SIGNIFICANCE OF LEARNING LAW AND LEGAL SYSTEM

SUBMITTED BY
SIPUN SAHOO
B.A.LL.B(Hons), ROLL NO:15, Semester-I

MAHARASHTRA NATIONAL LAW UNIVERSITY

AURANGABAD

IN

NOVEMBER,2018

UNDER THE GUIDANCE OF

DrAshoskWadje

(Asst. Professor of Law)

MAHARASHTRA NATIONAL LAW UNIVERSITY AURANGABAD

 HYPOTHIESIS

1. What is law
2. What is legal system
3. What is the Genesis of law
4. What are the functions of law
5. What are the types of law
6. What are the sources of law
7. What is the need to study law
8. What are the tools of knowing law
9. What is the Importance of Law in our Lives and in the Society
 STATEMENT OF PROBLEM

The rule of law

Whether or not law has a role to play in encouraging us to do the right thing, no one doubts the
continuing importance of law in performing the first three functions set out above. As a result,
there is a widespread acceptance that the health and wealth of nations is crucially dependent on
how far the rule of law is maintained and observed in those nations. See for example, this World
Bank website, or this United Nations website, or this website maintained by the American Bar
Association, or this essay on the importance of observance of property rights and the rule of law
to a country’s development. As a result, a lot of attention is paid to indexes that attempt to chart
how far countries around the world respect such things as the rule of law and private property
rights. For examples of such indexes, see World Justice Project and International Property
Rights.

Critics of the law

Having said all that, it should be acknowledged that numerous criticisms are made of the benefits
that are supposed to flow from the existence of law, and the observance of the rule of law.
For example, some point out that the fact that a society respects the importance of the rule of law
and private property rights is no guarantee that that society will be particularly just (or even that
wealthy). The rule of law, it is argued, is compatible with great oppression, inequality and
poverty; a point summed up by Anatole France’s famous observation that ‘The law, in its
majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to
steal their bread.’
Others take this point further and argue that in the wrong hands, law can become an instrument
of evil, a means by which a country’s rulers can rob people of their property and oppress
minorities.
It is also argued that even if law is not actually used as an instrument of evil, it can become its
accomplice by doing such things as:
(i) hamstringing public officials (such as the fictional Jack Bauer of the American TV series
‘24’) from doing what is necessary to prevent terrorist atrocities; and
(ii) granting people rights and encouraging them to exercise them, thereby fostering a
damaging culture of complaint and compensation culture that alienates people from each other,
and discourages people from helping other people for fear that doing so might result in their
being sued.

Conclusion

All legal systems do harm of one kind or another. Some of that harm is intended: in order to
achieve its goals, a legal system always has to limit people’s freedom. Some of that harm is an
unintended side effect of the legal system’s attempting to achieve its goals: for example, harms
(i) and (ii), above. What is important is: (1) that our legal system do more good than harm; and
(2) that our legal system not do any unnecessary harm. I don’t have any doubt that (1) is true of
our legal system; at the same time, I don’t have any doubt that (2) is not true. So the verdict on
our legal system must be ‘Good, but could be better’. How our legal system could be improved is
a matter of debate. A good starting point for students interested in joining that debate would be
Michael Sandel’s Harvard lectures on ‘Justice’, which are available here.
 INTRODUCTION
The law is important because it acts as a guideline as to what is accepted in the society. It serves
as a norm of conduct for citizens. It is pivotal that we follow them. Studying law develops ones
understanding of the levels of power in the society. In society where rule of law exists .people
may be unaware of it. Learning law and having legal knowledge is a must in order for a society
to be peaceful and problem free .
 Law

Law is a word that means different things at different times. Black’s Law Dictionary says that
law is “a body of rules of action or conduct prescribed by controlling authority, and having
binding legal force. That which must be obeyed and followed by citizens subject to sanctions or
legal consequence is a law.”Black’s Law Dictionary, 6th ed., s.v. “law.”

Legal system

Legal System refers to that system which is based on some understanding and an ideology that
governs the people. Usually the legal system are based on the supreme document that stipulates
everything about a particular country or a nation and about the governance of the particular
country. Legal system also initiates the setup of institutions formed to take over guardianship and
see proper performance of law . Such institutions are legislature,executive,and judiciary.
 GENESIS OF LAW

Law in India has evolved from religious prescription to the current constitutional and legal
system we have today, traversing through secular legal systems and the common law.

India has a recorded legal history starting from the Vedic ages and some sort of civil law system
may have been in place during the Bronze Age and the Indus Valley civilization. Law as a matter
of religious prescriptions and philosophical discourse has an illustrious history in India.
Emanating from the Vedas, the Upanishads and other religious texts, it was a fertile field
enriched by practitioners from different Hindu philosophical schools and later by Jains and
Buddhists.

