November 22, 2008Sanjay Ranade, Head, DCJ, UoM1 The Law.

November 22, 2008 Sanjay Ranade, Head, DCJ, UoM 1

The LawThe Law


What do you think the term ‘law’ What do you think the term ‘law’ means?means?

A very important legal skill is being A very important legal skill is being able to define concepts and topics.able to define concepts and topics.

Draw up a list of different examples Draw up a list of different examples or types of law and then reflect on or types of law and then reflect on that list and see if you can come up that list and see if you can come up with a definition of ‘law’.with a definition of ‘law’.


‘‘Law’ and its synonymsLaw’ and its synonyms LawLaw implies imposition by a sovereign authority implies imposition by a sovereign authority

and the obligation of obedience on the part of all and the obligation of obedience on the part of all subject to that authority.subject to that authority.

Regulation Regulation implies prescription by authority in implies prescription by authority in order to control an organization or system.order to control an organization or system.

PreceptPrecept commonly suggests something advisory commonly suggests something advisory and not obligatory communicated typically and not obligatory communicated typically through teaching.through teaching.

StatuteStatute implies a law enacted by a legislative implies a law enacted by a legislative body.body.

Ordinance applies to an order governing some Ordinance applies to an order governing some detail of procedure or conduct enforced by a detail of procedure or conduct enforced by a limited authority such as a municipality.limited authority such as a municipality.

CanonCanon suggests in nonreligious use a principle or suggests in nonreligious use a principle or rule of behavior or procedure commonly accepted rule of behavior or procedure commonly accepted as a valid guide.as a valid guide.


The ‘Law’ in IndiaThe ‘Law’ in India

The system of authoritative materials The system of authoritative materials for grounding or guiding judicial and for grounding or guiding judicial and administrative action recognised or administrative action recognised or established in a politically organised established in a politically organised society. society.

[Sec 2(b), Scheduled Areas [Sec 2(b), Scheduled Areas (Assimilation of Laws) Act (16 of (Assimilation of Laws) Act (16 of 1953) and Art 13(3)(a), Constitution1953) and Art 13(3)(a), Constitution


‘‘Law’ includes any ordinance, order, Law’ includes any ordinance, order, bye-law, rule, regulation, notification, bye-law, rule, regulation, notification, custom or usage having in the custom or usage having in the territory of India the force of law. territory of India the force of law. [Constitution of India Art 13(3)(a)[Constitution of India Art 13(3)(a)


‘‘Law’ is a rule prescribed by society for the Law’ is a rule prescribed by society for the government of human conduct; a rule of government of human conduct; a rule of action or of civil conduct prescribed by action or of civil conduct prescribed by competent authority, by the law making competent authority, by the law making power of the state, by the proper law-making power of the state, by the proper law-making authority, by the supreme authority for the authority, by the supreme authority for the government of human action, by the government of human action, by the sovereign power, an established or sovereign power, an established or permanent rule, established by the supreme permanent rule, established by the supreme power or the power having the legislative power or the power having the legislative control of the particular subject; an act, control of the particular subject; an act, enactment, ordinance, or statute prescribed enactment, ordinance, or statute prescribed by the legislative power; the declared will of by the legislative power; the declared will of the legislature; a rule ordained and made the legislature; a rule ordained and made known by the legislature, for the government known by the legislature, for the government of the people in the state, which they are of the people in the state, which they are bound to obey. bound to obey.


Circulars issued by the Union of India Circulars issued by the Union of India relating to payment of service charges to relating to payment of service charges to local bodies in respect of Central local bodies in respect of Central Government properties are not mere Government properties are not mere administrative instructions but are administrative instructions but are executive orders having the force of law. executive orders having the force of law.

[Food Corporation of India v/s Alleply [Food Corporation of India v/s Alleply Municipality, AIR 1996, Kerala 241, 255.] Municipality, AIR 1996, Kerala 241, 255.]

[Constitution of India Article 73 (a)][Constitution of India Article 73 (a)]


An agreement of the Ruler expressed in the shape An agreement of the Ruler expressed in the shape of a contract cannot be regarded as a law. A law of a contract cannot be regarded as a law. A law must follow the customary forms of laws making must follow the customary forms of laws making and must be expressed as a binding rule of and must be expressed as a binding rule of conduct. It is not every indication of the will of the conduct. It is not every indication of the will of the Ruler, however expressed, which amounts to a law. Ruler, however expressed, which amounts to a law. An indication of the will meant to bind as a rule of An indication of the will meant to bind as a rule of conduct and enacted with some formality either conduct and enacted with some formality either traditionally or specially devised for the occasion, traditionally or specially devised for the occasion, results in a law but not an agreement to which results in a law but not an agreement to which there are two parties, one of which is the Ruler.there are two parties, one of which is the Ruler.

[Bengal Nagpur Cotton Mills Ltd v/s Board of [Bengal Nagpur Cotton Mills Ltd v/s Board of Revenue, AIR 1964 SC 888, 891]Revenue, AIR 1964 SC 888, 891]


If the word ‘law’ includes not only If the word ‘law’ includes not only enacted statute but also common enacted statute but also common law, it would also include industrial law, it would also include industrial law as it has been evolved by law as it has been evolved by industrial decisions.industrial decisions.

