Law

LAW

Introduction

Law is the prescription of rules and regulations sanctioned by the sovereignty for the state. Law as, Bodin said, is the command  of  the  sovereign.  Similarly Aristotle has rightly pointed out that if there is no law even man will behave like a beast. In order to preserve society and protect the progressive nation, law has become an integral part of the system world  over.  The  enormous  power  of law could not be a complete solution to maintain an order in the society due to the limitations it is framed with. Law is a tyrant for criminal and a guardian for its citizen.

There is always an intense debate that happens on, why the law is lenient in some part of the world and so powerful in another part of the world. The question of leniency and powerful the law is, ascertained by its functions  especially  the  punishment  it involves. For example, law in a democratic country is much different and concerned than the law in a totalitarian state. And more, how the law unfurls freedom for its citizens matters a lot while executing and exercising it. Ignorance of law is not an excuse anywhere in the world. Hence it is pertinent to introduce the concept of law to the young minds to understand it as the basic rules and regulations as sanctioned by our constitution.

Learning Objectives

·              Understanding the essence  oflaw brings students closer to the

·              thoughts of Justice.       

·              Classification of law helps students to  know  the  different  kinds  of law  and  its  application  and  its implication to our society     

·              Sources  of  law gives students a broad understanding on the origin of law   

·              The interconnection between State, Law and Morality are highlighted for enabling students to understand how well they are connected to society through the law of the State.

Introduction

What is Law?

·              A body of rule which is enforceable by the State.

Law in relation to justice

·              the aim is to attain justice in society.

·              Justice? It is an abstract idea of right and wrong, fairness and equality.

·              therefore, the doing of what is right or just in a particular of circumstances.

Meaning Of Law

The term ‘Law’ was derived from an old Teutonic root ‘lag’ “which means something which lies fixed or evenly. Without law life may witness utter chaos and confusion and in fact it is law that regulates life. The word law is used to denote ‘uniform’. There are two kinds of laws. They are: physical and human law. Physical law regulates nature where as human law regulates human life. The term law in political science is used to mean body of rules to guide human action. The function of state is done through government and the government in turn interprets the will of the state through law.

Views On Law

·              “Law is the command of the sovereign” according to John Austin

·              “Law is the collection of rules which the state recognizes and applies in the administration of Justice” said Salmond

·              According to krabbe “Law is the expression of the judgments of value which we human beings make by virtue of our disposition and nature”

·              “Law is that portion of the established thought and habit which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of the government.” Said Woodrow Wilson

·              “A law is of general rule of external human action enforced by a sovereign political authority.” Said Holland

What is the purpose of Law?

According to Maclver “A law does not become a law until and unless it is backed by the state. The purpose of law is to establish sure foundations in the certitude of which men can rebuild the many mansions of society.” The term ‘Law’ is considered as a body of rules to govern human action and as well to regulate human life by the discipline Political Science. ‘It is not the issuing of law that makes the state, it is the force of the state that makes law” believe Hocking.

What are the purposes of Law?

v   Protect basic human rights

v   Promote fairness

v   Help resolve conflicts

v   Promote justice

v   Promote order and stability

v   Promote desirable social and economic behaviour

v   Represent the will of the majority (on some issues)

v   Protecting the rights of minorities

Are you aware of the classification of Laws?

i. Private laws

The relationship of citizens and the regulation of relations among one another are determined by private laws.

i.             Public laws

The laws that determine the relation of citizens to the state are public laws. Public law perceives state as an arbiter as well as one of the parties interested in it.

ii.           Constitutional laws

The common law differs from statutory law because it is mainly based on precedent. Statutory law is a more formal body of the legal system that consists of written legislation. This legislation will mainly be based on rules and regulations either mandating or prohibiting certain behaviors of the general public. Common law, on the other hand, will allow judges to decide cases based on the rulings of prior cases with similar circumstances.

