Unit 1 understanding law

Do Laws Apply to All?

The members of the Constituent Assembly decided that power could

not be exercised arbitrarily in independent India. As a result, they
inserted numerous clauses into the Constitution to preserve the rule of
law. The most critical of these is that in independent India, everybody
is treated equally before the law.
The law cannot discriminate against people based on their religious
beliefs, caste, or gender. The rule of law stipulates that all laws apply
equally to all people of the country, and that no one is above the law.
A government official, a rich person, or even the President of the
country are all subject to the legislation. Any offence or legal
infraction has a particular penalty as well as a procedure to follow.
There were a plethora of local laws in ancient India, many of which
overlapped. Different groups had varying degrees of autonomy in
enforcing these laws amongst themselves. In certain cases, the
punishment given to two people for the same crime differed based on
their caste status, with lower castes being punished more [Link]
slowly began to change as this system of law began to further evolve
during the colonial period.
The British colonialists are also credited with establishing the rule of
law in India. Historians have challenged this point on many grounds,
including the fact that colonial rule was arbitrary and that Indian
nationalists played a significant role in the establishment of British
India's legal system. The Sedition Act of 1870 is an indication of the
arbitrariness that continued to occur in British law. Under this Act, the
term "sedition" was used in a rather broad sense. Anyone who protests
or criticises the British government risks being detained without a fair
trial.
Indian nationalists started protesting and criticising the British for
their unfair use of power. They also began fighting for greater
equality, wishing to transform the concept of law from a collection of
laws that they were required to follow to one that encompassed
concepts of justice. The Indian legal profession started to emerge by
the end of the nineteenth century, and it demanded reverence in
colonial courts. They started to use the law to protect Indians' legal
rights. Indian judges started to play a larger role in decision-making
as well. As a result, Indians played a significant role in the
development of the rule of law during the colonial period in a variety
of ways. With the ratification of the Constitution, our representatives
were able to begin making laws for the benefit of the people. The
Hindu Succession Amendment Act of 2005 was passed. This new
legislation allows sons, daughters, and their mothers to receive an
equal share of the family's assets. Similarly, new legislation has been
passed to reduce emissions and create jobs.
How Do New Laws Come About?

The Parliament plays a significant role in enacting legislation. This

can happen in a variety of ways, and various groups in society are
often the ones who bring up the need for a specific rule. Parliament
has an important role to play in being sensitive to people's issues.
People play a critical role in assisting Parliament in enacting
legislation that address various issues that people may have. The
citizen's voice is important at every point of the process, from
determining the need for a new law to ensuring that it is enacted. This
voice can be heard on television, in newspaper editorials, on the radio,
and at local meetings, all of which contribute to the improvement of
Parliaments work.
Unpopular and Controversial Laws

Even if a law is legally legitimate and therefore lawful, people will

find it unpopular and unacceptable because they believe the meaning
behind it is unjust and harmful. As a result, people will criticise the
law, hold public hearings, write about it in newspapers, and report on
it on television news channels, among other things. People in a
democracy like ours will express their opposition to oppressive laws
passed by the legislature. When a large number of people believe that
a bad law has been passed, the Parliament is under pressure to amend
it.
For example, hawking and street vending are often prohibited by
municipal laws governing the use of space within municipal limits.
No one can deny the need for certain laws to keep public space open
so that people can safely walk on the sidewalks. However, one cannot
deny that hawkers and vendors provide basic services to the millions
of people who live in a big city at a low cost and efficiently. This is
how they make a living. As a result, if the legislation favours one
party while excluding the other, it would be divisive and lead to
conflict. People who believe the law is unjust may ask a court to rule
on the matter. If a statute is found to be in violation of the
Constitution, the court has the authority to amend or repeal it.

CH-2 UNDERSTANDING LEGAL METHODS AND

REASONING
Definition of Law:

Law is defined as the collection of rules that regulate human conduct.

“It is a rule of action, whether it be animate or inanimate, or of
nations,” writes Blackstone. As a result, the rule of motion is as much
a law of nature as it is a law of nations.
Other jurists, on the other hand, limit the purpose and scope of law to
only the norms needed to govern human actions.
FUNCTIONS OF LAW

In culture, the law serves a variety of purposes and functions.

