UNIT-1

LAW-MEANING AND DEFINITION

Topics:
1. Meaning and Classifications of law
2. Function of law
3. Classifications of law
a. Public and private laws
b. Substantive and procedural law

1. Meaning and classification of laws:

Law is the cement of the society and an essential medium of change. Various legal
theorist has tried to define the concept of “Law”, every theorist has attempted to define
the concept from different perception. However, a group of thoughts and perceptions
could be classified under one category, which gives rise to a common thought in a
theory, though individually every theory would differ from the other one. The theorist
could be classified in variety of ways, for the sake of convenience. The theories of law
could be broadly into five categories, i.e., Natural law theory, Positivist Theory,
Sociological theory, Realist theory and Critical law school theory.

Natural law theory:

In jurisprudence, the term means those rules and principles which are considered to be
have emanated from some supreme source other than any political and worldly
authority. Natural law theory has a history of reaching back centuries BC, and the
vigour with which it flourishes notwithstanding periodic eclipse, especially in 19 th
century, is indicative, of its validity.

Different ways, how Natural laws has been applied:

1. Ideals which guide legal development and administration.

2. A basic moral quality in law which prevents a total separation of the “is” from
the “ought”
3. The method of discovering perfect law.
4. The content of perfect law deducible by reason.
5. The conditions sine quibus non for the existence of law.
The idea that in reality law consists of rules in accordance with reason and nature has
formed the basis of a variety of natural theories ranging from classical times to the
present day. The central notion is that there exist objective moral principles which
depend on the essential nature of the universe and which can be discovered by natural
reason and that ordinary human law is only truly law in so far as it conforms to these
principles. These principles of justice and morality constitute the natural law which is
valid of necessity, because the rules for human conduct are logically connected with
truths concerning human nature. This connection ascertains the principles of natural
law by reason and common sense, and in this the natural law differs from rules of
ordinary human law (positive law) which can be found only by reference to legal
sources such as constitutions, codes, statutes, and so on. But since law can only be true
law if it is obligatory, and since law contrary to the principles of natural law cannot be
obligatory, a human law at variance with natural law is not really law at all, but merely
an abuse or violation.

Natural law theory by St. Aquinas’s Theory:

St. Thomas Aquinas’s theory has to be understood in its background put in short as
follows. Firstly, his theory is an outcome of the need for stability in a world emerging
out of dark ages. Secondly, there was a need for church to establish its supremacy over
the State in their conflict which each other. Lastly, there was a need for Christendom to
unite. Aquinas’s theory tried to accomplish all these needs through his theory as under.
He defines law as “An ordinance of reason for the common good, made by Him who
has the care of the community, and promulgated” In light of this definition he has
classified law into four categories i.e. Lex-Aterna, Lex- Naturalis, Lex- Divina, and Lex-
Humana, which means Eternal Law, Natural Law, Divine Law and Human made law
respectively. He believes that though man can to a greater extent control his own
destiny, he too is subject to certain basic impulses, which can be perceived by observing
human nature. These impulses are firstly, at the basic level impulse towards self-
preservation, secondly, impulses to reproduce species and rear children, these two are
shared with other creatures by the man. Lastly, the impulse to improve and progress
which is unique to human kind. Hence, according to St. Thomas Aquinas human nature
itself is a means to achieve certain ends that are pre-decided by the nature. This relation
between the means and ends could only have originated in the reason of some Super
human legislator. This according to Aquinas is Eternal Law. In other words, ‘the eternal
law is nothing else than the plan of divine wisdom considered as directing all the acts
and motions’. However, man has a capacity to act contrary to eternal law owing to the
free and rational nature of man. Therefore, Aquinas believes that this eternal law needs
to be promulgated or emanated to the man. This promulgation of eternal law to man is
called Natural law. Thus Natural Law is ‘nothing else but a participation of the eternal
law in a national creature. ‘Further in addition to eternal and natural law exists ‘Divine
Law’ which is revealed through scriptures. And lastly, there is human law which has to
conform to reason and thus to the law of God. Thus St. Thomas Aquinas’s theory
propounds that laws are arranged in a hierarchy where the human made laws are based
on scriptures and in return these enshrine in them the principles of Natural Law, which
in turn are derived from the Eternal Law. Thus, following examples could depict the
application of the theory- Article 21 of the Indian Constitution is an example of Human-
made law, which could be said to have based on the sacrosanct of Life and respect for
mankind as stated in various Scriptures, which in turn depicts the divine revelations of
almighty, which is derived from the Eternal Law.

