The Law

1. The Law Sanjay Ranade, Head, DCJ, UoM

2. What do you think the term ‘law’ means? • A very important legal skill is being able to define concepts and topics. • Draw up a list of different examples or types of law and then reflect on that list and see if you can come up with a definition of ‘law’. Sanjay Ranade, Head, DCJ, UoM

3. ‘Law’ and its synonyms • Law implies imposition by a sovereign authority and the obligation of obedience on the part of all subject to that authority. • Regulation implies prescription by authority in order to control an organization or system. • Precept commonly suggests something advisory and not obligatory communicated typically through teaching. • Statute implies a law enacted by a legislative body. • Ordinance applies to an order governing some detail of procedure or conduct enforced by a limited authority such as a municipality. • Canon suggests in nonreligious use a principle or rule of behavior or procedure commonly accepted as a valid guide. Sanjay Ranade, Head, DCJ, UoM

4. The ‘Law’ in India • The system of authoritative materials for grounding or guiding judicial and administrative action recognised or established in a politically organised society. [Sec 2(b), Scheduled Areas (Assimilation of Laws) Act (16 of 1953) and Art 13(3)(a), Constitution Sanjay Ranade, Head, DCJ, UoM

5. ‘Law’ includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. [Constitution of India Art 13(3)(a) Sanjay Ranade, Head, DCJ, UoM

6. ‘Law’ is a rule prescribed by society for the government of human conduct; a rule of action or of civil conduct prescribed by competent authority, by the law making power of the state, by the proper law-making authority, by the supreme authority for the government of human action, by the sovereign power, an established or permanent rule, established by the supreme power or the power having the legislative control of the particular subject; an act, enactment, ordinance, or statute prescribed by the legislative power; the declared will of the legislature; a rule ordained and made known by the legislature, for the government of the people in the state, which they are bound to obey. Sanjay Ranade, Head, DCJ, UoM

7. Circulars issued by the Union of India relating to payment of service charges to local bodies in respect of Central Government properties are not mere administrative instructions but are executive orders having the force of law. [Food Corporation of India v/s Alleply Municipality, AIR 1996, Kerala 241, 255.] [Constitution of India Article 73 (a)] Sanjay Ranade, Head, DCJ, UoM

8. An agreement of the Ruler expressed in the shape of a contract cannot be regarded as a law. A law must follow the customary forms of laws making and must be expressed as a binding rule of conduct. It is not every indication of the will of the Ruler, however expressed, which amounts to a law. An indication of the will meant to bind as a rule of conduct and enacted with some formality either traditionally or specially devised for the occasion, results in a law but not an agreement to which there are two parties, one of which is the Ruler. [Bengal Nagpur Cotton Mills Ltd v/s Board of Revenue, AIR 1964 SC 888, 891] Sanjay Ranade, Head, DCJ, UoM

9. If the word ‘law’ includes not only enacted statute but also common law, it would also include industrial law as it has been evolved by industrial decisions. [Provincial Transport Services v/s State Industrial Court, AIR 1963 SC 114, 117] Sanjay Ranade, Head, DCJ, UoM

10. A law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognised by Courts. Law in the case of an absolute monarch is his command which has to be obeyed by the citizens whether they agree with or not. [Raj Kumar Nursing Pratap Singh Deo v/s State of Orissa, AIR 1964 SC 1793, 1797] Sanjay Ranade, Head, DCJ, UoM

11. A mere executive order cannot possibly come under ‘existing law’ or ‘law in force’ as defined in the Constitution, Art 13 (1). [K.O. John v/s State, AIR 1956 TC 117,118] Sanjay Ranade, Head, DCJ, UoM

12. A notification or an executive direction issued by the State government against the provisions of the statute will come within the definition of the expression ‘law’ referred to in Article 13 of the Constitution. [AIR 1958 SC 538] Sanjay Ranade, Head, DCJ, UoM

13. Law does not include constitutional amendment. [His Holiness Kesavananda Bharati Sripandagalvan v/s State of Kerala, AIR 1973 SC 1461, 1648] Sanjay Ranade, Head, DCJ, UoM

