LLJP

What is Meaning/concept of Law

In General Law is A national pattern of conduct to which actions do or ought to
conform. Depends largely on the social values accepted norms and behavioural
patterns of particular society at particular time.
a rule of conduct developed by the government or society over a certain territory
Law is a rule of human conduct imposed upon and enforced
Law follows certain practices and customs in order to deal with crime, business,
social relationships, property, finance, etc. The Law is controlled and enforced
by the controlling authority.

Law is a system of rules, regulations, and principles established by a governing

authority within a society or community. It serves to regulate behaviour,
maintain order, resolve disputes, protect individual rights, and promote justice.
Laws are enforced by government authorities and play a crucial role in ensuring
social order, fairness, and the protection of individuals and groups within a given
legal jurisdiction. Legal systems can vary, but law is a fundamental aspect of
organized human society, providing a framework for how individuals and
organizations should interact and operate.

Law is a multifaceted and comprehensive concept that serves as the backbone

of organized societies. The core purpose of law is to provide a framework for
human behaviour within a specific jurisdiction.

Definitions
Gray’s: Law are the rules which the courts lay down for the determination
of rights and duties
Problems: Courts are not the only bodies lay down the law

Hollands: Propositions commanding the doing or abstaining from certain

classes of actions, dis obedience to which is followed by penalty or
inconvenience.
 Problem: Laws are not always commanding and Penalty is not compulsory for
every law

Salmond’s: As the body of principles recognised and applied by the state

in the administration of justice.
Problem: Leaves out a lot of elements which are existed in law
The evolution of society and law is dynamic so there is a difficulty in accepting a
single definition for law.

Schools of Jurisprudence
Jurisprudence: Roman started studying jurisprudence initially, the word
derived from Greek term juris prudential which mean ‘Knowledge of law’ or
‘skill in law’

Paulus, Roman jurist, maintained that "the law is not to be deduced from the
rule, but the rule from the law"
Bentham and Austin(disciple) are the main English propounds of jurisprudence
in early 19th century .
Buckland: "The analysis of legal concepts is what jurisprudence meant
It is the lawyer's examination of the precepts, ideals and techniques of the law.
Jurisprudence, in its simplest form, is the philosophy of law. It includes the
study and analysis of law generally, as well as its systems, institutions, and
principles. Legal theory, meanwhile, focuses specifically on the law in practice:
how it functions and operates within societies.
Why to divide law in different schools?
Though main goal of all schools is same which is law but different schools have
different opinion on what is law, source of law, why to study law or approaches
to law.

Dias :the study of jurisprudence is an opportunity for the lawyer to bring

theory and life into focus, for it concerns human thought in relation to social
existence.

Analytical School
Also called as ANALYTICAL LEGAL POSITIVISM or Imperative school or Austinian
school or Bentham school or Positive school or english.
Bentham and john austin are founders
Analytical schools mainly concentrate on Relationship between state and law
 According to these school it considers law as it is not as it ought to be.
 Treats law as a command of sovereign.
 Related to or involving the explanation of phenomenon in terms of the
purpose they serve rather than of the cause by which they arise.
 Important authors: Austin, Bentham, Hart, Holland, Salmond, Kelsen, Gray.

Austin view on A. school

 Austin, father of A. School wrote book called The Province of
jurisprudence.
 Definition: A Law laid down for the guidance of an intelligent being by an
intelligent being having power over him.
 Command of Sovereign backed by sanction
 Austin emphasized the distinction between the sovereign authority and
the subjects
  He says that Sovereign should have independent power to make order
and it should be common for society or nation or state. In general
sovereign is the leader of political society. It should have the power to
punish the disobedience.
 Subjects are the citizens in the political society.
 Austin advocated for a clear separation between law and morality.
 According to Austin, a law could be morally unjust, yet it would still be a
valid law as long as it emanated from a sovereign authority.

Bentham view
Contributed a lot to A. School and wrote the book Limits of Jurisprudence
limited

Definition: Law is assemblage of signs and declarations of volition

conceived or adopted by sovereign state
 According to Bentham Pleasure and Pain govern not only human beings
acts but also human beings ought to
 Bentham applied his concept of utilitarianism: I ought to do the act which
will bring about the greatest happiness for the greatest number of people.
 These concept is called as doctrine of ‘hedonism’
‘The proper end of every law is the promotion of the greatest happiness of the
greatest number’
He believes that motive can only be considered good or bad based on the
results of being productive of happiness and Unhappiness.