Positivist theory:

The start of the nineteenth century might be taken as marking the beginning of the
positivist movement. It represented a reaction against the a priori methods of thinking
that characterised the preceding age. Prevailing theories of natural law shared the
feature of turning away from the realities of actual law in order to discover in nature or
reasons principle of universal validity. Actual laws were then explained or condemned
according to these canons. Scrutiny of natural law postulates had damaging results for
they were shown to be without foundation or else the products of extrapolation.

The term ‘positivism’ has many meaning whish were tabulated by professor Hart as
follows:
1. Laws are commands.
2. The analysis of legal concepts is,
a. Worth pursuing
b. Distinct from sociological and historical inquiries
c. Distinct from critical evaluation
d. Decisions from critical evaluation.
3. Decisions can be deduced logically from pre-determined rules without
recourse to social aims, policy or morality.
4. Moral judgements cannot be established or defended by ration argument,
evidence or proof.
5. The law as it is actually laid down, positum, has to be kept separate from
the law that ought to be.
Jeremy Bentham – Bentham was an advocate of codified law and reformation of English
law, which according to him was in utter chaos. He believed that law should be
reformed from time to time, however, in order to reform it should have a form in first
place, this form according to him could be given by codification, and that analysis of
structure of law was very important before reforming any law. Hence he set himself on
a task of defining the structure of law. He defined law as “An assemblage of signs,
declarative of a volition, conceived or adopted by the sovereign in a state, concerning
the conduct to be observed in a certain case by a certain person or a class of persons,
who in the case in question are or are supposed to be subject to his power” Hence
Bentham’s concept of law is imperative one, for which he prefers using the term
mandate. Having defined the law, he further expressed the structure of law, he stated
that every law may be considered in eight different respects, which is as follows:

Source – According to Bentham the source of law is the will of the sovereign, who may
conceive laws which he personally issues, or adopt laws previously issued by the
former sovereign. He defines sovereign as “Any person or assemblage of persons to
whose will a whole political community are no matter on what account supposed to be
in a disposition to pay obedience and that in preference of any other person”. For e.g.
Origin of all the legislations in India is sourced in the assemblage of persons called
Legislature.

Subjects – Bentham states that every law has subjects which could be broadly classified
as persons or things which he calls them as agible or passible. For e.g. Subject matter of
Sale of Goods Act is moveable goods which are passible things whereas subject matter
of constitution of India is the citizens and authorities in India who are agible persons.

Objects – according to Bentham every law has an object which is act-situation i.e. an act
or forbearance e.g. a law may expect positively performing something or forbearing
from doing something, thus if a person wants to enter in to a contract he has to act in
accordance with the essential laid down in Indian Contract Act. On the other hand, the
Act forbears the parties from entering into void contract.

