The Critical Analysis of Legal System in India with

Reference Law & Social Order

Aug 14, 2015
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Introduction:
Legal, political, social sciences are dealing with legal, political and social aspects of the
life. Moral order, political orders, spiritual (religious) order, economic order and others
are elements of social relations. Social order, being a pre-condition of any society, stems
out of social relations existing between individuals. The prime object of law is the
regulation of social life. Law is an instrument or set of techniques of social control with
the purpose of regulating social life. It is achieving this objective by maintaining public
order, fostering co-operation, regulating power and imposing social standards. Law
regulates the life of individual as a member of society and that of society as a whole.

Functions of Law:
Law serves certain basic functions essential to the maintenance of the society. They are:

 The definition of the relationship among the society's members, by indicating which
types of behaviour are permitted and which proscribed.

 The allocation of the authority and specifying who may legitimately exercise coercion
over whom, together with the selection of appropriate and effective sanctions.
 The disposition of trouble cases.

 The maintenance of adaptability by redefinition of relationships when life conditions

change.

General (Basic) functions of law in society:

Law which penetrates every aspect of society has many functions, some of which are
overlapping or appearing in various combinations as basic. There are three types of
functions of law, namely, normative, legal and social functions. Normative functions are
ascribed to laws by virtue of their normative functions and by virtue of their mode of
normatively. Social functions are attributed because of the social effects they have or
intended to have. Laws fulfil their social functions because of their particular normative
character. The normative function of the laws is part of the means by which they perform
their social functions. These are normative function, legal functions and social functions.

1. Normative functions of law

Legal systems are normative systems. Every law is either a norm or has some logical
relation to a legal norm. Norms guide human behaviour and at the same time provide
standard for evaluating it.

How does norm guide human behaviour The law attaches legal consequences to every
action or omission. These legal consequences are of two kinds:
 Generally regarded as undesirable: For example, deprivation of life, liberty and
property etc.
 Generally not regarded as undesirable: These are generally beneficial or some may
desire those consequences whereas others may not desire. For example, to acquire or not
to acquire a property, to marry or not to marry a particular girl, to accept or not to accept
a particular public appointment or to make or not to enter in to a contract or make will.
           Law provides determinate guidance in the first case and indeterminate guidance in
the second case. Determinate guidance is provided by making performance of an act
unpleasant and hence is to be avoided. These include the duty imposing rule and intend
that the action should not take place. Indeterminate guidance is provided in the second
case by making performance of an act sometimes more desirable and sometimes less
desirable. These include power conferring norms. The intention is that the action be
performed.

1. Legal functions of law:

 Administration of Justice One most important function of law is administration of
justice. For accomplishing this task, legislatures frame laws and codes, the executive
helps the legislature by distributing social benefits and burdens equally on all, and the
judiciary corrects any unbalance in the distribution scheme. The substantive law does the
distributive aspect and procedural law takes care of the corrective aspect. The probable
unbalance may either entail civil consequences or criminal consequences. Civil
substantive law and Civil Procedure Code deals with the first and criminal substantive
laws and Criminal Procedure Code deals with the second.
 

 The administration of justice is civil when the parties to the suit are individuals, the
subject-matter of the suit is of civil nature, the procedure to be followed is civil and the
probable outcome of the suit is damages, compensation, declaration or restitution. It is
criminal if one of the parties is state and another an accused, the subject-matter is crime,
procedure is criminal procedure code and outcome of the proceedings is punishment or
fine.
 Dispute settlement A dispute means a public assertion of inconsistent claims over
something of value, e.g., small scale quarrels, disagreements, broken contracts, failed
marriage, contested will, dispute over boundary lines of two plots of land.
 Conflict resolution If refers to broader and bigger disagreements between groups or
classes, e.g., employer, employee, demand of the demonstrators and the government.
 Social Engineering Social Engineering means planned change directed from the above,
e.g., drafting of five years plan. The function-of law is to adjust its machinery in such a
way that maximum of the interests are secured and fulfilled with minimum of friction
This engineering starts from distribution stage and runs up to correction stage of the
justice. Law is to safeguard that there is no inequality at the first stage of planning,
legislation and execution and also there is no inequality when balance in distribution stag
is upset and it is sought to be corrected and redressed.
 

