National Institute of Open Schooling Curriculum - Introduction to Law

ADVISORY COMMITTEE Chairman Dr. Kuldeep Agarwal Dr. Rachna Bhatia National Institute of Open Schooling Director (Academic) Assistant Director (Academic) NOIDA (UP)...

ADVISORY COMMITTEE Chairman Dr. Kuldeep Agarwal Dr. Rachna Bhatia National Institute of Open Schooling Director (Academic) Assistant Director (Academic) NOIDA (UP) National Institute of Open Schooling National Institute of Open Schooling NOIDA (UP) NOIDA (UP) CURRICULUM COMMITTEE Prof. Jayadev Pati Prof. V.G. Ajjappa Prof. Srikrishna Deva Rao Prof. Ajit Mittal Chairperson Retd. Professor Registrar Professor Professor Karnataka University National Law University Amity Law and Business School SOA University Dharwad, Karnataka Delhi WNOIDA Mr. Manwendra Kumar Tiwari Mr. Devraj Singh Dr. Sushila Assistant Professor Advocate Assistant Professor Hidayatullah National Law University High Court, Delhi National Law University, Delhi Raipur Dr. Manish Chugh Dr. Chunnu Prasad Mr. Sukanta K. Mahapatra Academic Officer Academic Officer Academic Officer Economics Political Science Sociology NIOS, NOIDA NIOS, NOIDA NIOS, NOIDA EDITORIAL BOARD Prof. Jayadev Pati Dr. Kahkashan Y. Danyal Dr. Anupam Jha Dr. Anant Ram Chairperson Associate Professor Assistant Prifessor Retd. Head, Pol. Sc Professor Faculty of Law Department of Law PG Dept. Govt. PG College SOA University JMI, New Delhi University of Delhi Bhiwani, Haryana Mr. Madan Lal Sawhney Dr. Bhagwati Prasad Dhyani Dr. Madhubrata Mohanty Dr. Gopi Dev Dutt Tripathy Retd. Lecturer (Pol. Science) Lecturer, Political Science Associate Professor Associate Professor Directorate of Education Directorate of Education SOA University Maitreyi College Govt. of Delhi, Delhi Govt. of Delhi, Delhi Bhubaneswar, Odisha University of Delhi, Delhi Ms. Rita Thokcham Dr. Manish Chugh Dr. Chunnu Prasad Mr. Sukanta K. Mahapatra Language Editor Academic Officer Academic Officer Academic Officer 4/43 A, First Floor Economics Political Science Sociology Vijay Nagar, Delhi NIOS, NOIDA NIOS, NOIDA NIOS, NOIDA LESSON WRITERS Prof. Jayadev Pati Dr. Sanjeev Sharma Dr. Anupam Jha Mr. M.K. Tiwari Professor Director Assistant Professor Assistant Professor SOA, University IPLG, New Delhi University of Delhi Hidayatullah Law University Raipur Dr. Anand Gupta Mr. Alok Kumar Dr. Gurmeet Kaur Dr. Madhubrata Mohanty Assistant Professor Assistant Professor Assistant Professor Associate Professor School of Law, IGNOU University of Delhi School of Law, IGNOU SOA, University, Bhubaneswar, Odisha Dr. R.K.Anand Dr. Anant Ram Mr. Madan Lal Sawhney Dr. Bhagwati Prasad Dhyani Retd. Reader Retd. Head, Pol. Sc Retd. Lecturer (Pol. Science) Lecturer, Political Science School of Open Learning PG Dept. Govt. PG College Dir. of Education Directorate of Education University of Delhi, Delhi Bhiwani, Haryana Govt. of Delhi, Delhi Govt. of Delhi, Delhi Mr. R.S.Pasricha Dr. Ashok Nimesh Dr. Varun Chhachhar Dr. Shagun Bhatnagar Retd. Vice Principal Assistant Professor Assistant Professor Advocate MBDAV Sr. Sec. School Jharkhand Central University Department of Law High Court, Delhi Yusaf Sarai, New Delhi Jharkhand University of Delhi New Delhi Sh. Abhimanue Devraj Ms. Anuradha Prasad Ms. Leena Kumari Advocate Political Science Advocate High Court, Delhi Directorate of Distance Education New Delhi New Delhi Dibrugarh University, Assam COURSE COORDINATORS Dr. Manish Chugh Dr. Chunnu Prasad Mr. Sukanta K. Mahapatra Academic Officer Academic Officer Academic Officer Economics Political Science Sociology NIOS, NOIDA NIOS, NOIDA NIOS, NOIDA GRAPHIC ILLUSTRATOR Mr. Mukul Garg 14/C, Pocket- A, Sukhdev Vihar, Delhi Chairman’s Message Dear learners, As the needs of the society in general, and some groups in particular, keep on changing with time, the methods and techniques required for fulfilling those aspirations also have to be modified accordingly. Education is an instrument of change. The right type of education at right time can bring about positivity in the outlook of society, attitudinal changes to face the new/fresh challenges and the courage to face difficult situations. This can be very effectively achieved by the curriculum renewal and by introducing new subjects at regular intervals of time. A static curriculum serves no other purpose than a mere manual of instruments for teaching in which, unless the water is changed at regular intervals of time, the water cannot be put to any use. Rather, it starts stinking giving a foul and obnoxious smell. Textual material production is an integral and essential part of curriculum development. Through it, the goals of teaching a particular subject are achieved and it teaches the techniques, rather than employing old and traditional methods which may not suit the situation at all. For this purpose only, educationists from all over the country come together at regular intervals to deliberate on the issues of changes needed and required. As an outcome of such deliberations, the National Curriculum Framework (NCF) came out; this spells out in detail the type of education desirable/needed at various levels of education – primary, elementary, secondary or senior secondary. Keeping this framework and other national and societal concerns in mind, we have introduced few new subjects at the senior secondary level, making them current and need based. We have also taken special care to make the learning material user friendly, interesting and attractive for you. I would like to thank all the eminent persons involved in making this material interesting and relevant to your needs. I hope you find it appealing and absorbing. On behalf of National Institute of Open Schooling, I wish you all a bright and successful future. Chairman National Institute of Open Schooling Curriculum CURRICULUM OF INTRODUCTION TO LAW AT SENIOR SECONDARY LEVEL Rationale to be a clear purpose behind each piece of enacted Law because all Laws by their very nature have the tendency ‘Law’ is a product of socio-economic process operating to impose some restrictions or mount some obligation on in any given society. In early societies there was no someone or other. formal declaration of Law. The term ‘Law’ may not be used in those days, yet, in every society, practices of the Hence, introducing ‘Law’ at Senior Secondary level shall people generated certain norms of conduct. We call them equip learners with basic information in legal domain that ‘Customs’ and ‘Usages’. At some stage of development, affects them daily. It will also helps them to execute their in one form or the other the norms of conduct may get duties while protecting their own and other’s rights. promulgated. Society and Law are born together. There Moreover, there is a movement towards introducing cannot be society without Law and Law without society. ‘Law’ as a career option at increasingly earlier age. From Even today in Indian Law we have ‘Customs’ and the traditional approach of introducing ‘Law’ as a post- ‘Usages’ in various forms at various levels. In modern graduation Three years Course it is now being offered times legislation plays a greater role. as Five years integrated Course after +2. Hence, it is Every Law is enacted in the manner legally laid down proposed to introduce ‘Law’ as a Course at Senior for the purpose by the competent authority designated Secondary level with an aim to impart working knowledge to legislate without any such Procedural Laws. If we of Law at early stage i.e.at +2 levels. stop here, there is no complication and nobody gets any justification to resist any law that has been lawfully Course Objectives enacted.But in that case we would leave the floodgate  The course has been designed to develop among wide open for an oppressive regime to frame laws to learners an insight into various legal processes and perpetuate its reign. And any Law that serves purposes practices. other than public becomes questionable instantly. This  The course would sensitise the learners to the socio- makes justness an essential component of Law, without economic, political legal, ethical and moral values which the legality of the Law could well be questionable. emerging national and global concerns so as to enable Law determines and enforces one’s rights within a political them to become law abiding, responsible citizens and legal set up. It is not possible to press rights into service agent of democratic governance. against their sources. This is to say that the laws can be  The course provides an introduction to the learners protested or can be challenged within the framework of about the legal institutions and organs of State through law. In other words laws can be violated with impunity which the power is structured and exercised. no matter how much hardship it causes. The objective of  The course provides brief ideas on the underlying legal legislation is to minimize difficulties and to provide philosophy and also different types of legal system. happiness to maximum number of people. According to  The course would create interest among the students Ayn Rand, “Happiness is that state of consciousness which to learn the basic theory and principles of law. proceeds from the achievement of one’s values.”  