Civil Law

The Legal System followed by the countries in the mainland of Western Europe (which is commonly
referred to as ‘Continent’ as distinguished from the island of England) is referred to as Civil Legal
System. The origin of ‘Civil Legal System’ can be traced to the old age Roman Empire of the 5th
century A.D. You might have heard about the Roman Emperor Justinian (A.D.483-565) during whose
time many rules and regulations were compiled and were called ‘Code’. From that time onwards,
this legal system spread all over Europe, including England for some time. In the rest of the world,
this legal system was imposed during the era of colonialism during the seventeenth and eighteenth
centuries. Now you may find this legal system present in many countries of Southern America and
parts of Africa. As you might be aware that in India, even French and Portuguese had come to
establish their suzerainty for some time and during that period they had successfully imposed their
legal system in those places, such as Pondicherry, Goa, Daman, and Diu. You may identify the ‘Civil
Legal System’ on the basis of the following salient features: (a) importance of Acts, Statutes passed
by the Parliament or competent authorities; (b) composition of judiciary; (c) power of the judges to
make law; and (d) inquisitorial approach of the court proceedings.

(a) Importance of Acts, Statutes passed by Competent Legislature: The Acts passed by the
Parliament or the competent authorities receive the highest importance in this legal system.
Authority of the competent legislature is to assimilate the scattered rules and then draft
them according to the modern conditions and get them passed in the Parliament. This is
called the process of ‘Codification of Rules’. For example, Rules assimilated and framed in
the area of crimes are called ‘Penal Code’. These rules passed by the Parliament are then
applied by the judges in the resolution of disputes. Judges regard the rules framed by the
Parliament as supreme and do not try to change it by asserting their own authority as in the
Common Law family. They may give their own interpretations of the vague language used in
the Act, but they would say that it would be not binding except upon the parties to the
dispute. Interpretations of the rules framed by the Parliament are given not by the judges
but by the legal scholars and academicians. The abstract law passed by the Parliament is
given high regard even by the judges and advocates.
(b) Composition of Judiciary: Judiciary constituted in the Continental Legal System is from
diverse fields as a person of any background can be a judge in this legal system. Persons who
have specialized knowledge of any particular field may be appointed as judges. Thus, an
engineer or a Doctor or a Scientist may become a judge. There is no requirement to study
law as a separate discipline for a requisite number of years and practice in the court of law
thereafter. So the judges of the higher courts or trial courts are appointed from diverse
backgrounds and without the need of a degree in legal education. Legal education is also
imparted in the countries which follow ‘Continental Legal System’, but that is not the only
mandatory requirement to become a judge. In India too, you might find that a technical
member is sometimes appointed by the court to assist them in arriving at a conclusion in
which any technical problem is also involved.
(c) Power of the judges to make law: Judges in ‘Continental Legal System’ do not make laws and
their judgements do not carry authority except in the dispute before the court. They apply
the laws made by the legislature and cannot make the law themselves. In other words, the
judgements rendered by the judges of even the higher courts do not enjoy the status of
‘judicial precedents’ as in the Common Law System. Their judgements are given respect by
the judges in other cases but they are not bound by them. For example, the judgements
given by the highest court of appeal in France, namely, ‘Court de Cassation’ are not binding
on all courts of France. However, the judgement of that Court is given high respect in the
judicial bodies. The judges of the highest court cannot strike down the law passed by the
 legislature; they can only apply the law passed by the legislature. One of the advantages of
this system is that the voluminous judgments of courts would not have to be read by the
lawyers to know the law which is the case in ‘Common Law System’ and an advocate has not
only to know the law passed by the Parliament and legislatures, but also the judgments
delivered by the higher judiciary.
(d) Inquisitorial approach of the court proceedings: Unlike the passive role of the judges in
finding the truth and being dependant on the ability of the advocates to establish the fact of
the matter, the judges in the ‘Continental Legal System’ play active roles in finding the truth.
The approach followed in the court proceedings is not adversarial in nature but ‘inquisitorial’
(the term ‘inquisition’ means investigative). The judges do not simply act as a referee
between the prosecutor and the defense but they actively investigate the matter themselves
with the co-operation of all disputing parties and try to establish the truth by collection of
evidence. Collection of evidence is thus not the sole responsibility of the advocates but the
judges too. Judges may go to the scene of the crime and collect evidence on their own if
they think that the evidence produced by the advocates of the disputing parties leave some
doubts as to the establishment of the truth. Judges are not passive observers but active
participants in the quest to establish the truth. In India, you may see the application of this
approach in the fact finding commissions established by the government. You may have
heard of ‘Nanavati Commission of Inquiry’, established by the Gujarat Government to
inquire about the actual facts related to ‘Godhra Riots of 2002’.