Extent – Every law in opinion of Bentham has an extent of its application which could
again be broadly divided as direct extent and indirect extent. Direct extent means that a
law covers a portion of land; indirect extent refers to relation of an actor to a thing in
terms of time of act, duration etc. e.g. direct extent of Indian Penal Code states that it is
applicable to whole of India except state of Jammu and Kashmir, whereas indirect
extent is Indian Penal Code covers acts of offences only.
Aspects- Bentham states that every law has decided (obligative) and undecided
(unobligative) aspects. The decided aspects are mandatory directives of the law. These
are further divided as commands which are positive directives and prohibition which
are negative directives. Thus, law of taxation is an example of command whereas law of
crimes is an example of prohibition. Undecided aspects are further divided as non -
commands and non- prohibitions e.g. laws in the form of non- prohibition give a
permission to do something whereas non commands give a permission not to do
something. Thus the provision of income tax which permits to donate an amount to
charity and claim exemption from tax is an example non prohibition, because it is not
mandatory for a person to donate, but if he wishes he has permission to do so and
which is not prohibited. On the other hand, a person aggrieved of civil trespass may file
a suit against the trespasser or may not, thus it an example of non -command where the
person has a permission to not to file a suit against the trespasser, which is not so in
case of the criminal trespass.

Force of law- Bentham believes that the law is dependent upon motivations for
obedience. This motivation according to him is a force of law. Which could be
sanctional or incitative, hence punishment for commission of an offence is a sanction
whereas leave on payroll to an inmate is incitative for being a law abiding citizen.
Remedial appendages – According to Bentham every law has remedial appendages,
which refers to creation of remedies or to the judges who are expected to cure the evil or
preventing future evil e.g. consumer protection act having dealt with the above
mentioned aspects lastly creates remedial appendage in the form of creation of
consumer forums.

Expression – Lastly every law must be expressed completely i.e. the law should be
complete in its expression, connection and design. E.g. Indian Penal Code defines and
expresses the concept of crime in one place exhaustively.

John Austin – Austin’s method – Analytical – The method, which Austin applied, is
called analytical method and he confined his field of study only to the positive law.
Therefore, the school founded by him is called by various names, - ‘analytical’,
‘positivism’, ‘analytical positivism’. Some have objected to all the three terms. They say
that the word ‘Positivism’ was started by Auguste Comte to indicate a particular
method of study. Though this positivism, later on, prepared the way for the 19th
century legal thought, it does not convey exactly the same sense at both the places.
Therefore, the word ‘positivism’ alone will not give a complete idea of Austin’s school.
In the same way analysis also did not remain confined only to this school, therefore, it
alone cannot give a separate identity to the school. ‘Analytical positivism’ too may
create confusion. Austin’s theory could be divided into two parts for convenience of
understanding it as – Austin’s conception of Law and His method. Austin’s Conception
of Law – He defined law as “A rule laid down for the guidance of an intelligent being
by an intelligent being having power over him” Thus he divided law into two broad
categories- Laws Properly so called which are in the form of commands and carry a
material sanctions and Laws improperly so called are the laws without a command and
do not carry a sanctions. The former are followed by people they being the commands
and carrying sanctions, whereas the latter are also generally followed by though there
exists no sanction. He further classifies the Laws properly so called as, Laws of God set
by God for men and Secondly Human laws set by men for men. Human Laws are
divided into two classes as – Positive Laws – These laws according to him are the laws
set by political superiors as such, or by men not acting as political superiors but acting
in pursuance of legal rights conferred by political superiors. Only these laws are the
proper subject- matter of jurisprudence. E.g. All the legislations in India are example of
Positive Laws Other Laws – These are the laws which are not set by political superiors
or by men in pursuance of legal rights, but by other category of men in some other
capacity other than political. E.g. the code of conduct of a family or a community
custom fall under the category of laws set by men for men not in capacity of political
superiors. These laws Austin also calls them Positive Morality. The Laws improperly so
called are the rules in the form of opinions or sentiments of an indeterminate body of
men, as laws of fashion or honour. Austin places International Law under this class. In
the same way there are certain other rules which are called laws metaphorically. They
too are laws improperly so called. (the chart in the Power Point presentation is
explanatory) Law is a Command – Austin states that only the positive laws are the
proper subject – matter of study of jurisprudence. “The matter of jurisprudence is
positive law- laws strictly so called – or laws set by political superiors to political
inferiors” Hence he says jurisprudence is the general science of positive law. The
characteristics of laws properly so called are stated by Austin as under- Law is a
command of the sovereign – Command implies duty and sanctions – Laws properly so
called are species of commands. But being a command, every law properly so called
flows from a determinate source, or emanated from a determinate author. In other
words, the author from whom it proceeds is a determinate rational being, or a
determinate body, or aggregate of rational beings. For whenever a command is
expressed or intimated, one party signifies a wish that another shall do or forbear; and
the latter is obnoxious to an evil which the former intends to inflict in case the wish be
disregarded. But every signification of a wish made by a single individual, or made by a
body of individuals as a body or collective whole, involves the same supposition. The
power and purpose inflict penalty for disobedience are the very essence of a command.
The person liable to the evil or penalty is under the duty to obey it. The evil or penalty
for disobedience is called sanction. Command, duty and sanction are, therefore,
inseparably connected terms; that each embraces the same ideas as the others, though
each denotes those ideas in a peculiar order or series. Only General Commands are
laws- However, according to Austin, all the commands are not laws, it is only the
general command, which obliges to a course of conduct is law. Exceptions to the above
characteristics- These general commands, as defined above are the proper subject of
matter of jurisprudence. But according to Austin, there are three kinds of laws which,
though not commands, are still within the province of Jurisprudence which are –