14. The word ‘law’ is used in the expression ‘equality before law’ in a generic sense – a philosophical sense- whereas in the expressions ‘the equal protection of laws’ it is used denoting specific laws in force. [Sri Srinivasa Theatre v/s Government of Tamil Nadu, AIR 1992, SC 999, 1004.] [Constitution of India, Article 14] Sanjay Ranade, Head, DCJ, UoM

15. A law existing at the time when the Constitution came into effect would be a ‘law’. [State v/s Banwari, AIR 1951 All 615. [Article 17, Constitution of India] Sanjay Ranade, Head, DCJ, UoM

16. The ‘law’ means a law passed by a competent legislature in regard to the administration of the property belonging to the denomination. [Constitution of India, Article 26(d)] Sanjay Ranade, Head, DCJ, UoM

17. The expression ‘law’ embraces within is ambit statutory rules. [Constitution of India, Article 226(3), (as substituted by 42nd Amendment Act); 13(2) and Article 309.] Sanjay Ranade, Head, DCJ, UoM

18. The expression ‘Law’ includes the Act of Legislature, as also the rules validly made thereunder. [H.G.E. Corporation v/s Superintendent of Orissa Excise, AIR 1966 Pat 248, 252. Constitution of India Art 265] Sanjay Ranade, Head, DCJ, UoM

19. ‘Law’ means any law enacted either by legislature itself or by its delegate, and the notification issued by the U.P. Government being in the exercise of the legislative power, is law. [Video Electronical (P) Ltd v/s State of Punjab, AIR 1990. SC 820, 835. Constitution of India, Articles 304, 366] Sanjay Ranade, Head, DCJ, UoM

20. By the publication of an order in the Gazette of India, it is to be treated as law made under Article 327. [Meghraj v/s Delimitation Commission, AIR 1967 SC 669, 674. Constitution of India, Article 327] Sanjay Ranade, Head, DCJ, UoM

21. The term ‘law’ is not limited to legislative enactments. All forms of delegated legislation and conditional legislation amount to law. All orders and notification made and issued under statutory powers and which are legislative in nature amount of law. [State of M.P. v/s Ramachandran, AIR 1977 MP 68, 73 (FB). Indian Evidence Act (1 of 1872) sections 57 and 78.] Sanjay Ranade, Head, DCJ, UoM

22. The term ‘law’ thus is very difficult to define because it is used to mean different things in different contexts. A comprehensive definition is therefore hard to provide as it would have to be very wide. Sanjay Ranade, Head, DCJ, UoM

23. The majority of people use the term ‘law’ to describe criminal law. This may be because of the media coverage given to crimes, such as assault, murder, riot etc. • Some people use the word ‘law’ to describe the institutions of the legal system, such as the courts, the police, the prisons and so on. Sanjay Ranade, Head, DCJ, UoM

24. Some people associate ‘law’ with the rules regulating our relationships with others. Every time we purchase goods or pay for a service (like a haircut) we are entering into a contract and contracts are regulated by the law. Sanjay Ranade, Head, DCJ, UoM

25. Some others would think of the processes of law, its rules and procedures, such as the steps that have to be followed when beginning a legal action. • Alternatively, the word law may be used to describe the rules laid down by Parliament and/or the courts that govern our behaviour and thus refers to the sources of the law. Sanjay Ranade, Head, DCJ, UoM

26. So? Which of these options is right? Sanjay Ranade, Head, DCJ, UoM

27. The one common way of understanding the term ‘law’ is that it is often defined in terms of RULES. Sanjay Ranade, Head, DCJ, UoM

28. We are aware of many rules which people observe in their daily lives which regulate the way that they behave and yet these are not necessarily referred to as law. • Many people also live according to moral rules and abide by religious codes and yet these are not laws either. Sanjay Ranade, Head, DCJ, UoM

29. So when is a rule regarded as part of the law? Sanjay Ranade, Head, DCJ, UoM

30. Rules are regarded as law when they originate from one of the recognised law-making institutions. But that is not the whole story, for where does the system of law and its processes fit into the picture? Sanjay Ranade, Head, DCJ, UoM

31. One way of defining the law so as to take account of all three aspects mentioned above, i.e. the rules of law, the legal system and its processes is to say that law is • a body of the rules of conduct • formally recognised as binding or enforced • by a controlling body. Sanjay Ranade, Head, DCJ, UoM

32. This definition is useful as a brief and simple way of explaining the concept of law. We could, however, say that the law is simply a way of regulating behaviour. It tells us • what must be done, • what may be done and • what cannot be done. Sanjay Ranade, Head, DCJ, UoM