Common Law

Features of Common Law are: (a) authority of the judgments delivered by higher courts and
tribunals; (b) composition of judicial institutions; (c) adversarial system of court proceedings, and the
role of judge, and (d) the importance of Acts, Statutes, and other legislations passed by competent
authorities.

Common Law System has influenced the development of many legal systems of the world, such as
India, England, U.S.A., Canada, and Australia. Actually, the origin of Common Law is believed to have
been in England and so wherever the British Empire spread its sovereignty, the Common Law System
was imposed.

We will discuss and understand the four common features of this legal system briefly in the
following paragraphs.

(a) Authority of the judgments delivered by Higher Courts and Tribunals: In ‘Common Law System’,
you would observe that the judgments rendered by the High Courts and Supreme Court (or the
Superior Courts) enjoy authority and powerful position. Those judgments have to be obeyed by the
lower Courts and Tribunals in a similar case as the decisions of higher courts enjoy authoritative
power in law. If the lower courts would not abide by the decisions of the higher courts, the
judgments of the lower court can be challenged and it may become a nullity. Do not think that this
feature is present in other legal systems. Other legal systems do not place such reliance on the
authority of the judgments of the higher Courts. So the judgments of High Courts or Courts of
higher/appellate jurisdiction may not be authoritative or binding on lower Courts in a legal system
which is not a member of Common Law family. The authority of judgments of the higher Courts is
given the technical name ‘judicial precedent’. Thus, we can say that the judgments of higher courts
are judicial precedents and they must be followed by the lower Courts in similar cases. For example
in India, the judgments of Bombay High Court are ‘judicial precedents’ for all the lower Courts
coming under the jurisdiction of that High Court and they are bound by it. India is thus a member of
Common Law family of legal systems.
(b) Composition of Judicial Institutions: Second common feature of the Common Law family is that
the judges of the Courts are highly skilled persons who have specially studied the discipline of law
and possess practical experience in legal administration either as advocates or judges. A judge, in
other words, cannot be a lay person or even a scientist. He must be a person of legal background,
either as an advocate or a judge or at least with a degree in law. This feature of Common Law makes
the judicial institutions a separate set of professional persons. This might be one of the reasons why
the judgments rendered by them are technical and based upon the finer details of the bare
provisions of law. This leads to a better quality of judgment due to which these judgments carry
authority when they are rendered by experienced judges or advocates. As an example, you can say
that in India the judges at the trial Court or District Court are selected on the basis of an entrance
examination where the minimum eligibility is a degree in law and the judges of High Courts and
Supreme Court are selected from among those with at least 10 years of practice as advocates or
judges. Persons outside the legal background cannot become judges of the State or Central
government. So, the social background of judges in Common Law system is not diverse, but very
limited.

(c) Adversarial System of Court Proceedings and the role of Judge: Another feature of Common Law
system is that the Court Proceedings are focused on the adversarial nature, where the disputing
parties have engaged advocates who act like adversaries in the court of law and each advocate fights
tooth and nail against the other in order to win the case. The judge in the court acts like a neutral
observer listens patiently to the advocates of each party. You might have seen in the films that the
judges say ‘Order, order’, when there is commotion in the court or the advocates start leveling
comments. That is not exactly the power of the judge in the ‘Common Law System’, but the judge
does not play an active role in going beyond the evidence presented by both the adversary
advocates. They depend upon the skills of the advocates who present their best possible case before
the neutral judge. It does not matter to the judge whether the truth of the matter has been revealed
by the advocates in the case or not. He/she has to be satisfied on the evidence presented by the
advocates only. He/she does not take any interest in establishing the truth underlying the claims of
the disputing parties.