Hart
Definition: Law consists of rules which are of broad application and non-
optional character, but which at the same time amendable to formation,
Legislation, and adjudication.
 Hart introduced the distinction between primary and secondary rules,
which became a fundamental concept in analytical jurisprudence. Primary
rules are rules of conduct that govern behaviour in society, such as criminal
and civil laws. Secondary rules, on the other hand, are rules that specify
how primary rules are created, changed, and adjudicated. They include
rules of recognition, change, and adjudication.
  Law is a system of social rules which acquire the character of legal rules.
 He prescribed a standard of conduct not a command and is followed not in
out of sense of obligations but an expectation that other have same
obligations to follow it informalized not habitualised.

Criticism
 Austin believes in sanction of punishment but in practical every law
doesn’t have punishment.
 Austin ignored the precedents and customs by giving total concern on
sovereign
 Ignored all other jurisprudence school of laws
 In current era constitution stands above everything but Austin primarily
believes sovereign has ultimate authority
 Doesn’t work in international laws as sovereign is not common for every
country.
 Judicial review or court participation was ignored

Historical School
Friedrich carl von Savigny is the founder of H. School and
Introduced Volksiest Theory(German phrase depicting the unique spirit and
character of a nation's people)
 Volksiest Theory believes that Law is a product of people’s general
consciousness and manifestation of spirit. Origins of law is found in
Volksiest which means In Consciousness and will of the people consists of
1. Traditions
2. Habits
3. Practice
4. Beliefs of the people
In general They strictly believe that law is not made but not found
 Law is the exaggerative form of social customs, Economic needs,
Conventions, religious principles and relations of people with society.
 Source Of Law according to these school is History. Customs, Traditions,
Religion and Habits.
 Law developed with contemporary to civilization.
  Law should be changed from time to time according to the human needs
and Nature.
 They believes that law has direct relationship with life, which became a
basis for sociological school.
 They strongly believe that Sovereignty is only a law implementing body but
not a law making. According to These School Law Is made By the People
for the people.

Criticism
 Indian laws are not will of the people but just a copy paste of English
law(Most Of them).
 Charles Allen said that Most of the customs like slavery is bought only by
elite class in society for their benefits so laws may concern the powerful
people of the society rather than Weak sections.
 Prof. Stone said that every law cannot be practised in the name of peoples
will as some laws like banning sati and widow remarriage acts, which
society may not be willing to do but as these are not moral in nature,
legislature must be involved.

Maine
Father of ancient comparative Jurisprudence
He divided development of law in four stages
 First stage: Judgement of king is said to be judgement of god. Law made by
the commands of the rulers.
 Second stage: Commands of the kings became customary law
 Third stage: The knowledge & administration of customs goes into the
hands of a minority usually to Priests, due to the weakening of the power of
original law – makers and claiming to remember the customary laws.
 Fourth stage: With the discovery of art of writing, codification of laws made
them easily accessible. It broke the monopoly of the Priest class in matters
of administration of law.

Types of societies
Static Societies: Societies which does not progress and develop their legal
structure after the fourth stage of development of law are Static society. Static
societies don’t progress beyond the era of codes.
Progressive Societies: Societies which go on progressing after the fourth stage
of development of law are Progressive Societies. They develop their laws with
the help of these instruments:

Natural School
Other names
1.Philosphical school
2.Meta Physical school
3.Ethical school

Salmond: "Philosophical jurisprudence is the common ground of moral

and legal philosophy, of ethics and jurisprudence."