[Provincial Transport Services v/s State [Provincial Transport Services v/s State Industrial Court, AIR 1963 SC 114, Industrial Court, AIR 1963 SC 114, 117]117]


A law generally is a body of rules which A law generally is a body of rules which have been laid down for determining have been laid down for determining legal rights and legal obligations which legal rights and legal obligations which are recognised by Courts. Law in the are recognised by Courts. Law in the case of an absolute monarch is his case of an absolute monarch is his command which has to be obeyed by the command which has to be obeyed by the citizens whether they agree with or not.citizens whether they agree with or not.

[Raj Kumar Nursing Pratap Singh Deo v/s [Raj Kumar Nursing Pratap Singh Deo v/s State of Orissa, AIR 1964 SC 1793, 1797]State of Orissa, AIR 1964 SC 1793, 1797]


A mere executive order cannot A mere executive order cannot possibly come under ‘existing law’ or possibly come under ‘existing law’ or ‘law in force’ as defined in the ‘law in force’ as defined in the Constitution, Art 13 (1).Constitution, Art 13 (1).

[K.O. John v/s State, AIR 1956 TC [K.O. John v/s State, AIR 1956 TC 117,118]117,118]


A notification or an executive A notification or an executive direction issued by the State direction issued by the State government against the provisions of government against the provisions of the statute will come within the the statute will come within the definition of the expression ‘law’ definition of the expression ‘law’ referred to in Article 13 of the referred to in Article 13 of the Constitution. Constitution.

[AIR 1958 SC 538][AIR 1958 SC 538]


Law does not include constitutional Law does not include constitutional amendment.amendment.

[His Holiness Kesavananda Bharati [His Holiness Kesavananda Bharati Sripandagalvan v/s State of Kerala, Sripandagalvan v/s State of Kerala, AIR 1973 SC 1461, 1648]AIR 1973 SC 1461, 1648]


The word ‘law’ is used in the The word ‘law’ is used in the expression ‘equality before law’ in a expression ‘equality before law’ in a generic sense – a philosophical sense- generic sense – a philosophical sense- whereas in the expressions ‘the equal whereas in the expressions ‘the equal protection of laws’ it is used denoting protection of laws’ it is used denoting specific laws in force.specific laws in force.

[Sri Srinivasa Theatre v/s Government of [Sri Srinivasa Theatre v/s Government of Tamil Nadu, AIR 1992, SC 999, 1004.]Tamil Nadu, AIR 1992, SC 999, 1004.]

[Constitution of India, Article 14][Constitution of India, Article 14]


A law existing at the time when the A law existing at the time when the Constitution came into effect would Constitution came into effect would be a ‘law’.be a ‘law’.

[State v/s Banwari, AIR 1951 All 615.[State v/s Banwari, AIR 1951 All 615.

[Article 17, Constitution of India][Article 17, Constitution of India]


The ‘law’ means a law passed by a The ‘law’ means a law passed by a competent legislature in regard to competent legislature in regard to the administration of the property the administration of the property belonging to the denomination.belonging to the denomination.

[Constitution of India, Article 26(d)][Constitution of India, Article 26(d)]


The expression ‘law’ embraces within The expression ‘law’ embraces within is ambit statutory rules.is ambit statutory rules.

[Constitution of India, Article 226(3), [Constitution of India, Article 226(3), (as substituted by 42(as substituted by 42ndnd Amendment Amendment Act); 13(2) and Article 309.]Act); 13(2) and Article 309.]


The expression ‘Law’ includes the Act The expression ‘Law’ includes the Act of Legislature, as also the rules of Legislature, as also the rules validly made thereunder. validly made thereunder.

[H.G.E. Corporation v/s Superintendent [H.G.E. Corporation v/s Superintendent of Orissa Excise, AIR 1966 Pat 248, of Orissa Excise, AIR 1966 Pat 248, 252. Constitution of India Art 265]252. Constitution of India Art 265]


‘‘Law’ means any law enacted either by Law’ means any law enacted either by legislature itself or by its delegate, and legislature itself or by its delegate, and the notification issued by the U.P. the notification issued by the U.P. Government being in the exercise of Government being in the exercise of the legislative power, is law.the legislative power, is law.

[Video Electronical (P) Ltd v/s State of [Video Electronical (P) Ltd v/s State of Punjab, AIR 1990. SC 820, 835. Punjab, AIR 1990. SC 820, 835. Constitution of India, Articles 304, 366]Constitution of India, Articles 304, 366]


By the publication of an order in the By the publication of an order in the Gazette of India, it is to be treated as Gazette of India, it is to be treated as law made under Article 327. law made under Article 327.

[Meghraj v/s Delimitation Commission, [Meghraj v/s Delimitation Commission, AIR 1967 SC 669, 674. Constitution AIR 1967 SC 669, 674. Constitution of India, Article 327]of India, Article 327]


The term ‘law’ is not limited to legislative The term ‘law’ is not limited to legislative enactments. All forms of delegated enactments. All forms of delegated legislation and conditional legislation legislation and conditional legislation amount to law. All orders and notification amount to law. All orders and notification made and issued under statutory powers made and issued under statutory powers and which are legislative in nature amount and which are legislative in nature amount of law.of law.