Constitutional laws are the basic laws according to which the government in a state conducts itself. The laws that define interpret and regulate the functions of the government are known as constituteional laws. For example, the election of President, the powers and functions of the Supreme court and method of the appointment of the governor are constitutional affairs. The laws which are not related to the forms and functions of the government and to the fundamental rights but are related to the social and economic affairs of all citizens are known as ordinary laws. For example, the abolition of child marriage and prohibition etc come under ordinary laws.

iii.        Statute Laws

Statute laws are the laws which are framed by the Legislative Assembly or by the Parliament. Democratic Government being popular in most of the countries, the laws of those government are framed mostly by the Parliaments in those countries.

v. Ordinances

Ordinances are generally issued by the executive branch of the government as per the law of the state. Ordinances are temporary by nature and are issued by the President in the absence of parliament, especially to face the emergency.

vi. Common Laws

Common laws are those laws which rest on customs but are enforced by the courts like statute law. Common laws are popular in England.

vii. Administrative Laws

The office and responsibilities of government servants are interpreted and governed by Administrative law. It is the Administrative law that enable the public officers to separate law and procedure from private individuals. These laws also make an attempt to interpret the privileges of government officials. Administrative laws are not popular in England, U.S.A. and India. They are popular in France and a few countries of Europe. For example, When any dispute arises between a citizen and government servant the administrative court resolves the issue with administrative laws.

viii. International Laws

The rule that determine the conduct of the civilized states in their relation with other states in international arena is otherwise called International law. There are no such framed laws that govern international relations but backed by public opinion and the rule of UNO as an international body matters for any nation to enjoy its sovereign status. There are also laws such as Sea law, where there are International borders and as well Air law that demands aircraft of other nation to fly with permission of respective nations.

Do you want to know the sources of Law?

i. Customs

Customs play an important role in the framing of the laws. Most of the laws that came from customs are recognized by state later. Since ancient period we can notice that the dispute among tribals were resolved by the head of the Tribes using their customs and traditions. Customs became laws when tribes extended into the formation of state. State cannot actually ignore the customs of the country. The common law of England for example sprang mainly from customs.

For example Bull-Taming sport culture of Tamils of India resulted into the creation of Jallikattu Law in 2017. (Read the box for more information about Jallikattu Law of 2017)

ALANGANALLUR – THE BULL – TAMING SPORT

The picture is a bull taming sports of Tamil culture, popularly called as ‘jallikattu’ at Alangannallur in Madurai district. Alagannallur is synonymous with the bull- taming sport, usually conducted in the month of January, along with Pongal festival in Tamil Nadu. Every society in our country is having its own right to life, liberty and continuing their culture and tradition but in this case of jallikatu there is a tussle between cultural rights and animal rights.

As per the constitution of India Art 29(1) is a fundamental right guaranteed under part III which protects the educational and cultural rights.

The 2014 judgement of the supreme court asserts that animals as sentient beings have the fundamental right to life under Art 21 of the constitution.

These contradictions have made several interpretations in formalizing this sport.

ii. Religion

The religion practiced by Primitive communities played a decisive role in evolving the laws of the state later. Religion was a basis of law for most of the nation. The origin of Hindu law can be traced in the code of Manu. The origin of Mohammedian law can be traced in Shariat law. Divine law is a law revealed through man from God. God is the ultimate source of divine law. For Christians Ten Commandments were the first law given by the Lord Almighty to his people and was considered as the basis of law.

“Indeed the early law of Rome was little more than a body of technical religious rules, a system of means for obtaining religious rights through the proper carrying out of certain religious formulas”. -Woodrow Wilson

iii. Judicial decisions

Gettell maintains that the ‘state arose not as the creator of law but as the interpreter and enforcer of custom’. The function of the Judiciary is to interpret and declare the law. While discharging its function the judiciary creates new laws. The laws later gets recognized by the state. Judicial decisions thus became an another source of law. Some time the verdict of High Court and Supreme Court are treated as laws.

iv. Equity

When laws are ambiguous and do not fit in, the principles of equity are applied and cases are decided according to commonsense and fairness.

“Equity is a body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles.” - Sir Henry Maine

Equity

v   The name given “Equity” is the set of legal principles in countries following the English common law tradition, which supplement strict rules of law where their application would operate harshly, so as to achieve what is sometimes referred to as “natural justice”

v   It also means “fairness”

v   Equity has been described as “a gloss (meaning a supplement) on the common law, filling in the graps and making the English legal system more complete

v   In English Law, equity means that body of rules originally enforced only by the court of chancery.

v. Scientific commentaries

Another source of law are scientific commentaries. when the commentary appears it is understood only as an argument, later on its authority is recognized as more authoritative than the Judicial decision.