1. Declaratory or Explanatory Laws- Austin does not regard these as commands,

because they are passed only to explain laws already in force.
2. Laws to repeal laws- These too are not commands but are rather the revocation
of a command.
3. Laws of imperfect obligations- these laws have not sanctions attached to them,
still they are laws.

Hence, it could be concluded that Austin’s conception of law has no place for notions as
justice or morality. The basis of laws is the power of the superior and not the ethics or
the principles. Austin stands at par with absolutists like Hobbes, while stating laws as
commands of sovereign.

H.L.A. Hart – A very comprehensive reformulation of analytical positivism has been

done by Hart in his ‘Concept of Law’ His theory on the one hand builds on its own and
on the other hand makes important modifications to the theories of other positivists like
Austin and Kelsen. “Two aspects of Hart’s analysis of the concept of law are of special
importance, in the first place, he bridges the age old conflict between the theories of law
emphasising recognition and social obedience as the essential characteristic of a legal
norm, and those that see the distinctive characteristic of law in the correlated elements
of authority, command, and sanction.” The former approach is that of the Savigny,
Ehrlich and others. The latter is that of Austin, Kelsen and their followers. Primary
rules of obligation and secondary rules of recognition - Social acceptance predominates
in primitive societies and organised authority predominates in more developed
societies. This distinction is expressed in terms of contrast between primary rules of
obligation and secondary rule of recognition. Primary rule give way to secondary rules
- “Both historically and logically, the primary rules of obligation generally give way to
secondary rules, in which the forms of recognition, change and adjudication are
systematised, usually through the centralisation of authority, the articulation of definite
procedures for the making, application and execution of law, and a system of official
sanction.” Conditions necessary for the existence of a legal system – Hart says that for
the existence of a legal system, two minimum conditions are necessary: “There are
therefore two minimum conditions necessary and sufficient for the existence of a legal
system. On the one hand, those rules of behaviour which are valid according to the
system’s ultimate criteria of validity must be generally obeyed, and on the other hand,
its rules of recognition specifying the criteria of legal validity and its rules of change
and adjudication must be effectively accepted as common public standards of official
behaviour by its officials. The first condition is the only one which private citizens need
satisfy: they may obey each ‘for his part only’ and from any motive whatever; though in
a healthy society they will in fact often accept these rules as common standards of
behaviour and acknowledge an obligation to obey them, or even trace this obligation to
a more general obligation to respect the constitution. The second condition must also be
satisfied by the officials of the system. They must regard these as common standards of
official behaviour and appraise critically their own and each other’s deviations as
lapses. Of course it is also true that besides these there will be many primary rules
which apply to officials in their merely personal capacity which they need only obey.”