The course provides the meaning and significance “Laws are the dictates by which the State governs its of legal phenomena and social infrastructure. subjects/people but are also binding on the State. By  The course is to understand various aspects of “We enacting the Law the State also undertakes to obey them. the People” and their impact on the development of But Laws are not enacted for their own sake. There has the Nation. SOCIAL SCIENCE 377  Curriculum Distribution of Marks and Number of Lessons Module Name of the Modules Allocation of Marks Study Hours I Concept of Law 14 Marks 35 Hours II Function and Techniques of Law 12 Marks 30 Hours III Classification of Law 14 Marks 35 Hours IV Indian Court System and Methods of Resolution 12 Marks 30 Hours and Disputes V The Constitution of India-I 14 Marks 35 Hours VI The Constitution of India-II 14 Marks 35 Hours VIIA Environmental Law and Sustainable Development OR OR VIIB Consumer Protection and Right to Information 20 Marks 40 Hours Total 100 Marks 240 Hours MODULE – I: Concept of Law 35 Hours MODULE – III: Classification of Law Approach: The purpose for this module is to acquaint 35 Hours the learners with the meaning of Law, the Legal Systems Approach: This module is designed for the purpose of that prevail in the globe and the various classifications of making the students aware about the various sources legal systems. and classification of law. The basic understanding about 1. Meaning of Law 7 Hours the different categories in the types of law can be learned by the learner and their division is also available in this 2. Classification of Legal System 8 Hours module. 3. Personal Law I: Hindu Law and 1. Territorial Law 7 Hours Muslim Law 10 Hours 2. Civil Law and Criminal Law 8 Hours 4. Personal Law II: Christian, Pasi and Jewish Law 10 Hours 3. Substantive Law and Procedural or Adjective Law 8 Hours MODULE – II: Functions and Techniques of Law 4. Public Law and Private Law 12 Hours 30 Hours Approach: Law is omnipotent and accordingly it has MODULE – IV: Indian Court System and Methods many and varied functions. This module is designed to of Resolution of Disputes 30 Hours familiarise the students with the functions and techniques Approach: The module provides for the legal mechanism of law which would enable them to understand the that is meant to resolve disputes and problems that arise application of law. in the day to day transactions even between the 1. Normative Functions of Law and neighbours and those who reside in the community Social Control 9 Hours through the intervention of Courts, Tribunals and alternative means of dispute resolution. 2. Principles of Natural Justice 9 Hours 1. Indian Judicial System 10 Hours 3. Techniques of Law and Remedies I 6 Hours 2. Justice Delivery System 10 Hours 4. Techniques of Law and Remedies II 6 Hours 378 SOCIAL SCIENCE Curriculum 3. Alternative Dispute Resolution Mechanisms OPTIONAL MODULES 5 Hours 4. Legal Services and Lok Adalat 5 Hours MODULE – VIIA: Environmental Law, Role of Citizens, Police and Administration 40 Hours MODULE – V: The Constitution of India (I) Approach: The module is designed to generate 35 Hours awareness about the legal mechanism to protect the Approach: This module would give an idea of the environment and general principles of Environmental Law structure of Indian Constitutional system. This will also as well as the role of citizens in protecting the acquaint the learners with the salient features of the environment. The module also lays emphasis on the role Constitution. It has also been designed to develop among of citizens in maintaining a good social order, Police learners an insight into the Fundamental Rights, System and the need for manpower training. Fundamental duties and Directive Principles of the State 1. Environmental Law 11 Hours Policy enshrined in the Constitution. 2. Sustainable Development 11 Hours 1. Constitution and Its Nature 10 Hours 3. General Principles of Environmental Law 9 Hours 2. Constitutionalism and Preamble 11 Hours 4. Contemporary Developments 9 Hours 3. Fundamental Rights and Duties 9 Hours ‘OR’ 4. Directive Principles of State Policy 5 Hours MODULE - VIIB: Law Relating to Consumer MODULE – VI: The Constitution of India (II) Protection and Right to Information 40 Hours 35 Hours Approach: The emphasis in this module is given to Approach: The purpose of this module is to familiarise explain the meaning of Consumerism and to inform about the learners with powers, functions and working of the the rights of consumers as well as generate awareness principal functionaries of three organs of the government about the Right to Information. both at the Union and the State (provincial) level as 1. Consumer Protection 10 Hours embodied in the Indian Constitution. 2. Unfair Trade Practices 10 Hours 1. The Executive 9 Hours 3. Consumer Redressal Agencies 10 Hours 2. The Legislature 17 Hours 4. Consumer Activism 10 Hours 3. The Judiciary 9 Hours SOCIAL SCIENCE 379 Meaning of Law MODULE - 1 Concept of Law 1 Notes MEANING OF LAW Have you ever felt the necessity of ‘Law’ in your day to day life? Have you seen any one being booked by the Traffic Police for Violating traffic rules? Dou you feel the necessity of a birth certificate when a child is born? After death, do you know the importance of a death certificate? In fact, Law affects all aspects of our life. It rules us from cradle to grave. It protects us right from the mother’s womb to our education, service, marriage and other important events of life. Law plays an important role in our daily life, right from buying a newspaper or a bottle of milk or any other big or small item necessary for our life. Law is so important for our life that it becomes necessary to understand various aspects of law viz. What are the sources of Law, what are the kinds of Law and finally its application for the best use of our society. OBJECTIVES After studying this lesson, you will be able to: z understand and define the term ‘Law’; z make a broad classification of ‘Law’; z identify the various sources of ‘Law’; and z appreciate the role of Indian Legal System, Judiciary, legal professionals and Civil Society in the enforcement of Law and administration of Justice. 1.1 MEANING AND DEFINNATION OF LAW ‘Law’ signifies a rule applied indiscriminately to all actions. It is a notional pattern of conduct to which actions do or ought to conform. ‘Law’ is a large body of rules and regulations, based mainly on general principles of justice, fair play and convenience and which have been worked out by governmental bodies to regulate human activities. In broader sense, ‘Law’ denotes the whole process by which organized society, through government bodies and personnel INTRODUCTION TO LAW 1 MODULE - 1 Meaning of Law Concept of Law (Law-makers, Courts, Tribunals, Law Enforcement Agencies and Executive, Penal and corrective Institutions etc.) attempt to apply rules and regulations to establish and maintain peaceful and orderly relations amongst the people in the society. The idea of ‘Law’ as guide to human conduct is as old as the existence of the civilized society. The relevane of law to human behavior has become so intimate Notes today that every person has his or her own conception about its nature which is influenced, of course, by his/her own perspective. Not suprisingly the search for an agreed definition of ‘Law’ has been an endless journey. There have been conflicting and divergent views of jurists regarding the nature, concept, basis and functions of Law. ‘Law’ has been regarded as a divinely ordained rule or a tradition of the old customs or recorded wisdom of the wise men or philosophically discovered system of principles which expresses the nature of things or as a body of ascertainments and declaration of an eternal and immutable moral code, or as a body of agreements of men/women in politically organized society, or as a reflection of divine reason or as a body of commands of the sovereign, or as a body of rules discovered by human experience, or a body of rules developed through juristic writings and judicial decisions or as a body of rules imposed on men/women in society by the dominant class, or as a body of rules in terms of economic and social goals of the individuals. Therefore, Law can be defined firstly - by its basis in nature, reason, religion or ethics, secondly - by its sources like customs, precedent and legislation, thirdly – by its effect on the life of the society, fourthly – by the method of its formal expression or authoritative application, fifthly – by the ends that it seeks to achieve. Although, there is no general definition of Law which includes all the aspects of Law yet for a general understanding, some of