The term law is used in a number of ways in different fields. The law influences every aspect of our lives; it oversees our behavior from birth to death. We live in a society which has built up a composite body of rules to control the actions of its individuals. There are laws which govern working conditions (e.g. by setting down minimum health standards at workplace), laws which regulate the activities in common places (e.g. by banning smoking in enclosed public places), laws which ensure social and public interest (e.g. by prohibiting nudity in public places or advertisements) and laws which control individual connections (e.g. by prohibiting marriage between close relatives). Thus it is important for us to identify what law is and how its differs from other kinds of rules.
This article gives a brief introduction to law outlining the function, purpose, branches and types of law.
Content:
1. What is Law
2. Functions and Purposes of Law
3. Branches and Types of Law
3.1 Written and Unwritten Law
3.2 Municipal (National) and International Law
3.3 Public and Private Law
3.4 Substantive and Procedural Law
3.5 Criminal and Civil Law
4. The Rule of Law
What is Law
Though many scholars have tried to explain and define the term Law, no commonly accepted definition has arisen. However, law can be broadly defined as a set of rules or standards, enforceable by the courts, which regulate the activities of the state, the relationship between the state and the citizens, the relationship between individuals and the conduct or behavior of an individual.
As human beings, we have been subjected to abide by certain rules, be it the rules of a game, rules of an association/union, or some social conventions such as respecting the dead. In such cases, the “rule” is only an impression of what a group regards to be proper conduct. In none of the above situations, we don’t expect the rule to be authoritative as law and for it to be enforceable in the courts. Thus, rules are different from law. The fundamental difference between rules and laws is based on the consequence of breaking them. While both rules and law are invoked to bring about order, fair play, and security, the weight of the law is much more than the weight placed on rules. Laws can be interpreted as the legal version of rules. When a rule is broken, the outcomes have a tendency to be uncomfortable. However, they are mild in contrast with the infringement of the law. When you infringe a law, a legal action will follow. Rules are more adaptable and carry less severe consequences. Rules are personal, and they could be molded and accustomed to certain conditions and circumstances.
Having demarcated the rules from law, we could arrive at a broader definition of law; the law is a system of “rules and regulations made and enforced by a government that regulates the conduct of the people within a society”.
Thus, by regulating the conduct of the people, the law has certain ends to meet. Accordingly, some of the purposes of law could be laid down as follows.
Functions and Purposes of Law
It promotes peaceful existence/ upholds of law and order.
It is a standard setting and an instrument of control. Law sets standards of conduct in various aspects of life. It additionally goes about as a control mechanism of such conducts.
It ensures rights and implements, duties and obligations, by way of enforcing remedies, when such rights and duties are infringed.
It facilitates and gives effect to individual choices. While law enables a person the freedom of choice, it also provides legal effects to such choices. For example the law of contracts, marriage, and inheritance, etc.
It provides a mechanism to resolve and moderate social conflicts. Some social conflicts are unavoidable. In such situations, the law recognizes such conflicts and would take measure to intervene and resolve such conflicts.
It facilitates and effectuates the rule of law in governance. The branches of the state are conferred with the authority to govern, and for such governance, which promotes good governance, accountability, and transparency, the rule of law becomes applicable. Further, this also advocates the concept of equity in the society.
The above mentioned are a few purposes of law broadly enlisted. It is important to note that the above-mentioned functions of law are in general terms.
Law and Morality
Morality is the quality of judgment among good and bad in reference to certain values developed by society over time. It comprises of standards of conduct generally utilized by a general public and is binding on the individuals from that society. An activity that is thought to be against morality will generally be disapproved by that society. Nevertheless, morality is not enforceable at courts.
Wrongs in the public eye are contradictions of law or morality or both. Since the law uses a significant fraction of morality, there can be instances, where law and morality correspond; morality is upheld as a rule of law and such morality turns out to be a part of the law. For example murdering a man, torturing a person, robbery, etc. are immoral as well as a wrong/illegal under the rules of law and in addition a wrongdoing.
In any case, certain wrongs in the society negate morality yet not the law. E.g. disregard, inability to provide for parents, inability to save a drowning individual, etc. What then is the connection of morality to law? The presence of unjust laws, (for example, those implementing servitude, or permitting abortions) demonstrates that morality and law are not alike and do not agree. However, the presence of laws that serve to safeguard fundamental values, for example, against homicide, assault, rape, defamation, bribery, fraud, etc establishes that the two can work together. Laws administer the conduct of individuals, and they enforce it at least by way of inducing the fear of penalty. With morality, it is assumed that it has become a habit or second nature; it would ensure such conduct without impulse. Thus an idealistic person would do proper things since it is the good or respectable thing to do, not on account of fear of penalty. Accordingly, when individuals feel that a conduct is immoral they will try to enforce a law that would prohibit such conduct, whilst even if the law states that “X conduct” is an illegal conduct and if the majority of people disagree, they could take measure to change such law.
Branches and Types of Law
Law may be classified as:
Written and Unwritten
Written Law: This is codified law. These are laws that have been put into writing. i.e., they are contained in formal documents e.g. the Constitution of a state, Acts of Parliament, Other Legislations, International agreements, etc.
Unwritten law: These are principles of law that are not contained in any formal document. The presence of such rules must be established. E.g. Customary law, Islamic law, Common law, Equity, Case law, etc. Generally, the written law prevails over unwritten law.
Municipal (National) and International Law
Municipal/National Law: This refers to rules of law that are pertinent within a specific nation or state. This is also the law of a state. It manages the relationship between the citizens and the relationship the state has with its citizens. The sources of the municipal/national law could be through legislations, customary laws, and religious/personal laws, etc.
