1. November 22, 2008Sanjay Ranade, Head, DCJ, UoM1 The Law

2. November 22, 2008Sanjay Ranade, Head, DCJ, UoM2 What do you think the term ‘law’ means? A very important legal skill is being able to define concepts and topics. A very important legal skill is being able to define concepts and topics. Draw up a list of different examples or types of law and then reflect on that list and see if you can come up with a definition of ‘law’. Draw up a list of different examples or types of law and then reflect on that list and see if you can come up with a definition of ‘law’.

3. November 22, 2008Sanjay Ranade, Head, DCJ, UoM3 ‘Law’ and its synonyms Law implies imposition by a sovereign authority and the obligation of obedience on the part of all subject to that authority. Law implies imposition by a sovereign authority and the obligation of obedience on the part of all subject to that authority. Regulation implies prescription by authority in order to control an organization or system. Regulation implies prescription by authority in order to control an organization or system. Precept commonly suggests something advisory and not obligatory communicated typically through teaching. Precept commonly suggests something advisory and not obligatory communicated typically through teaching. Statute implies a law enacted by a legislative body. Statute implies a law enacted by a legislative body. Ordinance applies to an order governing some detail of procedure or conduct enforced by a limited authority such as a municipality. Ordinance applies to an order governing some detail of procedure or conduct enforced by a limited authority such as a municipality. Canon suggests in nonreligious use a principle or rule of behavior or procedure commonly accepted as a valid guide. Canon suggests in nonreligious use a principle or rule of behavior or procedure commonly accepted as a valid guide.

4. November 22, 2008Sanjay Ranade, Head, DCJ, UoM4 The ‘Law’ in India The system of authoritative materials for grounding or guiding judicial and administrative action recognised or established in a politically organised society. The system of authoritative materials for grounding or guiding judicial and administrative action recognised or established in a politically organised society. [Sec 2(b), Scheduled Areas (Assimilation of Laws) Act (16 of 1953) and Art 13(3)(a), Constitution

5. November 22, 2008Sanjay Ranade, Head, DCJ, UoM5 ‘Law’ includes any ordinance, order, bye- law, rule, regulation, notification, custom or usage having in the territory of India the force of law. [Constitution of India Art 13(3)(a) ‘Law’ includes any ordinance, order, bye- law, rule, regulation, notification, custom or usage having in the territory of India the force of law. [Constitution of India Art 13(3)(a)

6. November 22, 2008Sanjay Ranade, Head, DCJ, UoM6 ‘Law’ is a rule prescribed by society for the government of human conduct; a rule of action or of civil conduct prescribed by competent authority, by the law making power of the state, by the proper law-making authority, by the supreme authority for the government of human action, by the sovereign power, an established or permanent rule, established by the supreme power or the power having the legislative control of the particular subject; an act, enactment, ordinance, or statute prescribed by the legislative power; the declared will of the legislature; a rule ordained and made known by the legislature, for the government of the people in the state, which they are bound to obey. ‘Law’ is a rule prescribed by society for the government of human conduct; a rule of action or of civil conduct prescribed by competent authority, by the law making power of the state, by the proper law-making authority, by the supreme authority for the government of human action, by the sovereign power, an established or permanent rule, established by the supreme power or the power having the legislative control of the particular subject; an act, enactment, ordinance, or statute prescribed by the legislative power; the declared will of the legislature; a rule ordained and made known by the legislature, for the government of the people in the state, which they are bound to obey.

7. November 22, 2008Sanjay Ranade, Head, DCJ, UoM7 Circulars issued by the Union of India relating to payment of service charges to local bodies in respect of Central Government properties are not mere administrative instructions but are executive orders having the force of law. Circulars issued by the Union of India relating to payment of service charges to local bodies in respect of Central Government properties are not mere administrative instructions but are executive orders having the force of law. [Food Corporation of India v/s Alleply Municipality, AIR 1996, Kerala 241, 255.] [Constitution of India Article 73 (a)]

8. November 22, 2008Sanjay Ranade, Head, DCJ, UoM8 An agreement of the Ruler expressed in the shape of a contract cannot be regarded as a law. A law must follow the customary forms of laws making and must be expressed as a binding rule of conduct. It is not every indication of the will of the Ruler, however expressed, which amounts to a law. An indication of the will meant to bind as a rule of conduct and enacted with some formality either traditionally or specially devised for the occasion, results in a law but not an agreement to which there are two parties, one of which is the Ruler. An agreement of the Ruler expressed in the shape of a contract cannot be regarded as a law. A law must follow the customary forms of laws making and must be expressed as a binding rule of conduct. It is not every indication of the will of the Ruler, however expressed, which amounts to a law. An indication of the will meant to bind as a rule of conduct and enacted with some formality either traditionally or specially devised for the occasion, results in a law but not an agreement to which there are two parties, one of which is the Ruler. [Bengal Nagpur Cotton Mills Ltd v/s Board of Revenue, AIR 1964 SC 888, 891]

9. November 22, 2008Sanjay Ranade, Head, DCJ, UoM9 If the word ‘law’ includes not only enacted statute but also common law, it would also include industrial law as it has been evolved by industrial decisions. If the word ‘law’ includes not only enacted statute but also common law, it would also include industrial law as it has been evolved by industrial decisions. [Provincial Transport Services v/s State Industrial Court, AIR 1963 SC 114, 117]

10. November 22, 2008Sanjay Ranade, Head, DCJ, UoM10 A law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognised by Courts. Law in the case of an absolute monarch is his command which has to be obeyed by the citizens whether they agree with or not. A law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognised by Courts. Law in the case of an absolute monarch is his command which has to be obeyed by the citizens whether they agree with or not. [Raj Kumar Nursing Pratap Singh Deo v/s State of Orissa, AIR 1964 SC 1793, 1797]