the important definitions are as follows: Aristotle It (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 Austin says “Law is the command of Sovereign.” Rules laid down by political superiors to political inferiors. In other words, body of command by a sovereign member or members of an independent society wherein the author of law is supreme. Paton According to Paton “Law consists of a body of rules which are seen to operate as binding rules in the community by means 2 INTRODUCTION TO LAW Meaning of Law MODULE - 1 Concept of Law of which sufficient compliance with the rules may be secured to enable the set of rules to be seen as binding.” A.V. Dicey In the words of A. V. Dicey, “Law is the reflection of Public opinion.” Ihearing Ihreaing defines Law as “the form of the gurantee of the conditions of life, of society, assured by State’s power of Notes Constraints.” Salmond Acording to Salmond, “Law is body of Principles recognised and applied by the State in the Administratiion of Justice” i.e. principles recognized and applied by the State in the administration of justice. Kelsen Norms of human behaviour or pure theory of law which provides that Law is pyramid of norms which has its genesis from on ground norm e.g. Constitution of India. Savigny Law is a matter of unconscious growth within the community and can only be understood in its historical perspective. [Savigny’s Volksgiest Theory of Law means will of the people.] 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. INTEXT QUESTIONS 1.1 1. Define the term ‘Law’? 2. Name the five basis on which Law can be generally described. 3. Pick up and write any of the two definitions of Law given in this lesson which you like most. 1.2 CLASSIFICATION OF LAW For a proper and logical understanding of Law, its classification becomes necessary. It helps in understanding the principles and logical structure of the legal order. It makes clear the inter-relation of rules and their effect on each other and it also helps in arranging the rules in a concise and systematic way. The broad classification of law may be as follows: INTRODUCTION TO LAW 3 MODULE - 1 Meaning of Law Concept of Law Broad Classification of Law Law International Municipal (National) Law Law Public Private International Public Law Private Law International Law Law or Conflict of Laws Notes Administrative Law Criminal Law Civil Law Indian Penal Law of Law of Code Contract Torts Hindu Law Muslim law Primarily, ‘Law’ may broadly be divided into two classes: 1. International Law: International Law is a branch of law which consists of rules which regulate relations between States or Nations inter se. In other words International Law is a body of customary and conventional rules which are considered to be legally binding by civilized Nations in their intercourse with each other. International Law is mainly based on Treaties between civilized Nations. International law may be divided as follows: (a) Public International Law It is that body of rules which governs the conduct and relations of State with other States. For example the extradition treaty between two states to bring back the fugitives. (b) Private International Law It means those rules and principles according to which the cases having foreign elements are decided. For example if a contract is entered into in India between an Indian and a Pakistan citizen, which is to be performed in Ceylon, then the rules and regulations on which the rights and liabilities of the parties would be determined is known as ‘Private International Law’ 2. Municipal Law or National Law: Muncipal Law is that branch of Law, which is applied within a State. It can be divided into two classes. (a) Public Law : It regulates the organization and functioning of the State and determines the relations of the State with its subjects. It may be divided into three classes: 4 INTRODUCTION TO LAW Meaning of Law MODULE - 1 Concept of Law i. Constitutional Law: Constitutional Law is the basic or fundamental law of the State. It is a law which determines the nature of State and the structure of the Government. It is superior to the ordinary law of the land because ordinary law derives its authority and force from the Constitutional Law. ii. Administrative Law: Notes This law deals with the structure, powers and functions of the organs of administration; the limits of their power; the methods and procedure followed by them in exercise of their power; the methods by which their powers are controlled, including remedies available to a person against them when his/her rights are infringed by their operation. iii. Criminal Law: It defines offences and prescribes punishment for them. Its aim is the prevention of and punishment for offences because in civilized societies, ‘crime’ is considered to be a wrong not against the individual but against the society. (b) 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. Apart from these kinds of law, there are some other varieties of law as follows: Natural or Moral Law Natural Law is based upon the principle of right and wrong. It embodies the principles of Natural Justice. Conventional Law Conventional Law means any rule or system of rules agreed upon by persons for regulation of their conduct towards each other. For example, Indian Contract Act, 1872 deals with the rules on making agreements. Customary Law Any rule of action which is actually observed by men/women when a Custom is firmly established, is enforced by the State as law because of its general approval by the people. Civil Law The Law enforced by the State is called Civil Law. The force of State is the sanction behind this Law. Civil Law is essentially territorial in nature as it applies within the territory of the State concerned. INTRODUCTION TO LAW 5 MODULE - 1 Meaning of Law Concept of Law Substantive Law Substantive Law deals with rights and obligations of the individuals against the State and prescribes the offences and punishments for the commission of such offences. For example, India Penal Code, 1860 contains 511 Sections on various offences and corresponding punishments for those offences. Procedural Law Notes It deals with the practice and procedure having its objective to facilitate the administration of justice. It is a process necessary to be undertaken for enforcement of the legal rights and liabilities of the litigating parties by a Court of Law. For example, the Criminal Procedure Code, 1973 enshrines the procedures to be followed to inflict punishment on the wrongdoer. INTEXT QUESTIONS 1.2 1. Make out a distinction between Public and Private Law. 2. Distinguish between Substantive and Procedural Law. 3. Describe the main objective of Criminal Law. 1.3 SOURCES OF LAW For a complete understanding of the concept of Law it is necessary to understand the sources of law. Source, literally means a point, from which anything emerges, rises or emanates. The expression ‘source of law’, therefore, means the source from where rules of human conduct came into existence and derive legal force of binding character. Broadly, sources of law can be divided as follows: 1. Custom: ‘Custom’ is the oldest and most important source of Law. ‘Custom’ is an embodiment of those principles which have commended themselves to the natural conscience as principles of justice and public utility. ‘Customs’ originate in frequent repetition of the same act, and therefore, denotes rules of habitual conduct within a community. Uniformity of conduct in like circumstances is, thus, the hallmark of the ‘Custom’. Essentials of a Custom To be valid source of Law, a customary practice must fulfil some requirements, of which following are the most important: a. Antiquity: A ‘Custom’ to be recognized as a law must be proved to be in existence from time immemorial or from long time period. 6 INTRODUCTION TO LAW Meaning of Law MODULE - 1 Concept of Law b. Continuance: The second essential of a ‘Custom’ is that it must have been in practice continuously. c. Reasonableness: A ‘Custom’ should not be unreasonable, i.e., it must be reasonable in its application to the circumstances of the individual cases. It must not be otherwise imprudent, harsh or inconvenient. d. Obligatory Character: The ‘Custom’ must have obligatory force. It must have been supported by the general public opinion and enjoyed as a matter Notes of right. e. Certainty: A ‘Custom’ must be certain. A ‘Custom’ which is vague or indefinite cannot be recognized. f. Consistency: Customary rules should show a consistency in observance of a practice. If a practice has not been consistently followed it cannot attain the status of a ‘Custom’. g. Conformity with Statutory Law and Public Policy: A ‘Custom’ should be in conformity with a Statute Law and public policy. 