FUNCTIONS

OF LAW

•Anu Solanki Kamble

Anu Solanki Kamble

*
• Plato – “mankind must either give themselves a law and
regulate their lives by it or live no better than the wildest of
the wild beasts.”

• Hobbes – “law was brought into world for nothing else but
to limit natural liberty of particular men in such a manner as
they might not hurt but assist one another and join against a
common enemy.”

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Classification*
a. Normative functions- establishing norms / rules of
conduct & enforcing the said rules
b. Social functions – serving functions that are social or
beneficial to the society like inculcating tolerance and
impartiality
c. Legal functions – originate out of the mandatory aspect of
law like protection of rights and freedoms

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1. Justice*
 According to Salmond, object of law is justice.
 Justice can have two connotations –
a. Wider sense, synonymous with morality
b. Narrower sense, areas like “courts of justice”,
“natural justice”, “denial of justice”
 Justice operates at two level –
a. Distributive justice – works to ensure a fair
division of social benefits and burdens among
the members of a community, i.e. serves to
secure a balance or equilibrium among the
society members.
b. Corrective justice – when the said balance is
upset, corrective justice moves into correct the
disequilibrium by institutions like courts,
police, etc.

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Anu Solanki Kamble
IS THIS EQUALITY ??

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Distributive Justice*
 Ensures fair division of social benefits and burdens among the members of a community.
 Achieved through Constitution and other laws.
 Art 14 is the biggest manifestation as this aspect targets equality; hence it requires intelligible differentia
(reasonable classification)

 Eg. – right to own property, right to education to all, etc.

 Aims at –
a. preventing class conflict;
b. Procuring welfare for all;
c. Secure the summum bonum (greatest good)
 Eg. – right to carry on trade, profession, etc. regulated by MRTP & Competition Act.
 According to Pound, law is a species of social engineering whose function is to maximize the fulfilment of the
interests of the community and its members and to promote the smooth running of the machinery of society.

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Corrective Justice*
 When a person breaches distributive
justice, then the equilibrium created as a
result needs to be rectified through
corrective justice.
 Its job is to procure and make available
remedies for such breach.
 Since this is enforced through courts, this
justice is a function of the courts.
 This validates distributive justice.
 Eg. – when A fails to pay the requisite tax,
IT department serves a show-cause notice
seeking the payment of the said sum or
else A shall suffer punishment at the hands
of the court.

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2. Stability*
 Stability of society, of the government, judiciary and
politics.
 Needs to maintain a balance between flexibility (to adapt to
social change) and uniformity (for certainty and
predictability).
 Law is an important instrument for achieving stability so as
to win acceptance from a sufficiently large section of
community to render its enforcement possible.
 Uniformity and certainty of law brings about stability.
 Laws to be pre-declared and no retrospective application.
 Fixed rules which may cause hardship are preferable to rules
which are fairer but uncertasin.
 Uniformity also takes care to avoid arbitrariness of a judge.
 Stability also signifies that law must be fixed, certain and
unchanging.
 In this way, an indirect function of law is also Deterrence.

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3. Peaceful change in society*
 Flexibility entails that law can be modified to adapt to
social changes.
 Reconciliation of stability and flexibility
 Pound – “Legal order must be flexible as well as
stable. Law must be overhauled continually, and
refitted continually to change in the social life which it
to govern.”
 Law if not modified as per societal changes, would
cause upheavals and revolutions; thereby leading to a
change which is not at all peaceful .”
 Salmond – “as a society alters, so do its needs and a
serviceable legal system must be able, in it
development, to take account of new social, political
and economic requirements.”

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4. Tolerance & Impartiality*
 Necessity for conforming to publicly
declared principles protects the
administration of justice from the
distributing influence of improper
motives on the part of those entrusted
with judicial functions.
 Law should be necessarily impartial.
 Law also brings about sense of
forbearance and tolerance in the
minds of citizens when they are
bound by certain seemingly unfair
laws, like higher tax slabs, etc.

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5. Utilitarianism*
 Originated from the theory of Jeremy Bentham and Stuart
Mill.
 According to it, the greatest human happiness determines the
highest mortal good.
 Thus the function of law is to seek the greatest happiness for
the greatest number of people.

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6. Protection of Interests*
 Harmonizing individual and social interests

INDIVIDUAL SOCIAL
Physical protection national security
Fundamental social prosperity
freedoms

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CLASSIFICATION OF LAW
1. Substantive & Procedural
2. Public & Private
3. Civil & Criminal
4. Municipal & International
5. General & Special

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*
1. SUBSTANTIVE PROCEDURAL
 Laws that set out the  Laws that outline the steps and
rights and obligations of procedures involved in
protecting and enforcing the
each person in society
rights given under substantive
 They describe the law
expectations of society /  These describe the
code of conduct and procedure or explain the
enumerate the punishment substance of laws.
 Eg. – Indian Penal Code,  Eg. – Code of criminal
Hindu Marriage Act. Procedure, Code of civil
Procedure, Environment
Protection Rules.