11. November 22, 2008Sanjay Ranade, Head, DCJ, UoM11 A mere executive order cannot possibly come under ‘existing law’ or ‘law in force’ as defined in the Constitution, Art 13 (1). A mere executive order cannot possibly come under ‘existing law’ or ‘law in force’ as defined in the Constitution, Art 13 (1). [K.O. John v/s State, AIR 1956 TC 117,118]

12. November 22, 2008Sanjay Ranade, Head, DCJ, UoM12 A notification or an executive direction issued by the State government against the provisions of the statute will come within the definition of the expression ‘law’ referred to in Article 13 of the Constitution. A notification or an executive direction issued by the State government against the provisions of the statute will come within the definition of the expression ‘law’ referred to in Article 13 of the Constitution. [AIR 1958 SC 538]

13. November 22, 2008Sanjay Ranade, Head, DCJ, UoM13 Law does not include constitutional amendment. Law does not include constitutional amendment. [His Holiness Kesavananda Bharati Sripandagalvan v/s State of Kerala, AIR 1973 SC 1461, 1648]

14. November 22, 2008Sanjay Ranade, Head, DCJ, UoM14 The word ‘law’ is used in the expression ‘equality before law’ in a generic sense – a philosophical sense- whereas in the expressions ‘the equal protection of laws’ it is used denoting specific laws in force. The word ‘law’ is used in the expression ‘equality before law’ in a generic sense – a philosophical sense- whereas in the expressions ‘the equal protection of laws’ it is used denoting specific laws in force. [Sri Srinivasa Theatre v/s Government of Tamil Nadu, AIR 1992, SC 999, 1004.] [Constitution of India, Article 14]

15. November 22, 2008Sanjay Ranade, Head, DCJ, UoM15 A law existing at the time when the Constitution came into effect would be a ‘law’. A law existing at the time when the Constitution came into effect would be a ‘law’. [State v/s Banwari, AIR 1951 All 615. [Article 17, Constitution of India]

16. November 22, 2008Sanjay Ranade, Head, DCJ, UoM16 The ‘law’ means a law passed by a competent legislature in regard to the administration of the property belonging to the denomination. The ‘law’ means a law passed by a competent legislature in regard to the administration of the property belonging to the denomination. [Constitution of India, Article 26(d)]

17. November 22, 2008Sanjay Ranade, Head, DCJ, UoM17 The expression ‘law’ embraces within is ambit statutory rules. The expression ‘law’ embraces within is ambit statutory rules. [Constitution of India, Article 226(3), (as substituted by 42 nd Amendment Act); 13(2) and Article 309.]

18. November 22, 2008Sanjay Ranade, Head, DCJ, UoM18 The expression ‘Law’ includes the Act of Legislature, as also the rules validly made thereunder. The expression ‘Law’ includes the Act of Legislature, as also the rules validly made thereunder. [H.G.E. Corporation v/s Superintendent of Orissa Excise, AIR 1966 Pat 248, 252. Constitution of India Art 265]

19. November 22, 2008Sanjay Ranade, Head, DCJ, UoM19 ‘Law’ means any law enacted either by legislature itself or by its delegate, and the notification issued by the U.P. Government being in the exercise of the legislative power, is law. ‘Law’ means any law enacted either by legislature itself or by its delegate, and the notification issued by the U.P. Government being in the exercise of the legislative power, is law. [Video Electronical (P) Ltd v/s State of Punjab, AIR 1990. SC 820, 835. Constitution of India, Articles 304, 366]

20. November 22, 2008Sanjay Ranade, Head, DCJ, UoM20 By the publication of an order in the Gazette of India, it is to be treated as law made under Article 327. By the publication of an order in the Gazette of India, it is to be treated as law made under Article 327. [Meghraj v/s Delimitation Commission, AIR 1967 SC 669, 674. Constitution of India, Article 327]

21. November 22, 2008Sanjay Ranade, Head, DCJ, UoM21 The term ‘law’ is not limited to legislative enactments. All forms of delegated legislation and conditional legislation amount to law. All orders and notification made and issued under statutory powers and which are legislative in nature amount of law. The term ‘law’ is not limited to legislative enactments. All forms of delegated legislation and conditional legislation amount to law. All orders and notification made and issued under statutory powers and which are legislative in nature amount of law. [State of M.P. v/s Ramachandran, AIR 1977 MP 68, 73 (FB). Indian Evidence Act (1 of 1872) sections 57 and 78.]

22. November 22, 2008Sanjay Ranade, Head, DCJ, UoM22 The term ‘law’ thus is very difficult to define because it is used to mean different things in different contexts. A comprehensive definition is therefore hard to provide as it would have to be very wide.

23. November 22, 2008Sanjay Ranade, Head, DCJ, UoM23 The majority of people use the term ‘law’ to describe criminal law. This may be because of the media coverage given to crimes, such as assault, murder, riot etc. The majority of people use the term ‘law’ to describe criminal law. This may be because of the media coverage given to crimes, such as assault, murder, riot etc. Some people use the word ‘law’ to describe the institutions of the legal system, such as the courts, the police, the prisons and so on. Some people use the word ‘law’ to describe the institutions of the legal system, such as the courts, the police, the prisons and so on.

24. November 22, 2008Sanjay Ranade, Head, DCJ, UoM24 Some people associate ‘law’ with the rules regulating our relationships with others. Every time we purchase goods or pay for a service (like a haircut) we are entering into a contract and contracts are regulated by the law. Some people associate ‘law’ with the rules regulating our relationships with others. Every time we purchase goods or pay for a service (like a haircut) we are entering into a contract and contracts are regulated by the law.