Secular law in India varied widely from region to region and from ruler to ruler. Court systems
for civil and criminal matters were essential features of many ruling dynasties of ancient India.
Excellent secular court systems existed under the Mauryas (321-185 BCE) and the Mughals
(16th – 19th centuries) with the latter giving way to the current common law system.

Law after Independence

At the dawn of independence, the parliament of independent India was the forge where a
document that will guide the young nation was being crafted. It will fall on the keen legal mind
of B. R. Ambedkar to formulate a constitution for the newly independent nation. The Indian Bar
had a role in the Independence movement that can hardly be overstated – that the tallest leaders
of the movement across the political spectrum were lawyers is ample proof. The new nation saw
its first leader in Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both exemplary
lawyers. Perhaps it is the consequent understanding of law and its relation to society that
prompted the founding fathers to devote the energy required to form a Constitution of
unprecedented magnitude in both scope and length.

The Constitution of India is the guiding light in all matters executive, legislative and judicial in
the country. It is extensive and aims to be sensitive. The Constitution turned the direction of
system originally introduced for perpetuation of colonial and imperial interests in India, firmly in
the direction of social welfare. The Constitution explicitly and through judicial interpretation
seeks to empower the weakest members of the society.
India has an organic law as consequence of common law system. Through judicial
pronouncements and legislative action, this has been fine-tuned for Indian conditions. The Indian
legal system’s move towards a social justice paradigm, though undertook independently, can be
seen to mirror the changes in other territories with common law system.

From an artifice of the colonial masters, the Indian legal system has evolved as an essential
ingredient of the world’s largest democracy and a crucial front in the battle to secure
constitutional.

Functions of the Law

In a nation, the law can serve to (1) keep the peace, (2) maintain the status quo, (3) preserve
individual rights, (4) protect minorities against majorities, (5) promote social justice, and (6)
provide for orderly social change. Some legal systems serve these purposes better than others.
Although a nation ruled by an authoritarian government may keep the peace and maintain the
status quo, it may also oppress minorities or political opponents (e.g., Burma, Zimbabwe, or Iraq
under Saddam Hussein). Under colonialism, European nations often imposed peace in countries
whose borders were somewhat arbitrarily created by those same European nations. Over several
centuries prior to the twentieth century, empires were built by Spain, Portugal, Britain, Holland,
France, Germany, Belgium, and Italy. With regard to the functions of the law, the empire may
have kept the peace—largely with force—but it changed the status quo and seldom promoted the
native peoples’ rights or social justice within the colonized nation.

In nations that were former colonies of European nations, various ethnic and tribal factions have
frequently made it difficult for a single, united government to rule effectively. In Rwanda, for
example, power struggles between Hutus and Tutsis resulted in genocide of the Tutsi minority.
(Genocide is the deliberate and systematic killing or displacement of one group of people by
another group. In 1948, the international community formally condemned the crime of
genocide.) In nations of the former Soviet Union, the withdrawal of a central power created
power vacuums that were exploited by ethnic leaders. When Yugoslavia broke up, the different
ethnic groups—Croats, Bosnians, and Serbians—fought bitterly for home turf rather than share
power. In Iraq and Afghanistan, the effective blending of different groups of families, tribes,
sects, and ethnic groups into a national governing body that shares power remains to be seen.
 TYPES OF 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 practices, that are followed in the court
for 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.

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.

Civil Law

Civil law alludes to the system of rules and regulations, which describes and safeguards the
rights of the residents of the country and provides legal remedies to a dispute. It includes cases
relating to private matters such as property, contracts, torts, family dispute, etc.
The party who files the suit is called plaintiff, while the party who responds to the suits is known
as a defendant and the entire process is termed as litigation.

The basic objective of the civil law is to seek redressal of the wrongs, by imposing compensation
on the wrongdoer rather than giving punishment. The wrongdoer bears only that extent of the
damages, which are required to make good the wrong done to the aggrieved party.

Criminal Law

Criminal Law can be understood as the set of rules and statutes, that highlights the conduct or act
prohibited by the state, as it violates the intention of the law, threatens and harms public and
welfare safety. The law does not only defines the crimes but also specifies punishment to be
imposed for the commission of a crime.

The primary objective of criminal law is to penalize the person who committed a crime, for the
purpose of communicating a message to him/her and the entire society, not to commit the crime,
or else, the act they commited will attract retribution.