[State of M.P. v/s Ramachandran, AIR 1977 [State of M.P. v/s Ramachandran, AIR 1977 MP 68, 73 (FB). Indian Evidence Act (1 of MP 68, 73 (FB). Indian Evidence Act (1 of 1872) sections 57 and 78.]1872) sections 57 and 78.]


The term ‘law’ thus is very difficult to The term ‘law’ thus is very difficult to define because it is used to mean define because it is used to mean different things in different contexts. different things in different contexts. A comprehensive definition is A comprehensive definition is therefore hard to provide as it would therefore hard to provide as it would have to be very wide.have to be very wide.


The majority of people use the term The majority of people use the term ‘law’ to describe criminal law. This ‘law’ to describe criminal law. This may be because of the media may be because of the media coverage given to crimes, such as coverage given to crimes, such as assault, murder, riot etc.assault, murder, riot etc.

Some people use the word ‘law’ to Some people use the word ‘law’ to describe the institutions of the legal describe the institutions of the legal system, such as the courts, the system, such as the courts, the police, the prisons and so on.police, the prisons and so on.


Some people associate ‘law’ with the Some people associate ‘law’ with the rules regulating our relationships rules regulating our relationships with others. Every time we purchase with others. Every time we purchase goods or pay for a service (like a goods or pay for a service (like a haircut) we are entering into a haircut) we are entering into a contract and contracts are regulated contract and contracts are regulated by the law. by the law.


Some others would think of the Some others would think of the processes of law, its rules and processes of law, its rules and procedures, such as the steps that procedures, such as the steps that have to be followed when beginning have to be followed when beginning a legal action. a legal action.

Alternatively, the word law may be Alternatively, the word law may be used to describe the rules laid down used to describe the rules laid down by Parliament and/or the courts that by Parliament and/or the courts that govern our behaviour and thus refers govern our behaviour and thus refers to the sources of the law.to the sources of the law.


So? So? Which of these options is right?Which of these options is right?


The one common way of The one common way of understanding the term ‘law’ is that understanding the term ‘law’ is that it is often defined in terms of RULES.it is often defined in terms of RULES.


We are aware of many rules which people observe in their daily lives which regulate the way that they behave and yet these are not necessarily referred to as law.

Many people also live according to moral rules and abide by religious codes and yet these are not laws either.


So when is a rule regarded as part of the law?


Rules are regarded as law when they originate from one of the recognised law-making institutions.

But that is not the whole story, for where does the system of law and its

processes fit into the picture?


One way of defining the law so as to take account of all three aspects mentioned above, i.e. the rules of law, the legal system and its processes is to say that law is

a) a body of the rules of conduct b) formally recognised as binding or

enforced c) by a controlling body.


This definition is useful as a brief and simple way of explaining the concept of law. We could, however, say that the law is simply a way of regulating behaviour. It tells us

a) what must be done, b) what may be done and c) what cannot be done.


So which of the following statements are true and which are false?

There is no difference between moral rules and legal rules. TRUE/FALSE.

Procedural rules, for example, how to begin a breach of contract action in court, are not part of law. TRUE/FALSE.

The concept of law is not the same as the concept of justice. TRUE/FALSE.

Law is an instrument of social control. TRUE/FALSE.


Although many of the rules which we regard as laws are based on moral codes (for example, people must not commit murder), not every moral rule is part of the law of this country.

For example, envy, though forbidden by moral codes, is not forbidden by law. Therefore the first statement in the exercise above is false, as law and morality are not the same, although they may overlap.


There is a great deal more to law than this, however, and the law also comprises many procedural rules which must be followed in order for legal issues to be dealt with by the courts.

The second statement in the question above is therefore false, as these procedural rules are also part of the law.


When legal issues are considered by the courts, or when Parliament creates law, one of the aims of those involved in the process is to do justice between people who are affected by the law.

Sadly, we know that this aim is not always achieved and therefore it has to be said that law and justice do not always coincide, so the third statement above is true.


You should by now have a good idea of what law is and what it is not and you should also have a good working definition of the law, a suggestion of which appears in the final statement in the exercise above. This statement is true.


You might wish to reflect on the following definition given

by Glanville Williams in his book Learning the Law:

‘law is the cement of society and an essential medium of change’.

(12th edn, London: Sweet and Maxwell, 2002, p 2).


Lawyers’ definition of law

A clear and straightforward one is provided by Sir John Salmond in his book Jurisprudence:

‘. . . the body of principles recognised and applied by the courts in the administration of justice.’

‘In other words the law consists of the rules recognised and acted on by the courts of justice.’


So, when we study ‘the law’ we are not talking merely about any body of rules that has some type of organisation and some type of structure.


Hopefully, the law is both organised and structured but what we are specifically looking for is law that can be enforced in a system of courts.


The character of a legal system

There are many different legal systems in the world.

Whatever legal system we study there are common characteristics. Understanding what all legal systems share as common characteristics goes a long way towards helping us understand what it is we are studying and in recognising what may be expected from a particular branch of the law.


Professor Hart in The concept of law identifies five things which he

suggests that all legal systemsmust include:


Rules forbidding certain behaviour on forfeit of some form of penalty or

sanction for noncompliance.


Rules that make people compensate other people that they

have wronged for the damage caused

by the wrong


Rules that regulate the conduct of and that enforce agreements, arrangements

and relationshipsbetween individuals.

