Fundamentals of Law

Mankind must either give themselves a law and

regulate their lives by it or live no better than the wildest of the wild beasts. Plato Law is the great civilizing machinery. It liberates the desire to build and subdues the desire to destroy. And if war can tear us apart, Law can unite us out of fear, or love or reason, or all three. Law is the greatest human invention. All the rest, give man mastery over his world. Law gives him mastery over himself - Lyndon B. Johnson, TIME Sept. 24, 1965
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 Law is command of Sovereign Austin. The body of principles recognized and

applied by the State in the administration of justice. - Salmond Body of rules whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its subjects or members. Rule of conduct of persons imposed upon and enforced among the members of a given state.
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 A basic necessity of the society. Smooth functioning of social, economic and

political systems of the nation. Rules and Regulations are required to provide firmness in our Mutual relationships. Rule of law is the essence of civilized society. It provides certainty to our relationships. Establish rights and duties of individuals. control concentration of power.
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 A body of Rules Prescribe the conduct, standard or pattern to which actions of the persons in the state are required to conform. Not ethical or moral rules. Not static responds to public opinion and changes throughout the course of history. Is for the guidance and conduct of persons. to ensure that members live and work together in an orderly manner. is imposed. obligatory on the members of the society. - Contd.
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 enforced by the executive fear of consequences ensures observance of law. presupposes a state a territorial division maintain some form of social order in a

group.
For self preservation of the group, formed due to

social instinct.
compel group members to be within that

order
By penalising non-observance of rules.

Serve social, political or economic purpose.

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 Indian law has its origin in British Laws Many Indian laws adhere to the UN

guidelines of human rights and environment. Indian Family Law is complex with each religion adhering to its won laws In Goa, Portuguese civil Code is in force. All religions have uniform laws for marriage, divorce and adoption. 1200+ laws in force in India.

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 Law and business are closely related. They complement each other. Most business aspects are regulated by law. Installation of business itself involve legal provisions Contracts entered into by the Company Decision making process in business Settlement of disputes between different parties.

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 Constitution The fountain source of law Statutes due recognition by the constitution, enacted by Parliament, State Legislatures and Union Territory Legislatures Judicial precedents - Case law The decisions of the higher courts are binding on lower courts. customary law local customs and conventions which are not against statute, morality, etc. subordinate legislation in the form of rules, regulations as well as by-laws made by Central and State Governments and local authorities Personal Laws. Marriage, succession etc.. , based on religion. English law. The common Law, equity, the law Merchant
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 An important legal maxim: Ignorantia juris non excusat Meaning: Ignorance of law is not an excuse.

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WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE
o LIBERTY EQUALITY

social, economic and political; of thought, expression, belief, faith and worship; of status and of opportunity;

and to promote among them all

FRATERNITY
assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949,

DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION

"The King can do no wrong" Old English Common Law the maxim Crown Proceedings Act, 1947 changed the position. The Federal Torts Claims Act, 1946 is also similar legislation. Aristotle : "law should govern and those in power should be servants of the laws. no one is above the law. The core of rule of law is an autonomous legal order. The doctrine of Rule of Law has been adopted in Indian Constitution. The Constitution guarantees equality before law and equal protection of laws. The most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. Article 13(1) of the Constitution : All laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provision of Part III dealing with the Fundamental Rights, shall, to the extent of such inconsistency, be void. Article 13(2): The State should not make any law which takes away or abridges the fundamental rights and any lawFUNDAMENTALSin LAW made OF contravention of 12 PGDM 17/ BL/ TJK

 The Constitution of India lays down the framework

defining fundamental political principles, establishes the structure, procedures, powers and duties, of the government and spells out the fundamental rights, directive principles and duties of citizens. provides for separate executives and legislatives for the Union and for each of the States and demarcates the powers of each. The residual power is with the Union. The judiciary is unitary in structure Laws made by Parliament may extend throughout or in any part of the territory of India Laws made by State Legislatures may generally apply only within the territory of the State concerned. the judiciary, has the power to adjudicate upon the constitutional validity of all laws. If a law violates any provision of the Constitution, the Supreme Court has the power to declare such a law
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 Single integrated system of Courts to administer

both Union and State laws. Apex of the entire judicial system - Supreme Court of India Below are the High Courts in each State or group of States. A hierarchy of Subordinate Courts exist below that. State laws provide for different kinds of Subordinate Courts Each State is divided into judicial districts presided over by a District and Sessions Judge. The Sessions Judge is the highest judicial authority in a district. Below Sessions Court, there are Courts of civil jurisdiction, known in different States as Munsiffs, Sub-Judges, Civil Judges and the like. The criminal judiciary comprises the Chief Judicial
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 Original Jurisdiction - Art. 131