Hugo Grotius, the celebrated founder of international law, is also

regarded as the father of philosophical jurisprudence. In his book The Law of
War and Peace, Grotius showed that a system of natural law may be derived
from the social nature of man(17th-century Dutch)
 He defined the school as "Law is the guidance of good judgment that tells
us whether an action is right or wrong based on whether it aligns with
human nature, and it can have a quality of being morally wrong or
morally necessary."
 He believes that natural law guides human according to morality and
reason which can be derived from human society.
 In his book The Law of War and Peace he explored the principles of just
war and the need for rules to govern conflicts between nations.
 Grotius aimed to establish a universal moral code based on inherent moral
values by referring to the works of poets, philosophers, historians, and the
Roman law. He developed a series of rules on right conduct.
 Hugo Grotius's philosophy of law centred on the concept of natural law,
which he believed could be discovered through reason and applied to
human society.
Thomas Aquinas, a medieval philosopher and theologian, made
significant contributions to the development of natural law theory within the
field of jurisprudence
 St. Thomas Acquinas: An ordinance of reason for the common good made
by him, who has the care of community and promulgated through reason.
 Aquinas believed that natural law was established by God, and it was an
expression of God's divine wisdom and will. For him, natural law was not
only a moral theory but also a reflection of divine order in the universe.
 Aquinas believed that natural law is universal and unchangeable. It applies
to all human beings in all places and times because it is based on human
nature, which is consistent across the human species.
Natural law is not compulsory and it is differs from man made law.
Unjust law is no law
Natural law was also discussed by John locke in his social contract and rossoeus.

Criticism: Natural law theory often relies on metaphysical or

philosophical concepts, such as the existence of objective moral truths and the
idea that there is a universal, rational order to the universe. Critics argue that
these metaphysical claims lack empirical evidence and can be highly
contentious.
Critics argue that natural law theory is inherently subjective because it relies on
individual judgments about what is "natural" or "morally right."

Sociological School
Auguste Comte is the founder of the French philosopher, of these school. He is
best known for his development of positivism and his work on the classification
of the sciences

 Auguste Definition: Auguste Comte defined that the legitimate

object of scientific study is society itself and not any particular institution
of government
 He emphasized that human beings have always existed in groups, and it is
within these social groups, not as isolated individuals, that the origins of
law and government can be understood. He rejected the idea that society
 is based solely on individualism, and instead, he viewed society as an
organism.
 According to Comte, society is like an organism and it can progress when it
is guided by scientific principles which should be formulated by
observation and experience of facts excluding all metaphysical and similar
other considerations.

Emile Durkheim, the great French sociologist, who influenced comte

with his theory of durkhiem.
 He defined as Law is the measuring rod of any society.
Due to laisen faire in 19th century many shifted towards society than
individualism
 He says that law follows the form of solidarity which is divided into two
types 1. Mechanical 2.organic.

Mechanical solidarity is the social Integration of members of a

society who have common values and beliefs. These common values and
beliefs constitute a “collective conscience” that works internally in individual
members to cause them to cooperate.

Organic Solidarity is is social integration that arises out of the need of

individuals for one another’s services. In a society characterized by organic
solidarity, there is relatively greater division of labour, with individuals
functioning much like the interdependent but differentiated organs of a living
body. Society relies less on imposing uniform rules on everyone and more on
regulating the relations between different groups and persons, often through
the greater use of contracts and laws.
In whole these theory say we should integrate with society for common needs
of people, which can be satisfied by mutual assistance.
 Law is not isolated but a part of social reality
 Law is not a set of rules but is a method or technique for harmonizing
conflicting social method.
 The only right man possesses is right to do his duty.
 Law as a total is said to be Social Engineering.
 It is synthesis of various juristic thoughts of psychology, Philosophy,
Economics and sociology.
  At whole it is a mean of social contract.
Criticism: Some critics contend that the sociological school places too much
emphasis on social factors, potentially neglecting other important legal
principles and considerations, such as legal precedent, legal tradition, and legal
reasoning. the sociological approach does not always provide clear predictions
about how legal decisions will impact society.

Realist School
Also known as American school or modern theory.
John Chipman Gray and Oliver Wendell Holmes as the mental fathers of the
realist movement'
Although Gray was a prominent advocate of analytical jurisprudence, he shifted
the focus away from statutory legislation being the core of the law and instead
emphasized the role of judges.
 Grey defined it as law is not just as a set of rules and principles but also
as a product of social forces and conditions.
 He provided examples illustrating how judges' political views, economic
beliefs, and personal qualities have determined crucial legal matters for
extended periods. Gray's work paved the way for a more skeptical
perspective on law.
 It emphasizes understanding how laws are shaped and influenced by
societal factors, including culture, economics, and social norms.
Justice Holmes
 Justice Holmes defined Law as Is the thing that the courts do, it isn’t
simply what courts state.
 It's important to note that Holmes' intention was not to provide a final
definition of law, but rather to emphasize the influence of practical factors,
including the beliefs and convictions of those involved in creating laws
 He believed that law should be studied empirically and pragmatically,
separate from moral considerations. Holmes played a crucial role in
changing the way law was perceived, highlighting the importance of legal
experience and the pragmatic aspects of law.
  Holmes' perspective placed litigation and lawyers at the centre of legal
matters, focusing on predicting what courts might do rather than abstract
deductions from general rules.
Life of law has not been logical but as experience.
Law is not predictable it is completely based on facts placed before judge.
Look law as natural science but not as a philosophical study.
Look law as it is not how it ought to be(Same as analytical).
Search for meaning of law in judgments, precedents, legal opinions.
Agreements.