2. Judicial Precedent ‘Precedent’ signifies a set pattern upon which future conduct may be based. It may be an earlier event, decision or action followed in parallel circumstances later. A ‘Judicial Precedent’ is an independent source of Law. ‘Stare Decisis’ is a Latin word which denotes ‘to stand by past decision or precedents and not to disturb the settled points’. Precedent or stare decisis denote employment of past judicial decisions as a guide for making of future ones for lower courts in heirarchy. A ‘Judicial Precedent’ or ‘stare decisis’ has a binding force for the subsequent cases. It is not the whole judgment that is to be binding. In other words every statement made by the judge in an earlier decision is not binding in future case. Only those statements in an earlier decision which may be said to constitute the reason for the decision or ‘ratio decidendi’ of that case are binding as matter of general principle, in subsequent cases. ‘ratio decidendi’ is the general principle which is deduced in a case. It is the rule of law upon which the decision is founded and it is authoritative in nature. INTRODUCTION TO LAW 7 MODULE - 1 Meaning of Law Concept of Law Apart from ‘ratio decidendi’, a judgment may contain observations not precisely relevant to the issue before the Court. These may be the observations upon the broader aspects of law or answer to the hypothetical questions raised by judges or counsels in the course of hearing. Such observations are ‘obiter dicta’ and Notes without any binding authority, in so far as these are not essential to the decision reached. 3. Legislation ‘Legislation’ is a deliberate process of legal evolution which consists in the formulation of norms of human conduct in a set form through a prescribed procedure by agencies designated by the Constitution. ‘Legislation’ means to make rules for human conduct. The term ‘Legislation’ is derived from the word ‘legis’ meaning ‘law and latum’ which means to make or set. Thus, the word ‘legislation’ means making of law. It is a source of Law which consists in declaration of legal rules by competent authority. ‘Legislation’ includes every expression of the will of the legislature, whether making law or not. INTEXT QUESTIONS 1.3 1. Identify the different sources of ‘Law’. 2. Define ‘Custom’ and also identify the essentials of a valid ‘Custom’ 3. Define the term ‘Legislation’. 1.4 ROLE OF LEGAL SYSTEM JUDICIARY, LEGAL PROFESSIONALS AND CIVIL SOCIETY IN THE ENFORCEMENT OF LAW AND THE ADMINSTRATION OF JUSTICE When society came into existence there was hardly any rule which could regulate the behaviour of the people constituting the society. It was lawlessness, 8 INTRODUCTION TO LAW Meaning of Law MODULE - 1 Concept of Law barbarism and chaos everywhere. In the process of civilization and growth of society, there was the need of a system which could regulate the human behaviour and minimize the friction among them on the basis of set principles of justice and fair play. Many tools were developed for development and betterment of the society. The role of these tools is described as follows: Role of Legal System: Notes A Legal System is a set of legal principles and norms to protect and promote a secure living to its people in a society. In this way, it plays an important role by recognizing rights and prescribing duties for the people and also by providing the way to enforce these rights and duties. To enforce these rights and duties, the Legal System considers the socio-economic and political conditions in the society and makes its own goal and then makes a set of rules or principles and laws which help the society to achieve its identified goals. Judges: The Judges, who are the crusaders of Justice are independent of both Executive and Legislature in a Democratic set up. Therefore, they are the persons who administer justice without fear or favour. They adjudicate the matters before them after proper inquiry in accordance with just, fair and reasonable principles of law to provide justice. Advocates: Advocates are the key functionaries assisting the judges in the administration of justice. They are the officers of the Court and are constituted into an independent profession under the Advocates Act, 1961. Without the expert assistance of the advocates or lawyer on either side of a dispute, judges will find it difficult to find the truth on disputed facts in issue and interpretation of law. Civil Society: In democracy, ‘we the people’ i.e. citizens and their particular groups play pivotal role in good governance. They create ‘Pressure Groups’ for seeking attention of the legislature and the government, For example several movements INTRODUCTION TO LAW 9 MODULE - 1 Meaning of Law Concept of Law led by Mahatma Gandhi during the freedom struggle. People’s effective participation brings transparency, accountability and responsiveness in the government. INTEXT QUESTIONS 1.4 Notes 1. What is the importance of Constitution? 2. How does Civil Society helps in bringing good-governance? 3. Analyse the role of Advocates in the administration of Justice. 4. Discuss brifely the role of Judges in the adminstration of Justice. WHAT YOU HAVE LEARNT z ‘Law’ is a large body of Rules and Regulations based mainly on general principles of justice and fair play to regulate human conduct & behaviour. z Broadly, ‘Law’ may be classified into International Law and Municipal (National) Law which can be further divided into Public and Private Law and then Substantive and Procedural law. z For a complete understanding of ‘Law’, it is necessary to know the Sources from where it comes. Broadly speaking, Customs, Judicial Precedents and Legislation are the Sources, from where Law emerges. z With the passage of time, society develops tools to regulate human conduct and behavior which can minimize friction and lawlessness in the society. Legal system, Constitution, Courts, Personnel of Law particularly judges, advocates, Civil Society play a very important role to enforce the rights and duties of the citizens. It also prevents lawlessness, friction and corruption in the society. TERMINAL EXERCISES 1. Define the term ‘Law’. 2. Identify the various Sources of Law. 3. Identify the different kinds of Law. 4. Describe ‘Judicial Precedent’, 5. Explain the difference between ‘ratio decidendi’ and ‘obiter dicta’. 6. Explain the ‘Doctrine of stare decisis’. 10 INTRODUCTION TO LAW Meaning of Law MODULE - 1 Concept of Law 7. Analyse the role of ‘Judges’ in the administration of Justice. 8. Explain the role of Advocates in the administration of Justice. 9. Describe the role of Civil Society in good goverance. 9. Match the Correct option. A B (a) Fundamental Law of the land (a) Public International Law Notes (b) Law deals with offences and punishments (b) Constitution (c) To stand by past decision. (c) Stare decisis (d) Body of Rules which governs the (d) Substantive Law conduct and relation of state with others Project One day visit a Court of Law which is nearest to your residence and try to understand the components of a Legal System present there. Sl.No Components of Legal System Observation 1. Role of Constitution 2. Role of judges 3. Role of Advocates ANSWER TO INTEXT QUESTIONS 1.1 1. ‘Law’ is a large body of rules, regulations and principles, based mainly on general principles of justice, equity and fair play and convenience which has been worked out by Governmental bodies to regulate human activities. 2. These are the following five bases on which Law can be defined: 1. It has basis in nature, reason, religion or ethics. 2. By its sources like Custom, Precedent and Legislation. 3. By its effect on the life of society. 4. By the method of its formal expression or authoritative application. 5. By the ends that it seeks to achieve. 3. Any two definition of Law:- (1) Salmond – “Principles recognized and applied by the State in the administration of justice.” INTRODUCTION TO LAW 11 MODULE - 1 Meaning of Law Concept of Law (2) Roscoe Pound – “Law is a Social control through systematic application of force in a policically organised Society.” An instrument to satisfy the maximum wants in a society with the minimum of friction and waste. 1.2 1. ‘Public Law’ regulates the organization and functioning of the State and determines the relationship of the State with its subjects whereas Private Law Notes regulates and governs the relationship of citizens with each other. 2. ‘Substantive Law’ deals with rights and obligations of the individuals whereas Procedural Law deals with practice and procedure having its objective to facilitate the administration of justice. 3. The main objective of ‘Criminal Law’ is to prevent crime and to punish the worngdaer. 1.3 1. Mainly there are three different Sources of Law. 1. Customs; 2. Precedent; and 3. Legislation. 2. ‘Custom’ is the oldest and an important source of Law. It is embodiment of those principles which have commended themselves to the natural conscience as principle of natural justice and public utility. The essentials of a ‘Custom’ are : (i) Antiquity; (ii) Continuity; (iii) Reasonableness; (iv) Obligatory Character; (v) Certainty; (vi) Consistency; and (vii) Conformity with statutory Law and Public Policy. 