Introduction to Law

LAW RAS Mains 2018

The idea of ‘Law’ as guide to human conduct is as old as the existence of the civilized society. However, the concept of law is not static. With the changes in the society, the concept of justice changes and accordingly laws also change. Justice & correspondingly ‘law’ is an evolutionary concept.

Justice & Law:

Justice and law are closely inter-related. Law acts as means of serving Justice. Bentham argues that purpose of Law is Justice and without an element of justice, Law becomes an instrument of oppression. In the legal sense, justice is process of application of law to particular cases.

Though law and justice are intimately connected with each other, there is difference between the two. Law seeks to give justice, but law is not justice. The modern courts of law provide legal and not moral justice.

Definition of Law:

As the meaning of justice changes from time to time, society to society. Law can be defined by its basis (nature, reason, religion or ethics), by its sources (customs, legislation), by its effect on the life of the society and by the ends that it seeks to achieve. Hence, there in no Universal definition of Law. However, some of the important definitions of Law given by various thinkers:

  • Aristotle:
    • Perfect law is inherent in the nature of man/woman and can be discovered through reason. It is immutable, universal and capable of growth.
  • Austin:
    • “Law is the command of Sovereign.”
  • A. V. Dicey
  • “Law is the reflection of Public opinion.”
  • Salmond
    • “Law is body of Principles recognised and applied by the State in the Administration of Justice”
  • Roscoe Pound
    • “Law is a social control through systematic application of force in a politically organised society?” An instrument to satisfy the maximum wants in a society with the minimum of friction and waste.

Classification of Law:

Classification of Law, Types of Law

A. International Law

  • International Law is a branch of law which consists of rules which regulate relations between Nations (Sovereign States).
  • It is mainly based on Treaties between the Nations.
  • It can be of two types:
  • Public International Law
    • Body of rules which governs the conduct and relations of one nation with other nations. For example the extradition treaty between two India & other countries to bring back the criminals.
  • Private International Law
    • These are rules and principles according to which legal disputes between private individuals across international boundaries are decided. Example a citizen of India entered into some contract with a person in USA for a work in Africa and a dispute arose.

B. National Law

Law which is applied within a State. It can be of multiple types:

B1. Public Law:

  • Regulates the organization and functioning of the State and determines the relations of the State with its subjects.
  • Can be of three types:
  • Civil Law
    • Legal system that governs relations among private individuals or organizations
  • Criminal Law:
    • ‘crime’ is considered to be a wrong not against the individual but against the society. Example Murder etc.
  • Administrative Law:
    • Body of law that governs the activities of administrative agencies of government.

B2. Private Law:

This branch of law regulates and governs the relations of citizens with each other. It includes Personal Law e.g. Hindu Law and Muslim Law.

Sources of Law:

‘Source of law’,  means the source from where laws applicable in certain society derive legal force of binding character.

Customs:

  • ‘Custom’ is the oldest and most important source of Law.
  • ‘Custom’ is an embodiment of those principles which people of particular society have commended themselves to their natural conscience as principles of justice and public utility.

Legalisation:

  • ‘Legislation’ is a deliberate process of formulation of laws through a prescribed procedure by agencies designated by the Constitution.
  • Laws of modern nation-states are have majorly legalisation as the basis of law.

Judicial Precedent

  • ‘Judicial Precedent’ or ‘stare decisis’ is scenario where  past judicial decisions serve as a guide for making of future ones for lower courts in heirarchy.
  • In India, The law declared by Supreme is binding on all Courts in India, excluding however the Supreme Court itself.