LAW & LEGAL SYSTEMS – AN

INTRODUCTION

Dr Prashant S. Desai,
Dean,
School of Law ,
Ramaiah University of Applied Sciences,
Bengaluru
WHAT IS LAW?

 The term ‘law’ is derived from the old Teutonic ‘LAG’ which means
something which is fixed or even.
 In general, it is a rule of being or conduct established by an authority
able to enforce its will; a controlling regulation or order according to
which an agent or power acts.
 Law is an English word. Its corresponding word in the Hindu system is
‘dharma’, in Islam is ‘hukum’, in French is ‘droit’ and in German is
‘recht’.
WHAT IS LAW?

 'The law is The Law’ and we tend to know it when we see it. But it is a
question that philosophers and legal theorists have expended many
pages in trying to answer.
 Poet W.H. Auden

 ‘The Concept of Law’ says that “few questions concerning human

society have been asked with such persistence and answered by serious
thinkers in so many diverse, strange and even paradoxical ways as the
question what is law?
 Prof. H.L.A. Hart
 For Hart, there is a difficulty in answering the questions because of
what he calls ‘the three recurring issues’, viz.,
 The relationship between law and morality;
 The relationship between law and rules;
 The relationship between law and coercive orders.

 According to Hart, unless and until there are answers to these recurring
questions the issue of what is law will continue.
 The following are some of the definitions of various academics reduced to
its most basic form:
 Law is a system of rules laid down by a body or person with the power
and authority to make law;
 Law is what legislators, executive, judges and lawyers do;
 Law is a tool of oppression used by the ruling class to advance its own
interests;
 Law is a set of rules which is intended to regulate the relations between
people living in a state;
 It is to regulate relations between groups of people living in a particular
territory;
 It is standardized set of rules;
 May be equally applicable to all or may not be.(To bring about equality
some protection may be necessary)
 Law is system of rules grounded on fundamental principles of morality.
 Simply stated, ‘Law’ can be defined as a set of rules which we are
bound to obey i.e. those rules which are enforced by the State.
 Like legal rules there are social rules as well. Society may be governed
by social rules as well. It goes without saying that the two types of rules
are clearly distinct form each other. Social rules could include ‘proper’
behavior or etiquette.
 Killing a human being is both wrong legally and socially. It is hard to say
which social rule should receive the force of law and which should not. You
are likely to fined for failure to wear a helmet while travelling on a
motorbike. But it might not be frowned upon as being socially unacceptable
to not wear a helmet. How a social rule becomes law may depend on the
society you live in, i.e. religion, ethnicity, culture, tradition etc.
FUNCTIONS OF LAW

 Maintenance of public order and safety;

 Protection of individual rights and liberties;
 The organization and control of the political sphere;
 The regulation of economic activity;
 The regulation of human relationships;
 The preservation of a moral order;
 The regulation of international relations.
CLASSIFICATION OF LAW

 Civil and Criminal Law

 Civil laws award liabilities in the form of damages and Criminal laws
prescribe imprisonment, in an attempt to punish.
 Substantive and Procedural Laws
 Substantive Law provides definitions within various statutes. In the criminal
sense, it defines crimes and punishments, and in the context of Civil Laws, it
defines Rights & Obligations.
 Procedural Laws provides procedures and rules that need to be followed
within the judicial process.
 Public and Private Laws
 Public Law deals with relationships between people and the State, how
the State is organized & functions, this determining the legitimacy, scope
and extent of its actions.
 Examples: Constitutional Law, Administrative Law, Criminal Law etc.
 Private Law involves relationships between individuals. It governs those
relationships in which people interact under a private capacity.
 Examples: Law of Contract, Law of Tort, Law of Property, Law of
Succession, Family Laws etc.
 Whether all countries can have same or similar law?
 No, law is closely related to culture and history and the vision for the
given country.
 Hence, variations in law from country to country and different provinces
in the same country-federal state is a great example
 What is rule of Law?
 It means there is a standard Law applicable to every body living in a
defined territory
 All people living in that territory are equally bound by that law
 It is rule of law and not persons
 No body is above law
 There will be mechanisms or institutions to implement this law and
clarify what is this law
 In India it is the Constitutional courts who preserve the rule of law
LEGAL SYSTEMS- GROUPING OF DIFFERENT
COUNTRIES LAWS

