Module 1 PDF

Module- 1 (this is a compilation of all the PPTs shared) Concept of Law : What is Law?  Understanding Law presupposes the ability to find and read the Law which implies that we know how to iden fy it in the first place whic...

Module- 1 (this is a compilation of all the PPTs shared) Concept of Law : What is Law?  Understanding Law presupposes the ability to find and read the Law which implies that we know how to iden fy it in the first place which in turn leads us back to the fundamental ques on: What is Law?  This ques on obliges us to think about how we conceptualize complex phenomenon like ‘Law’.  How we should make reasoned and sensible choices regarding what cons tutes/makes law in any given situa on.  Here are some ques ons which we will try to answer: Is Law a system, a set of rules or a part of culture? What is Law made of? Where do you find Law? How is the Law you study different from the Law of Gravity? Can there be a society without Law? What makes Law a system? Can you say that an individual’s perspective influences notions of Law. Can we associate Law with Morality? Can we detach law and order?  Law is:  A rule  A rule of behavior  The rules and regula ons of a par cular country  The rules usually made by the legisla ve arm of government which order the way persons, bodies and society should behave; and  The whole system of rules of a country.  According to Webster's Dic onary, law is an interes ng list of things: Rule of conduct recognized by custom or by formal enactment which a community considers it binding upon itself. A system or body of such rules. Condi on of the society when such rules are observed to establish rule of law. Body of rules rela ng to specified subjects e.g, Criminal Law, Property Law, etc. Statute and common law as against equity. Rules of conduct and procedure.  In Science and philosophy a statement of the manner or order in which a defined group of natural phenomena occur certain condi ons -natural law. Rules or formula according to which certain func on or opera on are performed. Statement of principles. An enactment of legislature. Remedial jus ce administered by courts. Branch of knowledge concerned with jurisprudence. Voca on of an a orney or solicitor. Rules of conduct having divine origin.  Black’s Law Dic onary defines “law” as: That which is laid down, ordained, or established. A rule or method according to which phenomena or ac ons co-exist or follow each other. Law, in its generic sense, is a body of rules of ac on or conduct prescribed by controlling authority, and having binding legal force.  Law is all of above and much more. It is a large body of rules and regula ons based mainly on general principles of jus ce, fair play and convenience.  Jurists have defined law differently from differently point of views. It has been called ‘Dharma’ in Hindu jurisprudence ‘Hukum’ in Islamic system. Romans called it Jus & in Germany and France it is called as Richt and Driot respec vely.  John Aus n (English Jurist born 1790) “Law is a command of sovereign backed by sanc on”  Kant Sum total of the condi ons under which the personal wishes of one man can be combined with the personal wishes of another man in accordance with the general law of freedom.  Professor Hart (Oxford Professor of jurisprudence, born 1907) Hart defined law as a system of rules, a union of primary and secondary rules  Defini on of law - Marxist theory Law : Meaning as per Cons tu on Ar cle 13: 13. Laws inconsistent with or in deroga on of the fundamental rights (1) All laws in force in the territory of India immediately before the commencement of this Cons tu on, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contraven on of this clause shall, to the extent of the contraven on, be void (3)In this ar cle, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regula on, no fica on, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Cons tu on and not previously repealed, notwithstanding that any such law or any part thereof may not be then in opera on either at all or in par cular areas (4) Nothing in this ar cle shall apply to any amendment of this Cons tu on made under Ar cle 368 Ar cle 13 (3) Ar cle 13 (3) defines the terms ‘law’ and ‘laws in force’. It men ons some of the normal forms in which the law finds its expression The defini on men ons the following as included in the expression ‘Law’. 1. Statutory law 2. Customs Classifica on of Law Law o Interna onal Law o Municipal Law  Public law The public law is that branch of law which determines and regulates the organiza on and func oning of states (country). Also it regulates the rela on of the state (country) with its subjects.  Public Law Cons tu onal Law Administra ve Law Criminal Law Public law includes (i) cons tu onal law, (ii) Administra ve law (iii) criminal law, (iv) municipal law (v) interna onal law; criminal law is enforced on behalf of or in the name of the state.  Private law  Private law is that branch of the law which regulates those of the rela on of the ci zens with one another as are not of public importance. In this sense the state, through its judicial organs, adjudicates the ma ers in dispute between them.  In other words, it is primarily concerned with the rights and du es of individuals to each other. Under it, the legal ac on is begun by the private ci zens to establish rights (In which the state is not primarily concerned) against another ci zens or a group of ci zens.  