Sociological School

Roscoe Pound: He concentrates on the functional aspect of law – Pound is considered

to be the ‘American leader’ in the field of sociological jurisprudence. It is in the writings
of Roscoe Pound that the most influential exposition of the American sociological
viewpoint is to be found. He comes from Harvard Law School and has a great academic
favour. He is the most systematic writer on sociological jurisprudence. Pound
concentrates more on the functional aspect of law, that is why some writers name his
approach as ‘functional school’. For Pound, the law is an ordering of conduct so as to
make the goods of existence and the means of satisfying claims go round as far as
possible with the least friction and waste. According to him, the end of law should be to
satisfy a maximum of wants with a minimum of friction. The task of law is ‘social
engineering’ - Pound’s main thesis is that the task of law is ‘social engineering’. He says:
- “For the purpose of understanding the law of today, I am content with a picture of
satisfying as much of the whole body of human wants as we may with the leas sacrifice.
I am content to think of law as a social institution to satisfy social wants, the claims and
demands involved in the existence of civilized society – by giving effect to as much as
we may with least sacrifice, so far as such wants may be satisfied or such claims given
effect to by an ordering of human conduct through politically organised society. For the
present purpose I am content to see in legal history the record of a continually wider
recognising and satisfying of human wants or claims or desires through social control; a
more embracing and more effective securing of social interests; a continually more
complete and effective elimination of waste and precluding of friction in human
enjoyment of the goods of existence – in short, a continually more efficacious social
engineering.” ‘Social engineering’ means a balance between the competing interests in
society: The jurist must work with a plan – By ‘social engineering’ Pound means a
balance between the competing interests in society. He entrusts the jurist with a
commission. He should ’study the actual social effects of legal institution and legal
doctrines, study the means of making legal rules effective, sociological study in
preparation of law-making, study of judicial method, a sociological legal history and
the importance of reasonable and just solutions of individual’s cases’. He thinks it to be
the duty of the jurist to classify and expatiate upon the interests to be protected by law.
He himself enumerates the various interests which are to be protected by law. He
classifies them under three heads: Private interests, Public interests and Social interest.
Private, Public and Social interests – The private interests to be protected by the law are:
(a) the individual’s interests of personality: These includes his physical integrity,
reputation, freedom of volition and freedom of conscience. They are safeguarded by the
Criminal Law, Law of Tort, Law of Contracts and by limitation upon the power of
Government to interface in the matter of belief and opinion, (b) Individual’s interests in
domestic relations: These include marriage, relations of husband and wife, parents and
children, and claims to maintenance, (c) Interests of substance: These includes
proprietary rights, inheritance and testamentary succession, and occupational freedom.
The principal public interests are: (a) Interests in the preservation of the State as such,
and (b) Interests of the State as the guardian of the social interests. The social interests
deserving legal protection are : (a) Interest in the preservation of peace and order and
maintaining general security, (b) Interest in preserving social institutions like marriage
and religious institutions, (c) Interest in preserving general morals by counteracting
corruption, discouraging gambling and invalidating transactions repugnant to current
morality, (d) Interest in conserving social resources, (e) Interest in general progress
which is to be achieved by freedom of education, freedom of speech and expressions,
freedom of property, trade, and commerce, and (f) Interest in the promotion of human
personality.