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Substantive or Procedural ??*
 A law that outlines the steps in obtaining a search warrant
 A law that makes it illegal to assault another person
 A law that outlines the steps to follow in making an arrest
 A law that makes it illegal to possess a controlled drug

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2. PUBLIC LAW*

 Controls the relationship between the government and the

people. It represents laws that apply to all individuals.
 Three types-
a. Criminal Law – series of rules passed by federal
Parliament to prohibit or prevent certain actions such as
murder, assault, theft, robbery etc .
b. Constitutional Law – laws that set out the structure of
government, especially the divisions of power between the
provincial and federal governments
c. Administrative Law – governs the relationship between
citizens and government & public agencies (i.e. Liquor
Control Board, CRTC, Employment Insurance Comm.)

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PRIVATE LAW*
 Outlines the rights and responsibilities of private individuals
and organizations.
 In a private (civil) law case, the person who starts the lawsuit
is called the plaintiff, and the person who is being sued is
called the defendant.
 The plaintiff sues because he or she believes that the
defendant has caused him or her harm, loss, or injury.

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 PRIVATE LAW

Family Law Contract Law Tort Law

Labour Law covers a tort is a wrong Property Law
governs a contract is an
the relationship which one governs the
relationships agreement
between employers person commits relationships
between between 2 or more
and employees in between
persons living persons which against another.
terms of rights and It gives individuals
as spouses imposes rights and
obligations. Issues remedies to relating to real
and between duties on those
include employment those who have property (land and
parents and parties. As simple
contracts, been injured by buildings) and
children as the purchase of
grievances, etc. the intention or personal property
a CD or as
complex as the negligence of (cars, bank
leasing of a others accounts etc.)
commerical
aircraft

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Public or Private law ??*
 A youth is arrested for committing a break in somebody’s
property.
 Your job as a cashier pays you at the provincial minimum-
wage rate.
 You sue a doctor for causing you extensive throat injury
while operating to remove your tonsils.
 A store owner agrees to sell you a chocolate bar at a
specified price.
 Your parents are considering buying a new home or leasing a
new apartment.

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 3. CIVIL LAW*
Definition
 deals with the disputes between individuals, organizations, or between the two, in which compensation is
awarded to the victim.
Purpose
 To deal with the disputes between individuals, organizations, or between the two, in which compensation is
awarded to the victim.
Case filed by
 Private party

Decision
 Defendant can be found liable or not liable, the judge decides this.

Standard of proof
 "Preponderance of evidence." Claimant must produce evidence beyond the balance of probabilities.

Burden of proof
 Claimant must give proof however, the burden may shift to the defendant in situations of Res Ipsa Loquitur
(The thing speaks for itself).
Type of punishment
 Compensation (usually financial) for injuries or damages, or an injunction in nuisance.

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Criminal law*
Definition
 body of law that deals with crime and the legal punishment of criminal offenses.

Purpose
 To maintain the stability of the state and society by punishing offenders and
deterring them and others from offending.
Case filed by
 Government

Decision
 Defendant is convicted if guilty and acquitted if not guilty, the jury decide this.

Standard of proof
 "Beyond a reasonable doubt":

Burden of proof
 "Innocent until proven guilty": The prosecution must prove defendant guilty.

Type of punishment
 A guilty defendant is subject to Custodial (imprisonment) or Non-custodial
punishment (fines or community service). In exceptional cases, the death
penalty.

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Civil or Criminal law ??*
 Theft
 Assault
 trafficking in controlled substances
 Robbery
 Landlord/tenant disputes
 murder
 divorce proceedings
 child custody proceedings
 property disputes

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4. Municipal Law*
 Municipal law regulates relations within a country (intra-
state).
 Municipal law is hierarchical or vertical - the legislature is
in a position of supremacy and enacts binding legislation
 Made by Legislature.
 courts in a municipal system can require a government,
company or individual to appear before it
 It is the law of the sovereign over the individuals subject to
the sovereign rule unlike International law that is between
equal sovereign states in which no one is supreme to the
other.