Sources of law
the term is used in the sense of the sovereign or the State from which law
derives its force or validity. Sometimes it is used to denote the causes of law or
the matter of which law is composed. It is also used to point out the origin or
the beginning which gave rise to the stream of law

There are 2 important sources of

1.Statute
2.Precedent
Statute: The TERM "legislation" is derived from two Latin words, legis
meaning law and latum meaning to make, put or set. Etymologically, legislation
means the making or the setting of law.
Salmond: "Legislation is that source of law which consists in the declaration of
legal rules by a competent authority."
Holland: "The making of general orders by our judges is as true legislation as is
carried on by the Crown."
le. Both the analytical school and the historical school go to extremes in view of
legislation. The analytical school view on statute is it regards legislation as the
sole source of law and does not attach any importance to custom and
precedent. The mistake of the historical school is that it does not regard
legislation as a source of new law and tells that it is not at all creative.
According to Salmond, legislation is either supreme or subordinate
Supreme: is that which proceeds from the sovereign power in the State. It
cannot be repealed, annulled or controlled by any other legislative authority.
In India supreme legislation is parliament. No one other that parliament can
make laws and cant be changed except parliament. (NLS act 1986)
Subordinate: a process by which the executive is given powers by primary
legislation to make laws in order to implement and administer the requirements
of that primary legislation. Such law is the law made by a person or body other
than the legislature but with the legislature’s authority.
In India parliament may give some powers to panchayat to create certain law
under guidance or with in legislature. These laws are called as sub ordinate.

Types of sub ordinate legislation

1. Autonomous legislation: when supreme law making body gives power

to create certain laws to any autonomous Body which may be a private
entity or universities in the matters entrusted to them. These laws are
called as autonomous legislation
2. Colonial Legislation: The British colonies and other dependies were
conferred limited power of self government by inferior legislation. The
colonies in exercise of this power enjoy limited power of law making.
But the law made by colonial government could be repealed altered or
superseded by the imperior legislation. That is British parliament.
3. Executive or delegated Legislature: the power of making rules is
delegated to the various departments of the governments in certain
cases. These laws are called executive legislature.
Supreme legislation will be the parent body in the case of executive
legislature. In general skeleton(Policy and formuala) is created by
legislature and flesh and blood is added by Executive.

Distribution of power between state and centre

India follows quasi federal system in which power is distributed among state
and centre. Schedule 7 talks about separation of powers.
Union list(Defence)
State list(Fisheries)
Concurring list(Education)
Article 245 states that Parliament can make laws for the whole or any part of
the nation. And state can make laws for whole or any part of the state.
Ultra virtues in nature: If parliament involves in state list it is said to be ultra
virtues in nature according article 249 it can if the majority in Rajya Sabha is 2/3
supported
Article 254(Doctrine of Repugnancy): If any legislation enacted by the state
legislature is repugnant to the legislation enacted by the Parliament, then the
state legislation will be declared void, and the legislation enacted by the
Parliament will prevail over the former to such extent of inconsistency.

Precedents
In general precedents are the Previous decisions of court of law.in a judgement
decision legal principle used is said to be a precedent. JUDICIAL precedents are
an important source of law. They have enjoyed high authority at all times and in
all countries.
Precedents have every high value in English as judges in English law has very
high position which makes their opinions reputated.
In India judgements of SC and HC are said to be precedents.
The reason why a precedent is recognised is that a judicial decision is presumed
to be correct.
Every judicial judgement will have atleast persuasive valve
stare Decisis
The doctrine of stare decisis has been recognised by the Constitution of India.
Article 141 provides that the law declared by the Supreme Court of India shall
be binding on all courts in India.
Under the stare decisis rule, a principle of the law which has become settled by
a series of decisions is generally binding on the courts and should be followed in
similar cases
Though it says it is binding it is not absolute It says that long standing
precedents need not be disturbed.
If the court thinks that previous judgement referring to itself wrong then it
cannot be used in these judgement.

