CS Foundation Introduction to Law Notes
→ Law is a broad and often misapplied term tossed around various schools of philosophy, science, history, theology and law. However, while it would be very difficult to argue that the law is not an important part of everyday life, it would be slightly easier to make the point that finding out proper information about the law and legal issues can sometimes be a very difficult thing indeed. Despite the difficulty, many different legal schools of thought that have shaped our current system today have classified law into five broad classes
→ Natural School:
Among the Roman jurists, natural law designated those instincts and emotions common to man and the lower animals, such as the instinct of self-preservation and love of offspring. As per Hindu view law is a part of “dharma”. Natural Law is a moral theory of jurisprudence, which maintains that law should be based on morality and ethics. Natural Law holds that the law is based on what’s “correct.” Natural Law is “discovered” by humans through the use of reason and choosing between good and evil. Therefore, Natural Law finds its power in discovering certain universal standards in morality and ethics.
school of jurisprudence whose advocates believe that the only legitimate sources of law are those written rules, regulations and principles that have been expressly enacted, adopted, or recognized by a government body, including administrative, executive, legislative and judicial bodies. It is often contrasted with Natural Law, Austin considered the law as commands from a sovereign that are enforced by threat of sanction. In determining ‘a sovereign’, Austin recognized it is one whom society obeys habitually.
→ Historical Definition of Law:
Savigny, the pioneer of historical school advocated that the meaning and content of existing bodies of law be analyzed through research into their historical origins and modes of transformation. As per this thought, law must be made to conform with the well-established, but unwritten, customs, traditions and experiences that have evolved over the course of history.
→ Sociological Definition of Law:
Sociological jurisprudence is a term coined by the American jurist Roscoe Pound to describe his approach to the understanding of the law. This philosophical approach to law stresses the actual social effects of legal institutions, doctrines and practices. It examines the actual effects of the law within society and the influence of social phenomena on the substantive and procedural aspects of law. This is also known as sociology of law.
→ Realist Definition of Law:
- Oliver Wendell Holmes gave the realistic definition of law as “”The prophecies of what the courts will do. Are what I mean by the law”.
- As per Realistic Definition Law is a mechanism that is to maintain harmony amongst people and for maintaining this harmony there are regulations which can be enforced.
Laws may be mandatory which means to be followed on compulsory basis that is it is affirmative like payment of tax, prohibitive law which means that certain acts are prohibited like not to drink and drive and permissive laws which means that it does not forbid an action but allows certain conduct of it.
1. Sources of Indian Law:
Sources of law means the origin from which rules of human conduct come into existence and derive legal force or binding characters. It also refers to the sovereign or the state from which the law derives its force or validity.
The main sources of modem Indian Law, as administered by Indian courts, may be divided into broad categories:
- Primary sources and,
- secondary sources.
The primary sources of Indian law are:
(b) judicial precedents
(d) personal law.
The secondary sources of Indian law are:
(a) English Law
(b) Justice, equity and good conscience.
1. Primary Sources of Indian Law:
(a) Customs or Customary Law: Custom is the oldest form of law-making. Briefly speaking, custom is a continuing course of conduct observed by the community. “The word custom is used to apply to the totality of behaviour patterns which are carried by tradition and lodged in the group as contrasted with the more random personal activities of the individual.”
Most of the Laws given in Smritis and the Commentaries have their origin from Customs. Sunnis interpreted many provisions of Law on the basis of customs.
Customs are divided into two classes:
Customs without sanction – these are non-obligatory and are observed due to pressure of public opinion. Customs having sanctions- these are the customs which are enforced by the State.
It is further divided into
- Legal Customs
- Conventional Customs
1. Legal Customs:
These are the customs that have been recognized by the Court and thus are binding by Law. It is further divided into local customs and general Customs. Local Customs are those Customs that prevail in some definite locality and these Laws are for these particular locality but sometimes the people of a locality keep moving and thus the laws related to them are also moving. Thus it can be classified into Geographical Local Customs and Personal Local Customs.
2. Conventional Customs:
These Customs are binding due to contract which is not for any fixed period and is reasonable. It is also divided into General and Local Conventional Customs.
Essentials of Valid Custom
- Antiquity: It should be ancient. Custom should be observed for a long time.
- Continuity: Continuity is as essential as antiquity. Discontinuity will destroy a custom.
- Certainly: Custom must be certain and clear, not vague. One has to prove what exactly the custom is and how far it is applicable with a reasonable amount of certainty.
- Reasonability: It should not be unreasonable. Of course, what is reasonable and unreasonable is a matter of social values.
- It should not be opposed to public policy: A custom opposed to public policy is (yoid.)?????
- Morality- An immoral custom is void. Like the standard of reasonability, the standard of morality may differ from time to time and from society to society.
