Naturalist and positivist approach

Homes = bad mans point of view

Law is the body of principles recognized and applied by the state in
the administration of justice.
- Salmond
A law is a rule of conduct imposed and enforced by the sovereign. Austin

A cricketer may not declare out by a umpire exercising a power

conferred by cricketing rules. The umpire may have misinterpreted
one of these rules but, as those rules are not part of the law, the
cricketer cannot rush to a judge for an order that he be sent back to
the crease.
For example, rules within family. Breaking rules would attach
punishment, but it is not punishment as part of the legal system. The
law intervenes only in extreme cases in which the punishment
inflicted amounts to maltreatment of the child.

The HLA Hart Fuller debate

Eichmann insisted that he was only "following orders"the
sameNuremberg Defenseused by some of the Nazi war criminals
during the 19451946Nuremberg Trials.
The bad man and the good man in law
After the War a German woman was prosecuted for denouncing her
husband to the authorities in accordance with the anti-sedition laws
of 1934 & 1938. He had made derogatory remarks about Hitler, The
husband was prosecuted and convicted of slandering the Fuehrer,
which carried the death penalty. Although sentenced to death, the
husband was not executed but was sent as a soldier to the Eastern
front. He survived the war and on his return instituted proceedings

Civil law principles: (i) solution of each case is to be found in the provision of the
written law; (ii) precedents, however, authoritative, are not binding, and (iii) the
deciding court must demonstrate that its decision is based on provisions of the
written law and not merely on precedent.
Common law: Wider leeway for interpretation
interpretation of law for Judges; Binding
precedents; In common law jurisdiction, the judge may not declare non liquet.
liquet.
Saudi Arabia drinking/charging of interest punishment though it is
permitted in India.
Terra nullius or 'no man's land', is used in international law to describe territory
which has never been subject to the sovereignty of any state, or over which any
prior sovereign has expressly or implicitly relinquished sovereignty. Sovereignty
over territory which is terra nullius may be acquired through occupation.
The United Nations Convention on the Law of the Sea of 1982 the international

The Burden of Proof is on the Prosecution to establish that the

accused is guilty beyond a reasonable doubt.
Public law and Private law.
law
eg. Constitution, Administrative law, IPC etc
eg. Law of Contracts, Sale of Goods etc (one of the party should not
be the State)
Civil law and criminal law (and law of torts); Personal Law

Rules which regulates the structure of the principle organs of the

Government and their relationship to one another, and determines
their principal functions.
Longest constitution: 395 Articles (447), divided into 22 parts (26),
and 9 (12) schedules
Constitutional Supremacy
Established a Sovereign, Socialist, Secular, Democratic, Republic of
India
Parliamentary form of government.
Separation of Power - Independence of Judiciary

Union List
Defense of India; Atomic Energy; Foreign Affairs; Railways; Major
Ports; Banking; Currency; Foreign Loans; Insurance.
State List
Public health; Agriculture; Fisheries; Market fairs; Money lending;
Betting and gambling; Sanitation
Concurrent List
Insolvency; Trust and Trustees; Forests; Minor Ports; Price Control;
Factories; Electricity; Family Planning;

Legislative Procedure: First Stage: Introduction of a bill embodying the provisions of

the proposed law, accompanied by the statement of objects and reasons. Bill can
be introduced in either house, except money bill, which has to be introduced in the
Lok Sabha. Second Stage: When a Bill is passed by one house, it is sent to the
other house for consideration and passing. Third Stage: A bill that is finally passed
by both the houses goes with the signature of the speaker, to the President for
his / her assent. If the President gives his/ her assent, the bill becomes an Act and
is placed on the statute book. If the President does not give his / her assent, he /
she may send the bill back to parliament for reconsideration. If the bill is passed by
both the Houses again with or without amendments, it will be sent to the President
for a second time. At this stage, the President shall not withhold his/her assent.
Enactment of Laws
The Indian Parliament is competent to make laws on matters enumerated in the
Union List. State Legislatures are competent to make laws on matters enumerated
in the State List. While both the Union and the States have power to legislate on

Article 370: J&K enjoys special status. Has its own Constitution. Law
could be made in consultation with the Government of J&K. foreign
affairs, emergency provisions, freedom of trade, commerce and
intercourse etc., shall apply.

Article 20: Ex post facto law; double jeopardy; and Prohibition

against self-incrimination.
Article 21: Right to life and personal liberty - Right to live with
human dignity; right to livelihood; rightly to privacy; right to shelter;
right to speedy trial; right against handcuffing; environment rights;
Right to education (Article 21A).

Questions:
Discrimination in Government Jobs
IIM Cal discriminate A and B though both got equal grade
Private Company discrimination in employment

SC/HC is empowered to issue directions, orders or writs, including

writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari to enforce fundamental rights.
Locus Standi and Public Interest Litigation (PIL)
Habeas Corpus means, "Let us have the body." A person, when
arrested, can move the Court for the issue of Habeas Corpus.
Mandamus: Where any court, tribunal, authority, board, corporation
or any other individual charged with the performance of a public
duty fails to discharge that duty, mandamus lies to compel him to
discharge the duty or to perform the function as required by the

The DOCTRINE OF PRECEDENCE requires that an inferior

court always follows the decisions of a higher court. Thus,
once a judgment has been made in a particular case, that
decision will apply in any future cases which match the
particulars of the first. The effect of this doctrine is to ensure
consistent application of the law throughout all the courts in
the land. This allows the law to be continually revised and
reinterpreted in the light of current values and
experiences.

helping financial institutions recover their bad Debt quickly and

efficiently, the Government of India has constituted thirty three Debt
Recovery Tribunal and five Debt Recovery Appellate Tribunal across
the country.
Rules of Natural Justice: The substantial elements of natural
justice. Some such rules are:
No person can be a judge in his own cause.
Audi Alteram Pertem: No one should be condemned unheard;
Rules against bias
No one can be penalized on the ground of conduct which was not

Eminent Domain: the power of a government to take away private

property, without the consent of the owner, for public use.
Three Conditions: There must be a law authorizing expropriation; it
should be for a public purpose; there must be just compensation.

Article 300A: No person shall be deprived of his property save by

authority of law
Now the only condition is there must be a law of legislature. No need
for just compensation and WRIT jurisdiction would not apply.