviour. E.A. Ross, the famous sociologist,
believed that it is not the laws that guide human behaviour but
it is the belief systems that guide what individuals do. The
social control mechanisms which control and define human
behaviour can be adopted as laws and norms.

Functions or Purpose of Law

Maintaining Order: Law is meant to establish public order.
Maintaining public order is necessary for a civilized society.
Therefore, the same is reflected in law. Law when it is enforced
provides consistency with the society’s guidelines.
Establishing Standards: Law ensures minimum accepted
behaviour in society. Law will not tolerate certain behaviours
that may damage or injure the person or their property. For
example, it is a crime to injure a person without any sort of
justification. Thus, doing so can constitute a crime of assault.
Resolving Disputes: Disputes are an unavoidable feature in
the society due to the fact that it has been comprised of people
with different wants, needs, values, etc. But law provides a
formal means to solve the disputes through the court system.
Protecting Liberties and Rights: The major function of the
law is to protect various rights and liberties of persons from
unreasonable violations from organizations, persons or
governments. Thus, if someone believes that the freedom of
speech has been prohibited by the government, he may pursue
the remedy by bringing the case in the courts. In India,
fundamental rights can be protected by filing a writ under
Article 32 in the Supreme Court and under Article 226 in the
High Courts.
Effecting Social Change: Law acts as an engine for social
change. In the contemporary society, it is the major
mechanism for effecting social change. The flexibility of law
provides for some measure of discretion in law to make it
adaptable to social conditions. If the law is static and
unalterable, it does not react spontaneously to changes. So, a
degree of flexibility is therefore necessary in law

Informative: Laws provide valuable information to citizens

on various matters, making them more knowledgeable and
intelligent. . .

Conservation of Environment: Law is an effective tool in

the conservation of environment, and in the protection of
forests and wildlife.

Maintaining International Relations: Law is an effective

weapon in ensuring peaceful co-existence between various
countries and maintenance of good international relations by
the countries.

Classification of Law

1. Municipal Law and International Law

Municipal Law is the law of a nation. It is the domestic

law that governs the subjects of the state. This is contrary to
the International Law. Municipal Law regulates the
relationship between the individuals, and the relationship
between this State and the respective individuals. It is
generally regional in nature as it is applied within the territory
of a country.

International Law is a set of rules which is binding among

countries and aims to ensure security and peace among
various nations. It is an independent system of law existing
outside the legal framework of a particular state. International
law has been incorporated into national law by various
countries. The United States has declared that all international
law will be part of the nation’s law.

International Law has been further classified in the following

way.

Customary International Law: These are rules that have been

in force since ancient times between countries such as the law
of the sea.

Treaty Law: These are rules made by treaties between two or

more countries.
Public International Law: These are the rules that govern the
conduct and relations of the state with others.

Private International Law: It contains rules and principles

according to which cases with foreign elements are decided.

2. Public Law and Private Law

Public Law is the part of law that governs the relationship

between legal persons and a government, between different
institutions within a state and between different branches of
governments. The activities of the state are regulated by
Public Law.

It determines and controls the organization and functioning of

the state and also determines the relationship of the state with
its subjects. The term ‘public’ means a state or a sovereign
part of it or a body, or a person holding a delegated authority
under the state.
Private Law is the branch of law that deals with the rights and
duties of private individuals and the relationship between
them. Private Law deals with the rights and obligations of
individuals, families, businesses and small groups and exists
to assist citizens in disputes involving private matters.

Further classification of private law is as follows: –

 Law of the person

 Property law

 Law of liability

 Conflict of laws
 The law of liability is divided into 3 classes: –
 Contracts

 Quasi-contract

 Torts

[Link] PUBLIC LAW PRIVATE LAW

.

1. Public law deals with Private law deals with the rights
issues that affect the and obligations of individuals,
general public or the state families, businesses and small
– society as a whole. groups and exists to assist citizens
in disputes involving private
matters.

2. Public law includes inter- Private law includes participation

relationships between the among private citizens.
state and the general
population.

3. Public law consists of Private law consists of the law of

three subdivisions: obligations and the law of torts.
Constitutional,
administrative and
criminal law.

4. Public law having a larger Private law having more specific

scope. scope.
[Link] PUBLIC LAW PRIVATE LAW
.

3. Civil Law, Criminal Law & Constitutional Law

Civil Law deals with the behaviour that causes injury to an

individual or other private party, such as a corporation.
Examples of Civil Law are defamation, breach of contract,
and negligence which results in injury or death or the damage
of property.

Criminal Law deals with the behaviour that can be

recognized as a crime against the public, society, or the state –
even if the immediate victim is a person. Examples of the
same are murder, assault, theft and drunken driving.
[Link] Civil Law Criminal Law
.

1. Civil law deals with the Criminal law deals with

disputes between individuals, crimes that are committed
organizations, or between the against society. Criminal
two, in which compensation law is the body of law that
is awarded to the victim. deals with crime and the
legal punishment of
criminal offenses.

2. According to civil law, the It serves different degrees

wrongdoer has to pay of punishment for the
compensation to the affected crime committed.
organization or person.

