Introduction to Law Notes PDF

# Intro to Law ## Definition - Collection of rules executed by the administration for Justice - Body of rules recognized and enforced by the state to regulate human behavior ## Different Jurists - **Ulpian:** The art or science of what is equitable(Justice) and good. - **Thomas Hobbes:** Law is...

# Intro to Law ## Definition - Collection of rules executed by the administration for Justice - Body of rules recognized and enforced by the state to regulate human behavior ## Different Jurists - **Ulpian:** The art or science of what is equitable(Justice) and good. - **Thomas Hobbes:** Law is the command of him who by sign commands what to be done or omitted. - **John Austin:** Aggregate of rules set by men or politically superior to man as politically inferiors - **Roscoe Pound:** A social institution to satisfy social wants. - **John Salmond:** Body of Principles recognized and enforced by the state for the administration of Justice. ## Purpose and functions of law by Jurists - **Thomas Hobbes:** To limit natural liberty - **Thomas Holland:** Should aim at the highest well-being of society. - **John Lock:** The end of law is not to abolish or restrain but to pressure on enforce freedom. - **Jeremy Bentham:** Law should promote greatest happiness of the greater number of people. It means utilitarianism. - **Roscoe Pound:** - Maintain law and order (Maintain peace) - To maintain status quo (not change in situation) - Enable individual to have maximum freedom - Maximum satisfaction of the needs of the people. ## Territorial nature of Law - This means that laws are created, applied, and enforced within a particular territorial boundary. ## Classification of Law - **International Law:** It is the set of rules, appearances, and principles that govern the relationship between two states. - **Public International Law:** Public International Law deals with the relationships between states and international organizations. - **Private International Law:** It deals with private matters across national borders. - **Municipal Law:** It is the set of laws and regulations that govern local governments such as cities, towns, and municipalities. - **Constitutional Law:** It refers to the law and principles that govern the structure, powers, and limitations of a country’s government as outlined in its constitution. - **Administrative Law:** It refers to the rules and regulations that govern the actions of government agencies and officials. - **Criminal Law:** Refers to the laws that define and punish crimes, such as theft, murder, and assault. ## Private Law - Refers to the body of laws that govern relationships between private individuals, organizations, or respecting their rights. - **Law of Person:** Deals with the rights, responsibilities, and status of individuals. ex: Marriage and divorce, parental rights, and responsibilities - **Law of Property:** Deals with ownership, use and transfer of properties such as land. - **Contract:** Deals with agreements between individuals and organizations outlining terms and conditions. - **Quasi Contract:** A court-ordered agreement to prevent one person from unfairly benefiting at another's expense even if there is no real contract. - **Tort Law:** Civil wrongs, such as personal injury or damage to property. - **Law of Obligations:** Govern those relationships that one party has to do for another party. Deals with the rights and duties arising from agreements, contracts. - **Conflict of Law:** Govern situations where there is a disagreement between the laws of different countries. ## Sources of Law (Modern) - **Definition:** Sources of law refers to the origin on foundations of the law that govern a society. - **Formal Sources:** Refers to the official and recognized origins of the law, which provide a legal framework for a society. - **Material Sources:** The social, cultural, and historical content that influences the creations laws. - **Historical Sources:** Refers to the past events, experiences, and conditions that have shaped the law. - **Legal Sources:** These are the actual laws, rules, and decisions that govern a society. - **Legislation:** Legislation refers to the laws or rules made by the country's legislative body, such as parliament. - **Supreme legislation:** Laws made by the highest authority in a country, like parliament, and it has the highest power and cannot be challenged. - **Subordinate Legislation:** Laws made by authorities below the highest level. They get their power from the highest authority. - **Delegated Legislation:** Laws made by