33. So which of the following statements are true and which are false? • There is no difference between moral rules and legal rules. TRUE/FALSE. • Procedural rules, for example, how to begin a breach of contract action in court, are not part of law. TRUE/FALSE. • The concept of law is not the same as the concept of justice. TRUE/FALSE. • Law is an instrument of social control. TRUE/FALSE. Sanjay Ranade, Head, DCJ, UoM

34. Although many of the rules which we regard as laws are based on moral codes (for example, people must not commit murder), not every moral rule is part of the law of this country. • For example, envy, though forbidden by moral codes, is not forbidden by law. Therefore the first statement in the exercise above is false, as law and morality are not the same, although they may overlap. Sanjay Ranade, Head, DCJ, UoM

35. There is a great deal more to law than this, however, and the law also comprises many procedural rules which must be followed in order for legal issues to be dealt with by the courts. • The second statement in the question above is therefore false, as these procedural rules are also part of the law. Sanjay Ranade, Head, DCJ, UoM

36. When legal issues are considered by the courts, or when Parliament creates law, one of the aims of those involved in the process is to do justice between people who are affected by the law. • Sadly, we know that this aim is not always achieved and therefore it has to be said that law and justice do not always coincide, so the third statement above is true. Sanjay Ranade, Head, DCJ, UoM

37. You should by now have a good idea of what law is and what it is not and you should also have a good working definition of the law, a suggestion of which appears in the final statement in the exercise above. This statement is true. Sanjay Ranade, Head, DCJ, UoM

38. You might wish to reflect on the following definition givenby Glanville Williams in his book Learning the Law: • ‘law is the cement of society and an essential medium of change’. (12th edn, London: Sweet and Maxwell, 2002, p 2). Sanjay Ranade, Head, DCJ, UoM

39. Lawyers’ definition of law A clear and straightforward one is provided by Sir John Salmond in his book Jurisprudence: • ‘. . . the body of principles recognised and applied by the courts in the administration of justice.’ • ‘In other words the law consists of the rules recognised and acted on by the courts of justice.’ Sanjay Ranade, Head, DCJ, UoM

40. So, when we study ‘the law’ we are not talking merely about any body of rules that has some type of organisation and some type of structure. Sanjay Ranade, Head, DCJ, UoM

41. Hopefully, the law is both organised and structured but what we are specifically looking for is law that can be enforced in a system of courts. Sanjay Ranade, Head, DCJ, UoM

42. The character of a legal system There are many different legal systems in the world. • Whatever legal system we study there are common characteristics. Understanding what all legal systems share as common characteristics goes a long way towards helping us understand what it is we are studying and in recognising what may be expected from a particular branch of the law. Sanjay Ranade, Head, DCJ, UoM

43. Professor Hart in The concept of law identifies five things which he suggests that all legal systemsmust include: Sanjay Ranade, Head, DCJ, UoM

44. Rules forbidding certain behaviour on forfeit of some form of penalty or sanction for noncompliance. Sanjay Ranade, Head, DCJ, UoM

45. Rules that make people compensate other people that they have wronged for the damage causedby the wrong Sanjay Ranade, Head, DCJ, UoM

46. Rules that regulate the conduct of and that enforce agreements, arrangements and relationshipsbetween individuals. These could be contracts or wills or even involve the rights and dutieswithin a marriage – and in a more modern context it could involve the regulation of businesses. Sanjay Ranade, Head, DCJ, UoM

47. There must be a system of courts in which to enforce all of the above rights and obligations. Sanjay Ranade, Head, DCJ, UoM

48. There must also be a legislature of some form to make new laws to fit new situations and alsoto get rid of or repeal outdated laws Sanjay Ranade, Head, DCJ, UoM

49. Hart called this body of rules to regulate conduct the ‘primary rules’. He also recognised that on their own these rules are insufficient for a system of law to work effectively. There must also be ‘secondary rules’: Sanjay Ranade, Head, DCJ, UoM

50. Rules of recognition • We have identified a number of separate branches of law above; crime, tort, contract, succession, matrimonial, company – each individual body of rules must have a character allowing it to be distinguished from any other body of rules. Sanjay Ranade, Head, DCJ, UoM