These could be contracts or wills or even involve the rights and dutieswithin a marriage – and in a more

modern context it could involve the regulation of businesses.


There must be a system of courts in which to enforce all of the above

rights and obligations.


There must also be a legislature of some form to make new laws to fit

new situations and alsoto get rid of or repeal outdated laws


Hart called this body of rules to regulate conduct the ‘primary rules’. He also recognised that on their own these rules are insufficient for a system of law to work effectively.

There must also be ‘secondary rules’:


Rules of recognition

We have identified a number of separate branches of law above; crime, tort, contract, succession, matrimonial, company – each individual body of rules must have a character allowing it to be distinguished from any other body of rules.


Rules of change

We have recognised the need above for Parliament to change the law to be relevant but there must, therefore, be superior systems of conduct which will authorise alteration of the rules to accommodate social and economic changes in society but which themselves operate according to law.


Rules of adjudication

The courts are identified as the place where disputes are heard but they also must have rules regulating the methods by which those disputes are resolved, otherwise the law would be administered in an arbitrary way and may be seen as unfair.


Hart’s perspectives and arguments Hart’s perspectives and arguments on lawon law


H.L.A. Hart’s H.L.A. Hart’s The Concept of LawThe Concept of Law

Herbert Lionel Adolphus Hart (1907-92) Herbert Lionel Adolphus Hart (1907-92) was a British philosopher who was was a British philosopher who was professor of jurisprudence at the professor of jurisprudence at the University of Oxford. His most University of Oxford. His most important writings included important writings included Causation Causation in the Lawin the Law (1959, with A.M. Honoré), (1959, with A.M. Honoré), The Concept of LawThe Concept of Law (1961), (1961), Law, Law, Liberty and MoralityLiberty and Morality (1963), (1963), Of Laws in Of Laws in GeneralGeneral (1970), and (1970), and Essays on Essays on BenthamBentham (1982). (1982).


The Concept of LawThe Concept of Law (1961) is an (1961) is an analysis of the relation between law, analysis of the relation between law, coercion, and morality, and it is an coercion, and morality, and it is an attempt to clarify the question of attempt to clarify the question of whether all laws may be properly whether all laws may be properly conceptualized as coercive orders or conceptualized as coercive orders or as moral commands. as moral commands.


Hart says that there is no logically necessary Hart says that there is no logically necessary connection between law and coercion or connection between law and coercion or between law and morality. between law and morality.

He explains that to classify all laws as coercive He explains that to classify all laws as coercive orders or as moral commands is to orders or as moral commands is to oversimplify the relation between law, oversimplify the relation between law, coercion, and morality. coercion, and morality.

He also explains that to conceptualize all laws He also explains that to conceptualize all laws as coercive orders or as moral commands is to as coercive orders or as moral commands is to impose a misleading appearance of uniformity impose a misleading appearance of uniformity on different kinds of laws and on different on different kinds of laws and on different kinds of social functions which laws may kinds of social functions which laws may perform. perform.


Laws are rules that may forbid individuals to Laws are rules that may forbid individuals to perform various kinds of actions or that may perform various kinds of actions or that may impose various obligations on individuals. impose various obligations on individuals.

Laws may require individuals to undergo Laws may require individuals to undergo punishment for injuring other individuals. punishment for injuring other individuals.

They may also specify how contracts are to be They may also specify how contracts are to be arranged and how official documents are to be arranged and how official documents are to be created. created.

They may also specify how legislatures are to be They may also specify how legislatures are to be assembled and how courts are to function. assembled and how courts are to function.

They may specify how new laws are to be enacted They may specify how new laws are to be enacted and how old laws are to be changed. and how old laws are to be changed.

They may exert coercive power over individuals by They may exert coercive power over individuals by imposing penalties on those individuals who do not imposing penalties on those individuals who do not comply with various kinds of duties or obligations. comply with various kinds of duties or obligations.


John Austin in John Austin in The Province of The Province of Jurisprudence DeterminedJurisprudence Determined (1832) (1832) proposed that all laws are commands proposed that all laws are commands of a legally unlimited sovereign. of a legally unlimited sovereign.

Austin claimed that all laws are Austin claimed that all laws are coercive orders that impose duties or coercive orders that impose duties or obligations on individuals. obligations on individuals.


Hart says, however, that laws may Hart says, however, that laws may differ from the commands of a differ from the commands of a sovereign, because they may apply sovereign, because they may apply to those individuals who enact them to those individuals who enact them and not merely to other individuals. and not merely to other individuals.


Laws that impose duties or Laws that impose duties or obligations on individuals are obligations on individuals are described by Hart as "primary rules described by Hart as "primary rules of obligation." of obligation."

In order for a system of primary rules In order for a system of primary rules to function effectively, "secondary to function effectively, "secondary rules" may also be necessary in rules" may also be necessary in order to provide an authoritative order to provide an authoritative statement of all the primary rules. statement of all the primary rules.


In order for the primary rules of a legal In order for the primary rules of a legal system to function effectively, the rules system to function effectively, the rules must be sufficiently clear and must be sufficiently clear and intelligible to be understood by those intelligible to be understood by those individuals to whom they apply. individuals to whom they apply.

If the primary rules are not sufficiently If the primary rules are not sufficiently clear or intelligible, then there may be clear or intelligible, then there may be uncertainty about the obligations which uncertainty about the obligations which have been imposed on individuals. have been imposed on individuals.


