A very Brief Introduction to Law by Mr Kashir Khan

this is about introduction to law.

1. What do we understand by the term ‘law ’ A rule of actions whether animate or inanimate, rational or irrational i.e. the law of motion, of gravitation, of optic or mechanics as well as the laws of nature and of nations

2. Rationale or Reason In all the cases, however, there is a regular succession of evens , Thus we have laws of God , laws of nature, laws of ethics, law of honor, laws of beauty and fashion, civil law and laws of nations

3. Two senses in which the term “law is used: General & Juridical General Sense.- Law in its general sense denotes uniformity and regularity of action. In its widest sense the term law includes any rule of action , that is to say, any standard or pattern ( Dr. Salmond) Laws in the widest sense of the term are the necessary relations derived from the nature of things (Montesquieu)

4. General laws may fall into 3 classes (a ) Divine laws . ( b) Physical laws . (c) Human laws . Divine laws relate to the will of the supernatural power and thus may appropriately form part of the science of theology Physical laws are expressions of the uniformities of nature such as law of motion, law of gravitation, Newton’s law, etc

5. Human Laws Human laws are laws by analogy and may be further ‘sub-divided into two classes Those enforced by indeterminate authority These are called moral laws as they consist of ethical rules of conduct. Austin call them rules of Positive Morality , These have the sanction of public censure behind them

6. ii) Those enforced by determinate authority. viz , State These are laws strictly so called and so may by appropriately considered under the heading juridical sense rather than general sense Law means civil law which is also sometimes referred to as ‘ Positive law ’, ‘Lawyer’s law ,’ ‘Municipal law ’ or ‘ National Law ’ . It concerns itself with the law enforced by the State

7. According to Prof Holland. “law” “A law in the proper sense of the term is a general rule of action . Taking cognizance only of external acts , enforced by a determinate authority which authority is human , and, among human authorities is that which is paramount in a political society .” “ A law is a general rule of external human action enforced by a sovereign political authority

8. Hobbes & Austin defined law “ as the commands of him or them that have coercive power ,” According to Austin, “A law is a rule of conduct imposed and enforced by the sovereign .” “ Law is a command O f Sovereign Backed by Sanction Ihering observes, “ A legal rule without coercion is a fire which does not burn, a light which does not shine .”

9. Salmond’s definition “ Law is the body of principles recognized and applied by the State in the administration of Justice .” Austin says, “A law is a command which obliges a person or persons to a course of conduct .”

10. LAW in The Eyes of Ancient Philosophers To Demosthenes , “ Every law is a gift of God and decision of sages . The common constitution of the State according to the determination of which every man who lives in the State must order his life .” Ulpin defines law as “the art of science of what is equitable and good .” According to Green “Law is the system of right and obligations which the State enforces.”

11. Dr. Salmonds Classification of Law Dr.. Salmond , an English Jurist Classifies Law into Eight Main, Inter-related Categories. (1) Imperative law . “Imperative law means a precept or rule of action imposed upon men by some authority which enforces obedience to it. E.g.. Imperative law may be imposed and enforced by the state upon its subjects .

12. (2) Physical or Scientific Law . -“Physical laws or the laws of science are expressions of the uniformities of nature, general principles expressing the regularity and harmony observable in the activities and operations of the univers e,”

13. 3 Natural or Moral law .-“By natural or moral law is meant the principles of natural right and wrong- the principles of natural justice (4) Conventional Law .- It consists of rules agreed to by persons for the regulation of their conduct towards each other. The rules of voluntary organizations such as clubs etc.

14. (5) Customary law .- According to Salmond by customary law is meant “any rule of action which is actually observed by men – Any rule which is the expression of some actual uniformity of voluntary action.” Laws of dress and etiquette are of this nature

15. Conditions (1) Reasonable, and (2) Unambiguous usage (3) Observed peacefully, (4) Observed continuously, (5) Observed since immemorial antiquity (6) Observed as of right (7) Observed in conformity with statute law Acquires the force of custom and is one of the sources of law.