3. Legislation means to make law. It includes every expression of the will of the Legislature. 1.4 1. ‘Constitution’ is a fundamental document which covers policy aspiration of people in a given society. It covers rights and duties of the subjects of the 12 INTRODUCTION TO LAW Meaning of Law MODULE - 1 Concept of Law nation on the basis of equality, justice and fairness. It is a document which also provides for powers and responsibilities of the government. 2. The Civil Society members create pressure for seeking attention of legislature and executive branch of the Government. Their participation brings transparency, accountability and responsiveness in the Government and in this way they help in bringing good governance. 3. Advocates are the key functionaries assiting the Judges in the aministration Notes of Justice. They are the officers of the Court and are constituted into an an independent profession under the Advocates Act, 1961. Without the expert assitance of the Advocates on either side of a dispute, Judges will find it difficult to find the truth on disputed facts in issue and interpretation of Law. 4. The Judges, who are the crusaders of Justice, are independent of both Executive and Legislature in a Democratic set up like India. Therefore, they are the persons who administter Justice before them after proper inquiry in accordance with Just, fair and resoanlble pricniples of Law to provide Justice. INTRODUCTION TO LAW 13 MODULE - 1 Classification of Legal System Concept of Law 2 Notes CLASSIFICATION OF LEGAL SYSTEM In the prevoius lesson, you must have understood the meaning and concept of law. You are aware of the meaning of law and its different components. Is it interesting? Now you might have started thinking about the Legal Systems all over the world. Initially you might wonder how many Legal Systems might be in the world, but you would be surprised to know that although each country has its own legal system, yet all of them are connected to each other on the basis of common traits and features. These features are common because their sources are very few and can be counted on fingers, and there lies the basis of classification of legal systems. In this lesson, you will understand the different Legal Systems of the world based on broad classifications on the basis of common traits and features. On the basis of such classification, the Legal Systems of the world can be divided into four broad categories: (a) Common Law System, (b) Continental Legal System, (c) Socialist Legal System, and (d) Legal System amongst International Institutions and countries inter se. We will discuss these different Legal Systems in this lesson one by one. OBJECTIVES After completing this lesson, you will be able to: z explain the meaning of ‘Common Law System’ and its importance; z understand the importance of ‘Continental Legal System’ in influencing the development of many other legal systems; z understand the ‘Socialist Legal System’ and its impact on the development of other legal systems; and z know the functioning of International Institutions and the ‘Legal System’ amongst International Institutions and countries or International Legal System. 14 INTRODUCTION TO LAW Classification of Legal System MODULE - 1 Concept of Law 2.1 COMMON LAW SYSTEM Do you know the meaning of ‘Common Law’ ? This question is important. When this question is asked to a lay-man, he/she would say that ‘Common Law’ means law which is commonly applied. But that is not the Notes meaning of the term ‘Common Law’. ‘Common Law’ is the name of a family of different legal systems of the world which follow common features and traits albeit with small deviations. Those common features which are shared by a member of the family of Common Law are: (a) authority of the judgments delivered by higher courts and tribunals; (b) composition of judicial institutions; (c) adversarial system of court proceedings, and the role of judge, and (d) the importance of Acts, Statutes, and other legislations passed by competent authorities. Common Law System has influenced the development of many legal systems of the world, such as India, England, U.S.A., Canada, and Australia. Actually, the origin of Common Law is believed to have been in England and so wherever the British Empire spread its sovereignty, the Common Law System was imposed. We will discuss and understand the four common features of this legal system briefly in the following paragraphs. (a) Authority of the judgments delivered by Higher Courts and Tribunals: In ‘Common Law System’, you would observe that the judgments rendered by the High Courts and Supreme Court (or the Superior Courts) enjoy authority and powerful position. Those judgments have to be obeyed by the lower Courts and Tribunals in a similar case as the decisions of higher courts enjoy authoritative power in law. If the lower courts would not abide by the decisions of the higher courts, the judgments of the lower court can be challenged and it may become a nullity. Do not think that this feature is present in other legal systems. Other legal systems do not place such reliance on the authority of the judgments of the higher Courts. So the judgments of High Courts or Courts of higher/appellate jurisdiction may not be authoritative or binding on lower Courts in a legal system which is not a member of Common Law family. The authority of judgments of the higher Courts is given the technical name ‘judicial precedent’. Thus, we can say that the judgments of higher courts are judicial precedents and they must be followed by the lower Courts in similar cases. For example in India, the INTRODUCTION TO LAW 15 MODULE - 1 Classification of Legal System Concept of Law judgments of Bombay High Court are ‘judicial precedents’ for all the lower Courts coming under the jurisdiction of that High Court and they are bound by it. India is thus a member of Common Law family of legal systems. (b) Composition of Judicial Institutions: Second common feature of the Common Law family is that the judges of the Courts are highly skilled persons who have specially studied the discipline of law and possess practical experience in legal administration either as advocates or judges. A judge, Notes in other words, cannot be a lay person or even a scientist. He must be a person of legal background, either as an advocate or a judge or at least with a degree in law. This feature of Common Law makes the judicial institutions a separate set of professional persons. This might be one of the reasons why the judgments rendered by them are technical and based upon the finer details of the bare provisions of law. This leads to a better quality of judgment due to which these judgments carry authority when they are rendered by experienced judges or advocates. As an example, you can say that in India the judges at the trial Court or District Court are selected on the basis of an entrance examination where the minimum eligibility is a degree in law and the judges of High Courts and Supreme Court are selected from among those with at least 10 years of practice as advocates or judges. Persons outside the legal background cannot become judges of the State or Central government. So, the social background of judges in Common Law system is not diverse, but very limited. (c) Adversarial System of Court Proceedings and the role of Judge: Another feature of Common Law system is that the Court Proceedings are focused on the adversarial nature, where the disputing parties have engaged advocates who act like adversaries in the court of law and each advocate fights tooth and nail against the other in order to win the case. The judge in the court acts like a neutral observer listens patiently to the advocates of each party. You might have seen in the films that the judges say ‘Order, order’, when there is commotion in the court or the advocates start leveling comments. That is not exactly the power of the judge in the ‘Common Law System’, but the judge does not play an active role in going beyond the evidence presented by both the adversary advocates. They depend upon the skills of the advocates who present their best possible case before the neutral judge. It does not matter to the judge whether the truth of the matter has been revealed by the advocates in the case or not. He/she has to be satisfied on the evidence presented by the advocates only. He/she does not take any interest in establishing the truth underlying the claims of the disputing parties. (d) Acts, Statutes passed by Competent Authorities: A very important feature of Common Law system is that though the legislations passed by competent authorities such as the Parliament and Legislatures are given an authoritative place which is binding on the judges, whenever the judges find any gaps in the Acts or Statutes passed by the Parliament, they can make suitable 16 INTRODUCTION TO LAW Classification of Legal System MODULE - 1 Concept of Law interpretations to fill the