Vagueness or ambiguity in the secondary Vagueness or ambiguity in the secondary rules of a legal system may also cause rules of a legal system may also cause uncertainty as to whether powers have uncertainty as to whether powers have been conferred on individuals in been conferred on individuals in accordance with statutory requirements or accordance with statutory requirements or may cause uncertainty as to whether may cause uncertainty as to whether legislators have the authority to change legislators have the authority to change laws. laws.

Vagueness or ambiguity in the secondary Vagueness or ambiguity in the secondary rules of a legal system may also cause rules of a legal system may also cause uncertainty as to whether courts have uncertainty as to whether courts have jurisdiction over disputes concerning the jurisdiction over disputes concerning the interpretation and application of laws. interpretation and application of laws.


Hart distinguishes between the Hart distinguishes between the "external" and "internal" points of "external" and "internal" points of view with respect to how the rules of view with respect to how the rules of a legal system may be described or a legal system may be described or evaluated. evaluated.


The external point of view is that of The external point of view is that of an observer who does not necessarily an observer who does not necessarily have to accept the rules of the legal have to accept the rules of the legal system. system.

The external observer may be able to The external observer may be able to evaluate the extent to which the rules evaluate the extent to which the rules of the legal system produce a regular of the legal system produce a regular pattern of conduct on the part of pattern of conduct on the part of individuals to whom the rules apply. individuals to whom the rules apply.


The internal point of view, on the The internal point of view, on the other hand, is that of individuals who other hand, is that of individuals who are governed by the rules of the are governed by the rules of the legal system and who accept these legal system and who accept these rules as standards of conduct. rules as standards of conduct.


The "external" aspect of rules may The "external" aspect of rules may be evident in the regular pattern of be evident in the regular pattern of conduct which may occur among a conduct which may occur among a group of individuals. group of individuals.

The "internal" aspect of rules The "internal" aspect of rules distinguishes rules from habits, in distinguishes rules from habits, in that habits may be viewed as regular that habits may be viewed as regular patterns of conduct but are not patterns of conduct but are not usually viewed as standards of usually viewed as standards of conduct. conduct.


The external aspect of rules may in The external aspect of rules may in some cases enable us to predict the some cases enable us to predict the conduct of individuals, but we may conduct of individuals, but we may have to consider the 'internal' aspect have to consider the 'internal' aspect of rules in order to interpret or of rules in order to interpret or explain the conduct of individuals. explain the conduct of individuals.


Hart argues that the foundations of a Hart argues that the foundations of a legal system do not consist, as Austin legal system do not consist, as Austin claims, of habits of obedience to a claims, of habits of obedience to a legally unlimited sovereign, but legally unlimited sovereign, but instead consist of adherence to, or instead consist of adherence to, or acceptance of, an ultimate rule of acceptance of, an ultimate rule of recognition by which the validity of recognition by which the validity of any primary or secondary rule may any primary or secondary rule may be evaluated.be evaluated.


If a primary or secondary rule If a primary or secondary rule satisfies the criteria which are satisfies the criteria which are provided by the ultimate rule of provided by the ultimate rule of

recognition, then that rule is legally recognition, then that rule is legally valid. valid.


There are two minimum There are two minimum requirements which must be requirements which must be satisfied in order for a legal system satisfied in order for a legal system to exist: to exist:

1)1) private citizens must generally obey private citizens must generally obey the primary rules of obligation, and the primary rules of obligation, and

2)2) public officials must accept the public officials must accept the secondary rules of recognition, secondary rules of recognition, change, and adjudication as change, and adjudication as standards of official conduct. standards of official conduct.


If both of these requirements are If both of these requirements are not satisfied, then primary rules not satisfied, then primary rules

may only be sufficient to may only be sufficient to establish a pre-legal form of establish a pre-legal form of

government. government.


Moral and legal rules may overlap, Moral and legal rules may overlap, because moral and legal obligation may be because moral and legal obligation may be similar in some situations. similar in some situations.

However, moral and legal obligation may However, moral and legal obligation may also differ in some situations. also differ in some situations.

Moral and legal rules may apply to similar Moral and legal rules may apply to similar aspects of conduct, such as the obligation aspects of conduct, such as the obligation to be honest and truthful or the obligation to be honest and truthful or the obligation to respect the rights of other individuals. to respect the rights of other individuals.

However, moral rules cannot always be However, moral rules cannot always be changed in the same way that legal rules changed in the same way that legal rules can be changed. can be changed.


According to Hart, there is no According to Hart, there is no necessary logical connection necessary logical connection between the content of law and between the content of law and morality, and that the existence of morality, and that the existence of legal rights and duties may be legal rights and duties may be devoid of any moral justification. devoid of any moral justification.


Hart’s interpretation of the relation between Hart’s interpretation of the relation between law and morality differs from that of Ronald law and morality differs from that of Ronald Dworkin, who in Dworkin, who in Law’s EmpireLaw’s Empire suggests that suggests that every legal action has a moral dimension. every legal action has a moral dimension.