16. (6) Practical or Technical law .- It consists of rules for the attainment of some practical end. Laws of health, style, architecture, music, art of business belong to this class.

17. (7) International Law. - It consists of principles which are in force between all independent nations. According to Oppenheim “Law of Nations or International law is the name for the body of customary and conventional rules which are considered legally binding by civilized states in their intercourse with each other”.

18. (8) Civil Law .- Salmond defines it as “ The law of the State or of the land , The law of the lawyers and of the courts.’ He further says, “This is law in the strictest and original sense of the term, all other applications of the term being derived from this by analogical extension.”

19. Further Classification of LAW Martial Law and Military Law. Martial Law . By martial law is meant the law administered by the courts maintained by military authorities. The term is used in two different senses:- ( i ) Law administered by army in occupation of alien lands which have fallen under its control during continuance of war.   (ii) Law applicable during abnormal periods such as riots, rebellions etc. when normal civil law is suspended and the government of a country is carried on by military tribunals.  

20. Military Law. Law applicable to defense forces (Army, Navy & Air Force) themselves during peace as well as war for maintaining discipline among them. This is also known as Military Law.

21. Constitutional Law and Administrative Law Constitutional Law . ‘Constitutional Law’ means “The rules which directly or indirectly affect the distribution of the sovereign power in the state . Hence it includes, all rules which define the members of the sovereign power , which regulate the relation of such members to each other, or which determine the mode in which the sovereign power,, exercise their authority .” .

22. It tells the structure and function of the various organs of the state , The Legislature, The Judiciary and The Executive, and their relation with each other

23. Administrative Law Administrative Law is only a branch of the constitutional Law It concerns itself with the Rights, Duties Functions of the executive authorities and the government officials with private citizens

24. Administrative Law Dr. Holland explains , “The various organs of the sovereign power are described by constitutional law as at rest the branch of law which describe these organs in motion is called Administrative Law.”

25. General Law and Special Law General Law. General Law is applicable to al persons and things in a country and has general applications , The courts take judicial notice of the general Law

26. Special Law. The special law applies only in certain special circumstances. The existence of the special circumstances justifying the applicability of special law has to be pleaded

27. Kinds of Special Law Dr. Salmond mentions six important forms of special law: ( i ) Local Law -Law obtaining only in certain parts of the State such as local customs which have acquired the force of law (ii) Martial Law (iii) Foreign Law also known as conflict of Laws and Private International law

28. Kinds of Special Law Cont… (iv ) Prize Law –for determining legality of capture of ships and cargoes during war by Prize Courts (v) Conventional Law -Law based on agreements, treaties and conventions; (vi) Autonomic Law -Laws of autonomous bodies for the government of its members.

29. Substantive Law & Procedural Law Substantive Law. Substantive Law is one which lays down the purpose. Substantive law is concerned with the ends

30. Procedural Law. Law of Procedure, however, is that “branch of the law which governs the process of litigation” Procedural law lays down the means to attain those ends.

31. Civil Law Criminal Law Civil Law Civil Law deals with creation and enforcement of rights, The civil law tries to compensate the victim so as to put him in the same position as if the wrong had not been done at all.

32. Civil Law In case of civil law on both the sides parties are private individuals (Except where state department is doing civil business/litigation) Law of contracts, Law of Easement, and that of Transfer of Property are Kinds of civil law

33. Criminal Law The Criminal Law deals with offences and their punishment. criminal law punishes the wrongdoer . In case of criminal law one party is always State as the crime is considered an offence against the State. Penal code and criminal procedure codes along with other offence creating statues represents Criminal Law.