When one commits an act, which is not permitted by law, he/she risks prosecution. In criminal
law, firstly the complaint is registered with the police, regarding the crime, after which the police
investigates the crime and files criminal charges. The aggrieved party can only report a crime,
but the charges can only be filed by the government, who is represented by the prosecutor in the
court of law against the defendant.

In India, the Criminal Law is broadly classified into three major acts, which are Indian Penal
Code, 1860, Code of Criminal Procedure, 1973 and Indian Evidence Act, 1873.
 SOURCES OF LAW

Source always gives us the understanding of the objective behind the formation of something.
Everything in this universe has a source which carries its authenticity. Without a source,
everything loses its importance. We all are very well acquainted with the word “LAW” and is
used in our day to day life.

The phrase ‘law’ has been derived from the Teutonic phrase ‘Lag, this means that
‘specific’. In this foundation, the law may be described as a specific rule of demeanor and human
relations. It additionally approaches a uniform rule of conduct that’s applicable equally to all the
human beings of the state. The law prescribes and regulates well-known situations of human
pastime inside the kingdom. Sources of Law

A.Formal Sources

The legal power of the law can be found in the formal sources of law. Formal sources are the
sources from which the law derives its force and validity. Of course, the only authority from
which the law can spring and derive forces and validity is the state.

This source of law includes:-

 Will of the State

The State makes its own law for the benefit of its residents with due process of law enshrined in
our esteemed constitution. In Indian scenario, the State can make laws on the subjects which are
provided in the State list under 7th Schedule. Hence State has the power to make laws and
henceforth the laws made are categorized under formal sources of law.
  Will of the people

Sometimes laws are even made by the will of the people. When people face a certain problem in
their day to day life they have the option to address those delinquent and if the State is satisfied
with those problems and solutions stated then State makes it in a form of law. For example,
people are not allowed to use speakers or play loud music after 10 pm at night.

 Judicial decisions of the court

Even judicial decisions delivered in various judgment is a source of law and falls under a formal
source of law. The decisions given by our lordships are of immense value and treated as a form
of law. There are numerous judgments after which it has been transformed into a law. The
reports submitted by judges or by the committee’s ad hoc or permanent is also converted into law
if it suffices the purpose.

For example, Visakha& others vs. State of Rajasthan[1]

A 1997 Indian supreme court case where Vishakha and different girls organizations filed Public
interest Litigation (PIL) in opposition to the State of Rajasthan and Union of India to put into
effect the essential rights of operating women underneath Articles 14, 19 and 21 of the
Constitution of India. The petition turned into filed after Bhanwari Devi, a social worker in
Rajasthan was brutally gang-raped for stopping a baby marriage.

The court decided that the consideration of “worldwide Conventions and norms are considerable
for the purpose of interpretation of the assure of gender equality, right to paintings with human
dignity in Articles 14, 15, 19(1)(g) and 21 of the charter and the safeguards in opposition to
sexual harassment implicit therein.” The petition ended in what is popularly known as the
Vishaka guidelines or law to be followed for prevention of women from sexual harassment at
the workplace.

B.Informal/Material Sources

As the name suggests the material for the different law can be taken up from these sources.
However, the validity of laws cannot be done from these sources. The material sources provide
the matter. According to Salmond “the material source supplies the substance of the rule to
which the formal source gives the force and nature”.  Material source of law is the place where
the law material is taken. Material source of law is a factor that helps the formation of the law.

 For example,

 Social relations, political power relations, socio-economic situation, tradition or religious

views.
 The results of scientific research, international development, and geographical
circumstances.
Historical Sources

Historical resources are rules which are in the end was legal ideas. These sources basically help
us to know the historical significance and the need for such development of law. Ancient India
represented a distinct tradition of law and had a historically independent school of legal theory
and practice. The Arthashastra, dating from 400 BC and the Manusmriti, from 100
AD, were influential treatises in India, texts that were considered authoritative legal guidance.
Manu’s central philosophy was tolerance and pluralism, and was cited across Southeast
Asia Such source is first located in an Unauthoritative form. commonly, such principles are
not allowed by means of the courts as a count number of proper. They perform indirectly and in
a mediatory way. They are sources but have no legal recognition. They operate indirectly and
mediately. Under this class come juristic writings, foreign decisions and numerous other things
from which a judge derives help in shaping his judgment.

They are of two types: –Religion and morality

Literary sources of law

Mean the original sources of law which come from authorities on law. A literary source being an
original source, any commentary written on the original work cannot constitute a literary source
of law.

