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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