34. Purpose of law Justice is the purpose of law If rules of law are commands issued by the State to its subjects, are theprinciples of right and wrong so far as recognized and enforced by the State in the exercise of its essential function of administering justice Law is not right alone or might alone, but the perfect union of the two It is justice speaking to men by the voice of the State

35. Questions of Law The expression ‘question of law’ is used in three different senses. ( i ) A question as what the law on a point is e.g. what is the period of limitation for a suit on promissory note (ii) A question settled by a rule of law e.g. whether a child under seven years of age can have a criminal intention (iii) A question to be decided by the Judge himself and not by the jury, e.g., interpretation of a document

36. Questions of Fact All questions which are not questions of law are called questions of fact. Questions of fact are divided in two classes:- ( i ) Questions of judicial discretion.-These are such questions as to what is just and reasonable in the circumstances of a particular case e.g., the question of punishment for a particular criminal act (ii) Questions of fact ‘ Stricto Senso ’ :-There are matters that are to be proved to the court’s conviction by adequate evidence, e.g., A forcibly took his watch from the hands of the repairer who refused to par with it except on payment of his wages for the repair.

37. Presumption A presumption is a rule which treats an unknown fact as proved on proof or admission of certain other fact or facts. Presumption is not the same thing as “proof nor is it evidence. Proof is a ‘result.’ Evidence, admissions, presumption and other matters are the ‘causes’ of which proof is the ‘effect’. Presumptions are also not evidence, without there being any evidence with regard to a fact.

38. Classification Presumptions are of two kinds (1) Presumptions of fact, (2) Presumptions of law. Presumptions of fact . Presumption of fact are inferences which the mind naturally and logically draws from given facts without the help of legal directions. For example from the fact that a telegraphic message is delivered to A purporting to have come from B , the Court may presume that B delivered to the telegraph office at his end such a message for transmission to A .

39. Presumptions of Law Presumption of law are inference which the law requires to be drawn as to the existence or non-existence of certain fact form the proved existence or non-existence of certain other facts. They need not necessarily be logical or reasonable, but they have to be drawn because the law so directs, arbitrarily. They are, also called ‘artificial presumptions Presumptions of Law are again sub-divided into two kinds ( i ) rebutabel , and (ii) irrebutable

40. Presumptions of Law Rebuttable Presumption of Law. The law may allow evidence to be led to disprove the inference. Irrebuttable presumptions of law. These are those presumptions which the law directs shall be taken as correct, without any proof being allowed to disprove them.

41. Functions of the courts of law Salmond divides the functions of court of justice in two classes: ( i ) Primary Functions (ii) Secondary Functions Primary functions of courts.- Courts may be defined as the institutions or tribunals though which the State administers public justice to its citizens Courts, presided by judges who are commissioned to administer the law without fear or favor, affection or ill-will, is an essential condition of administration of justice

42. Secondary functions The secondary functions are classified into four kinds:-   Petitions of rights. - The function of adjudicating upon claims made by subjects, against the State itself.   Declarations of rights.- In declaratory suits where the litigant claims the assistance of courts, not because his rights have been involved, but because they are uncertain.   Administration.- The management and distribution of the property of insolvents, liquidated companies and so forth.   Title of righ . - e.g., decrees of divorce and fore closure and orders of discharge in bankruptcy.

43. SOURCES OF LAW The term ‘Sources of Law’ has been used to connote the authority from which the Law derives its force or validity. In this sense sources of Law are the Sovereign or the State. The term has been used to signify the matter of which the Law is composed, e.g., the statute law, case law, customary law, books of jurists etc . The term has also been used to denote the sources of law, e.g., the will of the people, reason or sentiments. Source of Law has also been used to mean the origin, beginning or the spring giving rise to the stream of the rules of Law.

44. Salmond’s Classification ofSources of Law Salmond classify sources of law into : The formal sources, and The material sources of law.   Formal sources.- The source of the form of law, i.e., the source of its authority, force, or validity or the sovereign power. Thus the ‘formal source’ of all laws is sovereign power or the state

45. Sources of Law Formal Sources Material Sources Legal Sources Historical Sources Legislation precedent Custom Convention

46. Material source.- The material sources are those from which we derive the matter of laws. They are sources from which we gather information as to what the rule of law on the point is . Material sources are of two kinds ( i ) Legal, and (ii) Historical.

47. Legal sources.- Legal sources are those which are recognized as such by the law itself . They are authoritative. The courts recognize them as authority. A legal source may be defined as “any fact which determines the judicial recognition and acceptance of any rule as having the force of law.