Establishing values, maintaining order, resolving conflicts, and
defending liberty and rights are the four primary aims and functions.
 Establishing Norms- This is a subset of maintaining order. In a
civil society, some semblance of order is required, and this is
expressed in the law. When the rule is followed, it maintains
order in accordance with societal norms.
  Dispute Settlement-In a society made up of people with varying
needs, wants, beliefs, and perspectives, disagreements are
inevitable. The court system is a systematic way of resolving
conflicts established by the statute.
 Establishing Standards- The statute serves as a template for
society's minimum permissible conduct. Some actions, for
example, are crimes because society (via a legislative body) has
decided that such practises that harm or destroy people or their
property will not be tolerated. For example, under most state
laws, it is illegal to inflict bodily harm on another person
without justification—doing so is usually referred to as attack.
 Defending Civil Liberties and Rights-Various liberties and
privileges are guaranteed by the Indian constitutions. The law's
intent and role is to protect these various liberties and rights
from infringements or unfair intrusions by individuals,
organisations, or the government. For example, the First
Amendment to the Constitution, subject to some exceptions,
forbids the government from enacting legislation that restricts
freedom of expression. Someone who claims that the
government has violated his free speech rights will file a lawsuit
in court to seek redress.
Morality
Moral attitudes refer to the ideas of what is right and wrong in a
given society, as well as what is permissible and unacceptable
behaviour in that society. As a set of codes of behaviour linked to
such psychological and social characteristics. All who follow the
moral laws will experience the emotion of virtue, and those who do
not will experience the emotion of remorse. "Rules or standards
regulating human behaviour that apply uniformly within a society or
class," according to Strawson (1961).
• It is an inherent code of conduct that has been classified by a higher
being.
Morality is not to be confused with moral ethics, which imposes such
dos and don'ts on citizens by a central authority. Morality requires a
fundamental foundation; it is a complex theory that directs human
behaviour toward goodness. The spirit of benevolence, humanity,
justice, and honesty is infused with the ideals of nonviolence,
truthfulness, non-stealing in a broad sense, non-indulgence, and
universal attitude. The framing of laws should be driven by these
fundamental moral principles.
PROUT's cardinal principles are the "defence of human ideals in all
three realms of existence" and the idea of "Human society is one and
indivisible." We are, first and foremost, human beings who are also
social beings. Human worth comes first, followed by social worth. If
anyone commits a crime, rather than punishing them, steps to improve
their character should be taken.
SOURCES OF MORALITY
 God instructs supernatural beings through holy texts such as the
AlQuran and the Bible. In Islam, for example, morality is highly
valued. In reality, the Prophet (SAW) said that nothing would
weigh more heavily in their balance on the Day of Judgment
than their good moral character. The aim of man, according to
the Islamic philosophy of life and morality, is to achieve Allah's
enjoyment.
 Human beings – man-made ideals, traditional beliefs
 Nature- environment, human nature.
TYPES OF MORALITY
 RELIGIOUS MORALITY
– God gave humans instructions about how to be good
Christians.
– God's approval comes in the form of sin/good deeds.
– Concerns the human-God bond.
 MORALITY AND NATURE – Relationship between the
human & nature.
 MORALITY OF THE INDIVIDUAL – Morality that is
centred on the individual. The person, rather than being dictated
or informed by society, chooses whether or not to think anything
is immoral. Hindu adherents, for example, can opt to be
vegetarian.
 SOCIAL MORALITY – Describes how members of a group
interact with one another. The most important form of morality
that cuts through all others and appears in more ethical systems
than any other.

