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General Principles of Law - NALSAR

This document provides an overview of general principles of law. It defines law and discusses its main characteristics. It outlines different perspectives on law from various legal scholars. It also distinguishes between different types of law such as civil law, criminal law, codified vs uncodified law. Principles of natural justice around bias and fair hearing are explained. Sources of law like legislation, precedent and custom are covered. Key Latin legal maxims are also presented.

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Bharti Singh
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176 views17 pages

General Principles of Law - NALSAR

This document provides an overview of general principles of law. It defines law and discusses its main characteristics. It outlines different perspectives on law from various legal scholars. It also distinguishes between different types of law such as civil law, criminal law, codified vs uncodified law. Principles of natural justice around bias and fair hearing are explained. Sources of law like legislation, precedent and custom are covered. Key Latin legal maxims are also presented.

Uploaded by

Bharti Singh
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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General Principles of Law

Pr (Dr). G.B.Reddy
University College of Law
Osmania University
Hyderabad-7
[email protected]
Law – Definition & Meaning
 Codified Common Sense
 the collection of rules imposed by authority
 legal document setting forth rules governing a particular kind of
activity
 the principles and regulations established in a community by some
authority and applicable to its people, whether in the form of
legislation or of custom and policies recognized and enforced by
judicial decision.
 all the rules of conduct established and enforced by the authority,
legislation, or custom of a given community, state, or other group
or any one of such rules
Law – Definition & Meaning
 As expressed in Rig Veda "Law is the king of kings, far more
powerful and right than they, by whose aid, even the weak may
prevail over the strong“
 John Locke rightly said when he observed that, "Every Law is a
veritable freedom ...the ends of Law is not to abolish or restrain
but to preserve and enlarge freedom".
 Main characteristics of law :
 Law pre-supposes a State
 The State makes or authorizes to make, or recognises orsanctions rules which are
called law.
 For the rules to be effective, there are sanctions behind them.
 Laws are made to serve some purpose – (social purpose, or simply to serve some
personal ends of a despot)
Law in Jurisprudence
 Austin – Law is the command of sovereign enforceable by sanctions
 Salmond- Law is body of principles recognised by State and applied by it
in administration of justice
 Roscoe Pound- It is a tool of social engineering
 Kelsen gave a ‘pure theory of law- law is a ‘normative science’. The legal
norms are ‘Ought’ norms as distinct from ‘Is’ norms of physical and
natural sciences.
 Savigny traces the origin in Volkgeist (general consciousness of the
people)
 Holmes, “Law is a statement of the circumstances in which public force
will be brought to bear upon through courts.”
Kinds of Law
 Codified & uncodified
 International & Municipal
 Substantive and procedural
 Civil and criminal
 Secular and Personal
 Supreme and ordinary/organic
etc
Civil Law
 Civil- a member of a civitas or free political community; natural or proper
to a citizen. Also, relating to the community, or to the policy and
government of the citizens and subjects of a state.
 The word is derived from the Latin civilis, a citizen
 In law, it has various significations. In contradistinction to barbarous or
savage, it indicates a state of society reduced to order and regular
government. In contradistinction to criminal, it indicates the private
rights and remedies of men. It is also used in contradistinction to
military, ecclesiastical, natural, or foreign.,
 A prisoner's statutory obligation to pay for his keep and maintenance
is civil.
Civil Law
 CIVIL ACTION-An action wherein an issue is presented for trial
formed by averments of complaint and denials of answer or
replication to new matter
 an adversary proceeding for declaration, enforcement, or protection
of a right, or redress, or prevention of a wrong,
 Every action other than a criminal action
 Both actions at law and actions in equity.
 In the Civil Law - A personal action which is instituted to compel
payment, or the doing of some other thing which is purely civil.
Criminal Law
 Criminal law - the body of law that deals with crime and the
legal punishment of criminal offenses
 the main object - to punish the wrongdoer ; to deter him &
others from committing same or similar crimes, to reform
him if possible, and to satisfy the public sense that
wrongdoing ought to meet with retribution.
 in criminal law the cases are filed by the government
 in criminal law the guilt of the accused needs to be proved
beyond a reasonable doubt
Sources of Law
 Legislation – Constitution, Statutes, Rules etc
 Custom- practice (s) passed on by one generation to the
next- ancient, certain, uniform, not opposed to public policy
& continuous
 Precedent- authoritative & persuasive-ratio decidendi &
obiter dicta
 Personal Law e.g., Hindu and Mohammedan Law, etc.
General Principles of Law
 Rule of Law
 Separation of Powers
 Ubi jus ibi remedium
 Ignorantia facti excusat-ignorantia juris non excusat
 Volenti non fit injuria ( damage suffered by consent is not a
cause of action)
 Res ipsa loquitur (the thing speaks for itself)
General Principles of Law
 Actus non facit reum nisi mens sit rea
(the intent and the act both concur to constitute the
crime)
• Nemo debet bis vexari pro una et eadem causa (it is a
rule of law that a man shall not be twice vexed for one
and the same)
• “Fiat juastitia ruat coelum” — let justice be done, though the
heaven should fall.
• Principles of Natural Justice
Principles of Natural Justice

