Legal System PDF

**Civil Law** 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 of England) is referred to as Civil Legal System. The origin of 'Civil Legal System' can be traced to the old age Roman Empire of...

**Civil Law** 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 of England) is referred to as Civil Legal System. The origin of 'Civil 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 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 'Civil 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. 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 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 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 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, 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'. **Common Law** Features 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 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, 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 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 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. **Religious Legal Systems** Religious law emanates from the sacred texts of religious traditions and in most cases purports to cover all aspects of life as a seamless part of devotional obligations to a transcendent, imminent, or deep philosophical reality, either personal or cosmological. Religion for law must be defined broadly, but its truth value needs not, and ought not, be addressed. Most religious law gradually came to apply in its most institutional form, and even then, only to its own organizations and to familial or contractual matters for its adherents. [Islamic Law] According to the excellent outline provided by Irshad Abdal-Haqq in *Islamic Law: An Overview of Its Origin and Elements*, 7 J. Islamic L. & Culture 27 (2002) (Reprinted with author\'s permission in the same journal from its first appearance in 1996), Islamic law might refer to all the law and jurisprudence of Islam and includes: - the primary sources of law (*Shari\'ah*) *Shari\'ah* has two main sources: - the Qur'an and - the Sunnah (traditions of Muhammad ibn Abdullah, the last prophet of Islam), which means - the things he said, i.e., *hadith*, - the way he lived his life, his conduct and, \(2) the subordinate sources of law and the methods used to discover and apply the law (Islamic jurisprudence or *fiqh*), described by Mr. Abdal-Haqq as follows: \"While the principles and injunctions of the Shari\'ah are infallible and not subject to amendment, fiqh-based standards may change according to the circumstances." Four methods, often called sources of law by Muslim writers, for deducing and establishing fiqh-based law are universally recognized by Islamic jurists. - the extraction of Qur'anic injunctions and principles based on interpretations of it; - the application of the principles reflected through the Hadith of Prophet Muhammad; - the consensus of opinion from among the companions of Muhammad or the learned scholars (*ijma*); - analogical deduction Nineteen schools of *fiqh* (*fiqh* *madhhabs*) developed during the first four centuries of Islam. By the fall of Baghdad (in 1258 C.E. to the Mongols, that is- not to be confused with modern events) the number of major madhhabs had dwindled to five (four Sunni and one Shia). At present, the four major schools of *fiqh* among the Sunni Muslims are: (1) Hanafi, (2) Maliki, (3) Shafi\'i, and (4) Hanbali. Among the Shia, the Jafari School predominates.\" (Abdal-Haqq, *Islamic Law, supra* at 36) Judges also use individual judgment and reasoning, known as *ijtihad* (can include reasoning from analogy), but greatly varying over time. His excellent article goes on to distinguish each school or *madhab* by the relative importance each attaches to the authority of sources of law in on pages 67-75. Finally, author Abdal-Haqq observes at pages 68-69, "Currently, Saudi Arabia, Sudan, and Iran stand alone as those countries that fully recognize the Shari\'ah as the official law of the land. Qatar, the two Yemens, Kuwait and Bahrain also acknowledge Shari\'ah principles but to a lesser degree. All other legal systems in the Muslim world are hybrids of Islamic and European law.\" [Jewish Law] **\"**Jewish law is the legal system of the Jewish people as it has developed from Biblical times to the present.\" This definition by Phyllis Weisbrod in *Basic books and periodicals on Jewish law: a guide for law librarians*, 82 Law Libr. J. 519 (1990) summarizes a complex written, oral, and oral-as-written textual history of sources for Jewish law. Torah is the term used for the divine source of wisdom relating to all of creation, so to work towards a definition that relates to the narrower scope of its application as law, or *halakhah*, begins with the Torah in a more literal sense, namely, the first five books of what the Christian western tradition calls the Pentateuch or first five books of what came to be the Bible. While the status in Biblical and form-based criticism of the ancient compilers of this narrative is beyond the scope of this guide, an oral history of commentary on the Torah arose and became written down as the Mishnah in approximately the year 200. Talmud and Torah also contain non-legal teachings bound up with legend, myth and philosophy, referred to as *aggadah*. Learned opinions based on this addition to the divine tradition were recorded as a commentary on the Mishnah and became known as the Talmud or \"study\". The Jerusalem Talmud (or Gemarah in Aramaic) dates from the fifth century after Christ, and approximately 100 years later there appeared the Babylonian Talmud, a more authoritative text. Other