Introduction to Law & Legal

Systems
Day ONE
For L&T Executives
Contents
• Sources of Law;
• Hierarchy of Courts, Tribunals;
• Constitutional Courts – Judicial Review.
Module outcomes

• Study deals with the theme of ‘law’ in relation to ‘society’

• The ‘legal system’ and significance and the ‘institutions’ and process
of law
• Examine the inter-linkage between ‘law’ and ‘society’ [how law has
influenced society and vice versa]
What is law?

• Traditionally, the law is viewed as set of rules, recognized and

enforced by the courts in the administration of justice
• Hence, ‘law’ and ‘justice’ are two different concepts
• Although all of us have some idea about ‘law’ (as part of common
sense) some more understanding of law is necessary to understand
this module
Sources of law

• Commonsense tells you that ‘legislation’ is the source of law…

• …but there are other sources of law as well!
• They are
• Precedent (law made by courts or judges);
• Custom
• Hence, when we say ‘law’ we might be referring to any one of the
above things
The position

• Ideal way is to start with a problem [think that you have a problem (of
any sort) then only you start thinking about ‘law’ – otherwise we
seldom think about law at all
Situation 1

• Where a subject is governed by legislation – you refer to that

‘legislation’
• Hold on…mere reference to ‘legislation’ is not sufficient (as this will
not help you in getting over the problem)
• You must move the court of law (and ask the judge to apply the law to
your problem!) or take the help of some enforcement agency (created
for that purpose)
Situation 2

• Think of a situation…where a point at issue is not governed by any

‘legislation’ [then what is to be done!]
• You can’t now wait until law is made to resolve your issue – not
minding the situation you move the court of law
• Then the court is expected to lay down the law on the point to
resolve the issue…
• …but the judge can never say – as there is no law, he will not be able
to help you (or ask you to wait until law is passed)
How does the judge help me (when there is no law)

• There are two methods

• ONE – although we say there is no law – it may not be law clearly
applicable to your situation – in this situation the judge ‘interprets’
the law to suit your situation
• TWO – this is as you thought, where no law exists – the judge looks by
using his common sense (and principles of good conscience, equity,
customs etc.,) to resolve the issue on hand
• Just realize the situation No. TWO exists in relatively lesser number of
cases
• That is the reason we say – courts (or judge) also make law
• Let's look to custom for a while
• This is known as source of law from time immemorial
• Court do perform a ‘recognizing’ role when it comes to custom
• Before recognizing the custom the judge shall look into
• Whether the custom is reasonable;
• Its consistency with morality; and
• Its impact upon future activities and public policy.
Function of the judge

• To interpret the statute

1. While the lay person may think that, a statute, at least if it is well drafted
should not need interpretation, and that its meaning should be as patent as
day light – but this is ‘myth’ with common sense and reality is otherwise
2. The basic cause of the problems of statutory interpretation is nothing else
than the difficulty of communication – the difficulty of finding unequivocal
language by which to convey the intentions of Parliament
Statutory interpretation

• There are good number of principles which are available to the judge
• Literal rule
• Golden rule
• Mischief rule (of interpretation)
• In practice the court usually considers all these approaches and then
comes to a conclusion, which as far as possible, in its view
harmonious with justice and reason
Judicial law making

• The rule is – ‘justice is the reservoir that feeds the steams of judicial
reasoning’
• Hence – when question of law arises before a judge in a court, the
court must decide that question, unless specific statutory provision
requiring the courts to refer to some other court/tribunal etc.,
• In drawing upon the wide and undefined concept of ‘justice, equity
and good conscience’ the judge is entitled to consider habits, and
thinking and attitudes of the society
• The merit of the judge lies in his feeling the pulse of the society and
then in applying his own sense of justice to the material that might
have been gathered in such process
• Excellence and maturity in the exercise of this function come from
experience (and extremely difficult to generalize here)
Judge made law – some examples

• The law of torts;