Law and Morality

People in a group usually behave in a humane manner, cooperating
and engaging with one another. If there are universally agreed
codes of conduct, a strong social system can be maintained. Many
people agree that no centralised body should be responsible for
defining and enforcing these laws. This idea, on the other hand, has
contributed to the destabilisation of many societies and the
deterioration of social relations. The flaw is not in the centralised
agency's system, but in the concept of dominant social values.
State law does not obey the dictates of social institutions in the so-
called democratic society. Religious law, on the other hand,
governs state laws in Islamic societies. There are opposing
viewpoints on the significance of natural law as a positive law.
Obedience to the state, according to Locke, is the safeguarding of
human rights under natural law. Some theorists have gone so far as
to say that if a rule violates natural law, it isn't a positive law at all.
The notion that God stands in relation to humanity as a king does
to his people is one of the origins of the doctrine of natural law.
The notion of kings' religious rights arose as a result of this.
The philosophy of natural law has lost much of its appeal in this
century, with its diversity of contradictory moral values. Moral
principles and religious doctrines are often confused by political
philosophers. It is not necessary for natural law to be religiously
 sanctioned. There are a plethora of contradictory religions, each
with its own set of ethical principles.
Natural law should not be confused with clergy-enacted legislation.
Similarly, positive regulation, or state-enacted legislation, is given
a lot of weight nowadays. Only the criminal code, as adopted by
the political institution, is used to determine what is lawful and
what is unlawful. However, there is no reason to believe that state
law has adequately preserved rights and human values.
DIFFERENCE BETWEEN LAW AND MORALITY
 The relationship between law and morals is often depicted as
two intersecting circles, with the inside reflecting the common
ground between law and morals and the outside representing the
distinct domains that each occupies.
 EXAMPLES-Law and morality reinforce each other – if you
misappropriate something that belongs to someone else, you
can't live in peace.
 Having a moral code encourages people to refrain from doing
things that are against the code - supplemented by legislation.
 Law is founded on morality – In a primitive culture, there was
no distinction between law and moral laws since they were
derived from the same sources (custom, religion).

WHERE MORAL AND LAW DIVERGE

SCENARIO 1 - Rules which are immoral but legal.

• Rules governing those acts which are wrong according to moral but
no legal sanction will be imposed against those
Scenario 2: Moral values but not legally enforceable.
• There is no formal organisation to oversee adherence to the rule.
Typically strictly followed, but no sort of punishment occurs if a
member of society fails to do so.
•Example: assisting the poor

Scenario 3: Immoral and criminal.

• They are socially wrongs, and we need the legislation to make them
illegal so that the authorities can bring them to justice.

DIFFERENCES BETWEEN LAW AND MORALITY

LEGALISING MORALITY
 Improving the legal status of moral rules – certain immoral acts
are identified by lawmakers and enforced through legally
enacted rules – for example, theft and murder.
 Certain laws, on the other hand, are considered immoral and
erode society's social values and [Link] example, legalising
homosexuality, abortion, same-sex marriage, animal testing, and
so on.
 Should we legalise morality
 - No, because moral absolutism is derived from God. Humans
are incapable of change. Murder and terrorism are immoral
because they go against religious beliefs, which humans cannot
completely change.
 Moral relativism: Yes, because morality varies according to
social groups, races, and religions. It is impossible for all values
to be the same in all places and religions. The conflict between
the Islamic and Western worlds
PUBLIC AND PRIVATE MORALITY
 He or she may claim he has a right to his own body and
anything done to his or her body is within her individual right.
 Anything he or she does behind closed door is her private
matters (private morality). The public has no role in determining
what is right or wrong for him or her
 Lord Devlin: The primary function of criminal law is to
maintain public morality. Law should condone immoralities as
all immoralities will erode social values. The society will be
adversely affected.
 However, everyone has the freedom and privacy to behave in
his own way. Tolerance should be granted to them as long as
their acts are reasonable to any right-minded man; and not
disgusting and intolerable – If public think the immoral conduct
is something disgust and intolerable then such conduct should
be decriminalized though it in private.
  Hart: Immoralities do not necessarily affect the integrity of
society. Criminalizing certain immoral acts will result in
personal misery. Furthermore, how do one gauge what is the
nature of general morality produced in the mind of a
rightminded man? • Devlin’s approach puts emphasis on
society. Every immoral act starts from an individual. If not
nabbed or controlled, it engulfs the whole society.