others, like government ministers or officers, with the permission of highest authority for speed and efficiency. - **Precedent:** It refers to the previous judgments or decisions made by jurists. - **Nature:** Binding or it may be non-binding. - **Ratio Decidendi:** The reason on principle behind the court’s decision. - **Obiter Dictum:** A judge’s personal opinion or viewpoint on a matter. - **Principles of *stare decisis*: ** Following what has already been decided. - **Types of Precedent:** - **Authoritative Precedent:** Binding and must be followed. - **Persuasive Precedent:** Non-binding. - **Original Precedent:** A precedent that establishes a new principle or rule. - **Declaratory Precedents:** A court decision that explains and clarifies an existing law, without creating new law. - **Custom:** Customs are a source of law when they are long-standing, widely accepted. - **Professional Opinion:** Expert advice from judges, lawyers, and scholars can be a source of law. - **Agreements:** Agreements can also be a source of law. - **Treaty:** A source of law. ## Sources of Islamic Law - **Definition:** Islamic law, or Shariah, is a comprehensive legal system and it governs all aspects of life, including religious, moral, and social duties. - **Primary Sources:** Independent sources. - **Quran:** The Quran is the holy book of Islam and a complete code of life. - **70 verses:** Family related. - **80 verses:** Business related. - **30 verses:** Crimes and punishment. - **400 verses:** عبادات (worship) - **70 verses:** Civil law. - **25 verses:** International law. - **10 verses:** Administration and constitutional law. - **Sunnah:** The Sunnah refers to the practices, sayings, and approvals of Prophet (PBUH). - **Types of Sunnah:** - **Faili:** The actions of Prophet (PBUH). - **Qaolis:** Sayings of the Prophet (PBUH). - **Taqriris:** Approvals of the Prophet (PBUH). - **Secondary Sources:** These are dependent on primary sources. - **Ijma:** Refers to the consensus of Islamic scholars on a particular legal issue where the Quran and Sunnah do not provide clear guidance. - **Authority:** It is based on the Hadith: “My Ummah will never agree on misguidance.” - **Secondary Sources:** These are dependent on primary sources. - **Ijma:** Refers to the consensus of Islamic scholars on a particular legal issue where the Quran and Sunnah do not provide clear guidance. - **Authority:** It is based on the Hadith: “My Ummah will never agree on misguidance.” - **Subsidiary Sources:** These compliment the primary and secondary sources. - **Taqleed:** Following the opinions of a qualified scholar without questioning. - **Authority of Taqleed:** Prophet said “When you yourself don’t know, then question those who know.” - **Istinsan:** Preferring a ruling based on fairness over strict. (Preferring easy to strict). - **Istidlal:** Using evidence and logical reasoning. - **Istislah:** Making rulings for the public's welfare. - **Fatwa:** A legal opinion by a qualified scholar on a specific issue. ### Essentials or characteristics of Ijma - Agreement between Muslim scholars - Question of law different agreement (on what law says about) - Who do aframl Muslims Jurists - After the demise of Holy Prophet (PBUH) - Qiyas: Analogical reasoning where rulings derived from established rulings - Authority: Maaz Bin Jabal case - **Elements:** - **ASL:** Original case from Quran or Sunnah. - **Far:** New case needing ruling. - **ILLT:** Common cause or reason. - **Hukm:** Ruling applied to the new case - **E.g.:** The prohibition of drugs based on the Quranic prohibitions of alcohol due to its intoxicating effects. - **Ijiinad:** Independent reasoning by qualified scholars to solve new issues in the absences of explicit texts. - **Requirements of Ijma:** - Adult and Muslim - Sound mind and command in Arabic - Knowledge of Quran and Sunnah - Rule of interpretation - Knowledge of Qiyas and up-to-date knowledge. ## Law and Morality - **Definition:** Law refers to rules enforced by the state while morality pertains principles of right and wrong based on personal beliefs. - **Morality:** Morality is a set of ethical principles that guide individuals in distinguishing between right and wrong. It shaped by culture, religion, and personal beliefs. ### History and Background of Law and Morality - **Ancient Times:** At their time morality and law were closely intertwined, often rooted in religious teachings. - **Greek Civilization:** Greek philosophers like Socrates, Plato, Aristotle believed that law should reflect moral ideals. - **Romans:** Romans gave the principle