25. November 22, 2008Sanjay Ranade, Head, DCJ, UoM25 Some others would think of the processes of law, its rules and procedures, such as the steps that have to be followed when beginning a legal action. Some others would think of the processes of law, its rules and procedures, such as the steps that have to be followed when beginning a legal action. Alternatively, the word law may be used to describe the rules laid down by Parliament and/or the courts that govern our behaviour and thus refers to the sources of the law. Alternatively, the word law may be used to describe the rules laid down by Parliament and/or the courts that govern our behaviour and thus refers to the sources of the law.

26. November 22, 2008Sanjay Ranade, Head, DCJ, UoM26 So? Which of these options is right?

27. November 22, 2008Sanjay Ranade, Head, DCJ, UoM27 The one common way of understanding the term ‘law’ is that it is often defined in terms of RULES.

28. November 22, 2008Sanjay Ranade, Head, DCJ, UoM28 We are aware of many rules which people observe in their daily lives which regulate the way that they behave and yet these are not necessarily referred to as law. Many people also live according to moral rules and abide by religious codes and yet these are not laws either.

29. November 22, 2008Sanjay Ranade, Head, DCJ, UoM29 So when is a rule regarded as part of the law?

30. November 22, 2008Sanjay Ranade, Head, DCJ, UoM30 Rules are regarded as law when they originate from one of the recognised law- making institutions. But that is not the whole story, for where does the system of law and its processes fit into the picture?

31. November 22, 2008Sanjay Ranade, Head, DCJ, UoM31 One way of defining the law so as to take account of all three aspects mentioned above, i.e. the rules of law, the legal system and its processes is to say that law is a) a) a body of the rules of conduct b) b) formally recognised as binding or enforced c) c) by a controlling body.

32. November 22, 2008Sanjay Ranade, Head, DCJ, UoM32 This definition is useful as a brief and simple way of explaining the concept of law. We could, however, say that the law is simply a way of regulating behaviour. It tells us a) a) what must be done, b) b) what may be done and c) c) what cannot be done.

33. November 22, 2008Sanjay Ranade, Head, DCJ, UoM33 So which of the following statements are true and which are false? There is no difference between moral rules and legal rules. TRUE/FALSE. Procedural rules, for example, how to begin a breach of contract action in court, are not part of law. TRUE/FALSE. The concept of law is not the same as the concept of justice. TRUE/FALSE. Law is an instrument of social control. TRUE/FALSE.

34. November 22, 2008Sanjay Ranade, Head, DCJ, UoM34 Although many of the rules which we regard as laws are based on moral codes (for example, people must not commit murder), not every moral rule is part of the law of this country. For example, envy, though forbidden by moral codes, is not forbidden by law. Therefore the first statement in the exercise above is false, as law and morality are not the same, although they may overlap.

35. November 22, 2008Sanjay Ranade, Head, DCJ, UoM35 There is a great deal more to law than this, however, and the law also comprises many procedural rules which must be followed in order for legal issues to be dealt with by the courts. The second statement in the question above is therefore false, as these procedural rules are also part of the law.

36. November 22, 2008Sanjay Ranade, Head, DCJ, UoM36 When legal issues are considered by the courts, or when Parliament creates law, one of the aims of those involved in the process is to do justice between people who are affected by the law. Sadly, we know that this aim is not always achieved and therefore it has to be said that law and justice do not always coincide, so the third statement above is true.

37. November 22, 2008Sanjay Ranade, Head, DCJ, UoM37 You should by now have a good idea of what law is and what it is not and you should also have a good working definition of the law, a suggestion of which appears in the final statement in the exercise above. This statement is true.

38. November 22, 2008Sanjay Ranade, Head, DCJ, UoM38 You might wish to reflect on the following definition given by Glanville Williams in his book Learning the Law: ‘law is the cement of society and an essential medium of change’. (12th edn, London: Sweet and Maxwell, 2002, p 2).

39. November 22, 2008Sanjay Ranade, Head, DCJ, UoM39 Lawyers’ definition of law A clear and straightforward one is provided by Sir John Salmond in his book Jurisprudence: ‘... the body of principles recognised and applied by the courts in the administration of justice.’ ‘In other words the law consists of the rules recognised and acted on by the courts of justice.’

40. November 22, 2008Sanjay Ranade, Head, DCJ, UoM40 So, when we study ‘the law’ we are not talking merely about any body of rules that has some type of organisation and some type of structure.

41. November 22, 2008Sanjay Ranade, Head, DCJ, UoM41 Hopefully, the law is both organised and structured but what we are specifically looking for is law that can be enforced in a system of courts.

42. November 22, 2008Sanjay Ranade, Head, DCJ, UoM42 The character of a legal system There are many different legal systems in the world. Whatever legal system we study there are common characteristics. Understanding what all legal systems share as common characteristics goes a long way towards helping us understand what it is we are studying and in recognising what may be expected from a particular branch of the law.

43. November 22, 2008Sanjay Ranade, Head, DCJ, UoM43 Professor Hart in The concept of law identifies five things which he suggests that all legal systems must include:

44. November 22, 2008Sanjay Ranade, Head, DCJ, UoM44 Rules forbidding certain behaviour on forfeit of some form of penalty or sanction for noncompliance.

45. November 22, 2008Sanjay Ranade, Head, DCJ, UoM45 Rules that make people compensate other people that they have wronged for the damage caused by the wrong

46. November 22, 2008Sanjay Ranade, Head, DCJ, UoM46 Rules that regulate the conduct of and that enforce agreements, arrangements and relationships between individuals. These could be contracts or wills or even involve the rights and duties within a marriage – and in a more modern context it could involve the regulation of businesses.

47. November 22, 2008Sanjay Ranade, Head, DCJ, UoM47 There must be a system of courts in which to enforce all of the above rights and obligations.