Private Law o Law of Contract o Law of Torts o Family Law  Private law includes, (i) Law of contract (ii) Law of tort (iii) Law of property (iv) Law of succession, (v) family laws. Private law is some mes, referred to as civil law. In the case of private law the role of the state is merely to recognize and enforce the relevant law.  Civil Law  Civil law deals with the disputes between individuals, organiza ons in which compensa on is awarded to the vic m.  Criminal Law  Criminal law (also known as Penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses.  Dis nc on: Civil law and Criminal Law  Civil law and criminal law are two broad and separate en es of law with separate sets of laws and punishments.  According to William Geldart, Introduc on to English Law (D.C.M. Yardley ed., 9th ed. 1984), "The difference between civil law and criminal law turns on the difference between two different objects which law seeks to pursue - redress or punishment. Civil Law:  The object of civil law is the redress of wrongs by compelling compensa on or res tu on: the wrongdoer is not punished; he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law, or at least he avoids a loss. "Preponderance of evidence" Burden of proof is ini ally on the plain ff and then switches to the defendants. Example: Landlord/tenant disputes, divorce proceedings, child custody proceedings, property disputes (real estate or material), etc. Criminal law: In the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit same or similar crimes, to reform him if possible and perhaps to sa sfy the public sense that wrongdoing ought to meet with retribu on.” "Beyond a reasonable doubt": Burden of proof is always on the state/government. The (by decep on or unlawful taking), assault, robbery, trafficking in controlled substances, alcohol intoxica on, etc.  Types of Punishment A defendant in civil li ga on is never imprisoned. Losing defendant in civil li ga on only reimburses the plain ff for losses caused by the defendant’s behavior. Either party (plain ff or defendant) can be found at fault. A guilty defendant is punished by either imprisonment in a jail or fine paid to the government, or, in excep onal cases, the death penalty. Case filed by: Civil : Private party Criminal : Government  Substan ve Law  Substan ve law is a statutory law that deals with the legal rela onship between people or the people and the state. Therefore, substan ve law defines the rights and du es of the people.  Procedural Law  Procedural law comprises the set of rules that govern the proceedings of the court in criminal as well as civil and administra ve proceedings. The court needs to conform to the standards setup by procedural law. These rules ensure fair prac ce and consistency.  Dis nc on: Substan ve law and Criminal Law   Substan ve law defines, in regard to a specific subject, the legal rights and rela onship of people with other people or as between them and the state.  Thus, murder is an offence under Indian penal code (IPC) and is defined there in. The IPC also provides for punishment for the crime. This is known as substan ve law, Similarly, the provision of the Indian contract Act,1872, are substan ve in nature.  Thus, provision of substan ve law defines rights and du es while procedural law provides the machinery for enforcing those rights and du es.  Thus, a legal ac on is started by taking out a no ce in a civil case; by a summon or an arrest in a criminal case, and ends by the trial and judgment in the court itself, followed by the execu on of the judgment.  Procedural law deals with the methods and means by which substan ve law is made and administered, It lays down the rules governing the manner in which a rights is enforced under civil law.  In order to enable a statute to be valid it is necessary to follow legisla ve procedure. For example, Ar cle 107 of the cons tu on of India makes provisions as to introduc on and passing of Bills by the parliament.  Many a me, the dis nc on between substan ve law and procedural law is not clear. This is because many rules classified as procedural in character might be just as easily classified as substan ve as they actually affect rights and du es. Though substan ve law is more important, but incorrect or improper procedures can deprive a person of his substan ve rights and remedies  Common Law  Common Law refers to body of law based on custom and general principles and that, embodied in case law, serves as precedent or is applied to situa ons not covered by statute.  Judges are not free to decide cases on the basis of fairness but only on the basis of the established laws/cases. Some mes the proper applica on of the law can lead to an unfair or harsh result.  Equity is the name given to the set of legal principles, in countries following the English common law tradi on, which supplement strict rules of law where their applica on would operate harshly, so as to achieve what is some mes referred to as “natural jus ce.” Literally mean “fairness”.  Equity has been described as "gloss [meaning a supplement] on the Common Law, Filing the gaps and making the English legal system more complete. Various Schools of Thought What is a School of thought?  A way of thinking about a par cular subject or idea that is shared by a group of people. 4  Schools of Jurisprudence:  Natural Law  Analy cal or Posi vism  Historical  Sociological  Legal Realism  Natural law  Natural law is that branch of law that is variously defined or described as the law of nature, higher law, eternal law, divine law, etc.  