 Each Country has its own laws peculiar to their History, culture
and vision for their country.
 It is difficult to know every country’s law. Hence grouping or
classification..
 Broadly they are classified as legal systems of the world
LEGAL SYSTEMS OF THE
WORLD
 Common law system
 Civil law system
 Socialist system-Marxian philosophy
 Middle east or Islamic law-based on religion
 Personal laws- based on religion
 Precedent
 Ratio Decidendi
 Obiter dicta

 Article 141 of the Indian constitution

 Policy is determined by reading the provisions of the law
 Accountability
 Legislative accountability
 Executive accountability
 Judicial accountability
 Multi-religion society – UCC
 Reasons for not bringing in despite of several pronouncements from judiciary
 SDSB

 Dharmashatras
 Shruthis
 Smritis
 Dharmasutras
 Shariyat – Quaran-e-shariyat – Hadis- primary source of Islamic law – Hanafis-
 Sunnas /sunni based legal system ( part of Islamic law)
 Role of judiciary – Indian Constitution
 Principle of Judicial Restraint vis-a-via Judicial Review
 Freedom of speech and expression vis-a- via right to dignity/reputation
 Ultra Vires to the provisions of Indian Constitution
 VII Schedule of the Constitution
 Judicial Activism v/s Judicial Over reach
 Precedent
 Basic Aspirations of the Constitution
WHICH SYSTEM OF LAW IS
BETTER?
 The one where there is no control of one person but everyone is
subjected to control of law.
 The system where there are checks and balances
 There has to be a culture to honor the laws
 An efficient system of enforcement
 Strong sense of citizenship
 Law which provides for smooth changes
 A proper blend of rigidity and flexibility
WHAT IS LAW –HOW TO DEFINE LAW?

 Law is a command laid by a political sovereign and it is enforceable by

sanction -Positive Law
 This definition is more concerned with the process of law making than
the content
 Adopting this to the present day – law is expression of the will of the
State through the medium of legislature
 To Austin, political Sovereign is any person or body of persons to whom
the bulk of political society habitually obeys and does not himself obey
some other person or persons
 What about customs, contracts, international law, Common law, etc.,
which is being fallowed by nation states?
 Positivists answer this question-these are laws impliedly endorsed by the
sovereign
 Law is dictate of reason- Natural Law
 Law consists of rules in accordance with reason and common sense which
are based on human nature
 Law has to confirm to the principles of justice and morality
 Man has certain basic requirements-live as a human being and realize the full
potential bestowed on him by nature
 To meet these requirements rules/law is made
 If the law made is against human nature it is bad law
 Law should facilitate the development of full potential of a human being
 The potential bestowed on the human being by the nature
 Law as a practice of Courts- Legal realism
 All laws however made are recognized and administered by the Courts
 Here the Sovereign is the Court-it is for the courts to say what is the meaning
of law
 Courts put life in to the dead letter of law
 Life of law has not been logic but experience
 All the above theories of law are agreeing on one point that law consists
of a set of rules
 Rules are regarded by the positive law as command of the Sovereign
 Rules are regarded by Natural law as dictate of reason
 Rules are regarded by legal realism as a practice of Courts
 All the theories put together explain the source, content and reality of
what law is
SOURCES OF LAW
 While the jurisprudential and conceptual definition of Law is highly
disputed and the exact nature and definition of Law stands contested, a
working conception of Law includes a number of different things.
 Article 13 of the Constitution of India defines all those things that come
into the ambit of Law for the purpose of the Constitution.
 There are however, also some other kinds of norms, which classify as
Law for our pragmatic understanding.
SOURCES OF LAW (CON’TD)
 Legislation
 Delegated Legislation
 Ordinances
 Judicial Decisions and Precedent
 Article 141 of the Constitution law laid down by the S.C is law of the land

 Constitutional Law including amendments

 Custom as source of Law
 International Law
 Contracts as Law
 Equity – standards of Justice and Good Conscience
LAW AND MORALITY
 Law is basically not concerned with morality.
 Incidentally there may be overlapping of law and morality
 Law has to lead the country according to the policy laid
down in the constitution
 It may be some policy document in other countries
depending the legal system
 SUPREME
COURT

