Chanderprabhu Jain College of Higher

Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)

Class : BBA LLB (H.)

Paper Code : 101

Subject : LEGAL METHOD

Unit I

What is law?

Law, in its widest sense, means and involves a uniformity of behavior, a constancy
of happenings or a course of events, rules of action, whether in the phenomena of
nature or in the ways of rational human beings. In its general sense law means an
order of the universe, of events, of things or actions. In its judicial sense, law
means a body of rules of conduct, action or behavior of person, made and enforced
by the state. It expresses a rule of human action.

The different meaning of the word ‘law’ may be classified as follows:-

 Law means justice, morality, reason, order, righteousness etc, from the point
of viw of society;
 Law means statutes, acts, rules, regulations, orders, ordinances etc, from the
point of view of legislature;
 Law means rules of Court, decrees, judgments, orders of courts, injunctions
etc. from the point of view of the judges;

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 Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
 Law means rights and remediesUniversity,
from theDelhi)
point of view of the decree-
holders;
 Law means duties, liabilities, obligations etc from the point of view of
judgment-debtor;
 Law means titles, written laws, judicial precedents, customs s evidence of
law.

Generally the term law is used to mean three things:

First, it is used to ‘legal order’. It represents the regime of adjusting relations, and
ordering conduct by the systematic application of the force o organized political
society.

Secondly, law means the whole body of legal precepts which exists in a politically
organized society.

Thirdly, law is used to mean all official control in a politically organized society.
This leads to the actual administration of justice as contrasted with the
authoritative material for the guidance of judicial action.

Law in its narrowest or strict sense, is the civil law or the law of the land.

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 Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
PURPOSE AND FUCTIONS OFUniversity,
LAW Delhi)

The law serves many purposes and functions in society. Four principal purposes
and functions are establishing standards, maintaining order, resolving disputes, and
protecting liberties and rights.

 Justice and law

The ultimate purpose of law is justice. Salmond says that law is “the body of
principles recognized and applied by the state in administration of justice.

According to salmond, justice consists in giving to every man his own. The rule of
justice determines the sphere of individual liberty within the limits which are
consistent with the general welfare of mankind, within the sphere of liberty so
delimited for every man by the rule of justice, he is left free to seek his own
interest in accordance with the rule of wisdom.

 Stability (uniformity)

Law must aim at stability in society. To achieve a balance has to struck not
between persons, but between interests. The law has to maximize the fulfillment of
the interests of the community and its members and to promote the smooth running
on the machinery of society. Indeed, the motion of law represents the need of
uniformity and certainty to achieve stability. The stability and security which the
social order derives from uniform unchanging and certain rules of law.

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 Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
 Peaceful change (flexibility)University, Delhi)
(social control)

The existing rules may not provide solution to the cases of changed times and no
rule can provide for every possible case. There is need for flexibility. Flexibility is
necessary to enable the law to adapt itself to social change. As society alters, new
social, political and economic requirements creep in and the needs of the people
change from time to time. In a progressive society law has to keep pace with the
changing needs of society. Law has to undergo a progressive change if it is to
subserve the needs of the society which it seeks to govern. In relatively static
societies, law can be used as a powerful instrument of social change. Law then
induces a new pattern of social behavior more conductive to the prosperity of the
society.

 Establishing Standards

The law is a guidepost for minimally acceptable behavior in society. Some

activities, for instance, are crimes because society (through a legislative body) has
determined that it will not tolerate certain behaviors that injure or damage persons
or their property. For example, under a typical state law, it is a crime to cause
physical injury to another person without justification—doing so generally
constitutes the crime of assault.

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 Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
 Maintaining Order University, Delhi)

This is an offshoot of establishing standards. Some semblance of order is necessary

in a civil society and is therefore reflected in the law. The law—when enforced—
provides order consistent with society’s guidelines

 Resolving Disputes

Disputes are unavoidable in a society made of persons with different needs, wants,
values, and views. The law provides a formal means for resolving disputes—the
court system. There is a federal court system and each state has its own separate
court system. There are also various less formal means for resolving disputes—
collectively called alternative dispute resolution (ADR).

 Protecting Liberties and Rights

The constitutions and statutes of the United States and its constituent states provide
for various liberties and rights. A purpose and function of the law is to protect
these various liberties and rights from violations or unreasonable intrusions by
persons, organizations, or government. For example, subject to certain exceptions,
the First Amendment to the Constitution prohibits the government from making a
law that prohibits the freedom of speech. Someone who believes that his free
speech rights have been prohibited by the government may pursue a remedy by
bringing a case in the courts.

