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Introduction To Law & Legal System
Introduction To Law & Legal System
Introduction To Law & Legal System
INTRODUCTION
Dr Prashant S. Desai,
Dean,
School of Law ,
Ramaiah University of Applied Sciences,
Bengaluru
WHAT IS LAW?
The term ‘law’ is derived from the old Teutonic ‘LAG’ which means
something which is fixed or even.
In general, it is a rule of being or conduct established by an authority
able to enforce its will; a controlling regulation or order according to
which an agent or power acts.
Law is an English word. Its corresponding word in the Hindu system is
‘dharma’, in Islam is ‘hukum’, in French is ‘droit’ and in German is
‘recht’.
WHAT IS LAW?
'The law is The Law’ and we tend to know it when we see it. But it is a
question that philosophers and legal theorists have expended many
pages in trying to answer.
Poet W.H. Auden
According to Hart, unless and until there are answers to these recurring
questions the issue of what is law will continue.
The following are some of the definitions of various academics reduced to
its most basic form:
Law is a system of rules laid down by a body or person with the power
and authority to make law;
Law is what legislators, executive, judges and lawyers do;
Law is a tool of oppression used by the ruling class to advance its own
interests;
Law is a set of rules which is intended to regulate the relations between
people living in a state;
It is to regulate relations between groups of people living in a particular
territory;
It is standardized set of rules;
May be equally applicable to all or may not be.(To bring about equality
some protection may be necessary)
Law is system of rules grounded on fundamental principles of morality.
Simply stated, ‘Law’ can be defined as a set of rules which we are
bound to obey i.e. those rules which are enforced by the State.
Like legal rules there are social rules as well. Society may be governed
by social rules as well. It goes without saying that the two types of rules
are clearly distinct form each other. Social rules could include ‘proper’
behavior or etiquette.
Killing a human being is both wrong legally and socially. It is hard to say
which social rule should receive the force of law and which should not. You
are likely to fined for failure to wear a helmet while travelling on a
motorbike. But it might not be frowned upon as being socially unacceptable
to not wear a helmet. How a social rule becomes law may depend on the
society you live in, i.e. religion, ethnicity, culture, tradition etc.
FUNCTIONS OF LAW
Each Country has its own laws peculiar to their History, culture
and vision for their country.
It is difficult to know every country’s law. Hence grouping or
classification..
Broadly they are classified as legal systems of the world
LEGAL SYSTEMS OF THE
WORLD
Common law system
Civil law system
Socialist system-Marxian philosophy
Middle east or Islamic law-based on religion
Personal laws- based on religion
Precedent
Ratio Decidendi
Obiter dicta
Dharmashatras
Shruthis
Smritis
Dharmasutras
Shariyat – Quaran-e-shariyat – Hadis- primary source of Islamic law – Hanafis-
Sunnas /sunni based legal system ( part of Islamic law)
Role of judiciary – Indian Constitution
Principle of Judicial Restraint vis-a-via Judicial Review
Freedom of speech and expression vis-a- via right to dignity/reputation
Ultra Vires to the provisions of Indian Constitution
VII Schedule of the Constitution
Judicial Activism v/s Judicial Over reach
Precedent
Basic Aspirations of the Constitution
WHICH SYSTEM OF LAW IS
BETTER?
The one where there is no control of one person but everyone is
subjected to control of law.
The system where there are checks and balances
There has to be a culture to honor the laws
An efficient system of enforcement
Strong sense of citizenship
Law which provides for smooth changes
A proper blend of rigidity and flexibility
WHAT IS LAW –HOW TO DEFINE LAW?
HIGH COURTS
SUBORDINATE SPECIAL
COURTS COURTS &
TRIBUNALS
DISTRICT &
SESSIONS COURT
CHIEF JUDICIAL
MAGISTRATE
JMFC
NATIONAL LITIGATION POLICY ON
ARBITRATION
More and more govt depts and PSU’s are resorting to
arbitration
Careful drafting of commercial contracts including
arbitration agreements must be given top priority
Encourage resorting to arbitration-arbitration becoming a
mirror of Court must be stopped.
It must be efficient, cost effective and expeditious
LITIGATION POLICY
Proposals to hold Court working in the morning and evenings shifts
To enhance the functioning of Lok-Adalats
Promoting of ADR methods
Enhance legal aid to the marginalized sections and empower their
access to justice
Enhance the capacity of judicial officers and public prosecutors
Creating judicial academy in every state to facilitate such training
Creating Court managers in every judicial district
The need for improvement of judiciary
There are more than three crores of cases pending in various courts
today
The challenges of liberalization and Globalization
How delay hinders economic development
Reducing the time for disposal from 15 years to 3 years by 2020
PROCEEDINGS BEFORE A CIVIL
COURT
Claim statement along with dependent documents
Written statement with all dependent documents
Issues
Evidence-Documentary, Material, Oral
Injunction application ,Application for stay
Arguments
Judgment
Appeals, Revision, Review
Execution
Applicability of CPC and Evidence law
APPEAL, REVIEW, REVISION
The appellate court shall have the fallowing powers:
To determine a case finally; to remand a case; to frame issues and
refer them for trial; to take additional evidence or to require such
evidence evidence to be taken by the lower courts.
Appeal is a right conferred by the statute
REVIEW
A person aggrieve by the decision of the court but has not
preferred an appeal though such appeal is allowed by the
law may apply to the court which has passed the judgment
or decree.
Similarly a review may be filed where an appeal is not
allowed by the law
REVISION
The HC may call for the record of any case which has been
decided by any court subordinate to such HC and in which
no appeal lies thereto. This is possible if such subordinate
court appears –
To have exercised a jurisdiction not vested in it by law, or
To have failed to exercise jurisdiction so vested or,
To have acted in the exercise of its jurisdiction illegally or
with material irregularity
The HC may pass pass such order as it thinks fit.
PROCEEDINGS IN A CRIMINAL
CASE
Police complaint/ FIR
Private complaint
Arguments
Judgment-Conviction or acquittal
Inquisitorial proceedings
Tribunals are suppose to be following inquisitorial proceedings
QUASI JUDICIAL PROCEEDINGS
Administrative authorities performing adjudication
functions
This is because of the familiarity of the facts associated with
quick resolution of disputes
Whenever there is decision on rights or adverse decision
made principles of natural justice to be fallowed.
Subject appeals or writ under Art 226
CONSTITUTIONAL LITIGATION
Writs
Writ of Habeas Corpus
Writ of Mandamus
Writ of prohibition
Writ of certiorari
Writ of Quo Warranto
Is an informal process
natural party assists in negotiation
Also called – ‘facilitated negotiation’
Trying to get together people who do not want to come
together or talk to each other
Flexible procedure
Historically used to build relations – Ex: countries like
Japan, China and India as well
Promotes harmonious relations and acceptable solutions
MEDIATION STAGES
Convening process
Mediators introduction and laying down ground rules or explaining
procedures.
Statement of the problem by the negotiators and re-statement by mediator.
Collection of additional information if necessary.
Private meetings
Negotiations.
Settlement if negotiation is successful.
Summing up of the settlement.
Drafting the settlement and signing.
THINGS TO REMEMBER WHILE MEDIATING
Confidentiality.
Neutrality.
Separate people from the problem.
Focus at what has to be done. Not on past
Mediator as a face-saver.
Motivating negotiators.
Empowering Negotiators?
CONCILIATION