“Introduction to LAW”NOTES

Course Code: 3204

BY: Adv. Fazl-e-Raziq Sab
FOR BS English Semester 2

Compiled by:
Asad Mahmood
Roll NO. 05
(BS English Semester 2nd)
Post Graduate College Mirpur AJK
April,2018

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Definitions of Law:
According to Thurman Arnold:
"Obviously Law can never be difined.With Equal obviousness.However,It
should be said that the adherents of the legal insititutation most never give up
the struggle to define law because it is an essential part of that it is rational
and capable of define.Hence,the verbal expenditure necessary in the key of the
ideal of the law is closed and never end. The legal scientist is the climate of
opinion in which they find himself improve the essentially in irrational war is
constantly approaching is rationality."

Lord Lloyd:
"Since much juristic ink has floured in an endure to provide a universally
acceptable definition of law, But with little sign of attaining that objective.

Morris Rishts:
To a zoologist a horse suggest that genus mammalian, to a traveller a
means of transportation, to average man sports of kings, to a certain nation an
article of food. Likewise law has been variously defined by various individuals
from different point of views and hence, they couldn’t be and isn’t any
unanimity of opinion regarding real nature of law and its definitions.

Various schools of law defined law from different angle. Some have
defined it on the basis of nature some concentrate mainly on its sources; some
defined it on basis/terms of its society.

Hegal:
The abstract expression of the general will existing in and for itself.

Austin:
Law is the aggregate of rules set by man as politically superior or
sovereign to man as politically subject.

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Sir John Salmond:
Law may be defines as the body of principles recognized and
applied by the state in the administration of justice,
Meaning of Law
The word law has two fold meanings in one aspect:
 It signifies a rule of action of nature.
 And other rules of human conduct and behaviour set by man called
jurisprudence. The word jurisprudence is derived from Latin word
“Jurisprudentia” Literally means legal wisdom or knowledge of law.

According to Blackstone:
Law in its most general and comprehensive sense signifies
a rule of action, whether animate or inanimate, rational or irrational. Thus we
say the laws of motion gravitation, of optics or mechanics as well as the law of
nature. Such laws are set by God to man and are universal and unchangeable.
Jurisprudence however is concerned with manmade laws, laws set by men to
men. Jurisprudence is also known as Philosophy of law.
Scope of law
There is no unanimity of opinion regarding the scope of law. Different
authorities attribute different meanings and varying premises to law and that
cause difference of opinions with regard to the exact meaning of the field
covered by law. Law has been so define as to cover moral and religious
precepts also that have created confusion. It goes to the credit of Austin that
he distinguished law from morality and theology and restricted the term to the
body of rules set and enforced by the sovereign and supreme law making
authority within Realm. The scope of law was limited to the study of the
concepts of ethics and theology fall outside the province of law.
There is tendency to widen the scope of law and at present we include what
was previously considered to beyond the province of law. The present view is
that the scope of law cannot be circumscribed. It includes all concepts of
human order and human conduct in state and society. Anything that concerns
order in the state and society falls under the domain of law.
Law I both an intellectual and idealistic abstraction us as well as behaviouristic
study of man in society. It includes Political, Social, Economical and cultural
ideas. It covers the study of man in relation to state and society. It also covers
the study of state in relation to other state and citizen of other states.