(d) Acts, Statutes passed by Competent Authorities: A very important feature of Common Law
system is that though the legislations passed by competent authorities such as the Parliament and
Legislatures are given an authoritative place which is binding on the judges, whenever the judges
find any gaps in the Acts or Statutes passed by the Parliament, they can make suitable
interpretations to fill the gap in these Acts. In other words, the judges and advocates of the Common
Law system would think that the Acts are very abstract and the rules contained in those Acts are
very general in nature. These general and abstract rules are incapable in themseves to be applied in
all facts and circumstances. Facts of every case would be so peculiar that it would be very difficult to
apply the general and abstract form of rule which may need suitable additions and interpretations.
That addition and interpretation is as important as the bare provision of general and abstract law.
For example, the punishment prescribed by the Act passed by Indian Parliament for the commission
of murder ranges from life imprisonment to death penalty. However, it has not been prescribed in
what situations punishment would be life imprisonment or death. The judges have filled this gap and
made their own addition into the law by holding that the ‘rarest of rare cases’ would be suitable for
the death penalty whereas the others would only get life imprisonment.

Religious Legal Systems

Religious law emanates from the sacred texts of religious traditions and in most cases purports to
cover all aspects of life as a seamless part of devotional obligations to a transcendent, imminent, or
deep philosophical reality, either personal or cosmological. Religion for law must be defined broadly,
but its truth value needs not, and ought not, be addressed. Most religious law gradually came to apply
in its most institutional form, and even then, only to its own organizations and to familial or
contractual matters for its adherents.

Islamic Law

According to the excellent outline provided by Irshad Abdal-Haqq in Islamic Law: An Overview of Its
Origin and Elements, 7 J. Islamic L. & Culture 27 (2002) (Reprinted with author's permission in the
same journal from its first appearance in 1996), Islamic law might refer to all the law and
jurisprudence of Islam and includes:

 the primary sources of law (Shari'ah)

Shari'ah has two main sources:

 the Qur’an and

 the Sunnah (traditions of Muhammad ibn Abdullah, the last prophet of Islam), which means
 the things he said, i.e., hadith,
 the way he lived his life, his conduct

and,

(2) the subordinate sources of law and the methods used to discover and apply the law (Islamic
jurisprudence or fiqh), described by Mr. Abdal-Haqq as follows:

"While the principles and injunctions of the Shari'ah are infallible and not subject to amendment,
fiqh-based standards may change according to the circumstances.”

Four methods, often called sources of law by Muslim writers, for deducing and establishing fiqh-based
law are universally recognized by Islamic jurists.

 the extraction of Qur’anic injunctions and principles based on interpretations of it;

 the application of the principles reflected through the Hadith of Prophet Muhammad;
 the consensus of opinion from among the companions of Muhammad or the learned scholars
(ijma);
 analogical deduction

Nineteen schools of fiqh (fiqh madhhabs) developed during the first four centuries of Islam. By the fall
of Baghdad (in 1258 C.E. to the Mongols, that is- not to be confused with modern events) the number
of major madhhabs had dwindled to five (four Sunni and one Shia). At present, the four major schools
of fiqh among the Sunni Muslims are: (1) Hanafi, (2) Maliki, (3) Shafi'i, and (4) Hanbali. Among the
Shia, the Jafari School predominates." (Abdal-Haqq, Islamic Law, supra at 36)

Judges also use individual judgment and reasoning, known as ijtihad (can include reasoning from
analogy), but greatly varying over time. His excellent article goes on to distinguish each school
or madhab by the relative importance each attaches to the authority of sources of law in on pages 67-
75.

Finally, author Abdal-Haqq observes at pages 68-69, “Currently, Saudi Arabia, Sudan, and Iran stand
alone as those countries that fully recognize the Shari'ah as the official law of the land. Qatar, the two
Yemens, Kuwait and Bahrain also acknowledge Shari'ah principles but to a lesser degree. All other
legal systems in the Muslim world are hybrids of Islamic and European law."

Jewish Law

"Jewish law is the legal system of the Jewish people as it has developed from Biblical times to the
present." This definition by Phyllis Weisbrod in Basic books and periodicals on Jewish law: a guide
for law librarians, 82 Law Libr. J. 519 (1990) summarizes a complex written, oral, and oral-as-written
textual history of sources for Jewish law. Torah is the term used for the divine source of wisdom
relating to all of creation, so to work towards a definition that relates to the narrower scope of its
application as law, or halakhah, begins with the Torah in a more literal sense, namely, the first five
books of what the Christian western tradition calls the Pentateuch or first five books of what came to
be the Bible. While the status in Biblical and form-based criticism of the ancient compilers of this
narrative is beyond the scope of this guide, an oral history of commentary on the Torah arose and
became written down as the Mishnah in approximately the year 200. Talmud and Torah also contain
non-legal teachings bound up with legend, myth and philosophy, referred to as aggadah.