48. November 22, 2008Sanjay Ranade, Head, DCJ, UoM48 There must also be a legislature of some form to make new laws to fit new situations and also to get rid of or repeal outdated laws

49. November 22, 2008Sanjay Ranade, Head, DCJ, UoM49 Hart called this body of rules to regulate conduct the ‘primary rules’. He also recognised that on their own these rules are insufficient for a system of law to work effectively. There must also be ‘secondary rules’:

50. November 22, 2008Sanjay Ranade, Head, DCJ, UoM50 Rules of recognition We have identified a number of separate branches of law above; crime, tort, contract, succession, matrimonial, company – each individual body of rules must have a character allowing it to be distinguished from any other body of rules.

51. November 22, 2008Sanjay Ranade, Head, DCJ, UoM51 Rules of change We have recognised the need above for Parliament to change the law to be relevant but there must, therefore, be superior systems of conduct which will authorise alteration of the rules to accommodate social and economic changes in society but which themselves operate according to law.

52. November 22, 2008Sanjay Ranade, Head, DCJ, UoM52 Rules of adjudication The courts are identified as the place where disputes are heard but they also must have rules regulating the methods by which those disputes are resolved, otherwise the law would be administered in an arbitrary way and may be seen as unfair.

53. November 22, 2008Sanjay Ranade, Head, DCJ, UoM53 Hart’s perspectives and arguments on law

54. November 22, 2008Sanjay Ranade, Head, DCJ, UoM54 H.L.A. Hart’s The Concept of Law Herbert Lionel Adolphus Hart (1907-92) was a British philosopher who was professor of jurisprudence at the University of Oxford. His most important writings included Causation in the Law (1959, with A.M. Honoré), The Concept of Law (1961), Law, Liberty and Morality (1963), Of Laws in General (1970), and Essays on Bentham (1982). Herbert Lionel Adolphus Hart (1907-92) was a British philosopher who was professor of jurisprudence at the University of Oxford. His most important writings included Causation in the Law (1959, with A.M. Honoré), The Concept of Law (1961), Law, Liberty and Morality (1963), Of Laws in General (1970), and Essays on Bentham (1982).

55. November 22, 2008Sanjay Ranade, Head, DCJ, UoM55 The Concept of Law (1961) is an analysis of the relation between law, coercion, and morality, and it is an attempt to clarify the question of whether all laws may be properly conceptualized as coercive orders or as moral commands. The Concept of Law (1961) is an analysis of the relation between law, coercion, and morality, and it is an attempt to clarify the question of whether all laws may be properly conceptualized as coercive orders or as moral commands.

56. November 22, 2008Sanjay Ranade, Head, DCJ, UoM56 Hart says that there is no logically necessary connection between law and coercion or between law and morality. Hart says that there is no logically necessary connection between law and coercion or between law and morality. He explains that to classify all laws as coercive orders or as moral commands is to oversimplify the relation between law, coercion, and morality. He explains that to classify all laws as coercive orders or as moral commands is to oversimplify the relation between law, coercion, and morality. He also explains that to conceptualize all laws as coercive orders or as moral commands is to impose a misleading appearance of uniformity on different kinds of laws and on different kinds of social functions which laws may perform. He also explains that to conceptualize all laws as coercive orders or as moral commands is to impose a misleading appearance of uniformity on different kinds of laws and on different kinds of social functions which laws may perform.

57. November 22, 2008Sanjay Ranade, Head, DCJ, UoM57 Laws are rules that may forbid individuals to perform various kinds of actions or that may impose various obligations on individuals. Laws are rules that may forbid individuals to perform various kinds of actions or that may impose various obligations on individuals. Laws may require individuals to undergo punishment for injuring other individuals. Laws may require individuals to undergo punishment for injuring other individuals. They may also specify how contracts are to be arranged and how official documents are to be created. They may also specify how contracts are to be arranged and how official documents are to be created. They may also specify how legislatures are to be assembled and how courts are to function. They may also specify how legislatures are to be assembled and how courts are to function. They may specify how new laws are to be enacted and how old laws are to be changed. They may specify how new laws are to be enacted and how old laws are to be changed. They may exert coercive power over individuals by imposing penalties on those individuals who do not comply with various kinds of duties or obligations. They may exert coercive power over individuals by imposing penalties on those individuals who do not comply with various kinds of duties or obligations.

58. November 22, 2008Sanjay Ranade, Head, DCJ, UoM58 John Austin in The Province of Jurisprudence Determined (1832) proposed that all laws are commands of a legally unlimited sovereign. John Austin in The Province of Jurisprudence Determined (1832) proposed that all laws are commands of a legally unlimited sovereign. Austin claimed that all laws are coercive orders that impose duties or obligations on individuals. Austin claimed that all laws are coercive orders that impose duties or obligations on individuals.

59. November 22, 2008Sanjay Ranade, Head, DCJ, UoM59 Hart says, however, that laws may differ from the commands of a sovereign, because they may apply to those individuals who enact them and not merely to other individuals. Hart says, however, that laws may differ from the commands of a sovereign, because they may apply to those individuals who enact them and not merely to other individuals.

60. November 22, 2008Sanjay Ranade, Head, DCJ, UoM60 Laws that impose duties or obligations on individuals are described by Hart as "primary rules of obligation." Laws that impose duties or obligations on individuals are described by Hart as "primary rules of obligation." In order for a system of primary rules to function effectively, "secondary rules" may also be necessary in order to provide an authoritative statement of all the primary rules. In order for a system of primary rules to function effectively, "secondary rules" may also be necessary in order to provide an authoritative statement of all the primary rules.

61. November 22, 2008Sanjay Ranade, Head, DCJ, UoM61 In order for the primary rules of a legal system to function effectively, the rules must be sufficiently clear and intelligible to be understood by those individuals to whom they apply. In order for the primary rules of a legal system to function effectively, the rules must be sufficiently clear and intelligible to be understood by those individuals to whom they apply. If the primary rules are not sufficiently clear or intelligible, then there may be uncertainty about the obligations which have been imposed on individuals. If the primary rules are not sufficiently clear or intelligible, then there may be uncertainty about the obligations which have been imposed on individuals.