The Realist School

A branch of sociological approach; They concentrate on decisions; Law only on official

action – Roscoe Pound has defined ‘realism’ as: “Fidelity to nature, accurate recording
of things as they are, as contrasted with things as they are imagined to be, or wished to
be or as one feels they ought to be.” Llewellyn says that realism is not a school of
jurisprudence. At the best it may be called a branch of sociological jurisprudence. That
is why sometimes it is called the ‘left wing of the functional school.’ It differs from the
sociological school in this respect that it is little concerned with the ends of law. It
concentrates on a scientific observation of law in its making and working. This
movement is named as ‘realist’ because this approach studies law as it is in actual
working and its effects. They reject the traditional definition of law that it is a body of
rules and principles that courts enforce. They avoid any dogmatic formulation and
concentrate on the decisions given by the courts. The decisions are not based only on
formal law but also on the ‘human factor’ in the judge and the lawyer. According to
them, law is only an official action, and therefore, the forces that influence a judge in
reaching a decision (including bribery and corruption) are within the field of study.
Origin of the Thought Holmes and Gray – Two great jurists in whom the germs of the
realist approach have been traced are Gray and O.W. Homes. Gray defined law as
“what the judges declare”. He emphasized the fact that the personality and the personal
views of a judge play an important role in decisions. He prepared the grounds for a
more sceptical approach which proceeded to point out with greater emphasis the
importance of non-logical factors in decisions. Holmes put the thing in a more concrete
form. O. W. Holmes stated that to ‘tell it as it really is’, or to find the ‘truth’ of law, we
must look at ‘law in action’, as opposed to the doctrinal analysis of ‘law in books’. A
passage from an address by him also cited to present his views in this respect.

“Take the fundamental question what constitutes the law… You will find some text
writers telling you that it is a system of reason, that it is a deduction from principles of
ethics or admitted actions, or what not, which may or may not coincide with the
decision. But if we take the view of our friend, the badman, we shall find that he does
not care two straws for the action of deduction, but that he does want to know what
Massachusetts or English courts are likely to do in fact. I am much of his mind. The
prophesies of what the courts will do in fact, and nothing more pretentious are what is
mean by the law.”

It is submitted that Holmes never meant what has been interpreted from the above
passage. If the whole address from which the above passage is cited is read, it appears
that he emphasised the “study of laws as a rational system based on history.” For him,
“the theory is the most important part of the dogma of law,” and, therefore, he stresses
the need for a legal theory. Though the law does not operate with mathematical
accuracy, there are certain principles on which it normally proceeds. Holmes never
seems to have adhered to the view contained in the above passage but later writers of
Realist movement made this isolated passage as their basic text. Characteristics of
Realistic movement Following are some important points stated by Llewellyn as
characteristics of this movement:
 There is no realist school, realism means a movement in thought and work
about law.
Realism means a conception of law in flux and as a means to social ends,
so that any part is to be examined for its purpose and effect. It implies a
concept of society which changes faster than the law.
Realism assumes a temporary divorce of the ‘is’ and ‘ought’ for purposes
of study. This means that the ethical purposes which according to the
observer, should underline the law, are ignored and are not allowed to
blur the vision of the observer.
Realism distrusts traditional legal rules and concepts in so far as they
purport to describe what either courts or people are actually doing. In
view of the definition of rules (as “generalised predictions of what the
court will do”) realism groups cases and legal situations into narrower
categories than was the practice in the past.
Realism insists on the evaluation of any part of the law in terms of its
effect.

2. The Function and Purpose of law: Justice, Stability and Good

Conscience

Generally speaking, the function and purpose of law is to ensure Justice, stability and
good conscience.

Aquinas and Salmond have claimed justice as the goal of law. According to Aquinas
following Augustine, an unjust law is no law while to Salmond, law is those principles
applied by the state in the administration of justice. Justice can be used in a wider or a
more restricted sense. In the wide sense, such as is used by Aquinas in his contention
that an unjust law is no law, justice appears to be roughly synonymous with morality.
In the narrower sense, as in the expressions, “court of justice”, “natural justice” and
“denial of justice”, The term refers to but one area of morality.
“Justice” has this narrower sense can be seen by examining the converse concept that of
injustice.