1. Social Function of Law:

          Social functions of the law depend on the degree to which laws are obeyed and
applied and the extent to which human behaviour is affected. The law has two kinds of
social functions.

 Direct function.

 Indirect functions.

 Direct functions are those, the fulfilment of which is secured by the law being obeyed and
applied, e.g., curtailing the use of violence. This is possible if criminal law is obeyed.
Direct functions may be

 Primary

 Secondary
 Primary functions affect the general population They are outward looking. The
reasons and justification for the existence of the laws are found in primary functions, e.g.,
providing compulsory education, National Health Service Road construction, social
security benefits, sewage and rubbish clearing subsidising industries. The secondary
function means maintenance of the legal system. Secondary functions make the existence
and operation of the legal system possible. They are judged by the success they have in
facilitating the fulfilment of the primary functions, e.g., regulating. The working of law
making organs is secondary function.
1. Direct primary social function. The following forms are notable:

 Preventing undesirable behaviour and securing desirable behaviour e.g., criminal laws
and torts.

 Providing facilities for private arrangements between individuals e.g., private laws,
contract, property, marriage, companies, etc.

 The provisions of services and the re-distribution of goods, e.g., tax laws and public laws.

 Settling unregulated disputes, e.g., court, tribunals and arbitrators.

Social control:
Social control is not the monopoly of law. There are many other patterns of authority
which exercise control over the society, sometimes along with the law and sometimes
competing with law. Social control by the law may be formal or informal.

 Formal social control is characterised by

 Explicit rules of conduct;

 planned use of sanctions to support these rules and

 Designated officials to interpret and enforce these rules and often to make them (judges).
Law is considered one of the methods of formal social control. This includes are
imprisonment, fine and civil penalties.

 Informal social control is characterised by disapproval of an individual's behaviour or

actions by family, friends, neighbours, etc. Even in complex societies this form of control
exists, e.g., police man's cry on erring driver, president's praising of indigenous
adventures, etc.

 
Uniformity, flexibility of law and society:
The notion of law represents a basic conflict between two different needs; the need for
the uniformity and the need for the flexibility. Uniformity is needed partly to provide
certainty and predictability. Where rules of law are fixed and generalised, the citizen can
plan his activities with a measure of certainty and predict the legal consequences of his
behaviour. in addition, uniformity tends to substitute fixed rules for the arbitrary fiat of
the judge, for the government of the laws is preferable to government of the men.
Uniformity in addition to above brings stability and security to the social order.

Flexibility, on the other hand, is needed in view of inherent weakness of the rule. No rule
can provide for every possible case. The exceptions are natural. it is in view of this that
some discussion is needed, e.g., in sentencing, no general rule can be prescribed for all
cases, In addition, law can adapt itself to social change only when it is adequately
flexible. If legal system is rigid, it will change but only through violence and upheaval. A
flexible legal system concedes peaceful social change.

1. Direct secondary social functions.

 As the law regulates its own creation and its own application, so these functions provide
for the efficient, flexible, smooth and untreated operation, of a legal system. The
following two are notable secondary functions

 Determination of the procedures for changing the laws, e.g. the constitution making
bodies, parliaments, local authorities, Administrative legislation, Custom, Judicial law
making, Delegated legislations.

 The regulation of the law applying organs, e.g., court, police and prison system,'
executive and administrative bodies, etc.

 The indirect functions of law consists in the effects, the knowledge of the existence of the
law has on the attitude, feelings, opinion and modes of behaviour of the people in the
society without bothering about actual application of the laws. These include the mission
that the law is intended to achieve, e.g., keeping internal order. These are concerned with
social effects of the laws, and depend on their achievements on non-legal factors, e.g.,
social institutions. Some of these indirect functions are related to the legal system
whereas others are performed by particular legal institutions. These effects are numerous
and vary enormously in nature, extent and importance.