48. Historical Sources Historical Sources . – Material sources which are not covered under legal sources are called historical sources. They are unauthoritative and the courts are not bound to accept their expressions as binding rules of law

49. Salmond’s Classification of Legal Sources Salmond has divided legal sources into four following classes:-   Enacted law having its source in “Legislation”. Case law, having its source in “Precedent”, and Customary law, having its source in Coustom , and Conventional law, having its source in “Agreement”.  

50. LEGISLATION Legislation is that source of law, which consists in the declarations of legal rules by a competent authority The formal utterance of the legislative organs of that society According to Salmond , legislation is used in three senses-   for all forms of law making, for all expressions of the will of the legislature for the creation of law by way of authoritative declaration

51. Kinds of Legislation Legislation is of two kinds : (1) Supreme (2) Subordinate Supreme Legislation is the expression of the legislative will of a supreme authority in a State. It is supreme because no authority can annul, modify or control it . It proceeds from the sovereign or supreme legislative power in the State and which is, therefore, incapable of being abrogated by any other legislative authority

52. Subordinate Legislation Subordinate Legislation is that which proceeds from any authority other than the sovereign legislative power, and is, therefore, dependent for its existence or validity on some superior or supreme legislative authority. It comes from a subordinate legislature or any other authority and is subject to the repealing or sanctioning control of a superior legislation.

53. Main Kinds of Subordinate Legislation Colonial Legislation.-It means legislation by the Legislatures of the colonies or other dependencies.   Executive Legislation.-These are legislations by the Executive.   Judicial Legislation.-These are legislations by the Judicature. Autonomous Legislation.-These are legislations by autonomous bodies like Municipal councils, Universities, Companies.   Municipal Legislation.-These are legislations of local bodies such as Municipality or corporations .

54. Interpretation of enacted Law The process by which one tries to ascertain the meaning of the legislature through the wording of the enactment is technically called “interpretation”. The process by which the courts seek to ascertain the meaning of the legislation It is not possible for the citizens or the Judges to approach the Legislature to know what it meant by a particular Statute. The ‘ litera scripta ’ of the enactment is the sole medium through which the community can learn the commands of the legislature

55. Kinds of interpretation Interpretation is of two kinds-Grammatical and Logical. Grammatical Method.- ‘Grammatical ’ interpretation confines itself to the ‘ litera legis ,’ i.e., to the letter of the enactment or the verbal expression of the Statute . It is also called literal interpretation The general principles is that the interpretation must be literal or strict, unless there is some adequate reason to the contrary. The judges must decide upon the exact meaning of what the Legislature has actually said

56. Logical Method Where the ‘grammatical method of interpretation’ fails to make the meaning of the Statute clear the Logical Method comes to the aid of the Court The true intention of the Legislature will have to be ascertained by going behind the letter of the law Logical method of interpretation is a adhered to by the Judges to meet the defects in the ‘ litera legis ’

57. D efects in the ‘ litera legis ’ The logical defects are there in number, namely- Ambiguity-A Statute instead of meaning one thing may mean two or more different things. Inconsistency-A law, instead of having more meanings than one, may have none at all, the different parts of it being repugnant so as to destroy each other’s significance.   Incompleteness-Where there are two alternate cases and the law has made provision for one of them and remains silent as to the other

58. Two subsidiary methods The Logical interpretation includes the subsidiary methods also. They are- The Historical, and (b) the Sociological. The Historical Method.-When the language of the Statute is ambiguous, doubtful and defective and the court is not able to ascertain the will of the legislature by the literal interpretation, the court may refer to and consider the circumstances, the historical facts attending the original enactment

59. Golden Rule of Interpretation Sociological Interpretation or Golden rule In ascertaining the mind of the Legislature the Judge has often to go behind the letter of the enactment and find out the social needs and purposes of the Statute It is considered golden principle of interpretation that laws are always made for the welfare of the people/society, which meaning ensure maximum welfare those should be applied.

60. PRECEDENT Precedent.- Precedent, in common parlance means anything said or done which furnishes a rule for subsequent conduct. In English Jurisprudence. Judicial decisions are invariably followed in subsequent like cases. So they are referred to as precedents in law. Precedents are judicial decisions followed in subsequent cases.