E.g.; Father picks on one child and makes a favourite of another is an unjust parent.
An examiner who for personal reasons and not on their merit, marks certain candidates
more leniently or harshly than the rest, is an unfair examiner.
For justice consists precisely in not singling persons out for special treatment in the
absence of significant differences, but in treating like cases alike and meting out fair and
equal treatment to all.

Justice operates at two different level: Distributive justice and corrective justice.
Distributive justice: It works to ensure a fair division of social benefits and burden
among the member of the community. Distributive justice then serves to secure a
balance or equilibrium among the members of the society.

This balance, however, can be upset.

E.g.: Suppose one citizen, X, is prevented by another. Now, the balance is upset because,
Y, has deprived X of a right that should be equally enjoyed by all. At this point
“corrective justice.” Will move in to correct the disequilibrium by forcing “Y” to make
“X” some compensation.

Justice, then, in its distributive aspect serves to secure, and in its corrective aspect to
redress, the balance of benefits and burdens in the society.

But fair and equal dispensation of justice demands more than equality, it requires that
all be equal before law. It means that the legal rights which each person has should be
given equal protection by the court.

E.g. Where certain categories of persons, such as minors and lunatics, lack certain
rights, all are not legally equal; but, in so far as the rights possessed by each citizen are
equally respected by the courts, to this extent all are equal before the law.
Justice at this level provide an equitable division between the actual members of the
society.

Next functions and purpose of law is to maintain law and order, maintain social control,
resolve conflicts, to bring orderly change through law and social reform.

3. Classification of law:

There are several ways of classifying law and the idea of classification of law is not new.
Even in ancient civilizations, the jurists were well aware of the difference between civil
 and criminal laws. However, with the passage of time, many new branches have come
into existence and therefore, the old classification has become outdated. Law can be
classified in many ways with respect to time and place. However, law may be broadly
divided into the following two classes in terms of its usage:

i. International Law
ii. Municipal Law

International law is an important branch of law. It deals with those rules and
regulations of nation which are recognized and are binding upon each other through
reciprocity. Many jurists however, do not give much importance to this branch. In
recent times, this branch of law has grown manifold and has acquired increasing
importance on account of globalization and other related factors.

I. International law:
International law has been further classified as follows:
Public International law:

This branch of law relates to the body of rules and regulations which governs the
relationship between nations. Countries mutually recognise these sets of rules which
are binding on them in their transactions on a reciprocal basis.
Private International law:

Private international law is that part of law of the State, which deals with cases having a
foreign element. Private international law relates to the rights of private citizens of
different countries. Marriages and adoption of individuals belonging to different
nations fall within its domain.

II. Municipal Law

Municipal laws are basically domestic or national laws. They regulate the relationship
between the State and its citizen and determines the relationship among citizens.
Municipal law can be further classified into two segments:

Public law:
Public law chiefly regulates the relationship between the State and its' subjects. It also
provides the structure and functioning of the organs of States. The three important
branches of public law are the following:
 (a) Constitutional Law: Constitutional law is considered to be the basic as well as the
supreme law of the country. The nature of any State is basically determined by
its Constitution. It also provides the structure of the government. All the organs
of states derive their powers from the Constitution. Some countries, such as
India, have a written Constitution, while countries such as the United Kingdom
have an 'uncodified Constitution'. In India, the fundamental rights are granted
and protected under the Constitution.
(b) Administrative Law: Administrative law mainly deals with the powers and
functions of administrative authorities - government departments, authorities,
bodies etc. It deals with the extent of powers held by the administrative bodies
and the mechanism whereby their actions can be controlled. It also provides for
legal remedies in case of any violation of the rights of the people.
(c) Criminal Law: Criminal law generally deals with acts which are prohibited by
law and defines the prohibited act as an offence. It also prescribes punishments
for criminal offences. Criminal law is very important for maintaining order in the
society, and for maintaining peace. It is considered a part of public law, as crime
is not only against the individual but against the whole society. Indian Penal
Code, 1860 (also known as IPC) is an example of a criminal law legislation, in
which different kinds of offences are defined and punishments prescribed.