Learned opinions based on this addition to the divine tradition were recorded as a commentary on the
Mishnah and became known as the Talmud or "study". The Jerusalem Talmud (or Gemarah in
Aramaic) dates from the fifth century after Christ, and approximately 100 years later there appeared
the Babylonian Talmud, a more authoritative text. Other sources of the "oral" law include the Tosefta
and the Midrash Halakhah. After the fall of the Second Temple in 70 and the ending of the assembly
of elders known as the Sanhedrin, interpretation fell to the institution of a bet din or rabbinical court
of three rabbis. Such a court continued through the diaspora wherever there was a Jewish population.
There is no appeal or stare decisis; one can ask the court to correct an erroneous judgment or re-open
a criminal case. The tradition is much closer to that of the European civil law in that regard.

Codes of restatement also appeared over time; the codes of Moses Maimonides in the 12th century and
of Joseph Karo in the 16th century are considered authoritative. As those rabbis learned in the law
applied it in opinions, these became written down as answers and advice known as response, and
these constitute a living law.

Archaeological research and scroll discoveries have also added to the wealth of study and potential
sources for Jewish law. See Baumgarten, J. "The Laws of the Damascus Document in Current
Research," The Damascus Document Reconsidered (ed. M. Brosh). Jerusalem, 1992. In 1896, noted
Talmud scholar and educator Solomon Schechter discovered evidence of sectarian Jewish documents
which later were found to be medieval versions of the Damascus Document fifty years before the
Qumran discoveries.

Jewish law is now applied in personal law (such as marriage and family) in Israel and Morocco and
others which recognize such applications to religious communities;

Christian Law

The canon law of the Roman Catholic Church began to develop alongside Roman law and indigenous
law in Europe after the end of the Roman Empire and the retreat of ancient Roman law. Gradually
canon law and its Roman law elements would develop into a body of law that could challenge
emerging monarchies to develop a coherent national law or the civil law code tradition of secular law
in most of Europe today.

From the Catholic Encyclopedia online via New Advent we have the following definitions and
description:

Canon law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the
government of the Christian organization and its members, but the expression "canon law" (jus
canonicum) becomes current only about the beginning of the twelfth century, being used in contrast
with the "civil law" (jus civile), and later we have the "Corpus juris canonici", as we have the "Corpus
juris Civilis". Canon law is also called "ecclesiastical law" (jus ecclesiasticum); however, strictly
speaking, there is a slight difference of meaning between the two expressions: canon law denotes in
particular the law of the "Corpus Juris", including the regulations borrowed from Roman law; whereas
ecclesiastical law refers to all laws made by the ecclesiastical authorities as such, including those made
after the compiling of the "Corpus Juris".
By the 12th century the mass of laws or canons were systematized and rationalized by canonist
Gratian in the "decretals" or Concordance of Discordant Canons near the same time as the revived
study of ancient Roman law began at the university at Bologna, but further work was done to create
the decretals of Pope Gregory IX in 1234 and so by the end of the 13th century, the Corpus Iurus
Canonici consisted of the following texts:

 the "Decretals" of Gregory IX;

 those of Boniface VIII (Sixth Book of the Decretals);
 those of Clement V (Clementinæ) i. e. the collections which at that time, with the "Decree" of
Gratian, were taught and explained at the universities. (Catholic Encyclopedia online).

Ecumenical councils of the church, the Pope and Apostolic Letters such as bulls or briefs, decrees of
the Roman Curia or Acts of the Holy See also form part of canon law. The Roman Curia or
departments of the Holy See consist of Roman Congregations, the tribunals, and the offices of Curia.

The Tribunals consist of the Sacred Penitentiaria, the Sacred Roman Rota, and the Apostolic
Signatura. The Sacred Roman Rota consists of auditors who hear contentious cases and are doctors of
canon law and theology. They take appeals from the episcopal tribunals of first instance or may be of
the first instance for some matters. Cases may be criminal or regarding ordination or matrimony,
involving a defender of the bond (of marriage). Advisory opinions may be requested as well.
Conclusions of the court must be accompanied by reasons.

A common type of case in canon law relates to requests to grant an annulment of marriage after a civil
divorce, since the doctrine of the Roman Catholic Church does not recognize divorce. It is a matter of
controversy as to whether there have been in fact ecclesiastical "divorces" for influential persons or
under experimental canons used in the United States before the latest Code of Canon Law,
promulgated in 1983. The annulment concept came into secular law to void forced marriages and in
several other instances, and in both religious and secular arenas, the court declares that no marriage
ever existed and so it cannot be dissolved.

