Q1. Definition of law by jurists.
Definition of law is a rule of conduct developed by the government
or society over a certain territory. Law follows certain practices and
customs in order to deal with crime, business, social relationships,
property, finance, etc. The Law is controlled and enforced by the
controlling authority.
Natural School
In the natural school of thought, a court of justice decides all the
laws. There are two main parts of this definition. One, to
understand a certain law, an individual must be aware of its
purpose. Two, to comprehend the true nature of law, one must
consult the courts and not the legislature.
Positivistic Definition of Law
John Austin’s law definition states “Law is the aggregate set of
rules set by a man as politically superior, or sovereign to men, as
political subjects.” Thus, this definition defines law as a set of
rules to be followed by everyone, regardless of their stature.
Hans Kelsen created the ‘pure theory of law’. Kelsen states that
law is a ‘normative science’. In Kelson’s law definition, the law
does not seek to describe what must occur, but rather only defines
certain rules to abide by.
Historical Law Definition
Friedrich Karl von Savigny gave the historical law definition.
His law definition states the following theories.
• Law is a matter of unconscious and organic growth.
• The nature of law is not universal. Just like language, it varies
with people and age.
• Custom not only precedes legislation but it is superior to it.
Law should always conform to the popular consciousness
because of customs.
• Law has its source in the common consciousness (Volk Geist)
of the people.
• The legislation is the last stage of lawmaking, and, therefore,
the lawyer or the jurist is more important than the legislator.
Sociological Definition of Law
Leon Duguit states that law as “essentially and exclusively as a
social fact.”
Rudolph Von Ihering’s law definition. – “The form of the
guarantee of conditions of life of society, assured by State’s
power of constraint.”
This definition has three important parts. One, the law is a means
of social control. Two, the law is to serve the purposes of the
society. Three, law due to its nature, is coercive.
Roscoe Pound studied the term law and thus came up with his
own law definition. He considered the law to be predominantly a
tool of social engineering.
Where conflicting pulls of political philosophy, economic
interests, and ethical values constantly struggled for recognition.
Against a background of history, tradition and legal technique.
Social wants are satisfied by law acting which is acting as a social
institution.
Realist Definition of Law
The realist law definition describes the law in terms of judicial
processes. Oliver Wendell Holmes stated – “Law is a statement
of the circumstances in which public force will be brought to bear
upon through courts.”
According to Benjamin Nathan Cardozo who stated, “A
principle or rule of conduct so established as to justify a
prediction with reasonable certainty that it will be enforced by
the courts if its authority is challenged, is a principle or rule of
law.”
Q2. What do you understand?
(1) Substantive Laws
Substantive laws define the rights and responsibilities in civil law
and crimes and punishments in criminal law. Substantive laws are
codified in legislated statutes or may be practised or modified
through precedent, especially in the common law system. These
laws can also be enacted through the initiative process. Substantive
laws refer to the actual claims and defences to refer to in any case.
(2) Procedural Laws
In contrast to substantive laws, procedural laws, also known as
Adjective Laws, are the laws which act as the ‘machinery’ for
enforcing rights and duties. Procedural laws comprise the rules by
which a court hears and determines what happens in civil, criminal
or administrative proceedings, as well as the methods by which
substantive laws are made and administered. The rules are
designed to ensure a fair and consistent application of due process
and fundamental justice to all cases before any court.
(3) International Law
International law is a set of rules and principles governing the
relations and conduct of sovereign states with each other, as well
as with international organizations and individuals. Issues that fall
under international law include trade, human rights, diplomacy,
environmental preservation, and war crimes. Different
international bodies, such as the United Nations and World Trade
Organization, are responsible for overseeing these issues. The goal
of international law is to promote peace and order between
nations.
The following are some of the central subsets of international law:
• International economic law
• International security law
• International criminal law
• International environmental law
• Diplomatic law
• International humanitarian law
• International human rights law
(4) Munsiff
District Munsiff Court (alternate spelling District Munsif Court) is
the court of the lowest order handling matters pertaining to civil
matters in the district, a legal system followed in the Indian
subcontinent. Usually, it is controlled by the District Courts of the
respective district. The District Munsif Court is authorised to try
matters pertaining to certain pecuniary limits. The State
Government notifies the pecuniary limits for the District Munsiff
Courts. It is under the charge of a munsiff magistrate/judicial
collector.
The appeal against these courts lies before the Subordinate
Courts which are one rank superior to the District Munsiff Courts but
are inferior to the District court. The State Government prescribes the
territorial jurisdiction of the District Munsiff Court. The district is
further divided into subdivisions; each subdivision has an in-charge
tax inspector and Registrar magistrate. The munsiff magistrate is the
judge and presiding officer of the district who keep charge of all tax
inspectors (tehsildars). Enforcement is of the law of 1982 CrPc.
