CHAPTER ONE
FRAMEWORK OF LAW
Law and legal system are always very important for the modern society albeit for the very
existence of mankind. Though law is a global concept, it is generally organized on national lines
and represents supreme will of the state that applies only to the citizens of that country. It is
founded on social, economic, and contextual influences to bring about order in human activities
through systematic application of political force or social pressure. In a practical sense, law lays
down rules that govern and guide actions and relations amongst persons, organizations and
governments.
MEANING OF LAW
The word ‘Law’ has been derived from the Teutonic word ‘Lag’ which means ‘definite’.
Accordingly, law can be defined as a ‘definite rule of conduct and human relations’. It can also
be used to denote a uniform rule of conduct which is applicable equally to all the people of a
given state. It prescribes and regulates general conditions of human activity in the state. Though
law consists of a body of rules yet it need not always be in writing. Many of these rules may be
presumed to be known to everyone in the society.. It implies that everyone needs to understand
the meaning of law.
Definition of Law
In an ordinary sense, law is a ‘system of rules and regulations regarded as binding by a country
or society and enforced by the authorities so that any violation thereof is liable to punitive action.
Laws are generally contained in the constitution, legislations and judicial decisions. Quite
surprisingly, the jurists and legal scholars are not unanimous about the definition of law since
many years as is reflected by the prevalence of multiple definitions of the concept of law. Some
jurists consider law as a 'divinely ordered rule' or as 'a reflection of divine reasons'. Many other
definitions have been given from philosophical, theological, historical, social and realistic
angles. On account of the differences in approaches, different concepts of law as postulated by
various schools of law have emerged. Jurists hold different perceptions and understanding of
what constitutes the law and legal systems as described below.
Most popular concept of law is to consider law as “a set of rules, enforceable by the courts,
which regulate the government of the state and govern the relationship between the state and its
citizens and between one citizen and another”.
According to Austin, “Law is the command of the sovereign to an inferior backed by sanctions
of the infractions from it.” Holland believes law as “a general rule of external behaviour enforced
by a sovereign political authority”. Sir John Salmond has defined law as a body of principles
recognized and applied by the state.”
Thus each law is a binding and authoritative rule of particular specie of conduct whose violation
is subject to prescribed type and quantum of punishment.
Features and Functions of Law
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Rule of law, equality before law and equal protection of law for all without any discrimination,
are recognized as the salient features of a modern legal system in liberal democratic states.
Along with these features, the laws serve the following functions.
1. Establishment of Standards of behavior
Law serves as a guidepost for securing minimally acceptable desirable behavior and for
preventing undesirable behavior for preservation of peace and order in a society. All persons
including aliens are equally subject to the laws of the state. Any behavior inconsistent with the
established standards is liable to punishment. By prescribing these standards, the law serves to
foster stability, credibility and predictability of the legal system.
2. Expression of definite will of the State
Though the law is formulated on the basis of public opinion and public needs, in its final form it
signifies the will of the state. It may also lay down the procedure for changing any of its
provisions or even the whole of the law.
3. To maintain law and order
It is an offshoot of establishing standards. Law functions to maintain some semblance of order in
a civil society. Enforcement of law aims to establish order consistent with guidelines of society.
For this purpose, law may punish the violators and order the wrongdoers to compensate the
victim of the offense.
4 To resolve conflicts
Conflicts of values, views and needs cause disputes between various parties are resolved by
courts or alternative means as the legislature may have prescribed. Courts resolve a dispute by
application and interpretation of relevant statutes.
5. To protect liberties and rights
Law functions to protect the rights and freedoms granted to citizenry by the constitution and
other laws from unauthorized intrusions by others or sometimes the state itself.
LEGAL SYSTEMS IN THE WORLD
According to Hart, the term ‘legal system’ is ‘a union of primary rules of obligations as well as
secondary rules of recognition, change and adjudication’. It embodies both the laws of the
country, the sources from which its primary features are derived and the mechanisms for
regulating and enforcing those laws. The mechanisms concerned with a legal system include:
legislature; judiciary; prosecutors; police; and the prison system. The following legal systems are
prevalent in the world.
1. Common Law System
Common law is a historic system of laws formulated in England between 1066 and 1400. It is
based on case laws called ‘precedents’ as well as the principles of equity deriving from fair
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dealings between two parties. The object of principles constituting equity is to supplement but
not to replace the common law. The system has been adopted by many of the former British
colonies besides Australia, Singapore, Malaysia, and the United States of America. It consists of
the body of legal rules common to the whole jurisdiction which is embodied in judicial decisions.