CASE STUDY ON MORALITY

Victimless crime -Activities which involves no harm to others
especially homosexual, pornography. Difficult for law to enforce even
immoral.
Homosexuality -In UK under Sexual Offences Act 1967 homosexual
between consenting males in private no longer offence.  In Knuller
v. DPP [1973] AC 435 (small advertisement of homosexual), Lord
Reid stated ‘ I find nothing in the Act indicate that parliament
thought...that indulgence in this practice is not corrupting. Even
though...corrupting, if people choose to corrupt themselves that is
their affair and law does not interfere. But no license will be given to
others to encourage these practices.’
CLASSIFICATION OF LAW
A. Public law-
1. Manage the relationship between the state and the people.
2. Constitutional law, administrative law, and criminal law are all
examples of public law.
3. The Preamble mentions the purpose of public law, which is to
accomplish the state's goal.
4. Natural law, the Magna Carta, the Bill of Rights, and the Indian
Independence Act are all examples of sources. The Constitution
of India, as well as the constitutions of other countries
5. Remedies (Writs, PILs,
6. Case-Brown v Board Of Education

B. Private law-
1. It regulates interpersonal relationships.
2. Contract law, tort law, property law, and family law are all
examples of private law.
3. The aim of private laws is to regulate and monitor people's
behaviour when they meet up with other people.
4. Customs, customs, precedents, agreements, and treaties are all
sources of information.
5. Remedies: lawsuits, declarations, and intentions
6. Case-Hillstone Restaurant group v. Carvajal
C. Procedural law -refers to the collection of rules that govern
the court's actions in criminal cases, as well as civil and
administrative cases. Throughout the trial, the court must
adhere to the procedural law's requirements. These
guidelines ensure that the "due process" is conducted in a
reasonable and consistent manner.
D. Substantive law -is a type of statutory law that governs the
legal relationship between people or between people and the
government. As a result, substantive law establishes people's
rights and responsibilities, while procedural law establishes
the laws by which they are carried out. For a better
understanding of the differences between the two, further
research is required.
E. International Law and Municipal Laws-International law,
coined by philosopher Jeremy Bentham about 1800, refers to
the body of legal rulings, regulations, and customs that
govern international discourse. Municipal law, on the other
hand, regulates the conduct of individuals and businesses
within sovereign states' borders.
F. Municipal or municipality law- refers to a city or town in
popular use, especially in the United States. Municipal refers
to any sovereign body in international law, including
nations, states, counties, districts, cities, and towns.
[Link] municipal law-
 International law is the law of nations that governs the
relationships among the members of the international
family of nations.
 Municipal law is a type of state law that regulates
individual behaviour and deals with the relationship
between the individual and the state.
 International law is primarily concerned with
international or inter-state affairs. Municipal law is a
branch of infra-state law that deals with domestic
affairs.
  The essence of international law is that it is founded on
agreement and consensus. Municipal law is a
commanding and sanctioning authority.
 International law is a vertically acting autonomous
framework. Municipal law is a centralised system that
operates on a horizontal level.
[Link] law -Civil law refers to the law that is applied by the
government.
 The sanction behind the law is the state's power.
 It comes from the Latin term Jus Civile.
 It is territorial in nature since it only refers to the
State's territory.
 Since it is imposed by the sovereign political body,
Austin likes to term civil law a good law.

SOURCES OF LAW-
CUSTOM-
 To be true, a tradition must be followed for an
extended period of time without interruption.
Furthermore, a practise must be endorsed not only
over a long period of time, but also by the general
public's opinion and morality. Every custom, on the
other hand, does not have to become law. The
Hindu Marriages Act of 1955, for example, forbids
marriages between people with prohibited degrees
of relationship. However, if there is a proven
tradition within a society, the Act still allows
marriages within the forbidden degree of
partnership.
 Custom may simply be described as long-standing
customs or unwritten rules that have taken on a
binding or obligatory status.
 Custom was regarded as one of the most important
sources of law in ancient societies; in reality, it was
regarded as the true source of law. With the
passing of time and the rise of modern society, the
significance of tradition as a source of law has
waned, whereas other outlets such as judicial
precedents and legislation have grown in
importance.

Is it possible for custom to become law?

 There is no denying that tradition is a significant
source of legal authority. In general, there are two
opposing viewpoints on whether tradition is law.
Since tradition did not come from the sovereign's
will, jurists like Austin rejected it as law. Custom,
according to jurists like Savigny, is the most
important source of law. He believes that the will
of the people, not the will of the king, is the true
source of law. The people's will has always been
embodied in society's customs and traditions. As a
result, custom is a major source of law.
 Saptapadi is an example of customs serving as a
legal source. It is the most significant ritual in a
Hindu wedding. Saptapadi is a Sanskrit word that
means "seven steps." The newlywed couple takes
seven steps around the holy fire, known as
Saptapadi, after tying the Mangalsutra.
Section 7 of the Hindu Marriage Act, 1955, has
been amended to include the customary practise of
Saptapadi.