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 Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
LAW JUSTICE AND MORALITY University, Delhi)

• In order to achieve justice; countries institute a legal system of some sort.

• Justice is an entirely subjective concept, largely depending on political

affiliation, and previous experience of the legal system.

• Similarly to law, there is a vast amount of documentation providing different

definitions and different theories of justice.

• This discussion begins with two major conflicting views about justice and
law .

• One view sees justice as no more or less than what the current authority says
it is. There are no universal principles by which justice or injustice can be
defined other than the way in which the government has made its laws.

• Thus, in different societies and under different authorities, justice is

different.

• In this view, the idea that there is some sort of universal ideal or natural law
is often just an argument by those who do not like the laws of the
government in power.

• The opposing view argues that there is a natural ideal of justice that law
aspires to that can be used as a criterion to measure whether laws are just or
not.

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 Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
• This school of thought is traditionally described as people who support
University, Delhi) the
concept of natural law or natural justice.

CLASSIFICATION OF LAW

1. PUBLIC LAW VS PRIVATE LAW.

Private law
Private law is concerned with the matters concerning the individual more
than the public. It regulates and governs the relations of citizens with each
other. The parties in such cases are private individuals and the state
adjudicates the matters in disputes between individuals through its judicial
organs.
Private civil law deals with matters such as contracts, insurance, carriage,
freight, damages, for personal injuries, civil wrongs, agencies, bailment, sale
of goods, partnership, regulation of companies, insolvency, arbitration,
negotiable instruments, transfer of property, trusts and the likes. In
democratic countries, the private law regulates the major part of the social
life.
In the classification of private life there is great difficulty. Different jurists
have given different classifications. A very general classification is as
follows:
(i) The law of persons
(ii) The law of property

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 Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
(iii) The law of obligationsUniversity, Delhi)
(iv) The conflict of laws

The law of obligations is divided into: contracts; quasi-contracts; and torts.

Private laws are enforced by granting the individual the right to take action in
defense of a recognized personal interest. The sole purpose for which most private
law rules have been created is to protect the individual interest.

Private law is also known as civil law. It involves relationships between

individuals, or private relationships between citizens and companies. It covers the
law of obligations and the law of torts, which is defined as follows: Firstly, the
Law of Obligation organizes and regulates legal relations between individuals
under contract. Secondly, the Law of Torts addresses and remedies issues for civil
wrongs, not arising from any contractual obligation.

Public law

Public law is simply distinguished from private law as a law involving the state.
Private law is a private bill enacted into law. It targets individuals or corporations,
unlike public law, which has a broader scope, and affects the general public.

Public law is a theory of law that governs the relationship between the state and the
individual, who is considered to be either a company or a citizen. Public law
covers three sub-divisions: Constitutional, administrative and criminal law.

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 Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
The state activities are largely regulated by Delhi)
University, public law. The public law determines
and regulates the organization and functioning of the state and determines the
relation of the state with its subjects. In public law, provisions are made with a
view to promote social objectives and to protect the collective rather than
individual interests. Public law may be divided into three parts:

(i) Constitution law

(ii) Administrative law
(iii) Criminal law

– Constitutional law covers the different branches of the state: Executive,

legislative and judiciary.

– Administrative law regulates international trade, manufacturing, pollution,

taxation, and the like.

– Criminal law involves state imposed sanctions for individuals or companies in

order to achieve justice and social order.

2. PROCEDURAL LAW AND SUBSTANTIVE LAW

Civil law may be defined as (i) procedural and (ii) substantive law.

Procedural law:

The procedural law can be defined as the law which governs the way in which
court proceedings are undertaken. Simply put, it explains the methods and

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 Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
practices, that are followed in theUniversity,
court forDelhi)
a case, i.e. the gradual phases of the
lawsuit that will take place and the way in which case is managed in the court. So,
it describes the series of steps taken in civil, criminal and administrative cases.

As procedural law determines the procedure of all lawsuits, it complies with the
due process. Due process pertains to the person’s legitimate right to have legal
proceedings if he/she is sued.

The procedural law determines the means of imposing rights and providing
remedies to wrong. It consists of rules concerning jurisdiction, pleading, appealing,
presenting evidence, executing judgement, cost and the like.

It regulates the conduct of affairs in the course of judicial proceedings. Jeremy

bentham used the term ‘adjective law’ for procedural law.