 Rules not generally embodied & not fixed by any code


 Have been developed to secure justice and to prevent
miscarriage of justice
 Based on the maxim - Justice should not only be done but should
manifestly be seen to be done
 Encompass Rule against bias & Rule of fair hearing
 Applicable to administrative and quasi-judicial
proceedings
Rule against Bias
 Originates from maxim- Nemo debet esse judex in propria sua
causa (no man can be a judge in his own cause)
 The rule disqualifies a person from deciding a dispute in which he has-
pecuniary bias; personal bias; or bias relating to subject matter
 Includes pre-conceived notion bias
 Instances: personal bias -A.K.Kraipak v.UoI AIR 1970 SC 150; pecuniary bias-
Dimes v. Grand Junction Canal & Co [1852,H. of Lords]- the decision of LC in
favour of the Canal company-quashed by H.of Lords since he was a
shareholder in the co. See Jeejeebhoy v.Asst.Collector of Thana AIR 1965 SC
1096 Js Gajendragadkar reconstituted the Bench for hearing a case on the
ground that he was a member of the cooperative society for which the land
in dispute was acquired.
 Bias relating to subject matter – Gullapalli Nageswara Rao v.APSRTC 1959,SC
– scheme for nationalization of motor transport notified by State Govt.-
quashed since the Secretary who initiated scheme and who heard objections
was the same
 Bias – No need of actual/real likelihood
 Even reasonable likelihood is a vitiating factor
Rule of Fair Hearing

 Based on the maxim – Audi alteram partem (no man


shall be condemned unheard) – hear the other side
 Popular as Rule of fair hearing
 Ingredients – notice, right to disclosure of evidence,
right to legal representation, right to produce evidence,
opportunity to rebut and cross examine, one who decides
must hear & reasoned decision, Post decisional hearing
 Effect of non-observance: renders the decision void.
In exceptional cases – post decisional hearing can be given
Exclusion of Natural Justice
 May be express or implied
 By statutory provisions – eg: urgent land acquisition
 By constitutional provisions – eg: second proviso to Art.311(2)
 In case of legislative acts
 Exclusion in public interest
 In case urgency/necessity
 In case of impracticability
 In case of confidentiality
 In case of academic adjudication etc
Operative tools of law
 Rights and Duties (Meaning and kinds)
 Remedies under Law (Ubi jus ibi remedium-Constitutional
remedies-legal remedies –civil and criminal etc)
 Constitutional Remedies- Under Articles 32,226 etc of the
Constitution
 Civil Remedies- Injunctions, Declaration,Recovery of
Property, Attachment of property etc
 Criminal Remedies-Sentencing and Compensation
 Remedies under Special Laws- Personal laws, consumer law,
IPR laws etc
Conclusion
 Thank You

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