International Law: This is a set of rules that govern the relationship between states, or between state and regional organization (EU, ASEAN, SAARC) or other recognized international organizations (United Nations, World bank, Red Cross). International law arises from international treaties, conventions, agreement, customary practices, etc.
Public and Private Law
Public Law
It comprises of those fields or branches of law in which the state has an immediate interest as the sovereign. This is in related to the Constitution and functions of the different organs of government including local authorities, their relations with each other and the public of the nation. Thus public law asserts the nation’s sovereignty and has to deal mainly with the relationship between the state and its citizens. This incorporates some specialist areas of law such as:
Constitutional law:
Constitutional law is related to the constitution of the country. It encompasses areas such as the head of the state, the structure of the government, the branches of the governance, the framework and processes of the parliament, the division between public and private law, the operation of the central and local government, citizenship and the civil liberties of its citizens,
Administrative law:
There has been an emotional increment in the exercises of government amid the most recent hundred years. Plans have been acquainted with guarantee a base way of life for everyone. Government offices engage, for instance, in the arrangement of a retirement or pension schemes, revenue sustenance and child benefits. An extensive number of conflicts/disputes emerge from the administration of these systems, which has given rise to the body of law, namely the administrative law to manage the conflicts of people against the decisions of administering authority.
Criminal law:
Certain wrongdoing poses serious threats to the order of the society. Such wrongdoings could be considered as violations/crimes against the society. The criminal law makes such hostile social-conduct an offense against the state and guilty/offenders are penalized. The state is in charge of recognition, prosecution, and punishment of the guilty.
Private Law
It comprises of those branches of law in which the state has no immediate interests as the state/sovereign. It deals with the lawful relationships between people at general circumstances. For example, law of contract, law of property, laws governing marriage, law of torts, etc.
The private law relates to the rights and duties of people towards each other. The state’s contribution towards this area of law is kept to provide a peaceful way of resolving disputes. Along these lines, the legal procedure is started by the wronged person and not by the state. Private law is additionally called the civil law.
Substantive and Procedural Law
Substantive Law
It comprises of the rules encompassed in itself as opposed to the applicable procedure in the law. It defines the rights and duties of the parties, while also setting out the mechanism of relief for a wrong. The substantive law outlines offenses and endorses the penalty. Some of the laws that could be categorized under this would be the law of torts, the law of contract, laws concerning marriage, penal code, etc.
Procedural Law
This is also known as the descriptive/adjective law. It comprises of the steps/procedures while administering the system of justice or applying the substantive law. Some of the laws that can be related here would be the criminal procedure code, Evidence Act/ordinance, etc.
Criminal and Civil Law
Criminal Law
The criminal law is related to prohibiting certain forms of wrongful acts and penalizing those who engage in the prohibited acts. This is the law of wrongdoings. A crime is an act or omission committed or omitted in while infringing on public law e.g. homicide, rape, robbery, etc. All offenses are legislated by the parliament through statutes A man who is claimed to have carried out a wrongdoing is alluded to as a suspect. Generally, at the instigation by a complainant, the suspects are arrested by the state through the police. After the arrest, the suspect is charged through a fair trial, where he/she might be indicted or acquitted. The prosecution is through Attorney General (AG) on behalf of the state. Consequently, the cases would be referred as R (the State) Vs Accused. It should be noted that criminal prosecutions may also be assumed by bodies, such as the state authorities or bodies. “If the accused pleads not guilty, it is the duty of the prosecution to prove its case against him by adducing evidence i.e. the burden of proof in criminal cases is borne by the prosecution.” (Harris, 2015). The standard of proof/evidence in a criminal case must be established beyond reasonable doubt. In other words, the court must be convinced that the accused committed the offense as charged and if reasonable doubt prevails, the accused would be acquitted, whereas if the prosecution established the case beyond reasonable doubt , then the accused is convicted and penalized accordingly.
Civil Law
This area of law relates to the rights and duties of individuals. Branches of civil law incorporate laws governing contract, torts, property, marriage, inheritance, etc. When an individual’s civil or private rights have been infringed, he is said to have a reason for action, for instance, a breach of contract, negligence, etc. can give rise to a civil action in the courts. The parliament through its statutes, common law or equity can create the cause of action. Enforcement of the civil law is an obligation of the person who has been wronged; the state’s part is to give the procedure and the courts to resolve the conflict/dispute. The individual whose rights are supposedly damaged/violated sues the wrongdoer. Therefore, civil cases are referred as Plaintiff v Defendant. It is plaintiff’s duty to establish his claims against the defendant i.e., the burden of proof lies on the plaintiff. In civil cases, the standard of proof is on a balance of probabilities or on a preponderance of probabilities. The court must be satisfied that it is more probable than improbable that the plaintiff’s allegations are true.
The Rule of Law
The idea of the Rule of Law is a structure created by Dicey on the premise of the English Legal framework. It is likewise defined as the “due process”. As indicated by Dicey, the rule of law contains three diverse and specific condition :
- “Absolute supremacy or predominance of regular law”: this implies that all acts of the State are administered by law. It implies that a man must be penalized for defiance of the law alone and nothing more.
2. “Equality before the law”: this implies that all people are subjected as equals before the law and that no individual is exempted from complying with the law. All classes of people are subjected to the same legal process paying little respect to their age, gender, religion, sexual orientation, race, etc.
3. “The law of the Constitution”: this implies that the law is a manifestation of the will of the people.
Reference:
Harris, P. (2015). An introduction to law. Cambridge University Press.
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