gap in these Acts. In other words, the judges and advocates of the Common Law system would think that the Acts are very abstract and the rules contained in those Acts are very general in nature. These general and abstract rules are incapable in themseves to be applied in all facts and circumstances. Facts of every case would be so peculiar that it would be very difficult to apply the general and abstract form of rule which may need suitable additions and interpretations. That addition and interpretation is as important as the bare provision of general and abstract Notes law. For example, the punishment prescribed by the Act passed by Indian Parliament for the commission of murder ranges from life imprisonment to death penalty. However, it has not been prescribed in what situations punishment would be life imprisonment or death. The judges have filled this gap and made their own addition into the law by holding that the ‘rarest of rare cases’ would be suitable for the death penalty whereas the others would only get life imprisonment. The origin of the ‘Common Law’ is linked to royal power. It was developed as a system in those cases where the peace of the English Kingdom was threatened, or when some other important consideration required, or justified, the intervention of royal power. It seems, essentially, to be a Public Law, for contestations between private individuals did not fall within the purview of the Common Law Courts save to the extent that they involved the interest of the Crown or Kingdom. ACTIVITY 2.1 Find out in your local Town the way in which the Courts function and the advocates argue their cases. Observe keenly the behavior of the Judges and their dress. Make a list of the things which you believe, are the characteristic traits of ‘Common Law’. Do you think that India follows the Common Law pattern in its Legal System? INTEXT QUESTIONS 2.1 1. What do you mean by ‘Common Law System’? 2. Mention any three characteristics of ‘Common Law System’. 2.2 CONTINENTAL LEGAL SYSTEM The Legal System followed by the countries in the mainland of Western Europe (which is commonly referred to as ‘Continent’ as distinguished from the island INTRODUCTION TO LAW 17 MODULE - 1 Classification of Legal System Concept of Law of England) is referred to as Continental Legal System. The origin of ‘Continental Legal System’ can be traced to the old age Roman Empire of the 5th century A.D. You might have heard about the Roman Emperor Justinian (A.D.483-565) during whose time many rules and regulations were compiled and were called ‘Code’. From that time onwards, this legal system spread all over Europe, including England for some time. In the rest of the world, this legal system was imposed during the era of colonialism during the seventeenth Notes and eighteenth centuries. Now you may find this legal system present in many countries of Southern America and parts of Africa. As you might be aware that in India, even French and Portuguese had come to establish their suzerainty for some time and during that period they had successfully imposed their legal system in those places, such as Pondicherry, Goa, Daman, and Diu. You may identify the ‘Continental Legal System’ on the basis of the following salient features: (a) importance of Acts, Statutes passed by the Parliament or competent authorities; (b) composition of judiciary; (c) power of the judges to make law; and (d) inquisitorial approach of the court proceedings. We will discuss these features again with respect to ‘Common Legal System’. Figure 2.1: Court (a) Importance of Acts, Statutes passed by Competent Legislature: The Acts passed by the Parliament or the competent authorities receive the highest importance in this legal system. Authority of the competent legislature is to assimilate the scattered rules and then draft them according to the modern conditions and get them passed in the Parliament. This is called the process of ‘Codification of Rules’. For example, Rules assimilated and framed in the area of crimes are called ‘Penal Code’. These rules passed by the Parliament are then applied by the judges in the resolution of disputes. Judges regard the rules framed by the Parliament as supreme and do not try to change it by asserting their own authority as in the Common Law 18 INTRODUCTION TO LAW Classification of Legal System MODULE - 1 Concept of Law family. They may give their own interpretations of the vague language used in the Act, but they would say that it would be not binding except upon the parties to the dispute. Interpretations of the rules framed by the Parliament are given not by the judges but by the legal scholars and academicians. The abstract law passed by the Parliament is given high regard even by the judges and advocates. (b) Composition of Judiciary: Judiciary constituted in the Continental Legal System is from diverse fields as a person of any background can be a judge Notes in this legal system. Persons who have specialized knowledge of any particular field may be appointed as judges. Thus, an engineer or a Doctor or a Scientist may become a judge. There is no requirement to study law as a separate discipline for a requisite number of years and practice in the court of law thereafter. So the judges of the higher courts or trial courts are appointed from diverse backgrounds and without the need of a degree in legal education. Legal education is also imparted in the countries which follow ‘Continental Legal System’, but that is not the only mandatory requirement to become a judge. In India too, you might find that a technical member is sometimes appointed by the court to assist them in arriving at a conclusion in which any technical problem is also involved. (c) Power of the judges to make law: Judges in ‘Continental Legal System’ do not make laws and their judgements do not carry authority except in the dispute before the court. They apply the laws made by the legislature and cannot make the law themselves. In other words, the judgements rendered by the judges of even the higher courts do not enjoy the status of ‘judicial precedents’ as in the Common Law System. Their judgements are given respect by the judges in other cases but they are not bound by them. For example, the judgements given by the highest court of appeal in France, namely, ‘Court de Cassation’ are not binding on all courts of France. However, the judgement of that Court is given high respect in the judicial bodies. The judges of the highest court cannot strike down the law passed by the legislature; they can only apply the law passed by the legislature. One of the advantages of this system is that the voluminous judgments of courts would not have to be read by the lawyers to know the law which is the case in ‘Common Law System’ and an advocate has not only to know the law passed by the Parliament and legislatures, but also the judgments delivered by the higher judiciary. (d) Inquisitorial approach of the court proceedings: Unlike the passive role of the judges in finding the truth and being dependant on the ability of the advocates to establish the fact of the matter, the judges in the ‘Continental Legal System’ play active roles in finding the truth. The approach followed in the court proceedings is not adversarial in nature but ‘inquisitorial’ (the term ‘inquisition’ means investigative). The judges do not simply act as a referee between the prosecutor and the defense but they actively investigate INTRODUCTION TO LAW 19 MODULE - 1 Classification of Legal System Concept of Law the matter themselves with the co-operation of all disputing parties and try to establish the truth by collection of evidence. Collection of evidence is thus not the sole responsibility of the advocates but the judges too. Judges may go to the scene of the crime and collect evidence on their own if they think that the evidence produced by the advocates of the disputing parties leave some doubts as to the establishment of the truth. Judges are not passive observers but active participants in the quest to establish the truth. In India, Notes you may see the application of this approach in the fact finding commissions established by the government. You may have heard of ‘Nanavati Commission of Inquiry’, established by the Gujarat Government to inquire about the actual facts related to ‘Godhra Riots of 2002’. ‘Continental Legal System’ originated in Europe and was found by the scholarly efforts of the European Universities (in particular, German) in the twelfth century on the basis of the compilations of the Emperor Justinian of the Roman Empire. Therefore, this legal system is also referred to as “Romano-Germanic Legal System”. In this Legal System, law has evolved primarily for historical reasons, as an essentially private law, as a means of regulating the private relationships between individual citizens. ACTIVITY 2.2 Inquire from your family members whether they have ever heard of ‘1984 Sikh Massacre’ and the several Commissions of Inquiry constituted by the government to establish the facts. Try to collect as much information as possible on these kinds of Inquiry Commissions. INTEXT QUESTIONS 2.2 1. What are the salient features of Common Law System? 