3. Civil law deals with property, Criminal law deals with

money, housing, divorce, serious crimes like murder,
custody of a child in the event rape, arson, robbery,
of a divorce, etc. assault etc.

4. Civil law is initiated by a The government files a

person or organization or also petition in a criminal law
known as the plaintiff. ‘ case.

5. In the case of civil law, there As a matter of criminal

is no punishment like criminal law, the punishment is
law, but the aggrieved party done according to the
receives compensation and the severity of the offense or a
dispute is resolved. fine can be imposed.

6. Criminal law is the body of “Beyond a reasonable

law that deals with crime and doubt”: Burden of proof is
the legal punishment of always on the
criminal offenses. state/government.
Constitutional Law: The term “constitution” is a French term
and refers to the set of fundamental rules and regulations that
govern the functioning of a nation-state or any other
organization. A state’s constitution is the supreme law of the
land and thus requires higher standards of legitimacy and
integrity. It outlines a state’s fundamental principles,
administrative structures, procedures, and fundamental rights
of individuals while defining the directions for a state’s
development.

Constitutional Law is concerned with the interpretation and

implementation of the Constitution and its underlying
principles. It forms the basis for individuals to have access to
particular fundamental rights, inter alia the right to life, the
right to privacy, the freedom to move, and the right to vote. It
lays down procedural conditions that must be met before a
governmental entity can intervene with an individual’s rights,
liberties, or property. Constitutional Law also deals with
subjects such as judicial review, fundamental duties, and the
power to make laws, among other things.

4. Substantive Law and Procedural Law

Substantive Law refers to the body of rules that determine the

rights and obligations of individuals and collective bodies.
Substantive Law takes it origin from common law or from
statutes, or from the constitution of a country. For example, a
claim to recover money for breach of contract or negligence
or fraud would be a common law substantive right.

Procedural Law establishes the legal rules by which

substantive law is created, enforced and applied, especially in
a court of law. Procedural Law refers to the different
 processes through which a case proceeds. Procedural Laws
define the rules with which substantive laws may be enforced.
[Link] Substantive Law Procedural Law
.

1. It establishes the rights, It follows the means and

obligations and duties of methods through which
other persons or persons adequate legislation is enforced.
with the state.

2. It has independent powers to It has no independent authority

decide the fate of each case. to decide the fate of each case.

3. This law cannot be applied This law can be applied in both

in non-legal contexts. legal and non-legal contexts.

4. It does not specifically deal It deals with what is happening

with proceedings inside a inside the court.
court.

5. These laws are regulated by These laws are regulated by

Acts of Parliament or statutory laws.
government implementation.

Legal Systems
A legal system is a procedure or process for interpreting and
enforcing law. Legal systems vary from country to country,
and sometimes within a single country. Although they
develop in different ways, legal systems also have some
similarities based on historically accepted ideals of justice.

Types of Legal System

1. Common Law System

Common law meant judge-made law that filled in gaps when
there was no written law. Judges looked to prior decisions to
determine the unwritten judge-made law and apply it to new
cases. Countries following a common law system are typically
those that were former British colonies or protectorates,
including the United States. India follows common law
system.
Features of a common law system include:
 There is not always a written constitution or codified
laws.

 Judicial decisions are binding. The decisions of the

highest court can be overturned only by that same court
or through legislation. For example, in India, as per
Article 141 of the Constitution, any judgment made by
the Supreme Court of India having the value of precedent
is binding on all lower courts in the court. Such
judgments are called case laws. Such a judgment has the
same force of law passed by the Legislature.

 There is extensive freedom of contract. Few provisions

are implied into the contract by law. Generally,
everything is permitted that is not expressly prohibited
by law.
  A common law system is less prescriptive than a civil
law system.

2. Civil Law System

A civil law system relies on comprehensive legal codes that
contain all laws for the country. Case laws—that is, judicial
decisions—is secondary to these codes. It took its origins
from Roman law. The Civil Law System is also known as
Continental or Romano-Germanic Legal System.
Most of Europe and South America use a civil law system.
Countries following a civil law system are typically those that
were former French, Dutch, German, Spanish or Portuguese
colonies.
Features of a civil law system include:
 There is generally a written constitution based on
specific codes (e.g., civil code, codes covering corporate
law, administrative law, tax law and constitutional law).
Administrative law is however less codified and
administrative court judges tend to behave more like
common law judges.

 These specific codes enshrine basic rights and duties for

people.

 Only legislative enactments are considered binding for

all. There is little scope for judge-made laws in civil,
criminal and commercial courts, although in practice
judges tend to follow previous judicial decision.
  In some civil law systems like the one in Germany,
writings of legal scholars have significant influence on
the courts.

 In Civil Law legal system, there is less freedom in

matters of contract. Many provisions are implied into a
contract by law and parties cannot contract out of certain
provisions.

 A civil law system is generally more prescriptive than a

common law system.

3. Religious or Canon Legal System:

In a religious law system, the law relies on religious texts as

its primary basis, and the courts interpret the present facts and
statutes in light of those religious texts. It emanates from the
sacred texts of religious traditions. In most cases, religious
legal system purports to cover all aspects of life as a seamless
part of devotional obligations to a transcendent, imminent, or
deep philosophical reality, either personal or cosmological.
This legal system is followed by countries like Israel, Iran and
Saudi Arabia.