“The opinion of learned writers on law have often been accepted as correct law: in England , for instance the opinions of Coke and Blackstone in America of story and kent , in India of Vijnaneswara and Apararka”  - A. Appadurai

vi. Legislature

Most of the laws in the modern times are framed by legislature and it is one of the most important source of law. Indian constitution is a classical example where the best provisions of other constitutions are borrowed and made it available for the best of our nation

“The state is founded on the minds of its citizens, who are moral agents.. a bad people means a bad state and a bad laws.”  - Gilchrist

Sources Of The Indian Constitution

Government of India Act 1935: The federal scheme. Office of the Governor. Role of federal judiciary. Emergency provisions

UK  Constitution:  Law  making procedures, Parliamentary Government, Rule of Law, Single citizenship and Bicameral Legislature.

US Constitution*: Fundamental Rights, Independent judiciary, Judicial Review, Impeachment of the President, Procedure for the removal of the judges of the Supreme Court, High Courts and Role of Vice President. 

How law is related to state and morality?

Law and morality are complimentary to each other. Ethics reveals its citizens the code of conduct. Similarly the laws framed by state also aim to achieve the same goal. The sole aim of the state lies in the promotion of the welfare of the people. As there is a close affinity between law and morality, there also exist a good relationship between law and state.

“The best state is that which is nearest in virtue to the individual. If any part of the body politic -suffers, the whole body suffers”.  -Plato

A bad state will have bad citizens and a good state will have good citizens. So it is the sole function of the state to keep a good standard of morality. Government of India is trying its best to eliminate the evil of untouchability. It has framed laws against untouchability. Though there is law against social ills it is understood that it is rather a sin to adopt the policy of discrimination on the grounds of caste and creed, colour and race, clans and tribes, groups and classes. The government is taking measures to prohibit the drinking of wine and also prohibits child marriages. Generally democracy does not have any such law as opposed to morality. Wilson maintains that the aim of the law of a state is to develop morality in the state. Hence the sovereign law-making authority pays due attention to the code of the intimacy between law and morality.

‘‘We regard the state as the condition or morality. The state and law continually affect both public opinion and actions; in its turn law reflects public opinion and thus acts as the index or moral progress”  - Maclver

Distinction between Law and Morality:

v   Laws are enforced by the state, if not obeyed to the commands of law, he is likely to be punished by the state.

v   The severe punishment one can be awarded to a person for not observing the scruples of morality is the social boycott.

v   Morality is concerned with both internal and external affairs of man whereas law is concerned only with the external affairs of man. Hence, law punishes only those persons who violate laws by their external actions.

v   Law punishes a person only when he commits a theft or dacoity or murder or any other physical crime.

v   Law cannot punish a person for telling a lie or for abusing some one.

v   Telling lies, condemning someone and being ungrateful and many other actions of man are sins but they are not crimes. Machiavelli maintained that even the immoral practices are legal, if they are applied for the benefit of the state.

Public Opinion: Opinion held by people for the common welfare

What is Moral law?

A law framed with a purpose of eliminating evils such as drinking of wine, gambling, theft, dacoity and murder are moral laws. The laws which are based on morality remain permanent

How Law and Public opinion are related to each other?

The power of democracy lies in the participation of people in the democratic exercise of electing their representatives. People are not directly involved in the framing of laws, yet they could elect their representatives to legislature. People elect their representatives to execute the will of the electorate. The elected body are just expected to represent the will of the public. Here we can understand the close affinity of law and public opinion.

The Modern state appeals to morality, to religion, and to natural law as the ideological foundation of its existence. At the same time it is prepared to infringe any or all of these in the interest of self-preservation. J.M. Coetzee

In democracy laws are framed only based on the support of public opinion. People carry out peaceful demonstrations to express their opinion or resentment.

Common welfare of the people and social progress are the primary considerations of public opinion.