sources of the \"oral\" law include the Tosefta and the Midrash Halakhah. After the fall of the Second Temple in 70 and the ending of the assembly of elders known as the Sanhedrin, interpretation fell to the institution of a bet din or rabbinical court of three rabbis. Such a court continued through the diaspora wherever there was a Jewish population. There is no appeal or stare decisis; one can ask the court to correct an erroneous judgment or re-open a criminal case. The tradition is much closer to that of the European civil law in that regard. Codes of restatement also appeared over time; the codes of Moses Maimonides in the 12th century and of Joseph Karo in the 16th century are considered authoritative. As those rabbis learned in the law applied it in opinions, these became written down as answers and advice known as response, and these constitute a living law. Archaeological research and scroll discoveries have also added to the wealth of study and potential sources for Jewish law. See Baumgarten, J. \"The Laws of the Damascus Document in Current Research,\" The Damascus Document Reconsidered (ed. M. Brosh). Jerusalem, 1992*.* In 1896, noted Talmud scholar and educator Solomon Schechter discovered evidence of sectarian Jewish documents which later were found to be medieval versions of the Damascus Document fifty years before the Qumran discoveries. Jewish law is now applied in personal law (such as marriage and family) in Israel and Morocco and others which recognize such applications to religious communities; [Christian Law] The canon law of the Roman Catholic Church began to develop alongside Roman law and indigenous law in Europe after the end of the Roman Empire and the retreat of ancient Roman law. Gradually canon law and its Roman law elements would develop into a body of law that could challenge emerging monarchies to develop a coherent national law or the civil law code tradition of secular law in most of Europe today. From the [[Catholic Encyclopedia online via New Advent]](http://www.newadvent.org/cathen/09056a.htm#I) we have the following definitions and description: Canon law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the government of the Christian organization and its members, but the expression \"canon law\" (jus canonicum) becomes current only about the beginning of the twelfth century, being used in contrast with the \"civil law\" (jus civile), and later we have the \"Corpus juris canonici\", as we have the \"Corpus juris Civilis\". Canon law is also called \"ecclesiastical law\" (jus ecclesiasticum); however, strictly speaking, there is a slight difference of meaning between the two expressions: canon law denotes in particular the law of the \"Corpus Juris\", including the regulations borrowed from Roman law; whereas ecclesiastical law refers to all laws made by the ecclesiastical authorities as such, including those made after the compiling of the \"Corpus Juris\". By the 12th century the mass of laws or canons were systematized and rationalized by canonist Gratian in the \"decretals\" or *Concordance of Discordant Canons* near the same time as the revived study of ancient Roman law began at the university at Bologna, but further work was done to create the decretals of Pope Gregory IX in 1234 and so by the end of the 13th century, the Corpus Iurus Canonici consisted of the following texts: - the \"Decretals\" of Gregory IX; - those of Boniface VIII (Sixth Book of the Decretals); - those of Clement V (Clementinæ) i. e. the collections which at that time, with the \"Decree\" of Gratian, were taught and explained at the universities. ([[Catholic Encyclopedia]](http://www.newadvent.org/cathen/04391a.htm) online). Ecumenical councils of the church, the Pope and Apostolic Letters such as bulls or briefs, decrees of the Roman Curia or Acts of the Holy See also form part of canon law. The Roman Curia or departments of the Holy See consist of Roman Congregations, the tribunals, and the offices of Curia. The Tribunals consist of the Sacred Penitentiaria, the Sacred Roman Rota, and the Apostolic Signatura. The Sacred Roman Rota consists of auditors who hear contentious cases and are doctors of canon law and theology. They take appeals from the episcopal tribunals of first instance or may be of the first instance for some matters. Cases may be criminal or regarding ordination or matrimony, involving a defender of the bond (of marriage). Advisory opinions may be requested as well. Conclusions of the court must be accompanied by reasons. A common type of case in canon law relates to requests to grant an annulment of marriage after a civil divorce, since the doctrine of the Roman Catholic Church does not recognize divorce. It is a matter of controversy as to whether there have been in fact ecclesiastical \"divorces\" for influential persons or under experimental canons used in the United States before the latest Code of Canon Law, promulgated in 1983. The annulment concept came into secular law to void forced marriages and in several other instances, and in both religious and secular arenas, the court declares that no marriage ever existed and so it cannot be dissolved. [Hindu Law] From an ancient time, 2000-1500 B.C., the Vedic literature existed, and while it informs a tradition of gods, the literature points to the concept of the One as interpreted by the Brahmans. These teachers also used the sutras or memorized books (like textbooks) of law or *dharma* (in one of its meanings; closer to \"way of life\"). The Laws of Manu, a mythical author, of circa 200 B.C. shows the beginnings of this legal tradition of great variety, although his focus was family, property, and succession