 Law, Power and Legal Systems Order or equilibrium is only a by-product of the

ceaseless quest for power by individuals, groups, institutions and even whole nations.
The legal system reflects or incorporates relationships of power in at least two major
ways
 It should be understood that the makers, interpreters, administrators and enforcers of law
themselves hold positions of considerable actual and potential power in society;

 Such individuals are not free to use this power according to personal whim.
 In a democratic society, it is a generally accepted doctrine that the ruler is subjected to the
laws and not above them, because the law is the law of the community, not the law of the
ruler.

Power, both in its social and legal contexts—always requires a kind of validation through
obedience and &quiescence. We must however distinguish the kind of obedience which
is characteristic of legal relationship. We are forced to recognize the presence of some
limits on the use of legal power, because the morals of the community depend in large
measure on the sense of justice in the political society, and the widespread feeling of
injustice is the deadliest foe of political power. The other major power aspect of the legal
system lies in its creation or elaboration of the rights and duties accruing to the various
constituent elements of society. The legal order establishes, or at least recognises and
legitimates, the broad patterns of power relationship in a society. The legal institutions
are responsible for regulating the power that may be wielded by and in other institutions.
The society is divided into smaller groups of individuals called social classes, which are
unequal in size, power, importance and wealth and which represent different interests.
Through the legal system, rights are conferred, and equally duties imposed, on the
occupants of specified social categories.

 Rights and duties are reciprocal One party's right implies a duty imposed on another
and vice versa. Similarly, an expansion of liberty for one group invariably means a
limitation on liberty or licence of another. Through its impact on the distribution of
power especially in the economic and political areas, law invariably reflects and
influences the ordering of social strata within a society.
Law and public opinions:
What makes law is not "public opinion" in the abstract, but public opinion in the sense of
exerted social force depending on power and intensity. Legal acts are determined by the
preponderance of social force brought to on the subject. It is not "social force" in the
abstract, that makes law, but social force acting on the subject.

Interests and demands what they mean

There is a big difference between an interest and a demand. An interest is a feeling that a
course of action will be advantageous to a person or group of people. Those things that
people in general want need or like are, objectively speaking their interests. A demand
begins with a subjective sense of interest. The equation objective interest plus power tells
us more or less how much special force could be exerted on the legal system with regard
to this or that question and in what general direction.

As far as the law is concerned, power, influence and wealth are of no concern unless they
turn into actual demands on the legal system. Demands flow first from subjective
perceptions of interest and second from attitudes of willingness to express and press these
demands. Thus, social forces must be converted into demands on the legal system, in
order to produce legal acts, such as rules, statutes, codes, doctrines, practices. Attitudes,
ideologies and values act as chemical agents; they change interests into demands, or
block such changes. This is the role of the element we call the legal culture.

Legal System:
A legal system is a part of any society. The society is much larger than the legal system.
Legal system exists side by side to political system, economic system, social systems,
religious systems, etc. These act and inter act together to keep the movement of the
society going on. In fact, whenever law is commended or condemned, it is law in the
sense of system that is involved. Otherwise, law as a discipline is just the same as history,
geography, sociology, psychology, etc. It is theoretical discussion of certain aspects of
human life. Law holds superior position amongst these disciplines for its practical utility
which does not concern law as such but is concerned with law as system. Law as a
system produces results whether good or bad, desirable or less desirable. It is due to these
results that legal system is commended and condemned both at the same time and
ironically for the same result.

Legal system represents linkage of laws and in any country is one aspect of the
government or the authority and every structure with an authority has one or other legal
system. Examples of structure may include a nation, a factory, a school, a club or
otherwise. All these structures have some authority and an authority has law as one and
very important organ of keeping the authority alive and going on.

