Law

What is Law?

  • Rules of conduct approved and enforced by the government of and over a certain territory is called a law. (eg. the ‘laws’ of India).

Blackstone’s Definition:

  • According to Sir William Blackstone (an English jurist and judge of the eighteenth century) ‘Law, in general consists of the rules recognized and acted upon in the court of justice.” In its commentaries, Blackstone said that law, in its most general and comprehensive sense, “is that rule of action which is prescribed by some superior and which the inferior is bound to obey.”
  • Thus Blackstone’s definition has two main concepts: a) the concept of a “superior,” and b) the concept of a “command”. Thus the law is something set, or given, by a superior to an inferior, or by a sovereign to a person in a state of subjection.
  • This concept of Blackstone would exclude all international laws and constitutional laws. Hence this definition was criticized.
  • In a country like India which is a democratic republic, there is no concept of superior or inferior, all are equal. In a democratic republic sense, the law is a jurisdiction adopted by the sovereign people for their own control, not by some superiors for other inferiors.
  • According to Austin ”Law is the command of the sovereign”.

‘The Law’ and ‘a Law’

  • ‘The law’ means all the laws of the land. Criminal, civil, constitutional etc. It is a generic description of a large class or body of laws that make up the entire legal framework of a country. Here the term is used in an abstract sense.
  • ‘A law’ means a specific law. It is the subset of the set of all laws. For example ‘Indian Contract Act’, ‘Consumer Protection Act”, etc.

Kinds of Laws:

Natural or Moral Laws:

  • Natural laws are the belief that certain laws of morality are inherent by human nature, reason, or religious belief, and that they are ethically binding on humanity.
  • Actually, it is a philosophy that is based on the idea that “right” and “wrong” are universal concepts, as mankind finds certain things to be useful and good, and other things to be bad, destructive, or evil.

Scientific Laws:

  • Scientific laws are statements that describe an observable occurrence (seen by everybody) in nature that appears to always be true
  • Laws of natural sciences (astronomy, biology, chemistry, and physics, etc) are scientific laws. These laws are based on the uniformities of nature and general principles expressing the regularity and harmony observable in the activities and operations of the universe
  • They are not the creation of men and cannot be changed by them.

Imperative Laws:

  • Imperative Laws means rules of action imposed upon mere by some authority which enforces obedience to it.
  • There are two kinds of imperative laws, Divine or Human.

Common Laws:

  •  Laws that are based on court or tribunal decisions, which govern future decisions on similar cases are called common laws.
  • Common law is a term used to refer to the laws that is developed through decisions of the court, rather than by relying solely on statutes or regulations.
  • They are also known as “case laws,” or “case precedent”

Criminal Laws:

  • Criminal laws are the area of the local, state, and federal laws that define criminal acts and offenses, governs the arrest, detention, charging, and prosecution of accused offenders, and sets specific punishments.
  • The term criminal laws refer to the actual laws, statutes, and rules that define acts and conduct as crimes, and establishes punishments for each type of crime.

 Civil Laws:

  • Civil laws is the body of laws that govern ordinary private matters, separate from laws presiding over criminal, military, or political matters.
  • Civil laws govern private or civil rights providing redress for wrongs by compensating the person or entity that has been wronged rather than punishing the wrongdoer.
  • Civil laws define and protect the private rights of citizens, offers legal remedies that may be sought in a dispute, and covers areas of law such as contracts, torts, property, and family law.

Procedural Laws:

  • Procedural laws is a body of law that sets forth the methods, rules, and procedures for court cases.
  • In order to help ensure that the laws are applied fairly, there are certain rules and procedures that must be enforced when a court hears any case, whether civil or criminal. This set of laws, rules, and procedures is known as “procedural law.”

National Laws:

  • National Laws are the laws by which the people are governed by the state.
  • It is further classified into constitutional laws and ordinary laws.

 International Laws:

  • International laws are the set of rules generally regarded and accepted in relations between nations. It serves as a framework for the practice of stable and organized international relations.
  • The member states are free to break the ruling of the international court.

Characteristics of Law (w.r.t. Indian Legal System):

  • Rule of law, equality before the law and equal protection of the law for all without any discrimination.
  • Laws are general rules of human behaviour in the state. It applies to all people of the state. All are equally subject to the laws of their State.  Aliens living in the territory of the State are also bound by the laws of the state.
  • Law is a definite command of the sovereign. The sovereignty of the State is the basis of law and its binding character. The state always acts through Law. Laws are made and enforced by the government of the State.
  • Law creates binding and authoritative values or decisions or rules for all the people of the state.
  • Violations of laws are always punished. Thus the Law is backed by the coercive power of the State.
  • The Law is formulated by the representatives of the people who constitute the legislature of the State. The government and its machinery execute and implement the law and the Judiciary interprets the law when any dispute arises. The courts settle all disputes among the people on the basis of law. The courts settle all disputes among the people on the basis of law.
  • The law provides protection to the rights and freedoms of the people. And provide an environment of growth.

Sources of Law:

Custom:

  • In ancient times, social relations gave rise to several usages, traditions, and customs. These were used to settle and decide disputes among the people.
  • Custom has been one of the oldest sources of law. Most of the modern laws are derived from the customs followed from ancient times.
  • Initially social institutions began working on the basis of several accepted customs. Gradually, the State emerged as the organized political institution of the people having the responsibility to maintain peace, law, and order.

Religion and Morality:

  • The religious and moral practices and codes of a society provided to the State the necessary material for regulating the actions of the people.
  • The State converted several moral and religious rules into its laws. Hence Religion and Morality have also been important sources of Law

Legislation:

  • Due to the development of a legislative system, The legislation has emerged as the chief source of Law. The legislature began transforming the customary rules of behaviour into definite and enacted rules of behaviour of the people. Soon legislation emerged as the chief source of law and the legislature got recognition as the Legal Sovereign

Judicial Decisions or Precedents:

  • Judicial Decisions are an important source of Law. The judicial decisions given by the apex court or the courts which stand recognized as the Courts of Record, (like the Supreme Court and High Courts of India) are recognized and used as laws proper.
  • Lower Courts can settle their cases on the basis of such judicial decisions of apex courts.

Delegated Legislation or Professional Opinion:

  • Due to the paucity of time, lack of expertise and increased demand for law-making, the legislature of State delegates some of its law-making powers to the executive/professional.
  • The Delegated Legislation always works under the superior law-making power of the Legislature.

Leave a comment

Your email address will not be published. Required fields are marked *

error: Content is protected !!