2. Civil Law System
The civil law system originated in continental Europe from the ancient Roman legal system as
comprised in Justinian ‘Corpus juris civilis’. It dates back to 450 BC and occurs generally but
not mandatorily in the codified form of statutes and administrative regulations.
Comprehensibility and certainty are its other features. Besides the European countries, it is also
followed in Japan, China, Indonesia and Brazil. Though the civil law system is much younger
than common law yet it has quite an old legal heritage.
3. Sharia law
This system of law is significantly different in both purpose and practice from common and civil
law systems as it is based on Quran and Sunnah i.e., the sayings of the Prophet (called Ahdith).
Shariat has influence on the interpretation of law in most of the Islamic countries worldwide.
There are five secondary sources of muslim known as ‘ Madhab’. Thesederive from writings of
various jurists namely: the Shia school (Iran); Hanafi school (Imam Abu Hanifa) ;the Maliki
school (Imam Malik); the Hanbali school (Imam Ahmad Ibn Hanbal); the Shafii school (Imam
As-Shafii). Jurists in the muslim countries can only interpret i.e., confirm, explain, clarify or
introduce a rule where Quran is silent but they cannot alter the injunctions contained in the holy
book. To derive an answer to a legal question, the jurists have to follow the process of ‘Ijtihad’
requiring intellectual exertion. According to ‘Hadith’, the Prophet had ordained that an Imam
shall decide by relying firstly on the Quran, and then on the Sunnah. The rules of ijtihad provide
as follows:
a. It cannot be exercised on certain matters such as the existence of Allah.
b. The judge called ‘muhtahid’ must be suitably qualified in terms of his being well versed
in the study of the Quran; traditions of the Prophet; understanding of the principle of ijma,
and conditions for qiyas besides being just, reliable, trustworthy, and a good and practicing
Muslim,
c. The muhtahid shall use recognized methods of interpretation including:
(i) Ijma: i.e., reaching a consensus of opinion after consultation between jurists;
(ii) Qiyas which is an analogical deduction based on a comparison and evaluation such as the
conclusion that drugs are forbidden on the ground that there is prohibition on alcohol in
Quran;
(iii) Istihsan: involving exercise of equity, or fairness within the bounds of the Sharia;
(iv) Maslahah mursalah - something very similar to Istihsan;
(v) 'Urf under which local custom may be subsumed into the law if not contrary to Sharia;
(vi) Istishab providing for the legal presumption that the current state of affairs continues
until the contrary is proved or it is shown that it is forbidden
CLASSIFICATION OF LAWS
Following are the various ways in which the laws may be classified:
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A: According to Mode of Creation
1. Natural or Moral Law
Natural Law is often thought to be a divine law which is not written anywhere but is based on the
reason by which the world is governed. It is abstract, eternal, universal, value oriented and moral
in its nature. Exponents of natural law believe that law and morality are linked since an unjust
law is not a true law based on the maxim ‘lex iniusta non est lex’. Generally, the 'rule of law' and
'due process of law' are considered as new incarnations of natural justice in the modern era. In
India, the principles of natural justice are firmly grounded in Articles 14 & 21 of the
Constitution. Violation of principles of natural justice as ingrained in Article will ipso jure lead
to denial of equality as contained in Article 14. The two principles of natural justice forbid bias
(Nemo judex in causa sua i.e., no one should be a judge in his own cause) and condemning
without opportunity of hearing (Audi alteram partem ).
2. Positive Law:
It is a body of man-made laws consisting of codes, regulations, and statutes enacted or imposed
by a political authority. It is imperative in its nature reflecting the sovereign power of the state so
that its violation shall lead to punishment. The jurisprudence of positive law is contained in the
works of seminal philosophers such as Plato, St Thomas Aquinas, Thomas Hobbes, and John
Austin
B: According to Geographical applicability
1. International law
International law is the body of rules which by custom or treaty make civilized states to regard it
as binding upon them in their relations with other states, and on the violation whereof, the
injured party can assert its legal right. It may be divided in two categories:
(a) Public International Law
It regulates matters concerning relationships between sovereign states; formation and
recognition of states; acquisition of territory; war; law of sea and space; treaties; treatment of
aliens i.e., foreigners; human rights; international crimes and international judicial settlement of
disputes.
(b) Private international law
It regulates relationships between individuals in an international context i.e. across borders.