Authority or legitimate domination what does it mean

Authority rests on a firm belief in its legitimacy. Authority means obedience to one who
holds it; may be human or divine, may be voluntary or involuntary. Why does this
obedience come? is not very much relevant. It may be that authority owes its origin or
derives its powers from people themselves e.g., election in democracies, or may be
hereditary, e.g., Monarchy or may be force e.g., dictatorship or may be in pursuance of a
system which is accepted to be authoritative and legitimate, e.g., authority of the court to
pronounce faulty, of policeman to arrest and prosecute. These are by virtue of legal
system.

Authority is a notion that some person is entitled to require the obedience of others
regardless of whether those other persons are prepared to find the particular order or rule
enjoined upon them as acceptable or desirable or not. The person so entitled may be an
individual or society. The person, who renders this obedience, feels legitimate
subordination to the person who is entitled to require obedience. It is ability to determine
the legal relations of other persons that is called authority, i.e., power over other persons.
Ability to determine legal relations of one's own is termed capacity.
  
Basis of authority. Why does one feel bound to obey other or the others. The following
may probably explain the feeling of being bound partly or in some essential particular.
 Moral domination. The student obeys the teacher, children obey father, patient obeys
doctor, religious disciples obey preceptor, raiyyats obey the zamindar, the driver obeys
the traffic policeman, and litigant obeys his advocate or the Judge. Why does it happen?
Is not the idea of legitimate authority linked with morality? Does one not feel morally
bound to obey teacher, father, religious preceptor, zamindar, policeman, etc.?
 Morality and Legitimacy. Morality is foundation of legitiinivy many eases but morality
and legitimacy cannot be equated. These are closely interconnected terms but are
separable and distinguishable. Even coup plotters and rebels seek to justify the overthrow
of the government on moral grounds for seeking legitimacy to their coup, e.g., that
previous government was mismanaging national economy, had failed to establish law and
order, so on, so forth.
 Charismatic domination. It so happens quite frequently in any society that acts of an
individual get easy approval due to his dominant personality. Who does it so happen?
Can only be explained in terms of charisma alone, e.g., Alexander the Great, Julius
Caesar, Napolean, Hitler, Stalin, Mussolini, Netaji Subhash Chandra Bose were historical
figures who had such charismatic dominating personalities. Bhagwan Rajnish, Sai Baba
and Maharshi Mahesh Yogi are some religious heads with charismatic domination.
 

 Traditional domination. Traditional domination is another source of legitimate

domination or authority. In case of charisma, the domination sometime continues by
sheer personal ascendancy and may die with the death of the person. In some cases, it
may pass to his successor, e.g., monarchs and kings. The domination of their successors
is called traditional domination though the successor may not have any of his talents. The
 domination of tribal chiefs, sultans and Emirs is an example of traditional domination. It
is complex of personal and institutional elements.
 Legal domination. Under this type of domination, the legitimate domination becomes
impersonal and legalistic and the institutional character of the authority displaces the
personal one, e.g., oligarchy, democracy etc. are systems where bureaucracy, legislature,
judiciary, etc. take over as institutions of legitimate domination. If the Parliament enacts a
law, it is presumed to be constitutional. The certificate of speaker that a bill has been duly
enacted closes all scrutiny into the forms of procedure being complied with.
Legitimacy and a legal system
Legitimacy is the same for a legal system as chastity is for a girl. Loss of the legitimacy
in a legal system is a signal of revolution, e.g., death of the system as such exactly in the
same way as a single stain of loss of virginity is a signal for death to the girl. It is
legitimacy alone that keeps the legal system alive. In modern times, legal systems are on
trial, but there is no loss of faith in it. In actual process, legal system can be broken in
following parts

 The legal system has form, patterns and persistent style. Structure of the legal system is
the body, the framework, the long lasting shape of the system, the way courts and the
police is organised, the lines of jurisdiction and the table of organisation. Structure means
every such thing that one sees, hears or experiences everywhere in society and that is
connected with the law.