4. Customary Legal System: It is a set of customs, practices

and beliefs that are accepted as obligatory rules of conduct
by indigenous peoples and local com- munities. Customary
law forms an intrinsic part of their social and economic
systems and way of life. Andorra, a small country in the
Pyrenees bordering Spain and France, relies partly on
customary law. Sources of customary law in Andorra
 include canon law and the ecclesiastical law of the Catholic
Church,

5. Mixed or Hybrid Legal System: A hybrid legal system

combines parts of more than one approach to create a
system unique to the country. Many countries have mixed
legal systems incorporating common, civil, religious, and
customary law systems. In some countries, it combines
common law legal system and civil law legal system.
Usually, common law takes charge of public law, while
civil law governs the private law side. For example, the US
state of Louisiana has a hybrid system. Louisiana uses some
common law, but it also utilizes a civil law system for
much of its state law and procedures because of its origins
as a French territory.

Dharma and Modern Law

Dharma is generally accepted to have been derived and
superseded from the Vedic concept of Rita, which literally
meant, ’the straight line’. Rita refers to the Law of Nature. It
signifies moral laws as it is based on righteousness. When
something is termed Rita, it means that thing is true.
Dharma originated from Vedas which were termed as Sruti
(heard knowledge) . Sruti was the supreme source of
knowledge for humans. It was the narration of what was heard
from the ancient priests. It included narration on everything
possible, ranging from military to politics to common
people’s life.
Another source of knowledge in Dharma was Smriti, which
interpreted Vedas. The four great sages, who propounded the
Dharmasastras, were Manu, Yagnavalkaya, Brihaspati and
Narada. They were also known as Smritikars.

Dharma signified regularity of order which was universally

accepted. It included religion and duty. It was an inseparable
part of a quality or an order, whereas the present-day laws are
based on reason though it includes religious aspects.

Dharma is a duty-based concept. However, the modern law

focuses on rights rather than duties.

Dharma includes in itself morals, ethics and righteous conduct

of a man. But the present legal system recognises conduct or
motive rather than moral or ethical values. Modern law
focuses on the act and the consequences.

Dharma pre-supposes the existence of a supernatural spirit

and binds together everyone by the fear of the same
supernatural power. On the other hand, the modern law is
based on reasonableness and binds through legal sanctions
given by courts (humans).

Law in modern sense is confined to rights and not with

righteous conduct whereas Dharma is all pervasive and
universal. The law pre-supposes man’s idea of what ought to
be and is based on reasonableness.

The concept of the modern-day welfare State was found to

have its roots in Dharma. Various human rights and
fundamental rights which we enjoy today had originated from
Dharma concept. In Rigveda, we can see many such
examples.
 Comparative Law

Comparative Law is a method for studying laws of different

countries. It includes various processes such as analysing the
laws and comparing them on a different basis. It emphasizes
on the legal mechanisms being adopted by countries and
compares them.

Montesquieu is considered as the ‘Father of Comparative

Law’ because of the comparative approach he undertook in
his book De L’esprit des lois.

Comparative law is not a legal text or body of rules. It is more

of a method of comparison. Thus, German and French
lawyers use terms like ‘rechtsver-gleichung’ and ‘droit
compare’. It is not a separate branch of law, but just a method
to analyse different versions of the law. Comparative law is
also a way to build a basic foundation through which laws all
over the world operate.

The adoption of modern Comparative Law seemed to have

taken place for the first time in Rome and England. In 1829,
the term was used by Mittermaier and Zochariae in their first
legal review which was devoted to studying foreign law.
Soon, the Comparative Law entered into the legal system of
Germany. At the foundation event of the College De France in
1832, the concept was introduced in France as well.

Significance of Comparative Law: 1. Comparative helps in

evaluating a better law.

2. It helps students and professional gain significant legal

knowledge.
3. It helps in substantiating the application of the law.

4. The most significant part of comparative law is the

understanding of international law.

[Link] is crucial for understanding trade laws.

[Link] main aspect of comparative law is the unification of

laws at the international level.

7. In case of conflict analysis, it can be used in private

international law.

Question of Fact
The term “material proposition” refers to the “cause of action”
of a case. The “cause of action” is a bundle of essential facts.
A question of fact is resolved by a trier of fact, i.e., a jury or a
judge, after weighing the strength of evidence and credibility
of witnesses. A Question of Fact asks what is true and what is
false. These questions can be answered with a fact that can be
verified.
Question of Law
The issue of law is an issue as to what law on a particular
point is. It is a question whose answer is already prescribed by
some rule of law. Thus, the question as to what is the
reasonable and proper punishment for murder is a question of
law.
Mixed Question of Fact and Law
Some questions may be part of the law and partly of fact. In
partnership cases, questions may arise necessitating the
determination of the: i). the basic relation between the parties
(a question of fact); ii). The question of whether the
relationship so proved constitutes a legal partnership (a
question of law).