Hindu Law

From an ancient time, 2000-1500 B.C., the Vedic literature existed, and while it informs a tradition of
gods, the literature points to the concept of the One as interpreted by the Brahmans. These teachers
also used the sutras or memorized books (like textbooks) of law or dharma (in one of its meanings;
closer to "way of life").

The Laws of Manu, a mythical author, of circa 200 B.C. shows the beginnings of this legal tradition of
great variety, although his focus was family, property, and succession law. The early Sanskrit literature
was replaced gradually in the colonial period when the British substituted their own translations and
understanding in place of what came before; Anglo-Indian law preserved family law areas (five
elements of family law—marriage, child marriage, polygamy, divorce, and maintenance) as Hindu
personal law and replaced the rest with colonial British law. It was a judge made law. The Hindu Code
of independence became one among other personal codes and preserved much of the British
innovation. Custom and local tradition could prevail over sacred texts even in the time of classical
Indian law. According to the Laws of Manu, there are four sources of dharma: 1) the Vedas, 2)
tradition, especially as set forth in treatises like Dharmasastras, 3) customary laws created by local or
regional communities, and 4) personal preference.

The important post-colonial acts of Parliament for the Hindu Code include: the Hindu Marriage Act
No. XXV of 1955; Hindu Code (1955); the Hindu Adoptions and Maintenance Act 78 of 1956; Hindu
Code (1956); the Hindu Minority and Guardianship Act No. 32 of 1956, Hindu Code (1956); the Hindu
Succession Act No. XXX of 1956, Hindu Code (1956); and the Hindu Succession (Amendment) Act No.
XXXIX of 2005.

Buddhist Law
Tibet 1940-1959 is the most illustrative jurisdiction for an examination of what followers of the
Buddha in an authentic Buddhist culture regard as the source of laws and rules that govern a
monastically inclined community as well as householders' obligations.

According to Rebecca French,

"There are five major sources for Tibetan legal concepts: (1) religious source material such as the
Vinaya which is a canonical text outlining the rules for the monks to follow as Buddha spoke them
case by case; (2) Extant official documents which include administrative law books, edicts, decision
documents, treatises, government contracts, estate record books, tax records and deeds to land; (3)
documents issued by non-governmental institutions such as monastic constitutions, private leases and
private contract documents; (4) law codes; and (5) written and oral statements describing the legal
system." The Case of the Missing Discipline: Finding Buddhist Legal Studies 52 Buffalo L. Rev. 679,
682-684, fn 4.

Dhammasattha is the Pali term for the genre of legal literature which may be examined in
relationship to householders and communities, or sanghas, used by such communities in Laos,
Myanmar (Burma), and Thailand, and this literature probably dates from the first millennium. Courts
of law in colonial times used "Acts of Truth" in Sri Lanka's Sinhala Buddhist community for proof in
judicial proceedings. These were oaths taken upon consequences to be observed as between truth-
tellers and others. In Thailand, legal proceedings that replace informal "injury narratives" in tort cases
(or events which may or may not result in a case) appear less effective in resolution of claims than the
traditional methods under Buddhist obligations (see Engel article cited below). These exercises in
legal history and anthropology bear on modern developments in criminal law and restorative justice
as well.

Public and Private Law

In any legal system the juristic principles are evolved in the context of rights and the law as
command regulates the relationship between individuals and also the relationship between
individual and the government. The Private Law of Contract and obligations plays an important role
in shaping the socio-economic conditions different from the sphere of Public Law. In his introduction
to ‘Holland on jurisprudence’, N R Madhav Menon has pointed out that as per Holland, the State’s
presence in the sphere of Private Law is only as arbiter of the rights and duties which exists between
the citizens. In Public Law, the State is not only the arbiter, but is also one of the parties interested.
The rights and duties with which it deals concern itself of the one part and its subjects on the other
part, and this union in one personality of the attributes of judge and party, has given rise to the view
that the State (Sovereign) not only has no duties, but also has no rights properly so called. Of the
two persons who are the constituent elements of every right, one must always be the State, acting,
of course, through its various functionaries. The Private Law is continuously evolving. The growth in
technology has added new dimensions to the concept and the distinction between Public and
Private law, both in their Substantive and Procedural aspects, may be inadequate to comprehend
these changes. Today the public-private classification is breaking down and the theory of State as
the arbiter of all disputes is being questioned. In fact, many disputes today are against the State and
its functionaries. Independent Judiciary has become the key element of rule of law necessitating the
need to re-write jurisprudence originally articulated from the point of view of the Sovereign State.