The oldest view of jurisprudence da ng back to Aristotle.  While defining or explaining the scope of natural law, Roman orator, Cicero, said as follows: o True law is right reason in agreement with nature; it is of universal applica on, unchanging and everlas ng; it summons to duty by its commands, and averts from wrongdoing by its prohibi ons. And it does not lay its commands or prohibi ons upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to a empt to repeal any part of it, and it is impossible to abolish it en rely. o We cannot be freed from its obliga ons by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all na ons and all mes, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penal es, even if he escapes what is commonly considered punishment.  Natural Law Theory proposes that as physical laws of nature exist, so do universal moral laws.  “Natural law” means moral law – in par cular, the fundamental moral principles that are built into the design of human nature and lie at the roots of conscience.  The Concept of ‘Dharma’ in Indian legal system.   Natural Law simply means the Law that is largely unwri en and consists of principles of ‘ought’ as revealed by the nature of man or reason or derived from God. It is emanated from Supreme Source other than poli cal authority.  Analy cal School  Central Idea is that the Law as it exists i.e. Law as it is, regardless of good or bad, past or future.  “A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approba on and disapproba on.”  Posi ve School because it focused on ‘positum’ (La n) which means ‘as it is.’  English School, because this school was dominant in England.  Aus nian School , because it was founded by John Aus n.  The chief exponents of Analy cal school of Jurisprudence was Bentham and Aus n.Bentham introduced legal posi vism and treated legal theory as a science of inves ga on which should be approached through scien fic method of experimen ng and reasoning.  Impera ve theory of law states; “Law is the general command of sovereign enforceable with sanc on.  Aus n a ributed three elements with posi ve law which are; I. Command II. Sovereign III. Sanc on  John Aus n is the father of Analy cal School.  Aus n said that only posi ve law is the subject ma er of jurisprudence.  He separated both the morals and the religion from the defini on of the law.  Prior to Aus n the law was based upon customs and morals but Aus n reduced all things from the defini on of law.  Legal Posi vism  legal posi vism is concerned with the rela onship between man-made law and morals.  It states that notwithstanding the degree of rela onship between them, each is separate and independent.  There is no necessary connec on between law and morals.   This theory was bi erly cri cized in the 19th century by the Pluralists and the sociological jurists.  Despite its shortcoming this theory has explained a lot about law.  The analy cal school of jurisprudence provides that law must be made by the state in the interest of general welfare.  It favours codifica on of law and regards law as a command with legal sanc on behind it.  Historical  The historical school of jurisprudence manifests the belief that history is the founda on of the knowledge of contemporary era.  History is a record of our past. As man has a past so does law.  According to Savigny, He saw law as reflec ve of the spirit of the people. To him, the growth of legal principles is not in vacuum, not revolu onary, not accidental but evolu onary.  He believed that legisla on does not, as law does, bear the peculiar marks of the people. Laws are to be found, not made.  Law is an outcome of a long historical development of the society because it originates from the social custom, conven ons religious principles, economic needs and rela ons of the people.  According to this theory law is the product of the forces and influence of the past. Law is based on general consciousness of people.  The consciousness started from the very beginning of the society.  There was no person like sovereign for the crea on of law.  Savigny, Sir Henry Maine and Edmund Burke are the renowned jurists of this school.  This theory has some defects.  Being conserva ve in its outlook it relies on past, however its merit is that it shows that law must change with the changes in society.  It clearly believes that if a law is not according to the will of the people, it will never be obeyed. In this way it supplemented the analy cal school of law.  Montesquieu, Savigny, Sir Henry Maine are prominent jurists of this school.  Sociological   They are concerned with the study of law as it works and func ons which means inves ga ng the social factors that makes a law on the hand and the social results on the other. The emphasize more upon what the courts may do rather than abstract logical deduc ons from general rules and on the inar culate ideological premises underlying a legal system.  American Realism is not a school of jurisprudence but it is pedagogy of thought.  The prominent jurists of this thought are Holmes, Gray and Jerome Frank.  Legal Realism advocates a less abstract and more realis c, prac cal and pragma c approach to the law by considering customary prac ces and the circumstances surrounding the par cular transac on.  Introduc on  Law and morality are two fundamental concepts that shape the norms and behaviors of individuals and socie es. While o en interconnected, they have dis nct yet overlapping roles in guiding human conduct and establishing social order.  