Private international law has a dualistic character of balancing international consensus with
sovereign actions. In the event of a dispute between two parties belonging to different countries
pursuing different legal systems, it is by recourse to private international law that a court can
determine as to which country's substantive law will be applied to decide the matter. Though
called 'international law', it is actually a body of domestic law applied in an international context.
Accordingly, each country has its own set of private international law with the potential to lead
to the problem of conflict of laws. World conventions such as the New York Convention 1958
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and the UN Convention on Contracts for the International Sale of Goods (UNCISG) have been
concluded to deal with issues arising from conflict of laws. Model Laws have been developed by
the UNO for their adoption to bring about uniformity in national laws of various countries
relating to different legal areas.
ii. Municipal or Domestic or State Law
These are the laws framed by each state to govern and regulate the relationship between the State
and its citizens as well as amongst the citizens. Municipal law can be further classified into
public and private laws as described further.
III Classification According to Subject matter
A: Public Law
It is a body of laws governing the structure and operation of the government as well as the
relations between a state and its citizens. Constitutional law, Administrative law, tax laws,
and criminal law fall within the scope of public law.
1. Constitutional law
Constitutional law is the foundation of state and the supreme law of a country. It sets out the
form of government; the division of power and responsibilities among various branches of the
government namely legislative, executive and the judiciary. It lays down the political, civil, and
human rights of citizens.
2. Administrative law
Considered subordinate to constitutional law, it is defined as the body of rules which regulates
the relations of the administrative authorities with private citizens. The function of administrative
law is to deal with the powers and functions of executive departments. It also provides the
mechanism whereby executive actions are controlled by means of provision of legal remedies in
case of any violation of the rights of the people
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It is considered a part of public law since a crime is directed not against an individual but against
the society as a whole. The object of criminal law is to define, prohibit and punish criminal
depending on whether the offense is serious or minor. It not only protects the society but also
satisfies the demands for retribution, rehabilitation, and deterrence. The Indian Penal Code, 1860
(also known as IPC) is the penal law of the country that has defined different kinds of offences
along with the relevant sanctions for each of them.
B: Private Law
It is that part of civil law which deals which jus commune i.e., definition, regulation and
enforcement of mutual rights and duties of individuals through civil courts. Much of the life of a
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society is regulated by this set of private laws or civil rights. The legal process is set in motion by
the aggrieved citizen and not by the state. Following types of laws belong to the category of
private laws.
1. Personal Law:
It is related to matters such as marriage, divorce and succession i.e., inheritance. Most of these
matters are governed by respective personal laws which derive from their religions. For example,
marriage amongst Hindus is governed by the Hindu Marriage Act, 1955 while Muslim marriages
are governed by the Muslim customary law which is largely uncodified.
2. Property Law:
This branch of law deals with the rights and obligations arising from the ownership or possession
of tangible or intangible properties whether immovable, movable or of an intellectual variety.
Examples of these laws include: the Transfer of Property Act, 1882 dealing with immovable
property, and the Sales of Goods Act, 1930 which deals with movable property.
3. Law of Contract:
This branch of the law pertains to performance of certain actions arising from the making of an
enforceable agreement. On failure to fulfill the promise, the aggrieved party can enforce the
same through a legal action. The Contract Act, 1872 contains the principles that govern the
formation, and performance of contractual obligations besides the remedies available to the
aggrieved party on breach by the other party.
4. Law of Torts:
Tort is a civil wrong for which compensation can be recovered by the victim. A tort deals with
cases of both negligence such as an accident as well as the intentional wrongs For instance, if 'A'
throws a stone to pick a fruit from a tree but it hits another person namely 'B' on the head, 'B'
may sue 'A" for the injury caused by the accident.
Nature of legal liability
Legal liability of following two kinds may arise either from breach of a legal obligation under
either civil law or criminal law.
(a) Civil liability
The aim of civil liability is to award compensation against the losses suffered by the aggrieved
party from breach in contact or due to a tort.
(b) Criminal liability
For criminal liability which is regarded an offense against the state, the prosecution must firstly
establish that there has occurred a prohibited act called ‘actus reus’ act with a guilty mind called
‘mens rea’. For instance, if someone picks somebody else’s umbrella up thinking it as his own,
he cannot be held guilty of theft because of the absence of a guilty mind. However, the state may
declare statutory offences in which there may be no need to prove mens rea. The very doing of
the act may make the offender liable and such crimes are known as crimes of strict liability.
