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FEATURES OF LAW

1. Relevant
2. Equitable
3. Generally acceptable by those effected
4. Easily understood, both motive and
elements of offense
5. Penalty can be mitigated by magistrate
Features of a common law system include:
There is not always a written constitution or codified
laws;
Judicial decisions are binding decisions of the
highest court can generally only be overturned by
that same court or through legislation;
Extensive freedom of contract - few provisions are
implied into the contract by law (although provisions
seeking to protect private consumers may be
implied);
Generally, everything is permitted that is not
expressly prohibited by law.
A common law system is generally less prescriptive than
a civil law system. A government may therefore wish to
enshrine protections of its citizens in specific legislation
related to the infrastructure program being
contemplated. For example, it may wish to prohibit the
service provider from cutting off the water or electricity
supply of bad payers. Please go to Legislation and
Regulation sections for more information on this.
The civil law system is a codified system of law. It takes
its origins from Roman law. Features of a civil law
system include:
There is generally a written constitution based on
specific codes (e.g., civil code, codes covering
corporate law, administrative law, tax law and
constitutional law) enshrining basic rights and duties;
administrative law is however usually less codified
and administrative court judges tend to behave more
like common law judges;
Only legislative enactments are considered binding
for all. There is little scope for judge-made law in
civil, criminal and commercial courts, although in
practice judges tend to follow previous judicial
decisions; consitutional and administrative courts can
nullify laws and regulations and their decisions in
such cases are binding for all.
In some civil law systems, e.g., Germany, writings of
legal scholars have significant influence on the
courts;
Courts specific to the underlying codes there are
therefore usually separate constitutional court,
administrative court and civil court systems that
opine on consistency of legislation and administrative
acts with and interpret that specific code;
Less freedom of contract - many provisions are
implied into the contract by law and parties cannot
contract out of certain provisions.

A civil law system is generally more prescriptive than a


common law system. However, a government will still
need to consider whether specific legislation is required to
either limit the scope of a certain restriction to allow a
successful infrastructure project, or may require specific
legislation for a sector. Please go to Legislation and
Regulation and Organizing Government to think PPP
sections for more information on this.

The common law comes from decisions of higher courts on issues which are not governed by any
statutory or codified law.

The basis of the common law is a maxim shared by the law and equity courts of pre-Revolutionary War
England.

The maxim is: "For every wrong there must be a remedy".

Therefore, the very first common law claims were trespass de son tort, trespass quare clausem fregit,
trespass ab initio, accounting of profits, and so forth.

The problem was there arose a dichotomy in the common law. The magistrates that held regular court
usually only awarded money damages. But some things were not monetary in nature such as divorce
when it arose, the issue of orders preventing people from doing things or commanding them to do
things (injunctions), and dealing with frauds of all kinds.

The King often turned to the Catholic Church (prior to the reformation), which through the acts of
conscience did what is called "equity". In this manner, the penalty for failing to follow the ecclesiastic
court's orders meant ex-communication and possibly worse.
Eventually, the King developed a special office called the Court of Chancery, where the Court would do
equity and set aside fraud or compel others to do acts to do equity.

This process of having a law side and an equity side continued until modern times, first in England and
then the United States in the 20th Century where courts became courts of general jurisdiction.

Today there are a number of common law claims which may be a mix of law and equity.

The whole point is that where there was no specific law, equity would base its rulings on what was right,
to avoid people back-dooring the intent of the law. This necessarily meant devising specific claims to be
made in courts to obtain civil relief.

On the flip side, courts have developed remedies in criminal proceedings such as confessions obtained
through torture, fraud, or violations of the 4th Amendment and so forth. This was done to punish the
police and hamstring prosecutions where the police or prosecution acted improperly or overreached.

Courts are limited though by other principles and constitutions so that certain kinds of relief may not be
awarded even though it might seem "fair".

The advent of booking more statutes and codes did not change the common law, but many statutes
tried to adopt or abrogate certain common law principles or modify them.
Characteristics of law
1. Law is a body of rules. These rules prescribe
the conduct, standard or pattern to which
actions of the persons in the state are required
to conform. However, all rules of conduct do
not become law in the strict sense. We resort to
various kinds of rules to guide our lives. For
example, our conduct may be guided by a rule
such as do not be arrogant or do not be
disrespectful to elders or women. These are
ethical or moral rules by which our daily lives
are guided. If we do not follow them, we may
lose our friends and their respect, but no legal
action can be taken against
us.
2. Law is for the guidance or conduct of
persons both human and artificial. The law
is not made just for the sake of making it. The
rules embodied in the law are made, so as to
ensure that actions of the persons in the
society conform to some predetermined
standard or pattern. This is necessary so as to
ensure continuance of the society. No doubt, if
citizens are self-enlightened or self-controlled,
disputes may be minimized, but will not be
eliminated. Rules are, therefore, drawn up to
ensure that members of the society may live
and work together in an orderly manner.
Therefore, if the rules embodied in the law are
broken, compulsion is used to enforce
obedience, and certain consequences ensue.
3. Law is imposed. Law is imposed on the
members to bring about an order in the group,
enabling it to continue and prosper. It is not
something which may or may not be obeyed at
the sweet will of the members of society. If you
cannot impose a rule it is better not to have it.
Thus, law is made obligatory on the members
of the society.
4. Law is enforced by the executive. Obviously,
unless a law is enforced it ceases to be a law
and those persons subject to it will regard it as
dead. For example, if A steals Bs bicycle, he
may be prosecuted by a court and may be
punished. Also, the court may order the
restitution of the bicycle to its rightful owner
i.e., B. If the government passes many laws but
does not attempt to enforce them, the citizens
lose their respect for government and law, and
society is greatly weakened. The force used is
known as sanction which the state administers
to secure obedience to its laws.
5. The state. A state is a territorial division,
with people therein subject to a uniform system
of law administered by some authority of the
state. Thus, law presupposes a state.
6. Content of law. The law is a living thing and
changes throughout the course of history. Law
responds to public opinion and changes
accordingly. Law can never be static.
Therefore, amendments are made in different
laws from time to time. For example, the
Monopolistic and Restrictive Trade Practices
Act, 1969, has been subjected to many
amendments since its inception in 1969.
7. Two basic ideas involved in law. The two
basic ideas involved in any law are: (i) to
maintain some form of social order in a group
and (ii) to compel members of the group to be
within that order. These basic ideas underlie
formulation of any rules for the members of a