Conditions for satisfaction under stare decisis

1. That should be a settle d judicial hierarchy
2. There should be reliable number of cases decided in the same manner.
3. If court thinks the precedent is injustice then it cant be applied.
Regina vs button(1966)
The case was related to affray which is public disturbance. These case over
ruled a a century and half judgement and court observed that lapse of long
time is not a good reason to follow a wrong principle.
Doctrine Of overruling
In the case of Golak Nath27, the Supreme Court of India adopted the Doctrine
of Prospective Overruling. In that case, the validity of the First, Fourth and
Seventeenth Amendments of the Indian Constitution was challenged and it was
contended that those were invalid. Prior to that case, the Supreme Court had
held in the cases of Shankari Prasad and Sajjan Singh that those amendments
were valid. The earlier decisions enabled the government to put an end to the
Zamindari system and distribute land among the peasants. In the case of Golak
Nath, the Supreme Court held by a majority of 6 to 5 that the abovementioned
amendments were invalid as they prejudicially affected the fundamental right
to property. Ordinarily, this would have upset everything done so far in the
agrarian field and would have created many complications. The result was that
the Supreme Court restricted the effect of its decision to future cases. It was
laid down that the fundamental rights could not be taken away or abridged by
constitutional amendment in future but whatever had already been done under
the First, Fourth and Seventeenth Amendments was not to be disturbed. This is
called the Doctrine of Prospective Overruling.

Ratio decidendi
According to Salmond: "A, precedent is a judicial decision which contains in
itself a principle. The underlying principle which thus forms its authoritative
element is often termed the ratio decidendi. The concrete decision is binding
between the parties to it but it is the abstract ratio decidendi which alone has
the force of law as regards the world at large."
he ratio decidendi is the part of a judicial decision that has binding or
precedential authority and is relevant for future cases with similar legal issues.
he ratio decidendi is the part of a judicial decision that has binding or
precedential authority and is relevant for future cases with
similar legal issues.
Classification Of Laws
Law is a body of principals recognized and applied by the states in the
administration of justice. According to Blackstone he says law is a rule of civil
conduct prescribed by the supreme power in the state, commanding what is
right and prohibiting what is wrong. According to Simonton he says that law is
the body of principals and rules recognized and enforced by the courts by which
the relations of the members of the community with each other are regulated.
Notion of classification is very archaic one. Classification was first made by
Roman Jurists. The ancient Hindu Jurists also laid down eighteen titles or heads
of “Vyavahara” civil law. Classification of laws are ephemeral in nature as laws
are not static it keeps changing in respect to the sporadic development in the
society and one of the fine examples is decriminalization of Sec 377 of Indian
Penal Code. So, it’s not possible to discuss the classifications given by various
Jurists, only a General Classification shall be given which has been adopted by
most of Jurists of the modern times.

1. International law or Law of Nations - International

Law or the Law of Nations as it is popularly known as regulates the relationship
between the various countries across the globe. In other words, it consists of
rules which civilized States consider as binding upon them in their mutual
relations. International Law is concerned with the external relations of the State
thereby concerning its foreign affairs with other countries. International law is
horizontal that is, all states are sovereign and equal. The International system
relies on a series of treaties, international customs and conventions through
which such law develops. The international law has no clear enforcement and
has to rely on the cooperation of other countries for the same.
International Law may further be divided into two categories: a) Public
International Law b) Private International Law

A) Public International Law - Public international law is that

body of rules which govern the conduct and relations of States with other, really
speaking; the term international law is used for this class of law. Public
international law does not have a conventional enforcement framework, so no
worldwide policing organization exists to ensure that treaties are followed.
Instead, nations subject themselves to international law by adhering to treaties,
and by accepting customary laws and agreedupon general principles of law.