Private law:
This branch of law defines, regulates, governs and enforces relationships between
individuals and associations and corporations. In other words, this branch of law deals
with the definition, regulation and enforcement of mutual rights and duties of
individuals. The state intervenes through its judicial organs (e.g. courts) to settle the
dispute between the parties. Private or Civil law confers civil rights which are
administered and adjudicated by civil courts. Much of the life of a society is regulated
by this set of private laws or civil rights. This branch of law can be further classified into
the following:

a. Personal Law: It is a branch of law related to marriage, divorce and succession

(inheritance). These laws are based on religion, ritual and customs of marriage,
divorce, and inheritance. In such matters, people are mostly governed by the
Personal laws laid down by their religions. For example, the marriage of Hindus is
governed by Personal laws like the Hindu Marriage Act, 1955 while Muslim
marriages are governed by the Muslim personal law based on a Muslim customary
law which is largely uncodified.
b. Property Law: This branch of law deals with the ownership of immovable and
movable properties. For example, the Transfer of Property Act, 1882, deals with
transfer of immovable property, whereas the Sales of Goods Act, 1930, deals with
movable property.

c. Law of Obligations: This branch of the law pertains to an area where a person is
required to do something because of his promise, contract or law. It puts an
obligation on the person to perform certain actions which generally arise as a
consequence of an enforceable promise or agreement. If someone violates his
promise, that promise may be enforced in a court of law. According to the Indian
Contract Act, 1872, a contract is an agreement which is enforceable by law. In other
words, contract is an agreement with specific terms between two or more persons in
which there is a promise to do something in lieu of a valuable profit which is known
as consideration.

For example, ‘A' has offered his mobile phone to 'B' for Rs. 15,000. 'B' agreed to
purchase the same. This has created a legal relationship" both have made a promise
which is enforceable by law.

Law of Torts: Tort is a civil wrong. This branch of law creates and provides remedies
for civil wrongs that do not arise out of contractual duties. A tort deals with negligence
cases as well as intentional wrongs which cause harm. An aggrieved person may use
Law of Tort to claim damages from someone who has caused the wrong or legal injury
to him/ her. Torts cover intentional acts and accidents.

For instance, if 'A' throws a stone and it hits another person namely 'B' on the head, 'B'
may sue 'A" for the injury caused by the accident.

Substantive and procedural law:

Substantive laws are “the part of the law that creates, defines, and regulates the rights,
duties, and powers of parties.” Substantive laws govern people and organizations in
their daily interactions—they are the “laws” that non-lawyers usually think of when
they think about what law is. For example, the substantive law of torts says an
uninvited guest cannot intrude upon another person’s land; the substantive law of
estates governs the formalities necessary to draft a “will”; and the substantive law of
crime lays definitions of different kinds of offences and the punishments prescribed for
them.
However, a different set of laws, which we call procedural law, governs what happens
when a party challenges that will or corporate formation in court. In other words,
procedural laws are the door to litigation. They set forth “the rules that prescribe the
steps for having a right or duty judicially enforced, as opposed to the law that defines
the specific rights or duties themselves. It may be easier to think of procedural laws as
the “rules” that govern litigation—the rules the parties must follow as they bring their
case and the rules for the courts’ administration. These rules proscribe such things as
who gets to bring cases, which courts those cases are brought before, how the cases
proceed through the judicial process, the rules of proof, the available remedies, and the
manner in which the judgment is enforced. Procedural law is created either by the
legislature, by the judiciary, or by a combination of the two. Procedural laws have three
major purposes.
The classification, provided is not an exhaustive and conclusive one. It is just an attempt
to develop a basic understanding of the classification of law. With the passage of time,
many new branches of law have emerged and there is always scope for revising and
classifying laws based on the new developments in the field of law.