Public Law is that part of law, which governs relationship between the State
(government/government agencies) with its subject and also the relationship between individuals
directly concerning the society. According to Loughlin, ‘Public law is a form of political jurisprudence
that incorporates no transcendental or metaphysical ideas of justice and goodness; it is concerned
solely with those precepts of conduct that have evolved through political practice to ensure the
maintenance of the public realm as an autonomous entity.’ The Public Law deals with the social
problems in the broad context and may include the following heads: Constitutional Law,
Administrative Law, Criminal Law and Criminal Procedure, Law of the State considered in its quasi
private personality, Procedure relating to the State as so considered and Judge made Law. In short,
Public Law governs relationship between the State with its citizens and also relationship between
individuals directly concerning the Society. Constitutional Law, Administrative Law, Criminal Law and
Criminal Procedure are the subject matter of Public Law.

Constitutional Law: The primary function of Constitutional Law is to ascertain the political center of
gravity of any given State postulating the supremacy of law in the functioning of State. In India, the
Constitution makes India: Sovereign, Socialist, Secular, Democratic, Republic with a Federal System
with Parliamentary form of Government in the Union and the States; and with an Independent
Judiciary. It also establishes the structure, procedures, powers and duties of the government and
spells out basic human rights which are fundamental in the governance of Nation in the form of
Fundamental Rights and Directive Principles of State Policy. Constitutional Law is a branch of Public
Law. It determines the political organization of the State and its powers, while also setting certain
substantive and procedural limitations on the exercise of governing power. Constitutional Law
consists of the application of fundamental principles of law based on the document, as interpreted
by the Supreme Court. In the words of Salmond, “Constitutional Law is the body of those legal
principles which determine the Constitution of a State- i.e., the essential and fundamental portions
of the State’s organization.”

Administrative Law: As per Holland, Administrative Law provides for the manner of activities or the
various organs of the Sovereign Power as provided by the Constitution. In this sense Administration
has been defined as ‘the exercise of political powers within the limits of the Constitution as the total
concrete and manifoldly changing activity of the State in particular cases as the functions, or the
activity, of the Sovereign Power’. It may fairly be said to include the making and promulgation of
laws; the action of the government in guiding the State in its foreign relations; the administration of
justice; the management of the property and business transactions of the State; and the working in
detail, by means of subordinates entrusted with a certain amount of discretion, of the complex
machinery by which the State provides at once for its own existence and for the general welfare. It
deals, with the collection of the revenue, the collection of statistic, international trade,
manufacturing, pollution, taxation, and the like. This is sometimes seen as a sub-category of Civil Law
and sometimes seen as Public Law as it deals with regulation and public institutions. The
Administrative Laws are enforced by the executive branch of a Government rather than the judicial
or legislative branches (if they are different in that particular jurisdiction). According to Vago Steven,
“Administrative Law is a body of the law created by administrative agencies in the form of
regulations, orders, and decisions.”

Criminal Law The most important of the functions of the State is that which it discharges as the
guardian of order; preventing and punishing all injuries to itself, and all disobedience to the rules
which it has laid down for the common welfare. In defining the orbit of its rights in this respect, the
State usually proceeds by an enumeration of the acts which infringe upon them, coupled with an
intimation of the penalty to which any one committing such acts will be liable. The branch of law
which contains the rules about this subject is accordingly described as ‘Criminal law’. Criminal Law
denotes wrongs against the State, community, and public. Adjective Criminal Law,’ Penal Procedure,’
Instruction Criminology,’ is the body of rules whereby the machinery of the Courts is set in motion
for the punishment of offenders. ‘Criminal Law is concerned with the definition of crime and the
prosecution and penal treatment of offenders’. Although a criminal act may cause harm to some
individual, crimes are regarded as offenses against the State or “the people.” A ‘crime’ is a “public”
as opposed to an “individual” or “private” wrong. It is the State, not the harmed individual that takes
action against the offender.
Private Law is concerned with the relationship between individuals with one another or private
relationship between citizens and companies that are not of public importance. In the case of Private
Law the role of the State is merely to recognize and enforce the relevant law and to adjudicate the
matters in dispute between them through its judicial organs. Private Law as per Holland is
substantive and defines the rights of individuals or it may be adjective indicating the procedure by
which rights are to be enforced or protected. In simple words Private Law governs the relations of
citizens with each other. Law of Torts, Law of Contract, Private and Intellectual Property Rights are
the subject matters of Private Law.