Disputes among Sates or between states and Govt. of India

Writ Jurisdiction - Art. 32

Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto

Appellate Jurisdiction: Civil and criminal Art. 132(1), 133(1) or 134

From Judgment, Final Order, Decree, Sentence of High Court

Special Leave to Appeal - Art. 136

from any judgment, decree, sentence or order in any cause or matter passed

or made by any Court or Tribunal in the territory of India.

Advisory Jurisdiction Art.143
opinion on question of Law or Fact, which has arisen or likely to arise and

of great public importance. Opinion not binding on Govt.

Review - Art. 137
To review any judgment pronounced or order made

Court of Record Art. 129 and 142

Power to punish for Contempt of itself

Complete justice Art.142

Powers to pass such decree or order as may be necessary for doing

complete justice between the parties.

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 Public law determines and regulates the organisation and functioning of states. Also regulates the relation between the state and its subjects. includes Constitutional Law, Administrative Law, Criminal law, Municipal Law, International Law Private Law regulates the relations of citizens with one another as of that of public importance Primarily concerned with the rights and duties of individuals with each other includes Law of contract, Law of Tort, Law of Property, Family Laws etc.
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 Legal personality allows one or more natural

persons to act as a single entity (a composite person) for legal purposes. Legal personality allows such composite to be considered under law separately from its individual members or shareholders. They may sue and be sued, enter into contracts, incur debt, and have ownership over property. Entities with legal personality may also be subject to certain legal obligations, such as the payment of tax. An entity with legal personality may shield its shareholders from personal liability. In addition to Companies Act, 1956, there are some other laws under which artificial persons can be brought into existence. Eg. Societies Registration Act, 1860; Co-operative Societies Act, 1912.
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 Rights over property occurs when there is

some law to define such property. Ownership is a bundle of rights in rem against the whole world. unspecified duration and use, inheritable and transferable. Ownership cannot exist without law.

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1. 2. 3.

4. 5.

6.

7.

1 8.

Part of Public Law Crime - against State. Concerned with wrong doings against individuals or public at large. Some govt. Agencies or officials initiate action. Attracts legal punishment by way of imprisonment or fine. Objective is to award punishment for the unlawful act committed by the person. Injured individual can also enforce criminal law by initiating criminal proceedings. The injured individual will

1. 2.

3.

4.

5.

6.

7.

Part of Private law. Civil wrong against individuals. Concerned with the rights and duties of individuals against each other. The plaintiff institutes civil suit against the defendant. No punishment, but compensation or damages. To restore the injured party to the position he occupied prior to the defendants wrongful act. Even when criminal case is pending, civil action is possible for the same wrong.
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 Tort law exists to protect an individual's

bodily safety and security, tangible property and intellectual property, reputation.

If any of these things are compromised or damaged by another

person or organisation, a remedy can be sought - monetary damages. Money damages is intended to make up for the loss or damage suffered, and to restore the injured person to the position he or she was in before the tort was committed. Civil courts may impose other conditions, such as an 'injunction - forbidding someone to do something- change one's legal status in terms of a divorce or a change of name. Civil actions sometimes flow on as a result of criminal action, and a civil lawsuit can be successful even when the defendant was found not guilty under criminal law.
O.J. Simpson trial (US): Simpson was charged for the murder of his

ex-wife and another man. Court found him not guilty. But was found liable for the tort of wrongful death in the civil trial that followed. He was ordered to pay US$33 million in damages to the victims' families. 20 PGDM 17/ BL- FUNDAMENTALS OF LAW / TJK

 That branch of Law which prescribes a set

of rules For the governance of certain transactions and relations between : Business and business Business and customers. Business and government.

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