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IV: Classification by Nature of Law
Substantive vs. Procedural Law
Any of the laws may be either (a) Substantive, or (b) Procedural. While substantive law creates,
defines, and regulates the rights, duties, and powers of parties whether under public or private
law; the use of procedural laws is made for the enforcement of the rights and duties notified
under the substantive law. The procedural laws govern the process of litigation. With the help of
procedural laws, the court can conduct its proceedings in a uniform manner. General examples of
procedural laws include the rules of evidence, jurisdiction, pleading and practice under either
civil or criminal law. A specific example of a procedural law is the statute of limitations. This
law has prescribed the time limit for filing any suit starting from the date of arising of cause of
action
Sources of Law
Sources of law specify the points from where the law or the binding rules of human conduct
originate. Jurists and other legal experts have approached the sources of law from various angles.
For instance, Austin considers sovereign as the source of law while Savigny and Henry Maine
consider custom as the most important source of law. Natural law school considers nature and
human reason as the sources of law, while theologians consider the religious scripts as sources of
law. Despite various claims and counter claims regarding the sources of law, the law is deemed
to have been derived from similar sources as described below.
1. Customs:
Customs are long established practices or unwritten rules which have acquired binding or
obligatory character. To be valid, a custom must meet the tests of antiquity i.e., having been
exercised for long beyond human memory without any kind of interruption and as a matter of
right. It must also be reasonable, moral, and not opposed to public policy such as adopting a girl
for immoral purpose. However, not every custom may become a law. For example, under the
Hindu Marriages Act, 1955 marriages within the prohibited degrees of relationship are
prohibited except when there is a proven custom to the contrary within a certain community.
2. Religion and Morality:
Religion has pervaded and regulated the behavior of people through invocation of divine powers
which are prescribed in the form of definite codes of conduct. They are supplemented by rules of
morality in terms of something being regarded morally right and wrong. On their adoption by
the State, they partake the character of a source of Law.
3. Legislation:
Since the emergence of legislatures in the 13th century, legislation has emerged as the chief
source of law. Supreme Legislation are the laws which have been directly enacted by the
sovereign such as the Parliament or state legislatures on subjects falling within their area of
legislative authority as laid down in the constitution. On the other hand, the Subordinate /
Delegated Legislation is made by any authority subordinate to the supreme authority. The
origin, validity, existence and continuance of such legislation totally depend on the will of the
sovereign authority. Their need has arisen for proliferation in the demand for more of laws so
that the legislative bodies provide only the fundamental part of the legislation leaving it to the
executive to fill the gaps.
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4. Judicial Precedents:
A judicial precedent is a judgment of a court which is the highest in the hierarchy of courts. A
judicial decision consists of the following two parts:
(I) Ratio decidendi
It literally means ‘reasons for the decision as deduced by the court from the facts of a particular
case. It is binding on the lower courts in future cases involving similar questions of law.
(ii) Obiter dicta
It refers to those parts of a judicial decision which consists of general observations of the judge
and do not have any binding authority. These are the things said ‘by the way’. However, obiter of
a higher judicial body is given due consideration by lower courts and may operate as a
persuasive precedent.
Citation of a judgment
It includes the name of the plaintiff / claimant / appellant versus the particulars of the defendant /
respondent along with the year in which the case has been decided, the court which gave the
judgment, name of the publication and the page number of the report. For instance consider the
citation Yograj Infrastructure Ltd. v. Ssangyong Engineering & Construction Ltd (2011) 9 SCC
735. In this case, the first mentioned party is the appellant; the second party is the respondent.
The judgment has been given in 2011 and reported in the ninth volume of Supreme Court Cases
at page number 735.
5. Equity:
Equity meaning’ fairness and sense of justice’ is also a source of law. In some of the cases, the
laws may not fully fit in or even may be silent in some respects. To decide such cases, the judges
may depend on equity and act in accordance with their sense of fair play and justice. Equity is
used to provide relief to the aggrieved parties and such decisions perform the function of laying
down rules for the future. As such equity acts as a source of law.
6. Scientific Commentaries:
The works of eminent jurists always include scientific commentaries in which they may discuss,
explain and point out the loopholes besides suggesting possible remedial course of legal action.
Interpretations given by scholars may help in interpretation and application of rules to specific
cases. The works of jurists like, Blackstone, Dicey, Wade, Phillips, Seeravai, and others have
been always held in high esteem by the judges in India. In contemporary times, scientific
commentaries by jurists have helped in the development and evolution of law.