- It should not be opposed to law-A custom must not be opposed to statutory law.
- Peaceful Enjoyment – Custom should be enjoyed peacefully without any dispute.
(b) Judicial Decisions or Precedents:
Precedent means some set pattern guiding the future conduct. The precedent on an issue is the collective body of judicially announced principles that a court should consider when interpreting the law. The doctrine of precedent declares that cases must be decided the same way when their materials facts are the same. Obviously it does not require that all the facts should be the same.
Characteristic Features of Doctrine of Precedents:
- The doctrine of judicial precedent is based on stare decisis. That is the standing of previous decisions. Once a point of law has been decided in a particular case, that law must be applied in all future cases containing the same material facts.
- Decision of High Court is binding on all subordinate courts and tribunals
- In High Court a single judge constitutes smallest Bench.
- A Bench of two judges is called division Bench.
- Three or more constitute a Full Bench.
- Supreme Court is the highest Court and its decisions are binding on all courts and Tribunals
- Decision of one High Court is not binding on other High Court and have persuasive value only.
- Supreme Court is not bound by its earlier decision but in practice it does not depart from its earlier decisions unless there are some special reasons.
Kinds of Precedents:
Original Precedents and Declaratory Precedents
- An original precedent is one which creates and applies a new rule. Where there is no previous decision on a point of law that has to be decided by a court, then the decision made in that case on that point of law is an original precedent.
- A declaratory precedent is one which is merely the application of an already existing rule of law.
- Declaratory precedents merely follow the original precedents. Declaratory precedent is also a good source of law. However, when it is compared with original precedent. It comes second to it.
Persuasive precedent means precedent which a judge is not obliged to follow. Persuasive precedents assist the decision maker in determining a case. Decisions of lower courts and foreign courts can be persuasive precedents. In India decisions of High Court are Persuasive in nature in other High Court.
Absolutely Authoritative Precedents:
As per it a past decision is binding on judges whether they accept it or not. The earlier decision made by a court above the present court in the hierarchy is binding on the present court. It is a legal source of Law unlike Persuasive precedent which is historical.
Conditionally Authoritative Precedents:
A conditional authoritative precedent is one which though ordinarily binding on the court to which it is cited, but is liable to be disregarded in certain circumstances. For example the decisions of the single judge of a High Court is absolutely authoritative for the subordinate judiciary but is only conditionally authoritative, if cited before the Division bench of the High Court.
Doctrine of Stare Decisis:
A Latin term meaning “to stand by that which is decided”. The main principle of precedent is known as ‘stare decisions’ or let the decision stand. This simply means that the court should not change the law, or challenge another court’s decision unless extremely necessary.
The court must uphold prior decisions. In essence, this legal principle dictates that once a law has been determined by the appellate court to be relevant to the facts of the case, future cases will follow the same principle of law if they involve considerably identical facts. Although generally the doctrine is strictly followed but is not universally applicable.
Obiter Dicta literally means ‘things said by the way’. Obiter dictum remarks instead provide some explanation of how the judge interpreted the facts and legal principles to reach his or her decision. It is used for statements, remarks or observations made by a judge that are incidental or supplementary in deciding a base, upon a matter not essential to the decision. Thus, although they are included in the body of the court’s opinion, such statements do not form a necessary part of the court’s decision. They are not binding or persuasive precedent, but can provide important information and guidance for future judges.
Ratio decidendi is a latin maxim meaning “the reasons for the decision”. They are the principles a judge will use when making his judgment and afterwards they will create a binding precedent which means that courts lower in the hierarchy will have to follow the same decision if a case with facts sufficiently similar is presented to them. It is any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.
(c) Statutes or Legislation:
Legislation refers to the preparation and enactment of laws by a legislative body through its lawmaking process. It is a law enacted by the legislative branch of a government.
The executives which have to enforce the law are sometimes given power to make laws, such subordinate legislation is known as executive or delegated legislation. Sometimes state also allow autonomous bodies like universities to make bylaws.
(d) Personal Law:
Part of law that deals with matters pertaining to a person and his or her family. Sometimes court has to use personal laws in certain cases when the cases do not come under any statutory law. In case of Hindus personal Law is found in SHRUTI which includes four Vedas. The three main Smritis are the code of Manu, Yajnavalkya, Narada.
On the basis of these laws, matters related to marriage, succession, etc. Related to Hindus are decided.
In case of Muslims the laws that govern their personal laws are found in Holy Kuran. These laws decide about the marriage, divorce related matters of Muslims.