62. November 22, 2008Sanjay Ranade, Head, DCJ, UoM62 Vagueness or ambiguity in the secondary rules of a legal system may also cause uncertainty as to whether powers have been conferred on individuals in accordance with statutory requirements or may cause uncertainty as to whether legislators have the authority to change laws. Vagueness or ambiguity in the secondary rules of a legal system may also cause uncertainty as to whether powers have been conferred on individuals in accordance with statutory requirements or may cause uncertainty as to whether legislators have the authority to change laws. Vagueness or ambiguity in the secondary rules of a legal system may also cause uncertainty as to whether courts have jurisdiction over disputes concerning the interpretation and application of laws. Vagueness or ambiguity in the secondary rules of a legal system may also cause uncertainty as to whether courts have jurisdiction over disputes concerning the interpretation and application of laws.

63. November 22, 2008Sanjay Ranade, Head, DCJ, UoM63 Hart distinguishes between the "external" and "internal" points of view with respect to how the rules of a legal system may be described or evaluated. Hart distinguishes between the "external" and "internal" points of view with respect to how the rules of a legal system may be described or evaluated.

64. November 22, 2008Sanjay Ranade, Head, DCJ, UoM64 The external point of view is that of an observer who does not necessarily have to accept the rules of the legal system. The external point of view is that of an observer who does not necessarily have to accept the rules of the legal system. The external observer may be able to evaluate the extent to which the rules of the legal system produce a regular pattern of conduct on the part of individuals to whom the rules apply. The external observer may be able to evaluate the extent to which the rules of the legal system produce a regular pattern of conduct on the part of individuals to whom the rules apply.

65. November 22, 2008Sanjay Ranade, Head, DCJ, UoM65 The internal point of view, on the other hand, is that of individuals who are governed by the rules of the legal system and who accept these rules as standards of conduct. The internal point of view, on the other hand, is that of individuals who are governed by the rules of the legal system and who accept these rules as standards of conduct.

66. November 22, 2008Sanjay Ranade, Head, DCJ, UoM66 The "external" aspect of rules may be evident in the regular pattern of conduct which may occur among a group of individuals. The "external" aspect of rules may be evident in the regular pattern of conduct which may occur among a group of individuals. The "internal" aspect of rules distinguishes rules from habits, in that habits may be viewed as regular patterns of conduct but are not usually viewed as standards of conduct. The "internal" aspect of rules distinguishes rules from habits, in that habits may be viewed as regular patterns of conduct but are not usually viewed as standards of conduct.

67. November 22, 2008Sanjay Ranade, Head, DCJ, UoM67 The external aspect of rules may in some cases enable us to predict the conduct of individuals, but we may have to consider the 'internal' aspect of rules in order to interpret or explain the conduct of individuals. The external aspect of rules may in some cases enable us to predict the conduct of individuals, but we may have to consider the 'internal' aspect of rules in order to interpret or explain the conduct of individuals.

68. November 22, 2008Sanjay Ranade, Head, DCJ, UoM68 Hart argues that the foundations of a legal system do not consist, as Austin claims, of habits of obedience to a legally unlimited sovereign, but instead consist of adherence to, or acceptance of, an ultimate rule of recognition by which the validity of any primary or secondary rule may be evaluated. Hart argues that the foundations of a legal system do not consist, as Austin claims, of habits of obedience to a legally unlimited sovereign, but instead consist of adherence to, or acceptance of, an ultimate rule of recognition by which the validity of any primary or secondary rule may be evaluated.

69. November 22, 2008Sanjay Ranade, Head, DCJ, UoM69 If a primary or secondary rule satisfies the criteria which are provided by the ultimate rule of recognition, then that rule is legally valid.

70. November 22, 2008Sanjay Ranade, Head, DCJ, UoM70 There are two minimum requirements which must be satisfied in order for a legal system to exist: There are two minimum requirements which must be satisfied in order for a legal system to exist: 1) private citizens must generally obey the primary rules of obligation, and 2) public officials must accept the secondary rules of recognition, change, and adjudication as standards of official conduct.

71. November 22, 2008Sanjay Ranade, Head, DCJ, UoM71 If both of these requirements are not satisfied, then primary rules may only be sufficient to establish a pre-legal form of government.

72. November 22, 2008Sanjay Ranade, Head, DCJ, UoM72 Moral and legal rules may overlap, because moral and legal obligation may be similar in some situations. Moral and legal rules may overlap, because moral and legal obligation may be similar in some situations. However, moral and legal obligation may also differ in some situations. However, moral and legal obligation may also differ in some situations. Moral and legal rules may apply to similar aspects of conduct, such as the obligation to be honest and truthful or the obligation to respect the rights of other individuals. Moral and legal rules may apply to similar aspects of conduct, such as the obligation to be honest and truthful or the obligation to respect the rights of other individuals. However, moral rules cannot always be changed in the same way that legal rules can be changed. However, moral rules cannot always be changed in the same way that legal rules can be changed.

73. November 22, 2008Sanjay Ranade, Head, DCJ, UoM73 According to Hart, there is no necessary logical connection between the content of law and morality, and that the existence of legal rights and duties may be devoid of any moral justification. According to Hart, there is no necessary logical connection between the content of law and morality, and that the existence of legal rights and duties may be devoid of any moral justification.

74. November 22, 2008Sanjay Ranade, Head, DCJ, UoM74 Hart’s interpretation of the relation between law and morality differs from that of Ronald Dworkin, who in Law’s Empire suggests that every legal action has a moral dimension. Hart’s interpretation of the relation between law and morality differs from that of Ronald Dworkin, who in Law’s Empire suggests that every legal action has a moral dimension. Dworkin rejects the concept of law as acceptance of conventional patterns of recognition, and describes law not merely as a descriptive concept but as an interpretive concept which combines jurisprudence and adjudication. Dworkin rejects the concept of law as acceptance of conventional patterns of recognition, and describes law not merely as a descriptive concept but as an interpretive concept which combines jurisprudence and adjudication.