Dworkin rejects the concept of law as Dworkin rejects the concept of law as acceptance of conventional patterns of acceptance of conventional patterns of recognition, and describes law not merely recognition, and describes law not merely as a descriptive concept but as an as a descriptive concept but as an interpretive concept which combines interpretive concept which combines jurisprudence and adjudication. jurisprudence and adjudication.


Hart defines legal positivism as the Hart defines legal positivism as the theory that there is no logically theory that there is no logically necessary connection between law and necessary connection between law and morality. However, he describes his own morality. However, he describes his own viewpoint as a "soft positivism," viewpoint as a "soft positivism," because he admits that rules of because he admits that rules of recognition may consider the recognition may consider the compatibility or incompatibility of a rule compatibility or incompatibility of a rule with moral values as a criterion of the with moral values as a criterion of the rule’s legal validity. rule’s legal validity.


International law is described by Hart as International law is described by Hart as problematic, because it may not have all of problematic, because it may not have all of the elements of a fully-developed legal the elements of a fully-developed legal system. system.

International law may in some cases lack International law may in some cases lack secondary rules of recognition, change, and secondary rules of recognition, change, and adjudication. International legislatures may adjudication. International legislatures may not always have the power to enforce not always have the power to enforce sanctions against nations who disobey sanctions against nations who disobey international law. international law.

International courts may not always have International courts may not always have jurisdiction over legal disputes between jurisdiction over legal disputes between nations. International law may be disregarded nations. International law may be disregarded by some nations who may not face any by some nations who may not face any significant pressure to comply. Nations who significant pressure to comply. Nations who comply with international law must still be comply with international law must still be able to exercise their sovereignty. able to exercise their sovereignty.


There appear to be two main types of legal system.


One is based on what we sometimes refer to as ‘Roman Law’.

The other system, the one that we are used to in India, is known as a ‘common law’ system.

The English legal system is the most well-known common law system and many other countries including India

have followed it.


Roman law developed during the era of the Roman Empire and the many conquests made during that period. Because of the extent of the empire this type of law influenced a wide area that came under Roman rule. Examples would be found throughout western and southern Europe and indeed in North Africa. Interestingly, Britain was also under Roman rule for many centuries but still developed its own very particular type of legal system at a later stage.


The common law of England is usually traced back to the Norman Conquest and King William I. However, much of the law that developed during that period can also be traced back into Saxon society. The significant difference was that, even though the Norman and Angevin Kings adopted much of the existing local law and custom following the conquest, the nature of their rule meant that it became the law that was ‘common’ to the whole of Britain. Previously the country was made up of many separate kingdoms and so local laws might differ. Because Britain was over a number of centuries a colonial power and there was a British Empire, the common law of England was also the law that was used in the various countries of the Empire during British rule.


As a result, following independence, many of these countries have retained a common law system.

These are identifiable today as the Commonwealth countries, such as Australia, Canada, India, and many African or Caribbean countries. It also includes the USA.


The basic difference between Roman and common law legal systems can be identified as

follows:


• Roman law is codified: Codes tend to be written in very

broad terms and it is then the role of the judges to interpret these broad terms in specific situations

Many modern countries have adopted a codified law following changes to their constitutions, for instance following a revolution as in France.


English common law, on the other hand, has developed over a long period of time:

It is at least in part based on precedents that emerge from an accumulation of case decisions and so the law is based on real situations and has been built up principle by principle

In more recent times parliamentary law, through Acts and delegated legislation, has become more important.


The English common law is said to have had an uninterrupted and continuous growth from the time of the Norman Conquest in the eleventh century.

Some codified systems, on the other hand are relatively recent – France, for instance, had a revolution as recently as 1789 and French law develops from that point.

The English legal system is preoccupied with rules of procedure. In other systems the broad spirit of the law may be more important.


The English legal system depends mainly on an adversarial resolution of disputes:

This means that most law is settled in a form of contest between two parties claiming different or competing rights

This is true of criminal law and in most instances it is also true of civil law, although there are processes such as arbitration, conciliation and mediation now available.


Continental systems of law, however, are often more inquisitorial in character:

Instead of the judge acting as a sort of referee between the parties in dispute he will intervene and ask his own questions and will often try to find a compromise position.


The various classifications of law

In order to study the law in more detail you need to be able to appreciate how it can be broken up into a number of different component parts. One method of dividing the law into different categories is to classify it as substantive law or as adjectival law.


Substantive law

Substantive law is the term which is used to refer to the rules which govern our rights and duties under the law, for example, the cases and statutes which create criminal offences, or the cases and statutes which define contractual obligations.


Adjectival law

Adjectival law prescribes how those substantive rules can be used within the legal system, for examples the rules of evidence, procedure and costs which are to be observed when bringing a case to court.


An alternative way of classifying the law is by reference to its subject matter. From the point of view of lawyers and those involved in the legal system, this is the most useful way of dividing the law into categories.


The broadest distinction which can be drawn is between international

law and domestic law.


International law is concerned with the external relationships between different States and is based on treaties and conventions. A good example here is the Treaty on European Union (also known as the Maastricht Treaty).


Domestic law comprises the laws of a particular State, that is the cases or statute law which govern relationships within that country and can be divided into public law and private law.


Public law cases are those cases in which one of the parties to the dispute is the Government of India or the State Governments, usually acting through a government department.

Public law can be further sub-divided broadly into the areas of criminal law and civil law.