law. The early Sanskrit literature was replaced gradually in the colonial period when the British substituted their own translations and understanding in place of what came before; Anglo-Indian law preserved family law areas (five elements of family law---marriage, child marriage, polygamy, divorce, and maintenance) as Hindu personal law and replaced the rest with colonial British law. It was a judge made law. The Hindu Code of independence became one among other personal codes and preserved much of the British innovation. Custom and local tradition could prevail over sacred texts even in the time of classical Indian law. According to the Laws of Manu, there are four sources of *dharma*: 1) the Vedas, 2) tradition, especially as set forth in treatises like Dharmasastras, 3) customary laws created by local or regional communities, and 4) personal preference. The important post-colonial acts of Parliament for the Hindu Code include: the [[Hindu Marriage Act No. XXV of 1955]](http://www.liiofindia.org/in/legis/cen/num_act/hma1955136/); Hindu Code (1955); the [[Hindu Adoptions and Maintenance Act 78 of 1956]](http://www.liiofindia.org/in/legis/cen/num_act/haama1956280/); Hindu Code (1956); the [[Hindu Minority and Guardianship Act No. 32 of 1956]](http://www.liiofindia.org/in/legis/cen/num_act/hmag1956318/), Hindu Code (1956); the [[Hindu Succession Act No. XXX of 1956]](http://www.liiofindia.org/in/legis/cen/num_act/hsa1956189/), Hindu Code (1956); and the [[Hindu Succession (Amendment) Act No. XXXIX of 2005]](http://www.liiofindia.org/in/legis/cen/num_act/hsa2005269/). [Buddhist Law] Tibet 1940-1959 is the most illustrative jurisdiction for an examination of what followers of the Buddha in an authentic Buddhist culture regard as the source of laws and rules that govern a monastically inclined community as well as householders\' obligations. According to Rebecca French, \"There are five major sources for Tibetan legal concepts: (1) religious source material such as the Vinaya which is a canonical text outlining the rules for the monks to follow as Buddha spoke them case by case; (2) Extant official documents which include administrative law books, edicts, decision documents, treatises, government contracts, estate record books, tax records and deeds to land; (3) documents issued by non-governmental institutions such as monastic constitutions, private leases and private contract documents; (4) law codes; and (5) written and oral statements describing the legal system.\" *The* *Case of the Missing Discipline: Finding Buddhist Legal Studies* 52 Buffalo L. Rev. 679, 682-684, fn 4. *Dhammasattha* is the Pali term for the genre of legal literature which may be examined in relationship to householders and communities, or *sanghas*, used by such communities in Laos, Myanmar (Burma), and Thailand, and this literature probably dates from the first millennium. Courts of law in colonial times used \"Acts of Truth\" in Sri Lanka\'s Sinhala Buddhist community for proof in judicial proceedings. These were oaths taken upon consequences to be observed as between truth-tellers and others. In Thailand, legal proceedings that replace informal \"injury narratives\" in tort cases (or events which may or may not result in a case) appear less effective in resolution of claims than the traditional methods under Buddhist obligations (see Engel article cited below). These exercises in legal history and anthropology bear on modern developments in criminal law and restorative justice as well. **Public and Private Law** In any legal system the juristic principles are evolved in the context of rights and the law as command regulates the relationship between individuals and also the relationship between individual and the government. The Private Law of Contract and obligations plays an important role in shaping the socio-economic conditions different from the sphere of Public Law. In his introduction to 'Holland on jurisprudence', N R Madhav Menon has pointed out that as per Holland, the State's presence in the sphere of Private Law is only as arbiter of the rights and duties which exists between the citizens. In Public Law, the State is not only the arbiter, but is also one of the parties interested. The rights and duties with which it deals concern itself of the one part and its subjects on the other part, and this union in one personality of the attributes of judge and party, has given rise to the view that the State (Sovereign) not only has no duties, but also has no rights properly so called. Of the two persons who are the constituent elements of every right, one must always be the State, acting, of course, through its various functionaries. The Private Law is continuously evolving. The growth in technology has added new dimensions to the concept and the distinction between Public and Private law, both in their Substantive and Procedural aspects, may be inadequate to comprehend these changes. Today the public-private classification is breaking down and the theory of State as the arbiter of all disputes is being questioned. In fact, many disputes today are against the State and its functionaries. Independent Judiciary has become the key element of rule of law necessitating the need to re-write jurisprudence originally articulated from the point of view of the Sovereign State. **Public Law** is that part of law, which governs relationship between the State (government/government agencies) with its subject and also the relationship between individuals directly concerning the society. According to Loughlin, 'Public law is a form of political jurisprudence that incorporates no transcendental or metaphysical ideas of justice and goodness; it