75. November 22, 2008Sanjay Ranade, Head, DCJ, UoM75 Hart defines legal positivism as the theory that there is no logically necessary connection between law and morality. However, he describes his own viewpoint as a "soft positivism," because he admits that rules of recognition may consider the compatibility or incompatibility of a rule with moral values as a criterion of the rule’s legal validity. Hart defines legal positivism as the theory that there is no logically necessary connection between law and morality. However, he describes his own viewpoint as a "soft positivism," because he admits that rules of recognition may consider the compatibility or incompatibility of a rule with moral values as a criterion of the rule’s legal validity.

76. November 22, 2008Sanjay Ranade, Head, DCJ, UoM76 International law is described by Hart as problematic, because it may not have all of the elements of a fully-developed legal system. International law is described by Hart as problematic, because it may not have all of the elements of a fully-developed legal system. International law may in some cases lack secondary rules of recognition, change, and adjudication. International legislatures may not always have the power to enforce sanctions against nations who disobey international law. International law may in some cases lack secondary rules of recognition, change, and adjudication. International legislatures may not always have the power to enforce sanctions against nations who disobey international law. International courts may not always have jurisdiction over legal disputes between nations. International law may be disregarded by some nations who may not face any significant pressure to comply. Nations who comply with international law must still be able to exercise their sovereignty. International courts may not always have jurisdiction over legal disputes between nations. International law may be disregarded by some nations who may not face any significant pressure to comply. Nations who comply with international law must still be able to exercise their sovereignty.

77. November 22, 2008Sanjay Ranade, Head, DCJ, UoM77 There appear to be two main types of legal system.

78. November 22, 2008Sanjay Ranade, Head, DCJ, UoM78 One is based on what we sometimes refer to as ‘Roman Law’. The other system, the one that we are used to in India, is known as a ‘common law’ system. The English legal system is the most well- known common law system and many other countries including India have followed it.

79. November 22, 2008Sanjay Ranade, Head, DCJ, UoM79 Roman law developed during the era of the Roman Empire and the many conquests made during that period. Because of the extent of the empire this type of law influenced a wide area that came under Roman rule. Examples would be found throughout western and southern Europe and indeed in North Africa. Interestingly, Britain was also under Roman rule for many centuries but still developed its own very particular type of legal system at a later stage.

80. November 22, 2008Sanjay Ranade, Head, DCJ, UoM80 The common law of England is usually traced back to the Norman Conquest and King William I. However, much of the law that developed during that period can also be traced back into Saxon society. The significant difference was that, even though the Norman and Angevin Kings adopted much of the existing local law and custom following the conquest, the nature of their rule meant that it became the law that was ‘common’ to the whole of Britain. Previously the country was made up of many separate kingdoms and so local laws might differ. Because Britain was over a number of centuries a colonial power and there was a British Empire, the common law of England was also the law that was used in the various countries of the Empire during British rule.

81. November 22, 2008Sanjay Ranade, Head, DCJ, UoM81 As a result, following independence, many of these countries have retained a common law system. These are identifiable today as the Commonwealth countries, such as Australia, Canada, India, and many African or Caribbean countries. It also includes the USA.

82. November 22, 2008Sanjay Ranade, Head, DCJ, UoM82 The basic difference between Roman and common law legal systems can be identified as follows:

83. November 22, 2008Sanjay Ranade, Head, DCJ, UoM83 Roman law is codified: Codes tend to be written in very broad terms and it is then the role of the judges to interpret these broad terms in specific situations Many modern countries have adopted a codified law following changes to their constitutions, for instance following a revolution as in France.

84. November 22, 2008Sanjay Ranade, Head, DCJ, UoM84 English common law, on the other hand, has developed over a long period of time: It is at least in part based on precedents that emerge from an accumulation of case decisions and so the law is based on real situations and has been built up principle by principle In more recent times parliamentary law, through Acts and delegated legislation, has become more important.

85. November 22, 2008Sanjay Ranade, Head, DCJ, UoM85 The English common law is said to have had an uninterrupted and continuous growth from the time of the Norman Conquest in the eleventh century. Some codified systems, on the other hand are relatively recent – France, for instance, had a revolution as recently as 1789 and French law develops from that point. The English legal system is preoccupied with rules of procedure. In other systems the broad spirit of the law may be more important.

86. November 22, 2008Sanjay Ranade, Head, DCJ, UoM86 The English legal system depends mainly on an adversarial resolution of disputes: This means that most law is settled in a form of contest between two parties claiming different or competing rights This is true of criminal law and in most instances it is also true of civil law, although there are processes such as arbitration, conciliation and mediation now available.

87. November 22, 2008Sanjay Ranade, Head, DCJ, UoM87 Continental systems of law, however, are often more inquisitorial in character: Instead of the judge acting as a sort of referee between the parties in dispute he will intervene and ask his own questions and will often try to find a compromise position.

88. November 22, 2008Sanjay Ranade, Head, DCJ, UoM88 The various classifications of law In order to study the law in more detail you need to be able to appreciate how it can be broken up into a number of different component parts. One method of dividing the law into different categories is to classify it as substantive law or as adjectival law.

89. November 22, 2008Sanjay Ranade, Head, DCJ, UoM89 Substantive law Substantive law is the term which is used to refer to the rules which govern our rights and duties under the law, for example, the cases and statutes which create criminal offences, or the cases and statutes which define contractual obligations.

90. November 22, 2008Sanjay Ranade, Head, DCJ, UoM90 Adjectival law Adjectival law prescribes how those substantive rules can be used within the legal system, for examples the rules of evidence, procedure and costs which are to be observed when bringing a case to court.