In Ancient mes there was no dis nc on between law and morality.  A er Post- reforma ve Europe it was believed that law and morality are dis nct in nature and that law is derived from the state.  But in 17th and 18th Century Natural law became very popular.  In 19th Century Aus n believed law has nothing to do with morals and it is the command of the sovereign.  In India ancient jurist did not make any dis nc on. Mimansa made dis nc on between obligatory and recommendatory rules.  Like law, morality plays an important part in the shaping and regula on of socie es.  There is also a certain amount of overlap between law and morality as o en law gives expression to the accepted standards of morality within the society, even if it does not directly legislate for it.  In other words, there seems to be quite a strong connec on between law and morality. Although people some mes say “you should not legislate morality,” they presumably donot mean this - why would we outlaw rape and murder if they were not wrong?  The issue or ques on of law and morality could be tackled from different angles   Natural lawyers claim that there are certain universal,objec ve and immutable principles of right and wrong that are part of the fabric of the Universe.  Law: Defini on and Purpose  Law refers to a collec on of rules and regula ons enforced by a governing authority.  It establishes a framework for maintaining order, resolving disputes, and promo ng jus ce in society.  The primary purpose of law is to regulate human behavior, protect individual rights, and promote the common good.  Morality: Defini on and Nature  Morality refers to a system of values and principles that govern individual and social conduct.  It encompasses concepts of right and wrong, virtue and vice, and ethical decision-making.  Morality is subjec ve and influenced by cultural, religious, and personal beliefs  Intersec ons of Law and Morality  Law and morality share common goals such as promo ng fairness, jus ce, and social harmony.  There are areas where law and morality overlap, where legal principles reflect widely accepted moral values.  Both law and morality aim to regulate human behavior and create a just and orderly society.  Similari es Between law and Morality  Defending basic values  Sense of obliga on  Influence of morality on law  Law can be a public expression of morality  Real nature of law or its substance  Theories of Morality and Law   Natural Law Theory: Natural law theory posits that there is an inherent connec on between law and morality. It suggests that certain moral principles are universally valid and should be reflected in legal systems. According to this theory, laws should align with fundamental moral principles, such as jus ce, fairness, and human rights. Natural law theorists argue that a just legal system must be grounded in these objec ve moral standards.  Legal Posi vism  Legal posi vism asserts that there is no necessary connec on between law and morality. According to this theory, law is a social construct created by human beings and is not inherently linked to moral considera ons. Legal validity is determined solely by the formal sources of law, such as legisla on and legal precedents. Legal posi vists believe that the moral correctness of a law is irrelevant to its legal validity.  Legal Realism  Legal realism challenges the no on of law as a purely objec ve and moral-neutral system. It argues that legal decisions are influenced by subjec ve factors, such as the personal beliefs and values of judges and legal actors. Legal realists emphasize the impact of social, poli cal, and economic factors on legal outcomes. They contend that law and morality are intertwined, as moral values can shape legal decision-making.  Difference between Law and Morality 1.The morals are concerned with the individual and lay down rule for moulding his character. Law concentrates mainly on the society and lays down rules concerning the rela onships of individuals with each other and the state. 2. Morality does not have a centralized enforcement mechanism. Compliance with moral principles is driven by personal conscience, social norms, and individual beliefs. Laws are enforceable through legal ins tu ons and mechanisms, such as courts, police, and judicial systems. Viola ons of the law can lead to legal consequences, including fines, imprisonment, or other legal sanc ons. 3. Morals are considered to be of universal value. Law is rela ve to the me and place therefore it varies from society to society. 4. Morals are end in themselves. Law is for the purpose of convenience and its chief aim is to help a smooth running of the society.  Angles to Law and Morality  Morals as the end of Law  Morals as the test of Law  Morals as the basis of Law  Public Opinion, Morality and Legal Change  Public opinion o en influences legal developments and reforms.  Evolving societal values and changing moral perspec ves shape the evolu on of laws over me.  The law may adapt to align with prevailing moral sen ments or address emerging moral concerns.  Hla Hart’s View  Separability of Law and Morality: Hart's legal posi vism asserts that law and morality are separate and dis nct concepts. He argues that the validity and existence of law do not depend on its conformity to moral principles.  