is concerned solely with those precepts of conduct that have evolved through political practice to ensure the maintenance of the public realm as an autonomous entity.' The Public Law deals with the social problems in the broad context and may include the following heads: Constitutional Law, Administrative Law, Criminal Law and Criminal Procedure, Law of the State considered in its quasi private personality, Procedure relating to the State as so considered and Judge made Law. In short, Public Law governs relationship between the State with its citizens and also relationship between individuals directly concerning the Society. Constitutional Law, Administrative Law, Criminal Law and Criminal Procedure are the subject matter of Public Law. [Constitutional Law]: The primary function of Constitutional Law is to ascertain the political center of gravity of any given State postulating the supremacy of law in the functioning of State. In India, the Constitution makes India: Sovereign, Socialist, Secular, Democratic, Republic with a Federal System with Parliamentary form of Government in the Union and the States; and with an Independent Judiciary. It also establishes the structure, procedures, powers and duties of the government and spells out basic human rights which are fundamental in the governance of Nation in the form of Fundamental Rights and Directive Principles of State Policy. Constitutional Law is a branch of Public Law. It determines the political organization of the State and its powers, while also setting certain substantive and procedural limitations on the exercise of governing power. Constitutional Law consists of the application of fundamental principles of law based on the document, as interpreted by the Supreme Court. In the words of Salmond, "Constitutional Law is the body of those legal principles which determine the Constitution of a State- i.e., the essential and fundamental portions of the State's organization." [Administrative Law]: As per Holland, Administrative Law provides for the manner of activities or the various organs of the Sovereign Power as provided by the Constitution. In this sense Administration has been defined as 'the exercise of political powers within the limits of the Constitution as the total concrete and manifoldly changing activity of the State in particular cases as the functions, or the activity, of the Sovereign Power'. It may fairly be said to include the making and promulgation of laws; the action of the government in guiding the State in its foreign relations; the administration of justice; the management of the property and business transactions of the State; and the working in detail, by means of subordinates entrusted with a certain amount of discretion, of the complex machinery by which the State provides at once for its own existence and for the general welfare. It deals, with the collection of the revenue, the collection of statistic, international trade, manufacturing, pollution, taxation, and the like. This is sometimes seen as a sub-category of Civil Law and sometimes seen as Public Law as it deals with regulation and public institutions. The Administrative Laws are enforced by the executive branch of a Government rather than the judicial or legislative branches (if they are different in that particular jurisdiction). According to Vago Steven, "Administrative Law is a body of the law created by administrative agencies in the form of regulations, orders, and decisions." [Criminal Law] The most important of the functions of the State is that which it discharges as the guardian of order; preventing and punishing all injuries to itself, and all disobedience to the rules which it has laid down for the common welfare. In defining the orbit of its rights in this respect, the State usually proceeds by an enumeration of the acts which infringe upon them, coupled with an intimation of the penalty to which any one committing such acts will be liable. The branch of law which contains the rules about this subject is accordingly described as 'Criminal law'. Criminal Law denotes wrongs against the State, community, and public. Adjective Criminal Law,' Penal Procedure,' Instruction Criminology,' is the body of rules whereby the machinery of the Courts is set in motion for the punishment of offenders. 'Criminal Law is concerned with the definition of crime and the prosecution and penal treatment of offenders'. Although a criminal act may cause harm to some individual, crimes are regarded as offenses against the State or "the people." A 'crime' is a "public" as opposed to an "individual" or "private" wrong. It is the State, not the harmed individual that takes action against the offender. **Private Law** is concerned with the relationship between individuals with one another or private relationship between citizens and companies that are not of public importance. In the case of Private Law the role of the State is merely to recognize and enforce the relevant law and to adjudicate the matters in dispute between them through its judicial organs. Private Law as per Holland is substantive and defines the rights of individuals or it may be adjective indicating the procedure by which rights are to be enforced or protected. In simple words Private Law governs the relations of citizens with each other. Law of Torts, Law of Contract, Private and Intellectual Property Rights are the subject matters of Private Law. According to Bernard Rudden Private Law deals with the legal relations between persons. It covers matters of pure status (marriage, divorce, kinship and so on); matters involving assets of some sort (property, succession, contracts); and commercial activities in