2. Discuss the important traits of Continental Legal System. 3. Do you think that India’s legal system is a combination of ‘Common Law’ and ‘Continental Legal System’ or is it primarily influenced by ‘Common Law System’ with only a few features of Continental Legal System? 4. The origin of the ‘Common Law’ is linked to ‘Royal Power’.(True/False) 5. In ‘Common Law System’ the Judgements rendered by High Courts and Supreme Court enjoy authority and powerful position. (True/False) 6. India is a member of Common Law family of Legal Systems. (True/False) 20 INTRODUCTION TO LAW Classification of Legal System MODULE - 1 Concept of Law 7. The origin of Common Law can be traced to the old age Roman Empire of the 5th century A.D. (True/False) 2.3 SOCIALIST LEGAL SYSTEM An important legal system which has influenced the development of many other legal systems of the world is called ‘Socialist Legal System’. This Legal System was adopted by those countries which had started following socialist and Marxist Notes philosophy especially after the First World War of 1914-19. You might be aware that the socialist philosophy was practically adopted by the former U.S.S.R. and China. When the U.S.S.R. disintegrated in the late 1980s, all breakaway countries adopted this Legal System with some modifications, such as Ukraine, Kazakhastan, and Uzbekistan. Apart from China, other countries, such as Mongolia, North Korea and Cuba follow this legal system. You cannot say that this legal system is quite different from Common Law and Continental Legal System. Instead you must know that the ‘Socialist Legal System’ has been influenced by Continental and Common Law systems. However, there are certain features of this legal system which have distinguished it from other legal systems. Those features are: (a) legal rules are not considered permanent; (b) importance of public law; (c) no judicial review of administration and law passed by the legislature; and (d) great influence of Continental Legal System. We will discuss these features one by one in the following paragraphs. (a) Legal Rules are not considered permanent: According to the adherents of this legal system, law is considered to be of temporary character and a time would come when law will not be necessary to govern. The moment every body would become economically equal, there would be no requirement of law. To promote economic equality, courts and law are required. Law, in ‘Socialist Legal System’, is of revolutionary nature. Unlike Continental Legal System where law is of static character, the ‘Socialist Legal System’ throws away any law which promotes private property and wealth. For example, when the former U.S.S.R. adopted Socialist Legal System, all the laws promoting private and commercial rights were abolished. Those laws were called ‘bourgeoisie law’. Socialist laws are revolutionary in the sense that they do not recognize old laws which sustained capitalism based on private rights and free markets. It aims to overthrow those power relations which build a capitalist system. (b) Importance of Public Law: In ‘Socialist Legal System’, Private Law has no space and all law has to be in the nature of ‘Public Law’ which means that all law deals with State matters or public matters, such as Constitutional INTRODUCTION TO LAW 21 MODULE - 1 Classification of Legal System Concept of Law Law, Administrative Law, and Criminal Law. By Constitutional Law, we mean that law which determines the nature of the State and the structure of the government. It is above and superior to the ordinary law of the land. Administrative Law deals with the structure, powers and functions of the organs of administration, the limits of their powers etc. Private Law, which regulates and governs the relations of citizens with each other, is either abrogated or is given less importance than the Public Law. Examples of Notes Private Law are the law of torts, contract, property, and intellectual property rights. In ‘Socialist Legal Systems’, many branches of Private Law have shifted and have become a part of Public Law. Thus, Law of Contract which was considered to be a law regulating the contractual freedom of individuals has also now been substantially controlled and the freedom to contract has been severely restricted in this Legal System. (c) No judicial review of administrative action and law passed by the legislature: Socialist Law theorists traditionally argue that the legislature is conceived to be the supreme expression of the will of the people and beyond the reach of judicial restraint. Legislation, not judicial decisions, is recognized as the sole source of law. They do not believe in the theory of ‘separation of powers’ according to which the legislature, executive, and the judiciary are independent and separate from each other. Instead, it believes in the unity of all State organs and above all superiority of legislature. It is assumed that the legislative body is responsible for maintaining the constitutionality of State actions and that constitutional review could not be exercised by extra-parliamentary bodies, such as the judiciary. The Constitutions of socialist countries are recognized as the supreme legal force. The judiciary cannot have the power to review the law passed by the legislature and rules framed by the executive under the authority of legislature. The power of ‘judicial review’ is considered as a tool of the bourgeoisie. (d) Influence of Continental Legal System: The ‘Socialist Legal System’ is greatly influenced by the ‘Continental Legal System’. The members of the socialist family of legal systems are those countries which formerly belonged to the ‘Continental Legal System’ and the characteristics of that Legal System are still preserved in it except the importance of Private Law. The judges do not enjoy the power to authoritatively interpret the law and to modify it. Judicial precedents cannot be made by the judges who enjoy only the power to apply the given laws and promote social and economic justice thereby. Further, the court proceedings are not adversarial in character but it follows the inquisitorial approach and public prosecution is regarded as provider of justice rather than punishing the offenders. The legal field is also not strictly divided amongst criminal, civil, and intellectual property. This legal system is an integrated one where lawyers may move from one area to another (e.g., from criminal to civil law or from being a defense attorney to a prosecutor) without additional entrance requirements. 22 INTRODUCTION TO LAW Classification of Legal System MODULE - 1 Concept of Law INTEXT QUESTION 2.3 1. What do you understand about ‘Socialist Legal System’? Discuss its salient features. 2. Do you think that India should adopt Socialist Legal System? Assess the advantages and disadvantages of this legal system for India. 3. Write five lines each about Public and Private Law. Notes 4. In Socialist Legal System, Private Law has no space and all law has to be in the nature of ‘Public Law’. (True/False) 5. In Socialist Legal System, ‘Legislation’ not ‘Judicial decisions’, is considered as the sole source of Law. (True/False) 6. The Socialist Legal System is greatly influenced by the Continental System. (True/False) 2.4 LEGAL SYSTEM AMONGST INTERNATIONAL INSTITUTIONS AND COUNTRIES INTER SE OR INTERNATIONAL LEGAL SYSTEM Open a newspaper, listen to the radio or watch television or surf the internet, and you will be confronted with events of international nature. Allegations of human rights abuses, killing of civilians during an armed conflict, impact of climate change, and disputes between nations are but a few examples of such events. It is in the context of these events and this interdependence of the countries in the era of globalization that you might think of a different kind of legal system. The legal system which caters to these issues and challenges is known as International Legal System. In this legal system, the legal principles are formulated with a view to promote interactions amongst nations, international institutions and organizations. You can say that without an International Legal System in place, there cannot be a possibility of international peace and security and if international peace and security is not maintained, then there would be no development all over the world. It is for this reason that International Legal System which is a new phenomenon, has taken birth in the twentieth century, especially after the First World War. For the sake of your convenience, this legal system can be understood by four specific examples: (a) Role of Treaties, (b) United Nations, (c) European Union, and (d) SAARC. (a) Role of Treaties: Treaties are a form of agreement between or amongst countries