91. November 22, 2008Sanjay Ranade, Head, DCJ, UoM91 An alternative way of classifying the law is by reference to its subject matter. From the point of view of lawyers and those involved in the legal system, this is the most useful way of dividing the law into categories.

92. November 22, 2008Sanjay Ranade, Head, DCJ, UoM92 The broadest distinction which can be drawn is between international law and domestic law.

93. November 22, 2008Sanjay Ranade, Head, DCJ, UoM93 International law is concerned with the external relationships between different States and is based on treaties and conventions. A good example here is the Treaty on European Union (also known as the Maastricht Treaty).

94. November 22, 2008Sanjay Ranade, Head, DCJ, UoM94 Domestic law comprises the laws of a particular State, that is the cases or statute law which govern relationships within that country and can be divided into public law and private law.

95. November 22, 2008Sanjay Ranade, Head, DCJ, UoM95 Public law cases are those cases in which one of the parties to the dispute is the Government of India or the State Governments, usually acting through a government department. Public law can be further sub-divided broadly into the areas of criminal law and civil law. PUBLIC LAW

96. November 22, 2008Sanjay Ranade, Head, DCJ, UoM96 Public law is that body of laws which deals with the relations between private individuals and the Government; the laws affecting the general public. Public law is that body of laws which deals with the relations between private individuals and the Government; the laws affecting the general public.

97. November 22, 2008Sanjay Ranade, Head, DCJ, UoM97 Criminal Law Criminal Law is that part of Public Law which deals with the definition, and punishment of crime and with the procedure for the trial of persons suspected or accused of crime; that branch or division of law which defines crimes, treats of their nature, and provides for their punishment. Criminal Law is that part of Public Law which deals with the definition, and punishment of crime and with the procedure for the trial of persons suspected or accused of crime; that branch or division of law which defines crimes, treats of their nature, and provides for their punishment.

98. November 22, 2008Sanjay Ranade, Head, DCJ, UoM98 Criminal law is concerned with conduct of which society disapproves so strongly that the State must punish the wrongdoer; for example, murder, theft and driving offences. The major objective of criminal proceedings is to punish the perpetrator of the crime, not to compensate the victim.

99. November 22, 2008Sanjay Ranade, Head, DCJ, UoM99 The term “criminal law” is sufficiently comprehensive to cover all of that branch of jurisprudence which deals in any way with crimes and punishments. The term “criminal law” is sufficiently comprehensive to cover all of that branch of jurisprudence which deals in any way with crimes and punishments. The Public Prosecutor, acting on behalf of the Government, prosecutes the accused, who will be found guilty of the offence charged if the prosecutor can convince the court beyond reasonable doubt that the accused did commit that offence.

100. November 22, 2008Sanjay Ranade, Head, DCJ, UoM100 Civil Law Public civil law cases, by contrast, are concerned with problems in constitutional and administrative law. For example, these cases may challenge the legality of actions carried out by central or local government, or may bring test cases on individual freedoms which have been infringed by the government, such as telephone tapping.

101. November 22, 2008Sanjay Ranade, Head, DCJ, UoM101 Private Law This involves civil law and is concerned with the rights and duties which private individuals have in relation to each other. There are many different categories of civil law, for example the law of contract, the law of torts (wrongs such as negligence or slander) and the law of property.

102. November 22, 2008Sanjay Ranade, Head, DCJ, UoM102 The major objective of an action which involves private civil law is to compensate the person who has suffered the wrong, usually by payment of money (damages). A civil action is commenced by the victim, that is, the claimant, who sues the defendant in order to obtain a remedy. The claimant must prove his or her case on a balance of probabilities, in other words it must be more likely than not that the defendant harmed the claimant in the manner alleged.

103. November 22, 2008Sanjay Ranade, Head, DCJ, UoM103 To put it simply SUBSTANTIVE LAW ADJECTIVAL LAW This term refers to the actual areas of law and represents different groups of rights and obligations as we have seen above – so it could refer to contract law, tort, matrimonial law, succession, company law, property law etc This term refers to the rules of evidence and procedure – these determine how the case is conducted – in English law they originated from the medieval write system but have undergone many changes

104. November 22, 2008Sanjay Ranade, Head, DCJ, UoM104 PUBLIC LAW PRIVATE LAW This term refers to the law governing the relationship between individuals and the State – usually two types of law are included in this definition: criminal law and constitutional and administrative law This term refers to the law governing the relationship between individuals and includes many of the areas already identified under substantive law

105. November 22, 2008Sanjay Ranade, Head, DCJ, UoM105 CRIMINAL LAW CIVIL LAW This term concerns the rules of law concerning behaviour that the state proscribes against and will punish This refers to the rules of law concerning the settlement of disputes between parties which may be individuals but may include businesses and other corporate bodies

106. November 22, 2008Sanjay Ranade, Head, DCJ, UoM106 The last two, criminal law and civil law, need to be distinguished because there are many differences in the way that the law is administered and even in the language used when either type is in question. The main distinctions are classified thus:

107. November 22, 2008Sanjay Ranade, Head, DCJ, UoM107 CRIMINAL LAW CIVIL LAW Involves Offences against the State – behaviour which is classed as unacceptable. Disputes between individuals.

108. November 22, 2008Sanjay Ranade, Head, DCJ, UoM108 CRIMINAL LAW CIVIL LAW Purpose of the action To preserve order in the community and to deter unacceptable behaviour by punishing offenders. To regulate relationships between individuals, to allow individuals to organise their affairs, to remedy the wrongs suffered by individuals

109. November 22, 2008Sanjay Ranade, Head, DCJ, UoM109 CRIMINAL LAW CIVIL LAW Parties to the Action A prosecutor (who prosecutes the offence) and the defendant(s) (who answers the charges). A claimant (who sues in respect of the damage suffered) and a defendant (who answers the claim).