the wider sense. Its essential feature is that the participants are presumed to be juridically equals (unlike the public law structure where relations are hierarchical) so that one cannot give orders to another, unless so authorised under some previous contractual or family arrangement. Its essential technique is that much of it is not automatically binding (jus cogens in lawyers' language) but serves to cut down the cost of legal transactions by providing a set of patterns which citizens may use if they wish. For instance the intestacy rules operate only if a person dies without having made a will. The rules on sale, lease, loan, partnership and so on are there as models which can be adopted in full or modified if the parties so desire. Despite the many differences on the surface and in particular detailed rules, the overall structure of Private Law in both Civil and Common-Law Systems can be stated quite simply in a formula derived ultimately from the Roman jurists: Private Law deals with persons, property, obligations and liability. Thus, it can be said that Private Law includes (i) Law of obligations /Law of Contract (organizes and regulates legal relations between individuals under contract) (ii) Law of Tort (addresses and remedies issues for civil wrongs, not arising from any contractual obligation). (iii) Law of Property (iv) Law of Succession, (v) Family Laws- family rights against abduction and adultery Public Law Private Law ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- It deals more with issues that affect the general public (may be individual, citizen or corporation) or the State itself. It focuses more on issues affecting private individuals, or corporations. The persons concerned in a Public Law, right are, therefore, necessarily dissimilar, one of them being always that highly abnormal person which is called a State Both of the persons concerned in Private Law, rights are as a rule, perfectly similar, and of that normal type which requires no special investigation In Public law the State is not only arbiter, but is also one of the parties interested. The rights and duties with which it deals concern itself of the one part and its subjects of the other part. In Private law the State is indeed present, but it is present only as arbiter of the rights and duties which exist between one of its subjects and another Public Law is concerned with the structure of government, the duties and powers of officials, and the relationship between the individual and the State. "It includes such subjects as Constitutional Law, Administrative Law, regulation of public utilities, Criminal Law and Procedure, and Law relating to the proprietary powers of the State and its political subdivisions" Private Law is concerned with both substantive and procedural rules governing relationship between individuals (such as the law of torts or private injuries, contracts, property, wills, inheritance, marriage, divorce, adoption, and the like). **Substative and Procedural Law** The Substantive and Procedural Laws are the two important branches of Law. The terms "Substantive" and "Adjective" seem to have been invented by Bentham in 1843. Austin criticized the distinction' saying "it cannot be made the basis of a just division.". Holland in his 'Treatise on Jurisprudence' popularized the terms "Substantive" and "Adjective" and that have been accepted by writers in general. In this lesson we will discuss the 'Juristic Approach' towards distinction between these two branches of law as both the laws are important and one could not be effective in the absence of other. Though there may be some overlapping between these two branches of Law. It is not an easy task to state with precision the exact nature of the distinction between the two. But it can be said that without laws of a Substantive Nature, Procedural Law would not have much to regulate, and in absence of Procedural Law, fair and consistent application of Substantive Law is not possible. The **Substantive Laws** are basically derived from Common, Statutory, Constitution and from the Principles found in judicial decisions following the legal precedents to cases with similar facts and situations. With the passage of time and creation of new Statutes, the volume of Substantive Law has increased. For Example:- Penal Law, Law of Contract, Law of Property, Specific Relief Act, etc are Substantive Law. It can be concluded out from writings of various professional texts that Substantive Law deals with the legal relationship between subjects (individuals) or the subject and the State. Substantive Law is a Statutory Law that defines and determines the rights and obligations of the citizens to be protected by law; defines the crime or wrong and also their remedies; determines the facts that constitute a wrong -i.e. the subject-matter of litigation in the context of administration of justice. The Substantive Law, defines the 'remedy' and the right; includes all categories of Public and Private Law and also includes both Substantive Civil and Criminal Law. In short, it can be said that Substantive Law is a Statutory Law that deals with the relationship between the people and the State. Therefore, Substantive Law defines the rights and the duties of the people. Substantive Law deals with the structure and facts of the case; defines the rights and duties of the citizens and can not be applied in non-legal contexts. [Substantative Civil Law] The Civil Law includes any private wrong, a 'Tort', which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act. Substantative Law defines to charge the 'Tort'. Substantative Civil Law also includes the Law of Contract- defines what is