PUBLIC LAWPUBLIC LAW


Public law is that body of laws which Public law is that body of laws which deals with the relations between deals with the relations between private individuals and the private individuals and the Government; the laws affecting the Government; the laws affecting the general public.general public.


Criminal LawCriminal Law

Criminal Law is that part of Public Criminal Law is that part of Public Law which deals with the definition, Law which deals with the definition, and punishment of crime and with and punishment of crime and with the procedure for the trial of persons the procedure for the trial of persons suspected or accused of crime; that suspected or accused of crime; that branch or division of law which branch or division of law which defines crimes, treats of their nature, defines crimes, treats of their nature, and provides for their punishment. and provides for their punishment.


Criminal law is concerned with conduct of which society disapproves so strongly that the State must punish the wrongdoer; for example, murder, theft and driving offences.

The major objective of criminal proceedings is to punish the

perpetrator of the crime, not to compensate the victim.


The term “criminal law” is sufficiently The term “criminal law” is sufficiently comprehensive to cover all of that branch comprehensive to cover all of that branch of jurisprudence which deals in any way of jurisprudence which deals in any way with crimes and punishments.with crimes and punishments.

The Public Prosecutor, acting on behalf of the Government, prosecutes the accused, who will be found guilty of the offence charged if the prosecutor can convince the court beyond reasonable doubt that the accused did commit that offence.


Civil LawCivil Law

Public civil law cases, by contrast, are concerned with problems in constitutional and administrative law. For example, these cases may challenge the legality of actions carried out by central or local government, or may bring test cases on individual freedoms which have been infringed by the government, such as telephone tapping.


Private Law

This involves civil law and is concerned with the rights and duties which private individuals have in relation to each other. There are many different categories of civil law, for example the law of contract, the law of torts (wrongs such as negligence or slander) and the law of property.


The major objective of an action which involves private civil law is to compensate the person who has suffered the wrong, usually by payment of money (damages).

A civil action is commenced by the victim, that is, the claimant, who sues the defendant in order to obtain a remedy. The claimant must prove his or her case on a balance of probabilities, in other words it must be more likely than not that the defendant harmed the claimant in the manner alleged.


To put it simplyTo put it simply

SUBSTANTIVE LAWSUBSTANTIVE LAW ADJECTIVAL LAWADJECTIVAL LAW

This term refers to This term refers to the actual areas of the actual areas of law and represents law and represents different groups of different groups of rights and obligations rights and obligations as we have seen as we have seen above – so it could above – so it could refer to contract law, refer to contract law, tort, matrimonial law, tort, matrimonial law, succession, company succession, company law, property law etclaw, property law etc

This term refers to This term refers to the rules of evidence the rules of evidence and procedure – and procedure – these determine how these determine how the case is conducted the case is conducted – in English law they – in English law they originated from the originated from the medieval write medieval write system but have system but have undergone many undergone many changeschanges


PUBLIC LAWPUBLIC LAW PRIVATE LAWPRIVATE LAW

This term refers to This term refers to the law governing the the law governing the relationship between relationship between individuals and the individuals and the State – usually two State – usually two types of law are types of law are included in this included in this definition: criminal definition: criminal law and constitutional law and constitutional and administrative and administrative lawlaw

This term refers to This term refers to the law governing the the law governing the relationship between relationship between individuals and individuals and includes many of the includes many of the areas already areas already identified under identified under substantive lawsubstantive law


CRIMINAL LAWCRIMINAL LAW CIVIL LAWCIVIL LAW

This term concerns This term concerns the rules of law the rules of law concerning behaviour concerning behaviour that the state that the state proscribes against proscribes against and will punishand will punish

This refers to the This refers to the rules of law rules of law concerning the concerning the settlement of settlement of disputes between disputes between parties which may be parties which may be individuals but may individuals but may include businesses include businesses and other corporate and other corporate bodiesbodies


The last two, criminal law and civil law, need to be distinguished

because there are manydifferences in the way that the law

is administered and even in the language used when either type

is in question. The main distinctions are classified thus:



InvolvesInvolves Offences Offences against the against the State – State – behaviour which behaviour which is classed as is classed as unacceptable. unacceptable.

Disputes Disputes between between individuals.individuals.



Purpose Purpose of the of the actionaction

To preserve To preserve order in the order in the community and community and to deter to deter unacceptable unacceptable behaviour by behaviour by punishing punishing offenders.offenders.

To regulate To regulate relationships relationships between between individuals, to individuals, to allow individuals allow individuals to organise their to organise their affairs, to affairs, to remedy the remedy the wrongs suffered wrongs suffered by individualsby individuals



Parties to Parties to the the ActionAction

A prosecutor A prosecutor (who prosecutes (who prosecutes the offence) and the offence) and the the defendant(s) defendant(s) (who answers (who answers the charges).the charges).

A claimant (who A claimant (who sues in respect sues in respect of the damage of the damage suffered) and a suffered) and a defendant (who defendant (who answers the answers the claim).claim).



Burden Burden of proof of proof and and standard standard of proofof proof

The prosecutor The prosecutor must prove the must prove the case beyond a case beyond a reasonable reasonable doubt. There is doubt. There is no strict no strict obligation on obligation on the defendant the defendant to proves his or to proves his or her innocence.her innocence.

