Concept of Law and

Sources of Law

Law is a Social Science

Grows and develops with the growth and development of society

New developments in society create new problems and law is required to deal with those problems

Definitions of Law Austin

Law is the command of the Sovereign.

It is enforceable by a sanction

Roscoe Pound Law is a social institution to satisfy social wants

Salmond Law is a body of principles recognized and applied by

the State in the administration of justice

Moulton Law is the crystallized common sense of the community

Purpose of Law Maintenance of law and order

Enables individuals to have the maximum freedom to assert themselves

Maximum satisfaction of the needs of the people

Object of law Object 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 Law International 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 land

Public 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 Law

Constitutional 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 Law

Personal Laws

Law of Property

Law of obligation

General Law – Ordinary law of the land

Special Law – Legal rules which are special and exceptional in their nature

Kinds of Special Law Local 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 State State is a people organised for law within a definite

territory

Population – No State without people

Territory – People settling down on some definite territory constitute a State

Government – 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 State Primary

War and administration of justice (Defence against external enemy and maintenance of law and order within the country)

Secondary Legislation and Taxation (necessary for the welfare of

the citizens)

The relation between State and Law is very close and intimate

The State manifests itself through law and law has its importance because it has the sanction of the State

Sources of Law Legislation – 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

Legislation

Means the making of the Law or declaration of legal rules by competent authority

Supreme legislation proceeds from the Sovereign power in the State

Subordinate legislation proceeds from any authority other than the Sovereign power

Control over delegated legislation Parliamentary control

Judicial control

Public opinion

Custom Uniformity of conduct of all persons under like

circumstances

It is observed course of conduct

It 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

Precedent Judicial decision to which authority has been attached

The reason why a precedent is recognised is that a judicial decision is presumed to be correct

Under 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 Laws Substantive 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 Code

Civil Procedure Code and

Indian Evidence Act

are the examples of Procedural Law