group. A group is created because first, there is


a social instinct in the people to live together
and secondly, it helps them in self-
preservation. Rules are made by the members
of the group, so that the group doesnt wither
away.

Sources of Indian Law


The main sources of modern Indian Law, as
administered by Indian courts, may be divided
into two broad categories: (i) Primary sources
and, (ii) Secondary sources.

Primary sources of Indian law


The primary sources of Indian law are: (a)
customs, (b) judicial precedents (stare decisis),
(c) statutes and (d) personal law.

Customary law
Customs have played an important role in
making the law and therefore is also known as
customary law. Customary Law, in the
words of Keeton, may be defined as those
rules of human action, established by usage
and regarded as legally binding by those to
whom the rules are applicable, which are
adopted by the courts and applied as sources of
law because they are generally followed by the
political society as a whole or by some part of
it. In simple words, it is the uniformity of
conduct of all persons under like
circumstances. It is a generally observed
course of conduct by people on a particular
matter. When a particular course of conduct is
followed again and again, it becomes a custom.

Judicial precedents are an important source of


law
Judicial precedents are another important
source of law. It is based on the principle that
a rule of law which has been settled by a series
of decisions generally should be binding on the
court and should be followed in similar cases.
These rules of law are known as judicial
precedents. However, only such decisions
which lay down some new rules or principles
are treated as judicial precedents. Thus, were
there is a settled rule of law, it is the duty of the
judges to follow the same; they cannot
substitute their opinions for the established
rule of law. This is known as the doctrine of
stare decision. The literal meaning of this
phrase is stand by the decision.

Statute an important source of law


The statutes or the statutory law or the
legislation is the main source of law. This law
is created by legislation such as Parliament. In
India, the Constitution empowers the
Parliament and state legislatures to
promulgate law for the guidance or conduct of
persons to whom the statute is, expressly or by
implication, made applicable. It is sometimes
called enacted law as it is brought into
existence by getting Acts passed by the
legislative body. It is called Statute Law
because it is the writ of the state and is in
written form (jus scriptum).

Personal law
Many times, a point of issue between the
parties to a dispute is not covered by any
statute or custom. In such cases, the courts are
required to apply the personal law of the
parties. Thus in certain matters, we follow the
personal laws of Hindus, Mohammedan and
Christians.
Secondary sources of Indian law
The secondary sources of Indian Law are
English Law and Justice, Equity and Good
Conscience.

English law
The chief sources of English Law are: (i) the
Common Law (ii) Equity, (iii) The law
Merchant and (iv) The Statute Law
1. Common law. This source consists of all
those unwritten legal doctrines embodying
customs and traditions developed over
centuries by the English courts. Thus, the
common law is found in the collected cases of
the various courts of law and is sometimes
known as case law.
2. Equity. The literal meaning of the term
equity is natural justice. The development
of equity as a source of law occurred due to
rigours and hardships of the Common Law.
Therefore, in its technical and narrower sense,
equity means a body of legal doctrines and
rules emanating from the administrations of
justice, developed to enlarge, supplement or
override a narrow rigid system of existing law
of the land. However, like the common law, the
equity is unwritten and is a supplement to
common law as a source of law.
3. Statute law. The Statute law consists of the
law passed by the Parliament and therefore, is
written law. The authority of parliament is
supreme but is subject to natural limitations
and those laid down by the Constitution. It can
pass any law it pleases and can override its
own previous Acts and the decisions of the
courts. Statute law, therefore, is superior to
and can override any rule of Common Law or
equity.
4. The law merchant or lex mercatoria. It is
another important source of law and is based
to a great extent on customs and usages
prevalent among merchants and traders of the
middle ages. Its evolution like that of equity
can be traced to unsuitability of Common Law
so far as the commercial transactions were
concerned. The Common Law was found to be
unsatisfactory in dealing with disputes between
merchants. The merchants, therefore,
developed certain rules based upon customs
and usages to govern their mercantile
transactions. These rules were known as Lex
Mercatoria or the Law Merchant.