→ Secondary source of Indian law:
(a) Justice, Equity and Good Conscience
In India, the doctrine of ‘justice, equity and good conscience’ was introduced, for the first time, in the presidency of Bengal, in the year 1780 when the laws are silent about any matter then they should be decided on the basis of justice, equity and conscience, we can say that it is the ‘will of the people’ that is the prima facie governing factor and henceforth to say that principle of natural justice in some sense of the terms define the sense justice because they range so close to human conscience.
(b) Sources of English law:
A. Common Law:
- The common law originates from the original laws and legal customs of England.
- These original laws slowly merged and developed into a single system of law referred to as ‘the common law’.
- The common law is a judge-made system of law because it was the judges who over many centuries were responsible for merging and developing the original laws and legal customs into this single system of law.
- Today, the term common law is regarded as including all case law.
B. Principle of equity:
- Equity means “fairness” in ordinary language.
- As a legal term it began as a set of special rules founded and administered by the old Court of Chancery.
- It was created because the original common law often failed to ensure fairness or justice and people would appeal to the King’s Chancellor who as “keeper of the King’s conscience” could help.
- The Chancellor dealt with such appeals in the Court of Chancery. This court decided cases in the light of justice and fairness rather than the strict letter of the law.
C. Law Merchant:
- Principles and rules, drawn chiefly from custom, determining the rights and obligations of commercial transactions.
- A body of rules for regulating the relations of merchants engaged in trade, consisting of certain principles of equity and usages of trade which general convenience and a common sense of justice have established to regulate the dealings of merchants in all the commercial countries of the civilized world.
D. Statute law:
- Statutes are the laws derived from Legislation.
- Legislation over-rides all common law and equity.
- Although legislation is the main source of new law today, but even today legislation forms a comparatively small part of the bulk of our laws and the common law still remains the basis of our legal system.
2. Mercantile law or Commercial law:
Mercantile Law is known as commercial law or business law”. It is a branch of law which governs and regulates trade and commerce. At the beginning it was not recognized as a law but later on it was recognized and accepted by the common law. The traders established their own tribunals consisting of merchants themselves. The rules pronounced by the tribunal, became the law popularly known as the law merchant which was recognized by the common law.
3. Sources of Indian Mercantile law:
Mercantile laws in India is taken from the English law. So it follows the English laws to a considerable extent with some modifications and reservations to suite with the Indian conditions and practices.
Following are the main source of the Indian mercantile laws:
1. English Mercantile Law:
English laws which developed and come into existence through the customs and usage of traders and merchants in England is the main source of the Indian Mercantile laws. It is unwritten and are based on customs, precedents and usages. The law of contracts which is a part of Common law in England is one of the most important part of Mercantile law. Although few changes were made in the mercantile law of India as per the trade customs of India but still the major part of it comes from English Merchantile law.
2. Indian Statute Law:
Another main source of Indian Mercantile law is the Acts passed by the Indian Legislature. Indian Contract Act, 1872, The Sale of Goods Act, 1930, The negotiable Instrument Act 1881, The Companies Act, 1956 are some of the Acts passed by the Indian Legislature.
3. Judicial Decisions:
Another important source of mercantile laws are the Judicial decisions of the Courts. Disputes settled by the courts earlier have persuasive and guiding value. The judge has to decide the case, where there is the law is silent on a point it is done according to the principle of equity, justice and good conscience. For interpreting the Indian Statutes and deciding various cases, English court decisions are frequently referred as precedents.
4. Customs and Usages:
Another important source of Indian Mercantile laws are the customs and usages of that particular trade currently followed by the traders. These practices play the vital role in developing the mercantile law. It is important that these customs or usages must be reasonable, widely known, constant and must not be inconsistent with the law. The Indian Contract Act accept this practice by providing the clause/wording that “nothing contained therein shall affect any usage or custom of trade.
Some of the Legal terms and their meanings:
- ab initio – from the beginning
- ad valorem – According to value
- bona fide – in good faith
- de facto – in fact
- de jure – in law
- in personam – against the person
- inter alia – amongst other things
- intra vires – within the powers
- ipso facto – by the mere fact
- locus standi – signifies the right to be heard
- mutatis mutandis- with the necessary changes in points of detail, with such change as may be necessary
- ratio decidendi — reasons for deciding
- stare decisis – to stand by things decided
- sub judice – before a judge or court
- ultra vires – beyond one ’ s power
→ Case Citation:
Case Name. Usually, the first name identifies who is bringing the court action and the second name is the person against whom action is being brought
- 204 – Volume Number
- AIR – Name of reporter
- 209 – Beginning page
- 1980 – Year of decision
- Roy – Person who is bringing the court action
- Amit – Person against whom action is being brought
→ Names of some reporters of India:
- AIR — All India Reports
- SCC — Supreme Court Cases
- CLJ — Company Law Journal
- LR — Labour Reports
- ITR — Income tax reports