The claimant The claimant must prove his must prove his or her claim on or her claim on a balance of a balance of probabilities.probabilities.



ResolutioResolution of the n of the Action Action

The defendant The defendant may be may be convicted, it convicted, it found to be found to be guilty of the guilty of the offence, or offence, or acquitted, if acquitted, if found to be not found to be not guilty.guilty.

A defendant will A defendant will be found to be be found to be either liable or either liable or not liable for the not liable for the claim.claim.



OutcomeOutcomes of the s of the action action

The defendant The defendant may be may be sentenced to a sentenced to a penalty which penalty which can range can range between a between a custodial custodial sentence and a sentence and a discharge.discharge.

The claimant The claimant may be awarded may be awarded a remedy a remedy against the against the defendant, defendant, which can be in which can be in the form of a the form of a money money compensation - compensation - damages – or an damages – or an equitable order equitable order of the court, of the court, such as an such as an injunction.injunction.



CourtsCourts Magistrate's Magistrate's Court and Court and Sessions Court Sessions Court for trial. High for trial. High Court and Court and Supreme Court Supreme Court for appeal.for appeal.

Magistrates’ Magistrates’ Court, Civil Court, Civil Court and High Court and High Court for trial. Court for trial. High Court and High Court and Supreme Court Supreme Court for appeals.for appeals.



ExamplesExamples Murder, Theft, Murder, Theft, Drink Driving, Drink Driving, CheatingCheating

Breach of Breach of Contract, Contract, Negligence in Negligence in Wills, Wills, Conveyancing of Conveyancing of propertyproperty


Common LawCommon Law One term that you are bound to hear used

repeatedly from very early on in your course, and that you will certainly see many times in text books, is the phrase ‘common law’.

This can be a very confusing term for you because lawyers use the term in so many different contexts and for quite different meanings. It is important then for you to have an appreciation of the different meanings right from the start so that you can follow exactly what is being referred to.

Usually the precise meaning is taken from the context in which the phrase is being used and from what it is being contrasted with.


In this way the phrase ‘common law’ can be used in the following

ways:


Referring to the law that is common to the whole country – in contrast to the local laws and customs that existed before the eleventh century, a few of which survive in one form or another today, eg a byelaw introduced by local councils may impose a fine for your dog fouling the footpath.


Referring to remedies in particular (the major one being compensation in the form of damages) in contrast with equitable remedies such as the injunction (an order preventing someone from doing something) or specific performance (an order for a contract to be carried out – usually the transfer of land that has been purchased).


Referring to principles of law developed in the judgments of decided cases – in contrast with statute law, created in an Act of Parliament (some law is mainly to be found in cases such as tort – while some areas are mainly statutory, such as crime).


Referring to the type of system itself (one that has developed incrementally over centuries through case law as well as other sources) – in contrast with civil law systems such as that in France where the law originates in a code.


Encyclopedia of the Laws of EnglandEncyclopedia of the Laws of England

Constitutional Law is a branch of public Constitutional Law is a branch of public law containing so much of the political law containing so much of the political constitution as is laid down in positive constitution as is laid down in positive legal rules, and as including such legal rules, and as including such subjects as the formation, powers and subjects as the formation, powers and privileges of the legislature, the privileges of the legislature, the executive functions and powers of the executive functions and powers of the head of the executive, the existence head of the executive, the existence and composition of the judicial and composition of the judicial establishment and the machinery of establishment and the machinery of local government.local government.

Constitutional LawConstitutional Law


In the generally accepted use of the In the generally accepted use of the term Constitutional Law means the term Constitutional Law means the rules which regulate the structure of rules which regulate the structure of the principal organs of government the principal organs of government and their relationship to each other, and their relationship to each other, and determine their principal and determine their principal functions. functions.

In other words, it would be expected In other words, it would be expected to contain only the basic framework.to contain only the basic framework.


Administrative LawAdministrative Law

Administrative Law is a branch of Administrative Law is a branch of Public Law which deals with the Public Law which deals with the various organs of the Sovereign power. various organs of the Sovereign power. It relates to the organisation, powers It relates to the organisation, powers and duties of administrative authorities and duties of administrative authorities and consists of body of rules governing and consists of body of rules governing the detailed exercise of executive the detailed exercise of executive functions by the officers or the public functions by the officers or the public authorities. It is judge made law.authorities. It is judge made law.


Customary LawCustomary Law

A custom, that by continuance A custom, that by continuance acquires the force of law, is called acquires the force of law, is called Customary Law.Customary Law.


Statute or Statutory LawStatute or Statutory Law

A Statute signifies an act of the legislature. A Statute signifies an act of the legislature. It is a written law as distinguished from a It is a written law as distinguished from a customary law or law of use and wont; a customary law or law of use and wont; a type of subordinate legislation applied type of subordinate legislation applied generally to be framed by university. generally to be framed by university.

Statute Law is frequently used Statute Law is frequently used interchangeably with statute, but the term interchangeably with statute, but the term is broader in its meaning, and includes not is broader in its meaning, and includes not only statutes but also the judicial only statutes but also the judicial interpretation and application of such interpretation and application of such statutes.statutes.

November 22, 2008Sanjay Ranade, Head, DCJ, UoM1 The Law.

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Transcript of November 22, 2008Sanjay Ranade, Head, DCJ, UoM1 The Law.