Concept of Law and

Sources of Law

Law is a Social ScienceGrows and develops with the growth and

development of societyNew developments in society create new

problems and law is required to deal with those problems

Definitions of LawAustin

Law is the command of the Sovereign. It is enforceable by a sanction

Roscoe PoundLaw is a social institution to satisfy social wants

SalmondLaw is a body of principles recognized and applied

by the State in the administration of justiceMoulton

Law is the crystallized common sense of the community

Purpose of LawMaintenance of law and orderEnables individuals to have the maximum

freedom to assert themselvesMaximum satisfaction of the needs of the

people

Object of lawObject 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

Kinds of LawInternational 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

Municipal Law – Law of the landPublic 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

Public LawConstitutional 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

Private LawPersonal LawsLaw of PropertyLaw of obligation

General Law – Ordinary law of the landSpecial Law – Legal rules which are special

and exceptional in their nature

Kinds of Special LawLocal 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

Elements of StateState is a people organised for law within a

definite territoryPopulation – No State without peopleTerritory – People settling down on some

definite territory constitute a StateGovernment – 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

Functions of the StatePrimary

War and administration of justice (Defence against external enemy and maintenance of law and order within the country)

SecondaryLegislation and Taxation (necessary for the

welfare of the citizens)The relation between State and Law is very

close and intimateThe State manifests itself through law and law

has its importance because it has the sanction of the State

Sources of LawLegislation – 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

LegislationMeans the making of the Law or declaration

of legal rules by competent authoritySupreme legislation proceeds from the

Sovereign power in the StateSubordinate legislation proceeds from any

authority other than the Sovereign powerControl over delegated legislation

Parliamentary controlJudicial controlPublic opinion

CustomUniformity of conduct of all persons under

like circumstancesIt is observed course of conductIt 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

PrecedentJudicial decision to which authority has been attached The reason why a precedent is recognised is that a

judicial decision is presumed to be correctUnder 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

Substantive and Procedural LawsSubstantive 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.

Procedural Laws or Adjective Laws – those which define the pleading and procedure by which substantive laws are applied in practice. Criminal Procedure CodeCivil Procedure Code and Indian Evidence Act

are the examples of Procedural Law