110. November 22, 2008Sanjay Ranade, Head, DCJ, UoM110 CRIMINAL LAW CIVIL LAW Burden of proof and standard of proof The prosecutor must prove the case beyond a reasonable doubt. There is no strict obligation on the defendant to proves his or her innocence. The claimant must prove his or her claim on a balance of probabilities.

111. November 22, 2008Sanjay Ranade, Head, DCJ, UoM111 CRIMINAL LAW CIVIL LAW Resolution of the Action The defendant may be convicted, it found to be guilty of the offence, or acquitted, if found to be not guilty. A defendant will be found to be either liable or not liable for the claim.

112. November 22, 2008Sanjay Ranade, Head, DCJ, UoM112 CRIMINAL LAW CIVIL LAW Outcomes of the action The defendant may be sentenced to a penalty which can range between a custodial sentence and a discharge. The claimant may be awarded a remedy against the defendant, which can be in the form of a money compensation - damages – or an equitable order of the court, such as an injunction.

113. November 22, 2008Sanjay Ranade, Head, DCJ, UoM113 CRIMINAL LAW CIVIL LAW Courts Magistrate's Court and Sessions Court for trial. High Court and Supreme Court for appeal. Magistrates’ Court, Civil Court and High Court for trial. High Court and Supreme Court for appeals.

114. November 22, 2008Sanjay Ranade, Head, DCJ, UoM114 CRIMINAL LAW CIVIL LAW Examples Murder, Theft, Drink Driving, Cheating Breach of Contract, Negligence in Wills, Conveyancing of property

115. November 22, 2008Sanjay Ranade, Head, DCJ, UoM115 Common Law One term that you are bound to hear used repeatedly from very early on in your course, and that you will certainly see many times in text books, is the phrase ‘common law’. This can be a very confusing term for you because lawyers use the term in so many different contexts and for quite different meanings. It is important then for you to have an appreciation of the different meanings right from the start so that you can follow exactly what is being referred to. Usually the precise meaning is taken from the context in which the phrase is being used and from what it is being contrasted with.

116. November 22, 2008Sanjay Ranade, Head, DCJ, UoM116 In this way the phrase ‘common law’ can be used in the following ways:

117. November 22, 2008Sanjay Ranade, Head, DCJ, UoM117 Referring to the law that is common to the whole country – in contrast to the local laws and customs that existed before the eleventh century, a few of which survive in one form or another today, eg a byelaw introduced by local councils may impose a fine for your dog fouling the footpath.

118. November 22, 2008Sanjay Ranade, Head, DCJ, UoM118 Referring to remedies in particular (the major one being compensation in the form of damages) in contrast with equitable remedies such as the injunction (an order preventing someone from doing something) or specific performance (an order for a contract to be carried out – usually the transfer of land that has been purchased).

119. November 22, 2008Sanjay Ranade, Head, DCJ, UoM119 Referring to principles of law developed in the judgments of decided cases – in contrast with statute law, created in an Act of Parliament (some law is mainly to be found in cases such as tort – while some areas are mainly statutory, such as crime).

120. November 22, 2008Sanjay Ranade, Head, DCJ, UoM120 Referring to the type of system itself (one that has developed incrementally over centuries through case law as well as other sources) – in contrast with civil law systems such as that in France where the law originates in a code.

121. November 22, 2008Sanjay Ranade, Head, DCJ, UoM121 Encyclopedia of the Laws of England Constitutional Law is a branch of public law containing so much of the political constitution as is laid down in positive legal rules, and as including such subjects as the formation, powers and privileges of the legislature, the executive functions and powers of the head of the executive, the existence and composition of the judicial establishment and the machinery of local government. Constitutional Law is a branch of public law containing so much of the political constitution as is laid down in positive legal rules, and as including such subjects as the formation, powers and privileges of the legislature, the executive functions and powers of the head of the executive, the existence and composition of the judicial establishment and the machinery of local government. Constitutional Law

122. November 22, 2008Sanjay Ranade, Head, DCJ, UoM122 In the generally accepted use of the term Constitutional Law means the rules which regulate the structure of the principal organs of government and their relationship to each other, and determine their principal functions. In the generally accepted use of the term Constitutional Law means the rules which regulate the structure of the principal organs of government and their relationship to each other, and determine their principal functions. In other words, it would be expected to contain only the basic framework. In other words, it would be expected to contain only the basic framework.

123. November 22, 2008Sanjay Ranade, Head, DCJ, UoM123 Administrative Law Administrative Law is a branch of Public Law which deals with the various organs of the Sovereign power. It relates to the organisation, powers and duties of administrative authorities and consists of body of rules governing the detailed exercise of executive functions by the officers or the public authorities. It is judge made law. Administrative Law is a branch of Public Law which deals with the various organs of the Sovereign power. It relates to the organisation, powers and duties of administrative authorities and consists of body of rules governing the detailed exercise of executive functions by the officers or the public authorities. It is judge made law.

124. November 22, 2008Sanjay Ranade, Head, DCJ, UoM124 Customary Law A custom, that by continuance acquires the force of law, is called Customary Law. A custom, that by continuance acquires the force of law, is called Customary Law.

125. November 22, 2008Sanjay Ranade, Head, DCJ, UoM125 Statute or Statutory Law A Statute signifies an act of the legislature. It is a written law as distinguished from a customary law or law of use and wont; a type of subordinate legislation applied generally to be framed by university. A Statute signifies an act of the legislature. It is a written law as distinguished from a customary law or law of use and wont; a type of subordinate legislation applied generally to be framed by university. Statute Law is frequently used interchangeably with statute, but the term is broader in its meaning, and includes not only statutes but also the judicial interpretation and application of such statutes. Statute Law is frequently used interchangeably with statute, but the term is broader in its meaning, and includes not only statutes but also the judicial interpretation and application of such statutes.