61. Precedents Original and declaratory.- According to the nature of precedents, we can classify them into two original and declaratory . Original precedents are those which creates or establish original or new rules of law. Declaratory precedents are those which merely reiterate and apply an already existing rule of law

62. Precedents Authoritative and Persuasive.- Precedents are further divisible into two classes, which may be distinguished as ‘authoritative’ and ‘persuasive ’.   An authoritative precedent is one which Judges must follow whether they approve of it or not . A persuasive precedent is one which the Judges are under no obligation to follow, but which they will take into ‘ consideration and to which they attach such weight as it seems to them to deserve

63. Ratio Decidendi & Obiter Dicta Ratio Decidetni The legal principle formulated for, and actually applied in, deciding the problem in the case is called ‘Ratio decidendi ’. It is the legal principle which forms the basis of adjudication of the points in issue.   If a question comes before the Judge which is not covered by any law he will have to decide it upon principle which he has to formulate for the occasion and deiced the case applying that rule to the facts of the case

64. Obiter Dicta Obiter dicta .- It means ‘things said by the way’. It is the statement of law which is not strictly relevant to the facts of the case and goes beyond the requirements of the points in issue . Obiter dicta as little legal authority at best they amount only to persuasive precedents.

65. CUSTOM CUSTOM The simplest defention of custom is that it is the uniformity of conduct of all persons under like circumstances Custom as a source of law comprises legal rules which have neither been promulgated by legislation nor formulate by professionally trained judges, but arises from popular opinion and is sanctioned by long usage

66. Custom Custom means the habitual course of action of the majority of the persons concerned.   “ Custom is the embodiment of those principles which have commanded themselves to the national conscience as principles of justice and public utility”. ( Salmond ).   Coke describes custom as “one of the main triangles of the law of England”.

67. Requisites of Valid C ustoms Requisites of valid customs.- In order that a custom may be valid and operative as a source of law, it must conform to certain requirements laid down by law 1. Reasonableness 2. Conformity with Statue law 3. Observance as of right 4. Immemorial antiquity

68. Requisites of Valid Customs 5. Certainty 6. Continuance 7. Not opposed to morality and public policy

69. EQUITY Equity as a branch of any legal system means the principles or rules emerging from the administration of justice through a power and duty vested in the judges in those cases which are not adequately covered or adequately provided for by the existing law of the land. Equity’ stands to correct and supplement the law by making it more adoptable to the needs of the changing society It begins and works in the absence of any specific rule of law .

70. Equity under Pakistani Legal system Equity under Pakistani Legal system.- In Pakistan, there was never any separate court for administering Equity. The greater part of Pakistani Law has been codified. But in the absence of specific law or usage in any matter, the court does act according to the principles of ‘Equity, Justice and good conscience’. Every Court administers both law and equity. The two jurisdictions are not distinctive but all courts administer both.

71. STATE AND SOVEREIGNTY State The term ‘State’ has variously been defined by various writer. It is the chief artificial person having rights and duties Salmond defines State as a society of men established for the maintenance of order and justice within a determined territory by way of force.

72. Salmond observes that the State is a body of men dwelling upon a determined territory, of which the stronger impose their wills on the weaker, which power is called Sovereignty To Woodrow Wilson, “State is a people organized for law within a definite territory .” The individual person or the body of individual persons which bears the supreme powers in an independent political society

73. Salient features .- There are four salient features of a State: Population.- The first essential of State is its people, without whom a State cannot be visualized A population “sufficient to provide both a governing body and a number of persons to be governed, and of course sufficient to support a State organization.”

74. Territory .- People alone without territory cannot form a State. So nomads without a definite territory may not be said to have a State. The size of the territory, like that of population is however immaterial. A State without a fixed territory a nomadic tribe or example is perfectly possible?