B) Private International Law - Private International Law

describes the body of law surrounding which law governs when there is a
conflict between citizens of different countries. In common law jurisdictions, it
is sometimes known as "conflict of laws." Much private international law is
governed by the domestic law of the countries in question. Private international
law consists of principles and rules for dealing with legal disputes that have a
foreign element: for example, a cross-border divorce case, or transnational
commercial dispute. These situations commonly arise through commercial
transactions undertaken by parties from separate nations. Private international
law addresses the questions of
(1) which jurisdiction may hear a case, and
(2) the law concerning which jurisdiction
applies to the issues in the case.

2. Municipal Law - Municipal or Domestic or National law is

concerned with laws within a specific country. It operates within the territory of
that country. National law is concerned with the domestic affairs of the State.
Municipal law is hierarchical or vertical that is, the legislature is in a position of
supremacy and enacts binding legislation. Municipal Law has a legislature at the
central and the state level to make laws for the entire country and States
therein. Municipal Law has a definite enforcement mechanism through a
systematized hierarchy of courts and is backed by sanction. Municipal Law can
be divided into two classes a) Public Law and b) Private law
A) Public Law - The State activities are largely regulated by Public law.
It determines and regulates the organization and functioning of the State and
determines the relation of the State with the subject. According to Loughlin,
‘Public law is a form of political jurisprudence that incorporates no
transcendental or metaphysical ideas of justice and goodness; it is concerned
solely with those precepts of conduct that have evolved through political
practice to ensure the maintenance of the public realm as an autonomous
entity.’ Public Law governs relationship between the State with its citizens and
also relationship between individuals directly concerning the Society.
Constitutional Law, Administrative Law, Criminal Law and Criminal Procedure
are the subject matter of Public Law.

A.1) Constitutional Law - Constitutional Law is a branch of Public

Law. It determines the political organization of the State and its powers, while
also setting certain substantive and procedural limitations on the exercise of
governing power. Constitutional law is the basic law or fundamental law of the
State. The constitutional law may be written as in India or unwritten as in
England. In modern times there is tendency to adopt written constitution. In
the words of Salmond, “Constitutional Law is the body of those legal principles
which determine the Constitution of a State- i.e., the essential and fundamental
portions of the State’s organization.”

A.2) Administrative Law - As per Holland, Administrative Law

provides for the manner of activities or the various organs of the Sovereign
Power as provided by the Constitution. In this sense Administration has been
defined as ‘the exercise of political powers within the limits of the Constitution
as the total concrete and manifoldly changing activity of the State in particular
cases as the functions, or the activity, of the Sovereign Power’. Administrative
law deals with the methods by which their power is controlled including the
legal remedies available to a person against them when his rights are infringed
by their operation.

A.3) Criminal Law - ‘Criminal Law is concerned with the definition

of crime and the prosecution and penal treatment of offenders. The branch of
law which contains the rules about this subject is accordingly described as
‘Criminal law’. Criminal Law denotes wrongs against the State, community,
and public. Criminal law is necessary for the maintenance of order and peace
within the State. A ‘crime’ is a “public” as opposed to an “individual” or
“private” wrong. It is the State, not the harmed individual that takes action
against the offender. Therefore, the State initiates the proceedings against the
offender, and thus it is always a party in criminal cases. This is why the criminal
law is considered as a branch of public law.

B) Private Law - Private Law which is also connoted as Civil Law, is

concerned with the relationship between individuals with one another or
private relationship between citizens and companies that are not of public
importance. The parties in such cases are private individuals and the State
through its judicial organ adjudicates the matters in dispute between them.
Private Law as per Holland is substantive and defines the rights of individuals or
it may be adjective indicating the procedure by which rights are to be enforced
or protected. In simple words Private Law governs the relations of citizens with
each other. Private Law includes (i) Law of obligations /Law of Contract
(organizes and regulates legal relations between individuals under contract) (ii)
Law of Tort (addresses and remedies issues for civil wrongs, not arising from any
contractual obligation). (iii) Law of Property (iv) Law of Succession, (v) Family
Laws- family rights against abduction and adultery.

B.1) Law of Tort - Tort Law is the branch of private (civil law) that
holds a person or private organizations responsible for damage they cause
another person as a result of an accidental or deliberate action. With the
advent of modern developments law is getting amended in a maverick way to
be the panacea of societal sporadic change. The above classification is not
universal, this classification is widely accepted by most of jurists and thus it
remained in the crux of all the classification. But with the growing society we
need to bring change within this intravenous classification.