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International Law*
 International law governs the relation of sovereign independent states inter 
and constitutes a legal system the rules of which it is incumbent upon all
states to observe.
 International law is horizontal - all states are sovereign and equal
 there is no legislature in existence and it is by way of agreements between
countries (treaties) that international law is made
 The court system at the international level is one that relies on the
acquiescence of the countries to both its jurisdiction and to carrying out the
decisions of the court. Even though it is well-established at the international
level and respected but it lacks the ability to compel a country to come
before it.
 role of politics in international law influences the character of international
law profoundly and is more likely to reflect the political interests of the
countries than might be the case at the municipal level.

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 Theories under Municipal & international Law
Monistic- This theory believes that national and international law
are a single body of principles. The origin and sources of these
two laws are the same. Both spheres of law simultaneously
regulate the conduct of individuals and the two systems are in their
essence groups of commands which bind the subjects of the law
independently of their will.

In a pure monist state, international law does not need to be

translated into national law in order for it to be part on national
legal system. Ratification of an international treaty incorporates it
as part of national law which can be invoked in a national court.

E.g. Germany, Holland

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 Dualistic- This theory believes that international law and
municipal law are separate and self contained. They are
two are separate bodies of legal norms emerging in part
from different sources comprising different difference
subjects and having application to different objects.

In these countries international treaties must be translated

into national law (in the form of domestic legislations) in
order to be applicable to the citizens and enforceable in a
court of law.  

E.g. UK, Australia, India

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Municipal or International Law??*
 A law regulating cases of Consumer grievances and their
redressal
 Law pertaining to protection of human rights of refugees
 Law laying down law of High seas
 Law providing for grounds of divorce to an Indian woman
from her husband
 Law of war / armed conflict
 Law enforcing a foreign arbitral award

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5. General Law*
 A general law is a law which in its terms and effect applies
either to the whole state, or to one or more municipalities /
divisions of the state less than the whole in a class.
 A general law is applicable to a class of reasonably related to
the purpose of the law, provided that the legislature may also
enact and change it from time to time.
 It is unrestricted as to time and applicable throughout the entire
territory subject to the power of the legislature that enacted it
and applying to all persons in the same class in the same
situation .
 Eg. – Section 354 IPC relates to outraging a woman’s modesty
in generic way.

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Special law*
 A special or private law is one which applies to a specified
individual, association or corporation or a specific subject
already covered under as general law.
 Eg. – Prevention of sexual harassment of women at
workplace Act, 2013 is a special law as against s. 354 IPC.
 Eg. – Air (Pollution) Act is a special law as against
Environment Protection Act.

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General Law and Special Law*
 General Law
 That part of law which
applies to all persons
without discrimination
 Not limited to any particular
locality but applies to the
entire nation
 Law of the realm or the
general law of the land
 Example- Statutes, Equity
and Common Law
 Special Law
 Rules which apply only
under special circumstances
 Can be distinguished by the
test of judicial notice-
Courts normally take notice
of general laws unless
special laws are pleaded
 Need to establish the
existence and applicability
of special laws.
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Kinds of Special Laws
 6 kinds of special laws
 Local Law- applicable to a certain locality but not to the
entire territory. May be a local custom which has a force of
law in a certain locality or local enacted law.
 Foreign Law- International private law which deals with a
body of rules in relation to jurisdiction and appropriate
laws for cases that involve a foreign element.
 Martial Law- Law proclaimed in time of turmoil as
supplementing the ordinary law of the land which is
insufficient in times of internal disturbances. To be
distinguished from Military law which governs members
of military forces

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Kinds of Special Laws
 Conventional Law- Conventional law is a species of
special law and has its source in the agreement of those
who are subject to it. Agreement is a law for those who
make it. For example: AOA of a Company or partnership
deed
 Autonomic Law- Law set by private persons or
organizations acting in pursuance of their legal rights
granted to them under the Act constituting such bodies.
E.g.- laws made by co-operative societies, school and
colleges. etc by enacting laws, rules, and regulations
 Prize Law- portion of international law which relates to
the determination of the legality of the captures of ships
and cargoes at sea during war. Enforced by municipal
courts but not part of general laws of the land.

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Theory of Lex specialis derogat legi generali.

 where two laws govern the same factual situation, a law governing
a specific subject matter (lex specialis) overrides a law which only
governs general matters (lex generalis)
 The need to use this arises with regard to the construction of
earlier-enacted specific legislation when more general legislation
is later passed.
 Doctrine "lex posterior derogat legi priori" may also apply - the
younger law overrides the older law

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 General or Special Law?*
 Indian Penal Code
 Laws made by municipal corporations
 Laws determining jurisdiction in a marital dispute
involving people fro different nationality
 AOA of a company
 Laws in force during emergency
 Bye-laws framed by a co-operative society

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