HIGH COURTS

SUBORDINATE SPECIAL
COURTS COURTS &
TRIBUNALS

DISTRICT &
SESSIONS COURT

CIVIL COURTS (DISTRICT

JUDGE)

CIVIL JUDGE SR Division

Civil Judge Jr division

CRIMINAL COURTS (SESSIONS

COURT)

CHIEF JUDICIAL
MAGISTRATE

JMFC
NATIONAL LITIGATION POLICY ON
ARBITRATION
 More and more govt depts and PSU’s are resorting to
arbitration
 Careful drafting of commercial contracts including
arbitration agreements must be given top priority
 Encourage resorting to arbitration-arbitration becoming a
mirror of Court must be stopped.
 It must be efficient, cost effective and expeditious
LITIGATION POLICY
 Proposals to hold Court working in the morning and evenings shifts
 To enhance the functioning of Lok-Adalats
 Promoting of ADR methods
 Enhance legal aid to the marginalized sections and empower their
access to justice
 Enhance the capacity of judicial officers and public prosecutors
 Creating judicial academy in every state to facilitate such training
 Creating Court managers in every judicial district
 The need for improvement of judiciary
 There are more than three crores of cases pending in various courts
today
 The challenges of liberalization and Globalization
 How delay hinders economic development
 Reducing the time for disposal from 15 years to 3 years by 2020
PROCEEDINGS BEFORE A CIVIL
COURT
 Claim statement along with dependent documents
 Written statement with all dependent documents
 Issues
 Evidence-Documentary, Material, Oral
 Injunction application ,Application for stay
 Arguments
 Judgment
 Appeals, Revision, Review
 Execution
 Applicability of CPC and Evidence law
APPEAL, REVIEW, REVISION
 The appellate court shall have the fallowing powers:
 To determine a case finally; to remand a case; to frame issues and
refer them for trial; to take additional evidence or to require such
evidence evidence to be taken by the lower courts.
 Appeal is a right conferred by the statute
REVIEW
 A person aggrieve by the decision of the court but has not
preferred an appeal though such appeal is allowed by the
law may apply to the court which has passed the judgment
or decree.
 Similarly a review may be filed where an appeal is not
allowed by the law
REVISION
 The HC may call for the record of any case which has been
decided by any court subordinate to such HC and in which
no appeal lies thereto. This is possible if such subordinate
court appears –
 To have exercised a jurisdiction not vested in it by law, or
 To have failed to exercise jurisdiction so vested or,
 To have acted in the exercise of its jurisdiction illegally or
with material irregularity
 The HC may pass pass such order as it thinks fit.
PROCEEDINGS IN A CRIMINAL
CASE
 Police complaint/ FIR

 Private complaint

 Arrest by the police-Cognizable and non cognizable

 Law relating to bail

 Investigation by the police

 Filing charge sheet

 Framing charges by the court

 Proving the charges by the prosecution-Evidence-Material, documentary, oral

 Arguments

 Judgment-Conviction or acquittal

 Appeal or revision or review

TRIBUNALS
 Application
 Principles of natural justice
 Interim applications
 Arguments
 Judgement
 Giving appropriate relief
 In giving appropriate relief equity is used
 In case of improper punishment setting aside the enquiry and restoring
to the original position with a Liberty to conduct fresh enquiry
 Judicial review
 Chandra Kumar –v- UOI- judicial review is the basic structure of the
Indian constitution
 Adversarial proceedings
 Balance of probabilities in civil cases
 Beyond reasonable doubt in criminal proceedings

 Inquisitorial proceedings
 Tribunals are suppose to be following inquisitorial proceedings
QUASI JUDICIAL PROCEEDINGS
 Administrative authorities performing adjudication
functions
 This is because of the familiarity of the facts associated with
quick resolution of disputes
 Whenever there is decision on rights or adverse decision
made principles of natural justice to be fallowed.
 Subject appeals or writ under Art 226
CONSTITUTIONAL LITIGATION
 Writs
 Writ of Habeas Corpus
 Writ of Mandamus
 Writ of prohibition
 Writ of certiorari
 Writ of Quo Warranto

 Articles 32 and 226

 Public interest litigation
 Basic structure theory- Keshavananda Bharathi case
ADR METHODS
 Negotiation
 Mediation pre-litigation; Court annexed.
 Conciliation
 Lok-Adalat- Pre -litigation: Court referred
 Arbitration
 National litigation policy on ADR
DISADVANTAGES OF LITIGATION