KINDS OF CUSTOM
Customs can be broadly divided into two classes:
 Customs without sanction: These kinds of customs
are non-obligatory in nature and are followed
because of public opinion.
 Customs with sanction: These customs are binding
in nature and are enforced by the State. These
customs may further be divided into the following
categories=
 Legal Custom: A legal custom is one that has
full validity and the force of law. The courts
have acknowledged and applied it. The
following two forms of legal custom can be
distinguished:
o General Customs: These are the types
of customs that exist in the State's
territory.
o Local Customs: Local customs apply to
a portion of the state or a specific area
of the country.
 Conventional Customs: The parties to a
contract are bound by traditional customs.
When two or more people enter into a
contract relating to a transaction, it is
assumed in law that they did so in compliance
with existing trade convention or use. For
example, a rent payment arrangement
between a landlord and a tenant would be
regarded by the convention in effect at the
time.
ESSENTIALS OF VALID CUSTOM
All customs cannot be acknowledged as legal
sources, and courts cannot recognise and
enforce all customs. For customs to be
accepted as legitimate sources of law, jurists
and courts have established some basic
criteria. The following is a summary of the
tests:
 Antiquity: For customs to be legally
legitimate, they must have existed for a
long time, maybe even beyond human
memory. In England, the year 1189,
during the reign of King Richard I of
England, has been set as the time limit
for determining the validity of customs.
However, in India, there is no such time
limit for determining the antiquity of
customs. The only stipulation is that
they must have been in use for some
time immemorial.
 Continuous: For a tradition to be
legitimate, it had to be followed on a
regular basis. It had to have been
enjoyed without any interruptions. Long
gaps in practise and sporadic observance
of a tradition cast doubt on its validity.
 Custom must be practised as a matter of
right: It must be done freely and in the
presence of the community. It could not
have been carried out in secret. A
tradition must be proven to be legal. A
claim to be a legal tradition requires
more than a shaky exercise of a right.
 Reasonability: A tradition must adhere
to the principles of fairness and public
benefit. To be true, a tradition must be
founded on logic and reason. A custom
will not be legitimate if it is likely to
cause more inconvenience and mischief
than profit.
 Morality: A tradition that is unethical or
contradicts public policy cannot be
considered [Link] customs
have been found unconstitutional by
courts because they were practised for
unethical purposes.
 When new law is introduced in every
modern state, it is usually preferred to
the existing tradition. As a result, it is
important that a tradition does not
conflict with or contradict legislation.
Many Indian customs have been
abolished by legislation passed by
legislative bodies. The customary
practise of child marriage, for example,
has been made illegal.
importance of custom as a
source of law in India
 In ancient India, custom was the most
powerful source of law. Even the
British initially followed a policy of
non-interference in Hindu and
Muslim personal matters. In cases
like Mohammad Ibrahim v. Shaik
Ibrahim, the British courts, especially
the Privy Council, noted and
emphasised the role of tradition in
shaping the law. At the same time, it's
worth remembering that customs
were not standardised or widespread
throughout the region. Some parts of
the world had unique customs and
practises.
 These differences in customs were
often seen as a barrier to the
integration of the country's different
cultures. Parallel social change
movements arose in the country
during our fight for independence.
Many questions concerning women
and children were posed by social
reformers, including widow
remarriage and child marriage.
 Following independence and the
passage of the Constitution, the
Indian Parliament took a number of
steps and, by progressive legislation,
abolished many old customary
practises. The Hindu Marriage Act of
1955 and the Hindu Adoption Act of
1955 were passed, codifying Hindu
personal laws.
 The Indian Constitution created a
favourable climate for these social
reforms. Following independence, the
importance of tradition as a source of
law and judicial precedent has
significantly diminished, and
legislation has taken a more
prominent role. However, customs
still regulate a large portion of Indian
law, especially personal law.
 Hindu Personal Laws that have been
codified are as follows: Hindu
Marriage Act, 1955 b) Hindu
Succession Act, 1956, c) Hindu
Minority and Guardianship Act. 1956