Meaning and Nature of Law

Chapter

Meaning and Nature of Law

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Meaning and Nature of Law

Meaning and nature of law

The term law is used in many senses: we may speak of the law of physics, mathematics, science, or the laws of the football or health. we use the term law in a special and strict sense. In this sense, the term law is defined in Oxford English Dictionary as the body of rules whether proceeding from formal enactment or from custom, which a particular State or community recognises as binding on its subjects or members. Important Elements or Characteristics of Law i. Law is a body of rules ii. Law is for the guidance or conduct of persons both human and artificial iii. Law is imposed iv. Law is enforced by the executive v. The state vi. Content of law vii. Two basic ideas involved in law viii. Law is made to serve some purpose which may be social, economic or political Copyright 2001, S.S. Gulshan Cont.
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Meaning and Nature of Law

Law and Morality. It was stated earlier that one of the characteristics of law is that it is for the guidance or conduct of persons. This is so in the case of morality also as there is a close relationship between the two. Ignorance of Law is No Excuse. This is the literal translation of maxim ignorantia juris non excusat. Every member of the society is expected that his actions conform to a set pattern or standard as reflected in legal rules. Tthe maxim ignorantia juris non excusat places a burden on every member of the society with the knowledge of law. In other words, Ignorance of law is not a good excuse.
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Moral Rules Example Respect the elderly people

Moral and Legal Rules Examples Murder Stealing Fraud

Legal Rules Examples Parking offences Exceeding Speed limits

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Meaning and Nature of Law

Classification of Law
Public Law and Private Law. The public law is that branch of law which
determines and regulates the organisation and functioning of states (countries). Also it regulates the relation of the state (country) with its subjects. Public law includes, (i) Constitutional Law, (ii) Administrative Law, (iii) Criminal Law, (iv) Municipal Law, (v) International Law. Criminal law is enforced on behalf of or in the name of the State. private law is that branch of the law which regulates those of the relations of the

citizens with one another as are not of public importance.

Private law includes, (i) Law of contract, (ii) Law of tort, (iii) Law of property, (iv) Law of succession, (v) Family laws.
Cont.
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Meaning and Nature of Law

Criminal Law and Civil Law. Criminal law is a part of public law, as the society or the people are directly involved. Generally, it is the police, as public servants, whose duty is the (i) prevention and detection of crime and (ii) prosecution of offences before the court of law. As the maintenance of law and order in a society is the primary function of the state it is inevitable that prosecution is the exclusive right of the state. Civil Law is primarily concerned with the rights and duties of individuals towards each other. Some examples of civil law are: Law of contract, law of tort, law of property, succession and family law. The Indian Legal System handles cases in two separate ways: civil and criminal.

Cont.
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Meaning and Nature of Law

Substantive Law and Procedural Law. Substantive law defines, in regard to a specific subject, the legal rights, obligations and relationships of people with

other people or as between them and the state. Procedural law deals with the methods and means by which substantive law is made and administered.
International Law and Municipal Law. International Law is a set of generally accepted rules and regulations controlling the conduct of nations, international

organisations and individuals. Municipal Law deals with the relationship between the individuals and their organisations within a state.
Public International Law and Private International Law. Public international law (or the law of nations) is a body of customary or conventional rules.

Private international law (or the conflict of laws) may be defined as the rules voluntarily chosen by a given state for the decision of cases which have a foreign element or complexion.
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Meaning and Nature of Law

Sources of Indian Law

Primary and Secondary Sources. The primary sources of Indian law are : (a) customs, (b) judicial precedents, (stare decisis) (c) statutes and (d) personal law. The secondary sources of Indian law are: (a) English Law, (common law, equity, law merchant, statute law), (b) Justice, equity and good conscience. 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. 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. Meaning of Ratio Decidendi. The phrase ratio decidendi refers to the principle Cont. underlying or the ground or basis of a decision given by a court. Copyright 2001, S.S. Gulshan
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Meaning and Nature of Law

Meaning of Obiter Dicta. The phrase obiter dicta refers to a diction of a judge on a point not directly relevant to the case before him and therefore, need not be followed by courts in other like cases. The literal meaning of the phrase obiter dicta is said by the way.

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.
Personal Law. The courts are required to apply the personal law of the parties. Thus in certain matters, we follow the personal laws of Hindus, Mohammedans and Christians. Secondary Sources of Indian Law. The secondary sources of Indian Law are English Law and Justice, Equity and Good Conscience.
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Meaning and Nature of Law

Mercantile (Or Business) Law

Meaning and Nature. Business Law may be defined as that branch of law which prescribes a set of rules for the governance of certain transactions and relations between: (i) business persons themselves, (ii) business persons and their customers, dealers, suppliers, etc., and (iii) business persons and the state. Meaning and Nature of Law Negotiable instruments, Patents, trademarks and copyrights, Actionable claims, factoring and forfeiting, Import and export regulation, Regulation of stock exchange and financial securities, Regulation and development of industries, Economic offences, Regulation of foreign contributions, foreign capital, Cont. Excise, import and export duties, tax on income, wealth, etc. Copyright 2001, S.S. Gulshan
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Meaning and Nature of Law

Objectives. From the description of the nature and meaning of business law, it can be inferred that the subject has many objectives to achieve. Sources of Indian Business Law. The sources of Indian business law are: i. Statutes

ii.

Common law

iii. Custom and usages iv. Precedents v. Justice, equity and good conscience

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Meaning and Nature of Law

Some Basic Legal Concepts

Concept of Legal Entity. Law applies only to persons. Thus, persons are the subjects of law. A person is an entity which is clothed with rights and duties. There are two kinds of persons. A person may be a natural or an artificial person. On the other hand, an artificial person is a metaphysical body, intangible and invisible.
Concept of Legal Rights. Some of these are: (i) A right is always vested in a person but not in an inanimate being or animal or even a dead person. (ii) A right is generally correlative of a duty in relation to the fulfillment of a right. (iii) The

right must relate to a subject matter, namely the objects. (iv) The nature of a right may be to get something done from another or to refrain him to do something. (v) Every right can be traced to a source which may be a contract, a custom, a natural law, etc.
Cont.
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Meaning and Nature of Law

Different types of rights. Rights may be (i) Personal or proprietary; (ii) in personam or in rem. Concept of Property. There could be no such thing as business law, or even business, if there were no such thing as property. Thus the concept of property is very important in business law. Different types of property. Property may be classified as (i) Tangible or intangible; (ii) Real or personal; and (iii) Public or private. Concept of Ownership i. Ownership is an intimate relationship between a person and object. ii. Law does not permit any vacuum in ownership. iii. There are certain rights which are generally included in ownership. iv. Ownership cannot exist without law. v. The ownership of property is exclusive. Concept of Possession. It is said that law attaches great importance to mere possession even without ownership. Even a wrongful possession is protected.
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Meaning and Nature of Law

Essentials of Law
There are certain essentials which must be present in law in order to make it
effective. These are: (i) Predictability, (ii) Flexibility and (iii) Reasonable application and coverage. Law must be such that one is enabled to predict with some accuracy the legal consequences of an action. For example, business people enter into contracts on the premise that if the other party fails to keep its promise, they would have certain remedies under the law.

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