• The administrative law;
• The law relating to interpretation of contacts and documents (except
Ss. 91 to 100 of Evidence Act)
• Certain aspects of law of property
• Most of the topics in ‘conflicts of law’
• The law relating to interpretation of statues
“courts move slowly, their law-making powers can only be exercised
step by step case by case. They are largely confined to filling in gaps
in the law or developing existing principles in new directions; and
they move slowly. The court move one step at a time, like a pawn,
while the legislative queen sweep from one end of the board to the
other, one move. But (as every chess player knows) pawn matters;
they can get to the other end of the board in the end, and they can
even destroy a queen. And too case law if left to develop by itself,
can over many years, build great new legal principles”
- P. S. Atiyah, law and Modern Society (1983) pp. 131
The ‘system’ (before moving to ‘legal system’)

• The word ‘system’ connotes a complex of elements, each performing

its allotted role, but all working towards a common goal
• It is a whole made-up of several parts, each having its own identity
and yet, all striving to achieve harmony
• …now we apply this to understand ‘legal system’…
Components of legal system

THE LAW
MAKING
ORGAN
COMPLETE
THE
RULES
PROCEDURE
TO MAKE
RELATING
ALL THESE
TO LAW
ELEMENTS
MAKING
WORK

LEGAL
SYSTEM

INSTITUTIONS
RULES
ENTRUSTED
GOVERNING
WITH
THE
EXECUTION
ADJUDICATION
OF LAW
INSTITUTIONS
CONNECTED
WITH
ADJUDICATION
• Legal system of a country is part of its social system and reflects the
social, political, economic and cultural characteristics
• It is therefore difficult to understand the legal system outside the
socio-cultural unleash in which it operates
Legislature – law making organ

• The enactment of formal legislation in any particular country is vested

in the legislature of the country
• But…the composition of the legislature could still be a matter for
analysis from social angle
• If we take India as a case study then
• We have legislation made during colonial legislature
• And the ones which are passed after independence
Colonial legislations

• The legislature has not been totally obvious to the needs of the
society (as it was not completely representative)
• Private members took considerable initiative in sponsoring such
legislation
• The legislature tried to maintain a balance between reforming an
unjust or undesirable law and the need to secure public co-operation
and to avoid harassment
Post-independence legislation

• Resolve was to rebuild our society

• Many legal interventions – for building strong society (ex. Family
laws, land laws etc.,)
• The objectives were
1. Remove rules that were unjust or unsatisfactory
2. Replace different rules by uniform provisions; and
3. To introduce certainty into the law by codifying its principles, which would
take the place of propositions which could be ascertained only after
assiduous researches into case law
Legal system – basic components
Basic principles and values (largely outlined
by the constitution), a set of operational
01 norms including rights and duties of citizens
spelt out in the laws – central, state and
local

Institutional structures for enforcement of

laws and a cadre of legal personnel endowed
02 with responsibility of administering the
system
World legal systems
CIVIL LAW – BLUE; COMMON LAW – MAROON; RELIGIOUS LAW – YELLOW;
CUSTOMARY LAW – OTHER; PLURALISM - GREEN
Judicial review
• Judicial review is a type of court proceeding in which a judge reviews
the lawfulness of a decision or action made by a public body
• In civil law system judicial review is not as robust as in common law
system
• The countries in which judicial review is strong – the judicial
independence/creativity is also very strong
Judicial review in India
Supremacy of Constitution in India
Article 13 - Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement
of this Constitution, in so far as they are inconsistent with the provisions of this
Part, shall, to the extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the
extent of the contravention, be void
(3) In this article, unless the context otherwise requires law includes any Ordinance,
order, bye law, rule, regulation, notification, custom or usages having in the
territory of India the force of law; laws in force includes laws passed or made by
Legislature or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed, notwithstanding
that any such law or any part thereof may not be then in operation either at all or
in particular areas
• Judicial review plays an important role as a protector when the
executive, judiciary and legislature harm the Constitutional values and
deny the rights
• The judicial assessment is considered as an indispensable feature in
the country