 Promotes Game Theory of Justice-

 Persons with resources are likely to win the game.
 Involves lot of delay.
 It is expensive.
 Parties to the dispute have no control over the proceedings or out come.
 Appeals
 Solutions coming from the Court may not be satisfactory to the parties.
 Being win-lose situation, the animosity between the parties may
continue and even result in cumulative disputes.
 Difficulty in enforcing the decisions of the court.
 Limitations in handling complicated cases.
VINOD SETH V. DEVINDER BAJAJ
AND ORS., (2008) 8 SCC 1
 “…If litigants are to be subjected to such directions in
terror, the litigation public will be dissuaded from
approaching courts, even in regard to bona fide claims.
Such orders may lead to gradual loss of faith in the
judiciary and force the litigants to think of extra judicial
remedies by seeking the help of underworld elements or
police to settle/enforce their claims thereby leading to
break-down of rule of law.”
SANJEEV KUMAR JAIN V. RAGHUBIR
SARAN CHARITABLE TRUST AND ORS.,
(2012) 1 SCC 455
 “…When a civil litigants is denied effective relief in courts,
he tries to take his grievances to ‘extra-judicial’ enforcers
(that is goons, musclemen, underworld) for enforcing his
claims/right thereby criminalising the civil society. This has
serious repercussions on the institution of democracy”
ADVANTAGES OF ADR
 It is participatory.
 If successful not only the dispute is resolved but also the pathology of the
dispute is addressed.
 It promotes good relations and promotes peaceful society.
 Satisfactory solutions to the problems
 It is a win-win situation.
 Generally Cheaper.
 Provides and protects confidentiality
 Flexibility-procedure- also regarding Rights and duties
 Being participatory solutions, implementations will be easy.
 Can be used to resolve disputes as well as develop rules- Environmental
rules.
LEGISLATIONS RELATING ADR
 C.P.C –Sec 89.
 Order 23 rule 3.
 Order 32-A
 C.P.C - Sec 80
 Arbitration Conciliation Act 1996.
 Legal Services authorities Act 1987.
 Industrial Disputes Act
 Criminal Procedure code - Sec 320
 Family Courts Act-Sec 9
 Inter state water disputes Act.
NEGOTIATIONS

 Negotiations is an interactive communicative process that

potentially takes place whenever you want something from
some one else or some one else wants some thing from you.
 Negotiation is achieving what you want by convincing the
person from whom you want that.
MEDIATION

 Is an informal process
 natural party assists in negotiation
 Also called – ‘facilitated negotiation’
 Trying to get together people who do not want to come
together or talk to each other
 Flexible procedure
 Historically used to build relations – Ex: countries like
Japan, China and India as well
 Promotes harmonious relations and acceptable solutions
MEDIATION STAGES

 Convening process
 Mediators introduction and laying down ground rules or explaining
procedures.
 Statement of the problem by the negotiators and re-statement by mediator.
 Collection of additional information if necessary.
 Private meetings
 Negotiations.
 Settlement if negotiation is successful.
 Summing up of the settlement.
 Drafting the settlement and signing.
THINGS TO REMEMBER WHILE MEDIATING

 Confidentiality.
 Neutrality.
 Separate people from the problem.
 Focus at what has to be done. Not on past
 Mediator as a face-saver.
 Motivating negotiators.
 Empowering Negotiators?
CONCILIATION

 A conciliation is assisted negotiation.

 Appointment of conciliator
 Formal procedures like putting down claim and counter claim in
writing .
 Subsequently amendments are possible.
 Conciliator conducts the proceedings
 Conciliator can suggest non binding solutions
 Arbitration and conciliation;
 Legal services Authorities Act;
 Industrial Disputes Act
CONCILIATION V MEDIATION

 Conciliation –more formal than mediation

 Conciliated settlement is ‘deemed-decree’
 Mediation settlement is a contract
 Legislations expressly recognize
 Conciliator has to promote fair and equitable settlement
 Obviously plays a pro-active role
 Confidentiality of conciliation proceedings are expressly
protected by legislations
 Otherwise there is no difference between the two
 Thank you