Functions Of Law

Common Law and Civil Law System

COMMON LAW The English common law originated in the early
Middle Ages in the King’s court. The expanded system of royal justice that
emerged in the late 1100s and the norms it upheld came to be called the
‘Common Law,’ which at first meant simply the law that was the same, or
‘common,’ throughout the country, as opposed to the diversity of regional or
local law. English common law emerged from the changing and centralizing
powers of the king during the Middle Ages. The Common Law was very
innovative, however, in terms of procedure: it emphasized written
documentation (focused above all on royal ‘writs,’ on which see below), the
peaceful resolution of disputes, the use of local juries to establish both law and
fact, and a clear hierarchy of courts. Common law is the body of customary laws
based on the judicial decisions and is embodied in the already decided cases
which are administered in the common law courts of England since the Middle
Ages. Common law emphasizes the centrality of the judges in the development
of law. Common law generally contains the rules and other doctrines gradually
developed by the judges of the English courts as the foundation of their decision
and added over time by judges of that various jurisdiction the authority of the
accumulating doctrine. In 1154, Henry II became the first Plantagenet king,
Henry II institutionalized common law by creating a unified system of law
common to the country by elevating the local customs to the national, ending
local control and peculiarities. He reinstated the jury system of citizens sworn on
oath to investigate reliable criminal accusations and civil claims. The common
law of England was largely created in the period after the Norman Conquest of
1606. Body of rules was created in northern Europe and local customs governed
most matters. Church played a large part in the government, crimes were treated
as wrongs for which compensation was provided for the victims. Serious wrongs
were regarded as public crimes rather than personal matters, and the perpetrators
were punished by death. An important development took place in the growth of
common law during the Henry II reign. Royal officials roamed around the
country, inquiring about the administration of justice, the church and the state
were separated and had their own laws and courts. All these developments led to
the growth and emergence of a body of rules based on local conditions. During
the 19th century, the common law courts were combined with equity courts, and
equity courts were superior in case there was some conflict between them. In the
20th century, some changes were made in the common law system in the United
States under which different systems were established to resolve the dispute and
to award compensation. The system provided relief in the form of money
damages while the second system worked as a court of equity.
CIVIL LAW Civil law systems, also called continental or Romano-
Germanic legal systems, are found on all continents and cover about 60% of the
world. They are based on concepts, categories, and rules derived from Roman
law, with some influence of canon law, sometimes largely supplemented or
modified by local custom or culture. The civil law tradition, though secularized
over the centuries and placing more focus on individual freedom, promotes
cooperation between human beings. Civil law or also known as civilian law is a
legal system which is influenced by the Roman law and in especially the Corpus
Juris Civilis of Emperor Justinian and the developments during the Middle Ages.
Corpus Juris Civilis which is known as a basic or fundamental work in
jurisprudence issued from the 529 to 534 by order of Justinian I in the Byzantine
Emperor. Then, the Justinian will give orders which is collect the legal materials
of various kinds into several codes. After that, it will become the fundamental of
the act of making strong again of Roman law in the Middle Ages. Thus, the
Roman law which is to becoming strong again in turn, became the foundation of
law in all civil jurisdictions. Roman law did not completely dominate in Europe.
Roman law was a secondary source, that was applied only as long as local
customs and local laws lacked a pertinent provision on a particular matter.
However, local rules too were interpreted primarily according to Roman law (it
being a common European legal tradition of sorts), resulting in it influencing the
main source of law also. A second characteristic, beyond Roman law
foundations, is the extended codification of the adopted Roman law, namely its
inclusion into civil codes. Because Germany was a rising power in the late
nineteenth century, when many Asian nations were introducing civil law, the
German Civil Code became the basis for their legal systems. Thus, Japan and
South Korea operate under civil law. In China, the German Civil Code was
introduced in the later years of the Qing Dynasty and formed the basis of the law
of the Peoples' Republic of China, which remains in force. Civil law served as
the foundation for socialist law used in Communist countries, with major
modifications and additions from Marxist-Leninist ideology. For example, while
civil law systems have traditionally put great pains in defining the notion of
private property, how it may be acquired, transferred, or lost, Socialist law
systems provide for most property to be owned by the state or by agricultural
cooperatives, and have special courts and laws for state enterprises.