Legal Sources

Legal sources are considered to be one of the most significant sources of law. Basically, legal
sources are the sources by which legal rules are formed. Legal sources are considered to be one
of the primary and important organs for the development of legal rules. Legal sources are
considered to be an authentic source for the formation of law. Legal sources are the main gates
which allow us to get into the real realm of law. Legal sources are even followed in the courts
when some decision has to be pronounced.

These sources serve the basis for the formation of laws. They are:-

1. Legislations
2. Precedent
3. Customs
4. Treaties and Conventions

Legislations

It is considered to be one of the primary sources of law. Legislation has a very wide ambit and
is used in providing various types of requirement such as to regulate, to authorize, to enable, to
prescribe, to provide funds, to sanction, to grant, to declare or to restrict. A parliamentary
legislature frames new laws, such as Acts of Parliament, and amends or repeals old laws. Most
of the power of the legislature is restricted by the nations constitution. Although the legislation
has the power to legislate the court has the power to interpret statutes, treaties and regulations.

‘Legis’ means regulation and ‘latum’ means making. allow us to understand how various
jurists have defined regulation.

1. Salmond- “legislation is that source of law which is composed within the declaration of
prison regulations by using an able authority.”
2. Horace gray- “regulation way the formal utterance of the legislative organs of the
society.”
3. John Austin- “There may be no law without a legislative act.”
 Analytical Positivist faculty of notion– this school believes that common regulation is a
statute and legislation is the normal supply of regulation making. most people of
exponents of this school do no longer approve that the courts also can formulate law.
They do no longer admit the claim of customs and traditions as a supply of law. as a
consequence, they regard most effective law because of the supply of law.
 Historic school of the idea– This group of professors believe that legislation is the least
creative of the assets of law. The Legislative purpose of any regulation is to provide
better form and effectuate the customs and traditions which are spontaneously evolved
with the aid of the people. for this reason, they do not regard regulation as a source of
law.
Different Kinds of legislation
 1. Supreme legislation– An ultimate or an advanced law is that which proceeds from the
sovereign strength of the nation. It cannot be repealed, annulled or managed via another
legislative authority.
2. Subordinate legislation– it’s far that which proceeds from any authority aside from the
sovereign power and is dependent for its persistent existence and validity on some
superior authority.

3.Delegated law– that is a sort of subordinate law. it’s miles that the principal feature of the
government is to enforce the law. In case of Delegated regulation, executive frames the
provisions of law. this is also known as govt legislation. The govt makes laws in the form of
orders, by-laws and so forth.

Sub-Delegation of power to make laws is likewise a case in Indian legal system. In India, the
power to make subordinate law is commonly derived from existing permitting acts. It’s miles
essential that the delegate on whom such power is conferred has to act within the limits of the
permitting act.

the main cause of this kind of regulation is to supplant and no longer to supplement the law. Its
predominant justification is that sometimes legislature does now not foresee the difficulties that
would come after enacting a regulation. Therefore, Delegated legislation fills in the one’s gaps
that aren’t seen at the same time a method of the allowing act. The delegated legislation offers
flexibility to regulation and there is sufficient scope for adjustment inside the light of experiences
received in the course of the running of regulation.

Precedent

Judicial precedent mandates that there be a hierarchy of courts to help take care of issues.
Judicial precedent, in its outright meaning, makes a previous decision of one court be binding
on a lower court. The concept of stare decisis plays a role here. In other words, if a higher court
has decided on a case and another similar case comes up at a lower court, the lower court will
treat the case alike and pass the judgment exactly as like done by the higher court. This is
because the previous judge had set a precedent for the lower court and the lower court and the
lower court is bound to follow the precedent as such, as long as the case can be treated on a
similar platform like the one decided earlier by the higher court.
In Indo-Swiss Time Ltd. v. UmrooAIR 1981 P&H 213 Full Bench, it was held that “where it is
of matching authority, then the weight should be given on the basis of rational and logical
reasoning and we should not bind ourselves to the mere fortuitous circumstances of time and
death”.

Union of India v. K.S. SubramaniumAIR 1976 SC 2435- This case held that when there is an
inconsistency the decision between the benches of the same court, the decision of the larger
bench should be followed.

A Key principle of Judicial Precedent

 Consistency
 Hierarchy
 Bound by its own decision

Customary Law

Salmond said that ‘custom is the embodiment of these concepts which have counseled

themselves to the countrywide judgment of right and wrong as the ideas of justice and public

utility’.

Keeton said that “normal legal guidelines are those regulations of human movement, established

by usage and seemed as legally binding via the ones to whom the guidelines are relevant, which

might be adopted by way of the courts and implemented as a supply of regulation because they

may be typically followed by using the political society as an entire or by means of some part of

it”.

However, Austin said that custom isn’t always a source of law.