 Substance. The substance means actual norms or rules used by the institutions, e.g.,
substantive law and procedural law. The former deals with bow one must or may behave.
The latter are either the special rules for role players inside the legal system or rules about
how outsiders may approach and deal with these players.
 Demand. Demand is third part of a legal system. Without demand, a legal system would
be just like a cinema hall without anybody in the hall. The legal system cannot move by it
 all alone. It is set in motion by demand, i.e., pressure from the outside and is kept in
motion likewise.
Demand on legal system is created by legal culture.

Legal Culture. Without demand, structure and substance legal culture is of not much
use, e.g., what is court, if nobody goes there. Demand on legal system is created by the
ideas, attitudes, beliefs, expectation and opinion about law, legal system and its various
parts. The social forces make law only after filtering through legal culture. It is legal
culture which determines when, why and where people use law, legal institutions or legal
process or whether they use institutions other than law or when they use none. Legal
culture sets everything in motion as winding up does to a clock or plug to a machine.
Kinds of legal culture
 Legal culture is of two kinds, viz.

 General public, i.e., law legal culture

 Lawyer, Judges and other professionals, i.e., International Legal culture.

A stage of lay legal culture. This includes attitudes about the law. It may be of different
stages, e.g., Lay legal culture of Nigeria, and lay legal culture of Hausa or Ibo or Yoruba.
Dozens of cultural groups in India are demarcated on language basis or cultural groups.
Legitimacy and lay legal culture three aspects need consideration
 This is a matter of official norms.

 It is a matter of internal legal culture.

Internal Legal Culture. Attitude of lawyers, Judges and Professional and legal reasoning
are features of the internal legal culture. Legal reasoning is a formal presentation of
reason for a legal act. It must, however, be authoritative.
 Principle of legitimacy must carry public approval. Theory of legitimacy is the idea held
by some group about the elements and praises that validate law. It includes;

 Majority rule

 Will of the leader

Is reasoning necessary It is not in case of primary legitimacy, e.g., Parliament, Monarch,

President ruling by Decree, God's sacred book when these need no authority from any,
may make or change law of their own.
Derivative Legitimacy. Delegated authority must link up the legal act to superior or
supreme, i.e.,, primary legitimacy. This link may be general or uniform of police, gown
of judges, etc. are general linking the act to primary legitimacy. Warrant is specific link
with primary legitimacy.
 

 
  

 Legal System, Kinds of,

 Common Law System. This includes legal systems of U.S.A., India, Canada, Australia,
New Zealand, Jamaica, Trinidad, Barbados, Jana, Zambia, Nigeria, Tanzania, Ghana and
other former English onies.
 The main features are:
 Doctrine of precedent.

 Jury system, Adversary system and trust, as rule of the substantive law typing out the
property. This has influenced the law of India, Pakistan, Malaysia, Philippines: In India.
Jury system no longer exists.

 Socialist legal System. This includes Eastern Europe, Russia, Cuba, Poland and
Bulgaria. It is an extension of civil law systems. Elected Judges are an important feature
of this system: Chinese legal system is included in this group.
 Sacred Law System. Jewish legal system—e.g. Torah, Bible and several Codes of law,
2.g., Law of Moses. Talmud is a book of law in Israel.
 Islamic Legal System (Shariat). In Saudi Arabia, Pakistan, Iran, Bangladesh and
Afghanistan (Taliban system) Quran is the book of law.
 Hindu Legal System. Vedas and Smiritis were legal codes in India before Islamic-
English legal system was introduced. Manu smiriti Yagnyavalkya smiriti, Narad,
Brihaspati, Kautilya, Gita, Ramayan, Mahabharat are some of the sacred law books
which contain law for mass.
 Native legal system. Nigeria, the primitive law or customary law still applies. No two
legal systems are exactly the same but clustering or group of families can be arranged
considering affinities like language, economy, politics, tradition etc.
 Civil Law Family. It includes the legal systems of France, Germany, Italy, Spain,
Portugal, Latin America, Southern Africa and former French colonies in Africa, Japan,
China and Korea have adopted Western Codes wholesale. The features are codified civil
systems, debt to Roman law and basic law is found in Code.