The procedural law is the law which deals with the mode in which a process of law
may be set in motion; it deals with the procedure and evidence by which
substantive remedies given under the law can be enforced. It deals with the form in
which actions may be brought in courts of law, the kinds of such actions and legal
processes, the mode in which each of the processes of law may be set in motion,
e.g. by summos, plaints, complaints, petition etc. it deals with matters such as the
jurisdiction of the courts, and the execution of decrees, orders and sentences passed
by the court. There is a procedural law for criminal cases and trials; and we have a
procedure for civil cases. Whether the suit is for declaration of a right or for
damages for a civil injury or breach of contract or for specific performance or

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 Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
injunction, or for restitutio of conjugal rights
University, whether it is in contract
Delhi) or tort, in
company law or maritime law, we have the same law of evidence and the same
code of civil procedure, subject to some minor qualifying procedural rules.
Generally, the code of civil procedure, the code of criminal procedure, the
evidence act etc. are procedural laws.

Substantive law:

Substantive law is used to mean the written law that states the rights, duties and
liabilities of the citizens and collective bodies. It is the system of rules that regulate
the behaviour of the citizens of the country. It is generally codified in statutes but
can also be found in common law.

Substantive law is concerned with the substance of the case. It either helps in suing
someone or defending a person from legal proceedings.

It is that part of the legal system which differentiates between right and wrong
conduct and personifies the idea that committing the crime will lead to penalty or
punishment or both (as the case may be) to the wrongdoer.

Substantive law is the law that is concerned with the determination of rights,
duties, liberties and legal powers. It refers to the rules and principles defining the
rights, powers, and privileges.

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 Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
3. MUNICIPAL AND INTERNATIONAL LAW
University, Delhi)

Municipal law is the law of the state regulating the conduct of individuals and deal
with the relation between individual and the state.

Municipal law is infra-state affairs concerned with domestic affairs.

Municipal law is of command and sanction, it is the will of the state empowered by
sovereign authority.

The source of municipal law is legislations and the judiciary is all pervasive.

The municipal law court is bound by the law laid down by the sovereign states for
its enforcement.

International law is the law of the nations, regulating relations between the nations
with each other.

International law is mainly concerned with foreign affairs and interstate affairs.

It is the nature of consent and consensus. It applies on individual mediate.

International law is the common will of the states.

It is considered weak law in comparison to municipal law in the view of the

positivists theorists.

The primary sources here are treaties, conventions, customs, general principal of
laws.

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 Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
The international court of justice University,
(icj) acts Delhi)
as a judiciary in international law, the
the decision of the court is binding upon the parties to the litigation who have
submitted themselves to the jurisdiction of the ICJ.

4. CIVIL LAW AND CRIMINAL LAW

Every country’s constitution enforces certain laws, for the purpose of maintaining
order and protecting the society from crimes. These laws are broadly classified into
two categories, i.e. Civil Law and Criminal Law. The Civil law lays emphasis on
resolving the dispute like family dispute, rent matters, disputes relating to the sale
and so forth. On the other hand, Criminal law stresses on punishment to the
offender, who breaches the law by acts such as, murder, rape, theft, smuggling, etc.

Civil law, plays a crucial role, as it resolves most of the private matters, that
happen to individuals. Conversely, the criminal law holds dominating positions
among the social control agencies, as it is a powerful tool which is used to protect
the public interest against anti-social conduct. Take a read of the article given
below, to understand the difference between civil law and criminal law.

BASIS FOR
CIVIL LAW CRIMINAL LAW
COMPARISON

Meaning Civil law refers to a general law, Criminal law implies the law
which is concerned with disputes related to the offenses or

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 Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
BASIS FOR
CIVIL LAW CRIMINAL LAW
COMPARISON

between individuals, organizations, or crimes committed against the

both wherein the wrongdoer society as a whole.
compensates the affected one.

Filed by Plaintiff Government

Purpose To sustain the rights of a person and To maintain law and order, to
to compensate him. protect society and to give
punishment to the
wrongdoers.

Starts with Filing a petition to the respective Firstly, a complaint is lodged

court or tribunal, by the aggrieved with the police who
party. investigate the crime,
thereafter, a case is filed in
the court.

Deals with It deals with any harm or violation to It deals with the acts which

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 Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
BASIS FOR
CIVIL LAW CRIMINAL LAW
COMPARISON

individual rights. law defines as offences.

Action Sue Prosecute

Outcome Remedy Punishment

Powers of court Award for damages or injunction Imprisonment, fine,

discharge.

Consequence Defendant is liable or not liable. Defendant is guilty or not

guilty.

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