of justice, crimes, practical wisdom, and good judgment. - **Middle Ages:** 5th to 15th century Christian morals are made the part of law. - **During After Reformation in Europe:** Challenged the church’s authority. Legal system became separate from religious source of law. - **During the 17th and 18th Century:** The concept of natural rights emerged 17th and 18th century, related law and morality. - **19th Century:** Law is common of sovereign. John Austin's "Theory of Positive Law" Kelson supported him. ### Modern Times - **Sociological Approach:** In the 20th century legal system again shaped by moral values. ### Relationship between Law and Morality - Many laws are rooted in moral principles. - **Justivist H.L.A. Hart:** In every legal system there should be morality. ### Influence of Morals of Law - Legislature can make law but not against morality. ### Substantive Law - Substantive law defines the rights and duties of individuals and organizations, and consequences for violating law. - **PPC:** Prescribe punishments. ### Procedural Law - Procedural law outlines the steps and methods to enforce substantive law. - If someone breaches a contract, procedural law guides how to file a case. - **CAPC:** Guides how crimes are investigated. ## Legal Concepts - **Definition:** Legal concepts form the foundation of law and guide the relationships between individuals and society. These may include rights, wrong, etc. - **Right:** A right is a legal entitlement granted to an individual to perform or demand something. - **E.g.:** Right to education - **Wrong:** An act that is contradicted to law. - **E.g.:** Theft, Fraud. - **Duty:** An obligation that a person ought to do. - **E.g.:** A driver has a duty to follow traffic rules. ### Kinds of Legal Rights - **Perfect and Imperfect Right** - **Perfect Right:** A right recognized and protected by law. - **E.g.:** Ownership of property. - **Imperfect Right:** A right recognized but not enforced by law. - **E.g.:** A promise without consideration. - **Positive and Negative Rights** - **Positive Right:** A right requiring someone to perform an act. - **E.g.:** Right to free education. - **Negative Right:** A right requiring others not to interfere. - **E.g.:** Freedom of speech. - **Right in Rem and Right in Personam** - **Right in Rem:** A right enforceable against the world. - **E.g.:** Ownership of property. - **Right in Personam:** A right enforceable against a specific person. - **E.g.:** A loan agreement. - **Proprietary and Personal Right** - **Proprietary Right:** Rights over property. - **E.g.:** Right to sell land. - **Personal Right:** Rights involving personal relationships. - **E.g.:** Right to sue for breach of contract. - **Inheritable and Non-Inheritable Rights** - **Inheritable Right:** Right that can pass to heirs. - **E.g.:** Property. - **Non-Inheritable Rights:** Rights that cannot pass to heirs. - **E.g.:** Personal services. - **Right in Rem Aliena and Right in Rem Propria** - **Right in Rem Aliena:** A limited right over others’ property. - **E.g.:** Easement right. - **Right in Rem Propria:** A complete right over one’s property. - **E.g.:** Ownership right. - **Legal and Equitable Right** - **Legal Rights:** Right recognized by law. - **E.g.:** Right to inherit property. - **Equitable Right:** Right to access public places. Those rights provided by court of chancery. - **E.g.:** Right to access public spaces fairly. ### Primary and Secondary Rights - **Primary Rights:** Rights which are not dependent on wrong, called primary right. - **E.g.:** Right of freedom of speech. - **Secondary Rights:** Rights arising from the violation of primary rights. - **E.g.:** Right to compensation for defamation. ### Public and Private Rights - **Public Rights:** Rights enjoyed by society collectively. - **E.g.:** Right to clean air. - **Private Rights:** Rights specific to individuals. - **E.g.:** Right to privacy. ### Vested and Contingent Right - **Vested Right:** Rights that are fully established. - **E.g.:** Retirement rights. - **Contingent Right:** Rights dependent on a future event. - **E.g.:** Right to inherit property if a will exists. ### Municipal and International Right - **Municipal Right:** Right under country’s law. - **E.g.:** Right to vote in national elections. - **International Right:** Right under international law. - **E.g.:** Right to asylum. ### Ordinary and Fundamental Rights - **Ordinary Right:** General legal rights. - **E.g.:** Right to own property. - **Fundamental Right:** Rights guaranteed by the constitution. - **E.g.:** Right to equality.