and international organizations which are regulated by International INTRODUCTION TO LAW 23 MODULE - 1 Classification of Legal System Concept of Law Law. There are around two hundred countries and several hundreds of international organizations, such as the United Nations, World Trade Organization, World Intellectual Property Organization. You might wonder how these countries and international organizations would interact with each other? Do you not think that mutual agreement is one possible way out to achieve that objective? This kind of agreement is called by various names such as Treaty, Convention, Pact, Covenant, Protocol, Charter, and even Notes simply an Agreement. You might know the names of several such Treaties. The famous examples may be: Versailles Treaty, Kyoto Protocol, Pact of Paris, Charter of the United Nations, and International Covenant on Civil and Political Rights. These Treaties bind the Nations to carry out their responsibilities according to their provisions. If they would not observe those responsibilities, it would amount to breach of a treaty and some kind of compensation would have to be paid by the violating country. There is a fundamental principle in this legal system which says: “Treaties must be observed in good faith”. This principle has become a guiding factor in the continued observance of treaties in International Legal System. (b) United Nations: The United Nations is central to the whole international legal system because it has several principal organs, specialized agencies, committees and commissions. It was established in 1945 on the basis of the Charter of the United Nations. You might have known about General Assembly, Security Council, Economic and Social Council, World Health Organization, UN Educational, Scientific, and Cultural Organization. One of the Commissions of the United Nations, International Law Commission (ILC), has been instrumental in drafting many Treaties which are subsequently adopted by the countries and international organizations themselves. Mention must also be made about the role of the Security Council. The Security Council is one of the principal organs of the United Nations and in fact, the most powerful one. It is the executive wing of the United Nations and has been vested with all powers to maintain international peace and security. Figure 2.2 24 INTRODUCTION TO LAW Classification of Legal System MODULE - 1 Concept of Law (c) European Union (E.U.): European Union is a remarkable regional International Organization which has economically and politically united the majority of European countries. This regional union was established on the basis of Maastricht Treaty of 1993 and Lisbon Treaty of 2009. The EU has developed a common market for the member countries of EU, which is very significant. They have established an exclusive area called ‘Schengen area’, in which a passport is not required to enter anywhere in the whole area which includes as many as 22 EU countries and 4 non-EU countries. This Union Notes is also distinguishable from other organizations in the sense that the Lisbon Treaty authorizes the EU to conclude treaties which would enjoy primacy over the national legislations. Key principles of EU law include fundamental rights as guaranteed by the Charter of Fundamental Rights and as resulting from constitutional traditions common to the EU’s States. The Treaties are primary legislation of the EU, supported with secondary legislation (regulations, directives, and decisions). (d) South Asian Association for Regional Co-operation (SAARC): South Asian Association for Regional Co-operation was established on 8 December 1985 by the South Asian countries of India, Bangladesh, Bhutan, Pakistan, Nepal, Sri Lanka, and Maldives. Afghanistan also became a member of this organization in 2007. Many Agreements and Conventions have been concluded under the auspices of SAARC, such as Agreement on South Asian Free Trade Area (SAFTA), Agreement on Avoidance of Double Taxation, Convention on Combating and Prevention of Trafficking in Women and Children for Prostitution, Regional Convention on Suppression of Terrorism. It has launched visa exemption scheme also whereby for some defined categories of entitled persons, there would be no requirement of a visa to enter any country of ‘SAARC’. These are some of the remarkable achievements of this regional organization which works on the basis of treaties recognized by the International Legal System. ACTIVITY 2.4 Find out some of the offices of International Organizations in your city or State capital. List the names of treaties on the basis of which these international organizations work. Collect pictures of those organizations and paste it in your copies and in your diary. INTEXT QUESTIONS 2.4 1. Discuss the salient features of International Legal System. 2. What do you mean by ‘Treaties’? Do you think that Treaties are an important factor in the development of International Legal System? INTRODUCTION TO LAW 25 MODULE - 1 Classification of Legal System Concept of Law 3. Compare the structure and working of European Union and South Asian Association for Regional Co-operation (SAARC). Evaluate the merits and demerits of both these Regional Organizations. 4. Fill in the Blanks (i) The United Nations was established in ……………...(1945, 1948) (ii) The South Asian Association for Regional Co-operation (SAARC) was Notes established on ……………... (8th December 1985/8th December 1945/8th December 2007) (iii) European Union (E.U.) includes ……………..European countries. (22/26/28) WHAT YOU HAVE LEARNT In the whole world, there are four broad classes of Legal Systems. These are: (a) Common Law; (b) Continental Legal System; (c) Socialist Legal System; and (d) Legal System amongst International Institutions and Countries ‘inter se’. Common Law countries are those in which four major components are present. These are : (a) Binding authority of the judgement delivered by higher courts and tribunals; (b) Composition of judicial institutions from a limited field; (c) Adversarial system of court proceedings and the role of judge is neutral; and (d) Importance of Acts, Statutes passed by competent authorities with a condition that whenever the judges find any gaps in the Acts or Statutes, they can make suitable addition and interpretations. Adherents to Continental Legal System follow four major characteristics : (a) Binding authority of Acts, statutes passed by competent legislature and judges regard these Acts as supreme and do not try to change them by asserting their own authority; (b) Composition of judicial institutions from a diverse field; (c) No binding authority of the judgements delivered even by higher courts & Tribunals; and (d) Inquisitorial approach of the Court proceedings 26 INTRODUCTION TO LAW Classification of Legal System MODULE - 1 Concept of Law Socialist Legal System is that system in which Private Law is given little importance whereas Public Law is regarded as Supreme. Judiciary normally does not review administrative actions and laws passed by the legislature. TERMINAL EXERCISES 1. What do you mean by ‘Common Law Family of Legal System’? Explain. Notes 2. Describe the main components of ‘Continental Legal System’. 3. Can the judiciary review the administrative acts and rules framed by it? Give reasons. 4. What kind of Legal System is present in the United Nations? Discuss briefly. 5. Match the major legal systems in column ‘A’ with their corresponding application in countries given in column ‘B’. A B (a) Socialist Legal System European Union (b) Common Law Family Spain (c) Continental Legal System Pakistan (d) Legal System amongst International Institutions Russia ANSWER TO INTEXT QUESTIONS 2.1 1. ‘Common Law’ is the name of a family of different Legal Systems of the world which follow common featurs and traits albeit small deviations. 2. The three characterstics of Common Law are : (i) authority of the Judgements delivered by higher courts and tribunals; (ii) Composition of Judicial Institutions; and (iii) Importance of Acts, Statutes and other Legislation passed by competent authorities. 2.2 1. The salient features of Common Law System are as follows : (a) judgements rendered by the higher courts enjoy binding authority, which is technically known as ‘judicial precedent’; INTRODUCTION TO LAW 27 MODULE - 1 Classification of Legal System Concept of Law (b) judges of the courts are highly skilled persons who have special knowledge of law and are experienced in the administration of justice; (c) court proceedings are based on the adversarial nature and the judges play a passive role; and (d) laws passed by the legislature enjoy the same status as ‘judicial precedents’. Notes 2. The important traits of Continental Legal System are as follows : (a) judgements rendered by the higher courts do not enjoy binding authority and are not regarded as ‘judicial precedents’; (b) judges of the courts are not essentially from a legal background but