Hart suggests that legal systems are sets of social rules that regulate behavior and are enforced by social ins tu ons. Legal rules are dis nct from moral rules and are based on social acceptance and customary prac ces.  According to Hart, legal systems are founded on a "rule of recogni on." This rule designates criteria by which individuals and officials iden fy legal rules within a given legal system. It is a social prac ce that determines the authorita ve status of legal rules.  Hart dis nguishes between primary and secondary rules. Primary rules impose obliga ons and du es on individuals, while secondary rules provide the framework for crea ng, changing, and enforcing primary rules. Secondary rules include rules of recogni on, change, and adjudica on.  Conclusion  Although law and morality are separate, there are areas of overlap where legal principles align with widely accepted moral values. Both law and morality aim to promote jus ce, fairness, and societal well-being.  The rela onship between law and morality is complex and subject to ongoing debate. It evolves with societal changes, cultural shi s, and advancements in legal and moral thinking.  Moral values can influence the content and development of laws. Societal moral progress and evolving moral perspec ves may shape legal reforms and the interpreta on of legal principles.  Understanding the rela onship between law and morality is crucial for legal professionals, policymakers, and individuals, as it helps navigate ethical dilemmas, shape legal reforms, and foster a just and harmonious society.  Introduc on:  Law is an essen al part of any organized society, providing structure and order.  Plato says : Mankind must either give themselves a law and regulate their lives by it or live no be er than the wildest of the beast.  Holmes says: The object of law is not the punishment of sins but to prevent certain external results.  Hindu view regarding the purpose of law is that it should aim at the welfare of the people in this world and also from salva on a er death.  Muslim view is that purpose of law is the discipline of the soul, improvement of morals and preserva on of life, property and reputa on.  Jus ce  Jus ce is constant and perpetual will to render to everyone that to which he is en tled.Jus ce operates at three different levels: 1. Distribu ve Jus ce Ensures a fair division of social benefits and burden among the members of the community. “Equality before Law” examples: Ar cle 14, Ar cle38 , DPSP etc. 2. Correc ve Jus ce Correc ng the injus ce done by one person has inflicted on the other. It acts to restore the status quo by compelling the former to make res tu on. 3. Social Jus ce One of the important purpose of law. It implies to securing minimum life necessaries to every individual in the society. It is said to be the yards ck to the jus ce administra on system or the legal jus ce.  The Purpose Of Law 1. Uniformity Law should be fixed, certain and stable for securing obedience and proper administra on. 2. Maintaining Order One of the fundamental purposes of law is to maintain social order and stability. Laws provide guidelines for acceptable behavior, preven ng chaos and anarchy.  Order is crucial for the func oning of a society and the well-being of its members. 3. Resolving Disputes Law provides a structured framework for resolving conflicts and disputes between individuals and en es. Courts and legal systems play a pivotal role in se ling disagreements fairly and impar ally. This ensures jus ce and fairness in society. 4. Protec ng Individual Rights and Freedoms Law safeguards the rights and freedoms of individuals, preven ng abuse of power. Human rights, civil liber es, and cons tu onal protec ons are enshrined in legal systems. Laws are essen al to ensure a just and equitable society. 5. Promo ng Social Jus ce Law can be used as a tool to address social inequali es and promote jus ce. An -discrimina on laws, labor regula ons, and welfare programs are examples of legal measures aimed at achieving social jus ce. Through legisla on, socie es can strive for a more inclusive and equitable environment.  Func ons Of Law 1. Norma ve Func on Law establishes norms and standards for acceptable behavior in a society. It creates a shared sense of right and wrong, promo ng a cohesive social fabric. 2. Protec ve Func on Law protects individuals, businesses, and the environment from harm. It sets standards for safety and regulates harmful ac vi es. 3. Correc ve Func on Law provides remedies and mechanisms for addressing wrongs and injus ces. Civil and criminal law offer ways to compensate vic ms and punish wrongdoers. 4. Facilita ve Func on Law facilitates business transac ons, contractual agreements, and economic ac vi es. It provides a stable legal framework for the smooth func oning of commerce and trade. 5. Social Engineering Func on Law can be used as a tool to shape societal behavior and influence cultural norms. Through legisla on, socie es can encourage posi ve changes and discourage harmful prac ces. 6. Dispute Resolu on Func on Legal systems offer formal mechanisms for resolving conflicts peacefully and fairly. Courts and alterna ve dispute resolu on methods help par es find resolu ons without resor ng to violence.  Conclusion  The purposes and func ons of law are cri cal for maintaining a just and orderly society.  Law provides the framework for protec ng individual rights, promo ng social jus ce, and resolving disputes.  A well-func oning legal system is essen al for the stability and prosperity of any community.