According to Bernard Rudden Private Law deals with the legal relations between persons. It covers
matters of pure status (marriage, divorce, kinship and so on); matters involving assets of some sort
(property, succession, contracts); and commercial activities in the wider sense. Its essential feature is
that the participants are presumed to be juridically equals (unlike the public law structure where
relations are hierarchical) so that one cannot give orders to another, unless so authorised under
some previous contractual or family arrangement. Its essential technique is that much of it is not
automatically binding (jus cogens in lawyers’ language) but serves to cut down the cost of legal
transactions by providing a set of patterns which citizens may use if they wish. For instance the
intestacy rules operate only if a person dies without having made a will. The rules on sale, lease,
loan, partnership and so on are there as models which can be adopted in full or modified if the
parties so desire. Despite the many differences on the surface and in particular detailed rules, the
overall structure of Private Law in both Civil and Common-Law Systems can be stated quite simply in
a formula derived ultimately from the Roman jurists: Private Law deals with persons, property,
obligations and liability. Thus, it can be said that Private Law includes (i) Law of obligations /Law of
Contract (organizes and regulates legal relations between individuals under contract) (ii) Law of Tort
(addresses and remedies issues for civil wrongs, not arising from any contractual obligation). (iii) Law
of Property (iv) Law of Succession, (v) Family Laws- family rights against abduction and adultery

Public Law Private Law

It deals more with issues that affect the general It focuses more on issues affecting private
public (may be individual, citizen or individuals, or corporations.
corporation) or the State itself.
The persons concerned in a Public Law, right Both of the persons concerned in Private Law,
are, therefore, necessarily dissimilar, one of rights are as a rule, perfectly similar, and of that
them being always that highly abnormal person normal type which requires no special
which is called a State investigation
In Public law the State is not only arbiter, but is In Private law the State is indeed present, but it
also one of the parties interested. The rights is present only as arbiter of the rights and
and duties with which it deals concern itself of duties which exist between one of its subjects
the one part and its subjects of the other part. and another
Public Law is concerned with the structure of Private Law is concerned with both substantive
government, the duties and powers of officials, and procedural rules governing relationship
and the relationship between the individual between individuals (such as the law of torts or
and the State. “It includes such subjects as private injuries, contracts, property, wills,
Constitutional Law, Administrative Law, inheritance, marriage, divorce, adoption, and
regulation of public utilities, Criminal Law and the like).
Procedure, and Law relating to the proprietary
powers of the State and its political
subdivisions”
Substative and Procedural Law

The Substantive and Procedural Laws are the two important branches of Law. The terms
“Substantive” and “Adjective” seem to have been invented by Bentham in 1843. Austin criticized the
distinction’ saying “it cannot be made the basis of a just division.”. Holland in his ‘Treatise on
Jurisprudence’ popularized the terms “Substantive” and “Adjective” and that have been accepted by
writers in general. In this lesson we will discuss the ‘Juristic Approach’ towards distinction between
these two branches of law as both the laws are important and one could not be effective in the
absence of other. Though there may be some overlapping between these two branches of Law. It is
not an easy task to state with precision the exact nature of the distinction between the two. But it
can be said that without laws of a Substantive Nature, Procedural Law would not have much to
regulate, and in absence of Procedural Law, fair and consistent application of Substantive Law is not
possible.

The Substantive Laws are basically derived from Common, Statutory, Constitution and from the
Principles found in judicial decisions following the legal precedents to cases with similar facts and
situations. With the passage of time and creation of new Statutes, the volume of Substantive Law
has increased. For Example:- Penal Law, Law of Contract, Law of Property, Specific Relief Act, etc are
Substantive Law. It can be concluded out from writings of various professional texts that Substantive
Law deals with the legal relationship between subjects (individuals) or the subject and the State.
Substantive Law is a Statutory Law that defines and determines the rights and obligations of the
citizens to be protected by law; defines the crime or wrong and also their remedies; determines the
facts that constitute a wrong -i.e. the subject-matter of litigation in the context of administration of
justice. The Substantive Law, defines the ‘remedy’ and the right; includes all categories of Public and
Private Law and also includes both Substantive Civil and Criminal Law.