essential elements required for formation of contract; real property. The Indian Succession Act, 1925 deals with Substantative Law of testamentary succession in regard to persons other than Muslims and intestate succession in regard to persons other than Hindu and Muslims in India. Other Acts that provides for Substantive Civil Law in India are Indian Contract Act, 1872; Transfer of Property Act 1882; Specific Relief Act; Indian Trust Act, 1882. [Substantive Criminal Law] The Indian Penal Code (IPC) in India defines various penal offences and lists the elements that must be proved to convict a person of a crime. It also provides for punishment applicable to these offences. For example Substantive Criminal Law defines what constitutes 'Murder', 'Robbery', 'Rape', 'Assault' etc. **Procedural Law** (or Adjective Law) deals with the enforcement of law that is guided and regulated by the practice, procedure and machinery. This law is very important in administration of justice. Procedural law functions as the means by which society implements its substantive goals. Procedural law is derived from constitutional law, Statutes enacted by legislature, law enforcement agencies promulgating written regulations for their employees, which may not have the force of law but their violation may result in internal sanctions; and the rules and procedural guidelines laid down by the Supreme Court. According to Holland, Adjective law, though concerns primarily with the rights and acts of private litigants, touches closely on topics, such as the organization of Courts and the duties of judges and sheriffs, which belong to public law. It comprises of (i) jurisdiction (in the conflicts sense); (ii) jurisdiction (domestic sense) ; (iii) the action, including summons, pleadings, trial(including evidence); (iv) judgment; (v) appeal; (vi) execution. Procedural Law is that law which prescribes method of enforcing rights or obtaining redress for their invasion; machinery for carrying on a Suit. The Code of Civil Procedure, 1908; Code of Criminal Procedure, 1973;Indian Evidence Act, 1872; Limitation Act, 1963; The Court Fees Act 1870; The Suits Valuation Act, 1887 are examples of Procedural Law in India. The Procedural Law can be said, is a law that: z Lays down the rules with the help of which law is enforced. z Relates to process of litigation and determines- what facts constitute proof of a 'wrong' or 'Tort'. z In the context of administration of justice -the law of procedure defines the modes and conditions of the application of remedies to violated rights. z Are the adjective rules, prescribing the mode in which the State, as such a personality, may sue or be sued. z Provides for mechanism for: obtaining evidence by police and judges, conduct of searches, arrests, bail, and presentation of evidence at trial and process of sentencing. z It is the law of action that includes all legal proceedings, civil or criminal. [Law of Civil Procedure] Civil Procedural Law consists of the rules and standards which courts follows while conduct civil trials. These rules govern how a civil suit or case may be commenced, what kind of service of process (if any) is required, the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks must function. Civil actions concern with the judicial resolution of claims by private individual or group, companies or organisations against another and in addition, governments (or their subdivisions or agencies) may also be parties to civil actions. In India Code of Civil Procedure, 1908 consolidates and amend the laws relating to the procedure of the Courts of Civil Judicature. [Law of Criminal Procedure] Law relating to criminal, Procedure provides or regulates the steps by which one that violate a criminal Statute is punished. Procedural Criminal Law can be divided into two parts, the investigatory and the adjudicatory stages. In the investigatory phase, investigation primarily consists of ascertaining of facts and circumstances of the case by police officers and arrest of suspect of criminal offence. The adjudicatory phase begins when with the trial of suspect for the alleged criminal conduct in the court of Law. In India Criminal Procedure Code, provides the procedure of getting the penal offences prosecuted and punished by the criminal courts. It also lays down the details regarding the arrest, investigation, bail, jurisdiction, appeals, and revisions and compounding of offence etc with regards to the various offences. **Substantive Law** **Procedural Law** ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- The Substantive law defines and determines the obligations and rights of people and legal entities Procedural law lays down the method of aiding, the steps and procedures for enforcement of Law- Civil and Criminal. When a particular law defines rights or crimes or any status, it is called Substantive Law. It defines how a crime or tort will be charged and how the evidence and case facts will be presented and handled.EX: The definition of 'manslaughter' is substantive The laws that determine how the rights of the plaintiff and defendant will be protected and enforced throughout the course of the case Procedural Laws. It includes procedure, pleading, and evidence A Substantive Law also provides for Prohibitions administered by courts which behaviors are to be allowed and which are prohibited- such as law providing prohibition against murder or the sale of narcotics. Procedural Laws provides rules to determine, how the Substantive Laws are to be administered, enforced, changed, and used in the mediation of disputes -such as filing charges or presenting evidence in court. **Source: NIOS Study Material**