Roscoe Pound said that customary regulation comprises:

 1.  Law formulated via custom of famous motion.
2.  Law formulated thru judicial choice.
3.  Law formulated with the aid of doctrinal writings and clinical discussions of legal
standards.

Ingredients of Custom

1.   Antiquity
2.   Continuous in nature.
3.   Peaceful Enjoyment
4.   Obligatory Force
5.   Certainty
6.   Consistency
7.   Reasonableness

Conventional Law- Treatises etc.

 Need to study law
Understanding levers of power in society
Studying law develops one’s understanding of the levers of power in our society in a way that is
even more effective than that of political science. This is because law is directly concerned with
power and reaches into every part of life. For that very reason law is extraordinarily important to
the way of life of any people.
 

Understanding the 'rule of law'

Lawyers refer to ‘the rule of law’ because a society which is governed without law leaves
ordinary people at the mercy of the arbitrary abuse of power by those who are simply powerful.
In some countries the rule of law is absent – think of Cambodia during the rule of Pol Pot and the
Khmer Rouge, for example – and when that happens, life is very difficult for ordinary people
who have no way of protecting themselves from the powerful.

In societies where the rule of law exists, people may even be relatively unaware of it, because
their life is not interfered with by corruption and abuse of power. Australia is a country where the
rule of law mostly exists, and although its legal system is not perfect in every respect, it does
restrain unfettered power in many respects. Lawyers can use the law to hold governments
accountable.
 

Making a difference through law reform

Studying law allows a person who has a strong sense of justice to see where there are defects in
the system and to work constructively and effectively to change it. In this sense, studying law
offers the idealistic person a realistic way to make a difference in the world. Many lawyers work
in policy and law reform in this way.
 

An intellectual challenge
Studying law offers a wonderful intellectual challenge in that it develops the ability to argue
from a basis of evidence in a way which can be very hard for non-lawyers to counter. Studying
law will equip you with intellectual skills which will give you a decisive advantage in whichever
profession you choose.
 Tools of knowing law

1. Legal Research Method

2. Moot Courts
3. Class Based Interaction
4. Visual Aids
5. Debates and diolougles
6. Social media
7. Question and answer
8. Interpretation of state

The Importance of Law in our Lives and in the Society

We all know that law is very important in the society. It is a must in order for a society to be
peaceful and problem-free. Law is a man-made therefore it is in you if you will follow it or not.
If you do not follow the law, it doesn’t mean you will die, so nature has nothing to do on the
laws of man. The law is something that the human has created to modulate the society by
introducing justice, Targit BI System, fairness and equality that is set by courts and governments
and is applied to everyone within their jurisdiction. The law can give protection to the victims
and will punish those who have done unlawful actions. You don’t have any option where you
can choose from, if you disobey, then, you have to face the consequences. If a society won’t
have a system of law on it that will control how the people operates their lives, then there would
not be a society to live in. people will be able to make decisions that will solely be based on their
principles, then they would be able to do crimes if they want to, steal, murder, damage, bully,
rape, trespass, and even terrorize what and whom when they wanted want to, and nothing would
be done about it at all.

Therefore, it will be a disaster if not possible if people in a society will do actions that is solely
base on their principles. If there won’t be law, nothing will stop the people on doing things that
they want, with that, they will be free to do revenge and it will be vice-versa for they know that
they could totally get away unto anything they do, even if it is bad and unlawful. Eventually, the
society will be full of crimes, murders and illegal actions. If there won’t be no rules in a society,
then even a simple waste disposal will be a big problem that could affect the whole world. If not
done properly, it may lead to diseases that can kill  the human race. The supply of water could
also be affected if there were no rules. No one will work to maintain the cleanliness of it for they
may turn unto doing things that may give money more easy even though it is not right at all. No
one will cure us when we were ill and help us in times of trouble. In the end, each of the people
will find their own ways to live and survive, it’ll be like a war zone.

This merely show how important it is to have a system of law in a society to regulate a good
relationship with each other, even for those with conflicting interest. This is the only procedure
that could ensure that the human rights are respected. If we won’t have laws, our society would
not be able to function effectively. Crimes will become an everyday occurrences that children
will grow up and will then find it normal, which is not desirable to happen in our future
generations, that is why law is very important, it ensures the safety of our future generations.

CONCLUSION

Law is a determination by a judge or ruling authority reguarding the law that applies in a
particular case. It is opposed to a fnding of fact , which interprets the factual circumstances to
which law is applied. Learning of law and legal system is important in our life. Learnig lawhelps
knowing our rights and saves us against exploitation. There are various ways and tools to learn
laws. Law is considered to be the strongest normative system.

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