Concept of Law and Sources of Law

1. Concept of Law and Sources of Law

2. Law is a Social Science • Grows and develops with the growth and development of society • New developments in society create new problems and law is required to deal with those problems

3. Definitions of Law • Austin • Law is the command of the Sovereign. • It is enforceable by a sanction • Roscoe Pound • Law is a social institution to satisfy social wants • Salmond • Law is a body of principles recognized and applied by the State in the administration of justice • Moulton • Law is the crystallized common sense of the community

4. Purpose of Law • Maintenance of law and order • Enables individuals to have the maximum freedom to assert themselves • Maximum satisfaction of the needs of the people

5. Object of law • Object of law is justice • Justice operates at two different levels • Distributive justice serves to secure balance among the members of a community • Corrective justice serves to correct the dis-equilibrium created by a wrongful act

6. Kinds of Law • International law – Law of Nations • Public International Law – Body of rules governing the conduct and relations of States with each other • Private International Law – Rules and principles governing cases having foreign element. Applies to individuals and not to States

7. Municipal Law – Law of the land • Public Law – determines and regulates the organisation and functioning of the State and determines the relation of the State with its subjects • Private Law – regulates and governs the relation of citizens with one another

8. Public Law • Constitutional Law – includes all rules which directly or indirectly affect the distribution or exercise of Sovereign power of the State • Administrative Law – determines the organisation, powers and duties of administrative authorities • Criminal Law – defines offences and prescribes punishments for them

9. Private Law • Personal Laws • Law of Property • Law of obligation • General Law – Ordinary law of the land • Special Law – Legal rules which are special and exceptional in their nature

10. Kinds of Special Law • Local Law – Law of a particular locality • Foreign Law – Law of a foreign country • Martial Law – Law applicable to soldiers as well as civilians in times of war or tumult • Military Law – applicable to soldiers alone

11. Elements of State • State is a people organised for law within a definite territory • Population – No State without people • Territory – People settling down on some definite territory constitute a State • Government – It is the machinery through which the administration of a country is carried on. It is outward manifestation of the State • Sovereignty – It is that which is absolute and uncontrolled within its own sphere

12. Functions of the State • Primary • War and administration of justice (Defence against external enemy and maintenance of law and order within the country) • Secondary • Legislation and Taxation (necessary for the welfare of the citizens) • The relation between State and Law is very close and intimate • The State manifests itself through law and law has its importance because it has the sanction of the State

13. Sources of Law • Legislation – Making of law by the formal and express declaration of new rules by some authority in the body politic which is recognised as adequate for that purpose • Precedent - Making of law by the recognition and application of new rules by courts themselves in the administration of justice • Customary Law – Constituted by customs which fulfil the requirements laid down by law as the condition for their recognition as obligatory rules of conduct • Conventional Law - It is that which is constituted by agreement having the force of special law inter partes

14. Legislation • Means the making of the Law or declaration of legal rules by competent authority • Supreme legislation proceeds from the Sovereign power in the State • Subordinate legislation proceeds from any authority other than the Sovereign power • Control over delegated legislation • Parliamentary control • Judicial control • Public opinion

15. Custom • Uniformity of conduct of all persons under like circumstances • It is observed course of conduct • It is a rule which has existed from time immemorial and obtained the force of law in a particular locality • When same thing is done again and again in a particular way, it assumes the form of custom

16. Precedent • Judicial decision to which authority has been attached • The reason why a precedent is recognised is that a judicial decision is presumed to be correct • Under this rule, a principle of law which has become settled by a series of decisions is generally binding on courts and should be followed in similar cases • The doctrine has been recognised by the Constitution of India • Article 141 provides that the law declared by the Supreme Court shall be binding on all courts in India • The Supreme Court is free to depart from its previous decisions if valid reasons exist for doing so

17. Substantive and Procedural Laws • Substantive Laws – those which define rights, duties and liabilities • Substantive Criminal Law is contained in the Indian Penal Code and various Special and Local laws • Substantive Civil Law is contained in Acts like Indian Contract Act, Hindu Marriage Act, Transfer of Property Act etc.

18. Procedural Laws or Adjective Laws – those which define the pleading and procedure by which substantive laws are applied in practice. • Criminal Procedure Code • Civil Procedure Code and • Indian Evidence Act are the examples of Procedural Law