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 State and Law
The relation between law and state is very close. The state manifests or
expresses itself through law and law has its importance because it has the
sanction of the state. There are three theories with regard to relationship
between state and law.
1. The first theory is that the state is superior to law and creator of law.
According to the supporters of this theory it is in and through the state alone
that law exits.
 They say law is a command of sovereign. Only the sovereign has the
power to make law and he himself is not bound by it. The subjects
cannot have any right against the sovereign. Rules which have not been
made by the state or not law. Law is merely an instrument for the
prosecution and fulfilment of state policy and is not a check on it.
Certain rights have been granted to citizens in democratic countries
those are considered to be binding on the state. However, those rights
can be amended modified by the state.
2. The second theory is that law is more important than the state. The
state is bounded by it. Law is interior to the state.
 The supporters of this theory say that the rules of law are clearly
independent of the state. The source of law is community. The sovereign
is not the source of law. It is the community that expresses itself through
the organs of the Government. Although. The state creates law, it is
bound by it. It submits the law voluntarily. Some of them supporters of
this theory describe it as the theory of auto-limitation.
3. The third theory is that the state and law are one and same thing. They
merely indicate legal order.
According to the supporters of this theory:
 The terms state and law are the same thing. These two terms are used
because we look from two different angles when we think in terms of
rules, we call it law and when we think in terms of the institutions
created by those rules we call it state.
The different theories about the relationship of law and state have their own
merits. The prevalent view is that the state is not only the maker of law but
also superior to it. However, the state bounded by some fundamental law is
not impossibility. It is possible that in future law may be considered more
fundamental than the state.

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 Rights and law
Many definitions of right have been given by various writers and reference
may be made to some of them:

Gray:
Power which a man has to make a person or persons do or refrain from
doing a certain act or certain acts, so far as the power arises from society,
imposing a legal duty upon a person or persons.

Salmond:
A right is an interest recognized and protected by a rule of right. It is any
interest, respect for which is a duty and the disregard of which is a wrong.

Austin:
A party has a right when another or others are bound by the law to do or
for beat towards or in respect of him.
Law is general command of the sovereign and duty is the liability to incur
the evil o fits sanction in case of non- complies with the command. A person in
whose favour the command arises is said to be invested with the right.
Theories of Rights
There are some theories with regard to the nature of rights.

1. Will Theory:

Austin, Holland, Pollock and others are the exponents of will

theory. According to this theory a right is an inherent attribute of the human
will. The subject matter of the right is derived from the exercise of a human
will. The will theory was inspired and extended by the Doctrine of natural
rights. It is the function of law to confer certain powers is allowing certain
freedom to individuals in the form of legal rights.

2. Interest Theory of Rights:

Ihering is the greatest advocate/supporter of this
theory and many English and American writers have followed him.

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According to Ihering doesn’t put stress on the element of will in a legal right.
On the other hand he puts emphasizes on the materials element of interest.
The basis of right is not will but interest.

3. Theory of Social Solidarity:

According to Dugit will is not on essential element in
law or right. The real basis of law is social solidarity. The emphasis on will is
anti-social as it shows that man is in conflict with his fellow beings.

4. Theory of Totalitarians:
According to the supporters of this theory the whole
concept of legal right is wrong. The only real thing is the state and not much
importance should be attached to the individuals. The state is omnipotent and
all embracing and individual has no existence in depended of the state. All
rights belong to the state and the individuals as such can claim the thing.

Essentials of a legal rights

Every legal right have five essential elements:

1. The first essential element is that there must be a person who is the owner
of the right. He is the subject of the legal right.

2. A legal right accrues against on other person or persons who are under a
corresponding duty to respect that right such a person is called the person of
incidence or the subject of the duty.
If A has a particular right against B, A is a person of Inherence and B is the
subject of incidence.

3. Another essential element of a legal right is its content or subsistence. It

may be an act which the subject of incidence is bound to do or it may be
forbearance on his part.

4. Another essential element is the object of the right. This is the thing over
which the right is exercised. This may also be called the subject matter of the
right.(Purpose behind of making law.)

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5. Another essential element is the title to the right. Facts most show how the
right is vested in tge owner of the right. That may be purchase, gift, inheritance,
assignment, prescription.
Parties to the legal Right:
There are three parties to the legal right.
 The first [arty is the state or the sovereign which confers legal rights on
certain individual and which imposes corresponding duties on others.
 The second party is the person or persons on whom the right is
conferred.
 The third party is the person or persons on whom the duty is imposed or
to whom the law is directed.