75. Organization. – Population however huge and territory however large amount cannot amount to a State unless there is some organization to express the will of its people and to ensure that such a will is enforced There must be legislature to make laws, judiciary to interpret, and executive to enforce them

76. Sovereignty .- Sovereignty is the chief attribute of statehood. Sovereignty means supreme authority . The human superior in the State must have the habitual obedience of the bulk of the people, and he must not be in the habit of rendering obedience to another determinate superior

77. State and Law State creates Law .- According to Austin, law is the command of sovereign. He says, “Every positive law obtaining in any community is a creature of the sovereign or state . Dr. Salmond, “It is in and through the State alone that law exists

78. Functions of the State . Aristotle says that the State is natural and necessary.” He further observes “The state exists that men may lead a good life.” The State originates for the sake of life and exists for the sake of best life. Dr. Holland, “ A state is an association of human beings generally occupying a territory for the attainment of internal order and external security.

79. T he functions of a State - primary and secondary . Primary functions .- Primary functions also called the constituent functions are the basic fundamental functions. According to Salmond, they are war and administration of justice i.e., external security and internal peace According to Herbert Spencer, “the two functions of a State are to protect against external enemies and to suppress internal anarchy.”

80. Salmond, the fundamental purpose and end of political society has been defence against external enemies, and the maintenance of peaceable and ordinary relations within the community itself Hobbes, “Leviathan carries two swords-the sword, of war and that of justice .” Each function consists in the exercise of the organized physical force of the community and in each case this force is made use of to the same end

81. Use of Force – Judicial, Extra-judicial The distinction between these two functions of the State lies in the nature of use of force in the administration of justice the use of force is judicial in war, the use of force is extra-judicial

82. Secondary functions Secondary functions are meant for advancing the general interests of the society. These are optional and not very rigid depending upon the State of advancement of the society Secondary functions may be further divided into two classes

83. (1) To the first category belong such functions as are necessary for the fulfillment of primary functions. Legislation and taxation may be mentioned as examples of such functions. In the present complex state of life, administration of justice is, at any rate, not an easy task without legislation. So also for defence huge amounts are required so need for taxation. Moreover, money is needed even for administering as justice it is not always possible to sell justice; it has to be given free

84. (ii) In addition to legislation and taxation, the modern States have undertaken several functions. These are for the convenience of the society . In fact, the functions, of the State have increased manifold in volume and variety. The modern States are no more police States . According to modern Jurists who agree with the Aristotelian doctrine that, “the state came into existence to make life possible and exists to make it good.” The State is responsible for the well being of all persons under it Such a beneficial conception of a State is described as a “Social service state .” or welfare state

85. SOVEREIGNTY Conception of sovereignty Literal Meanings. The word ‘sovereign’ has its roots in the French word ‘ souveratin ” which has been derived from the Latin words ‘ superanus ’ meaning supreme authority. Hence by sovereignty is meant supremacy The term “Sovereignty” was introduced into political science by Jean Bodin , the renowned French philosopher in 1577

86. sovereignty Bodin defined sovereignty as “the absolute and perpetual power within a State It is not subject to any law Hobbes went even beyond Bodin maintaining that a Sovereign was not bound by anything and had a right over every thing even over religion In the 20th century the rapid growth of International Law has made the concept of sovereignty more complicated and controversial

87. sovereignty Legal sovereignty is composed of (2) nominal, and (3) political sovereignty. Nominal sovereignty vests in the titular head of the State viz , monarch Political sovereignty rests with the electorate. Dicey clearly observes that behind the legal sovereign there lies another (political) sovereign to whom the former must bow.

88. sovereignty We are concerned only with the legal sovereignty, i.e , supreme law making power. This legal sovereignty according to Austin has two marks: (1) Positive and (2) Negative. For the positive mark the (common) human superior (sovereign) should have the habitual obedience of the bulk of the people. That is all persons within its borders are bound to obey it. This is also called internal sovereignty For the Negative mark, the sovereign must not be in the habit of rendering obedience to another determinate superior, i.e. its relations to other communities

89. Conclusion The authority to command obedience from the person within its borders is internal aspect of sovereignty, while its supremacy in not rendering obedience to other communities is external aspect of sovereignty The sovereign authority is source of all laws. The power of this sovereign authority is legally unlimited