In short, it can be said that Substantive Law is a Statutory Law that deals with the relationship
between the people and the State. Therefore, Substantive Law defines the rights and the duties of
the people. Substantive Law deals with the structure and facts of the case; defines the rights and
duties of the citizens and can not be applied in non-legal contexts.

Substantative Civil Law The Civil Law includes any private wrong, a ‘Tort’, which unfairly causes
someone else to suffer loss or harm resulting in legal liability for the person who commits the
tortious act. Substantative Law defines to charge the ‘Tort’. Substantative Civil Law also includes the
Law of Contract- defines what is essential elements required for formation of contract; real property.
The Indian Succession Act, 1925 deals with Substantative Law of testamentary succession in regard
to persons other than Muslims and intestate succession in regard to persons other than Hindu and
Muslims in India. Other Acts that provides for Substantive Civil Law in India are Indian Contract Act,
1872; Transfer of Property Act 1882; Specific Relief Act; Indian Trust Act, 1882.

Substantive Criminal Law The Indian Penal Code (IPC) in India defines various penal offences and lists
the elements that must be proved to convict a person of a crime. It also provides for punishment
applicable to these offences. For example Substantive Criminal Law defines what constitutes
‘Murder’, ‘Robbery’, ‘Rape’, ‘Assault’ etc.

Procedural Law (or Adjective Law) deals with the enforcement of law that is guided and regulated by
the practice, procedure and machinery. This law is very important in administration of justice.
Procedural law functions as the means by which society implements its substantive goals. Procedural
law is derived from constitutional law, Statutes enacted by legislature, law enforcement agencies
promulgating written regulations for their employees, which may not have the force of law but their
violation may result in internal sanctions; and the rules and procedural guidelines laid down by the
Supreme Court. According to Holland, Adjective law, though concerns primarily with the rights and
acts of private litigants, touches closely on topics, such as the organization of Courts and the duties
of judges and sheriffs, which belong to public law. It comprises of (i) jurisdiction (in the conflicts
sense); (ii) jurisdiction (domestic sense) ; (iii) the action, including summons, pleadings,
trial(including evidence); (iv) judgment; (v) appeal; (vi) execution. Procedural Law is that law which
prescribes method of enforcing rights or obtaining redress for their invasion; machinery for carrying
on a Suit. The Code of Civil Procedure, 1908; Code of Criminal Procedure, 1973;Indian Evidence Act,
1872; Limitation Act, 1963; The Court Fees Act 1870; The Suits Valuation Act, 1887 are examples of
Procedural Law in India. The Procedural Law can be said, is a law that: z Lays down the rules with the
help of which law is enforced. z Relates to process of litigation and determines- what facts constitute
proof of a ‘wrong’ or ‘Tort’. z In the context of administration of justice -the law of procedure defines
the modes and conditions of the application of remedies to violated rights. z Are the adjective rules,
prescribing the mode in which the State, as such a personality, may sue or be sued. z Provides for
mechanism for: obtaining evidence by police and judges, conduct of searches, arrests, bail, and
presentation of evidence at trial and process of sentencing. z It is the law of action that includes all
legal proceedings, civil or criminal.

Law of Civil Procedure Civil Procedural Law consists of the rules and standards which courts follows
while conduct civil trials. These rules govern how a civil suit or case may be commenced, what kind
of service of process (if any) is required, the types of pleadings or statements of case, motions or
applications, and orders allowed in civil cases, the timing and manner of depositions and discovery
or disclosure, the conduct of trials, the process for judgment, various available remedies, and how
the courts and clerks must function. Civil actions concern with the judicial resolution of claims by
private individual or group, companies or organisations against another and in addition,
governments (or their subdivisions or agencies) may also be parties to civil actions. In India Code of
Civil Procedure, 1908 consolidates and amend the laws relating to the procedure of the Courts of
Civil Judicature.

Law of Criminal Procedure Law relating to criminal, Procedure provides or regulates the steps by
which one that violate a criminal Statute is punished. Procedural Criminal Law can be divided into
two parts, the investigatory and the adjudicatory stages. In the investigatory phase, investigation
primarily consists of ascertaining of facts and circumstances of the case by police officers and arrest
of suspect of criminal offence. The adjudicatory phase begins when with the trial of suspect for the
alleged criminal conduct in the court of Law. In India Criminal Procedure Code, provides the
procedure of getting the penal offences prosecuted and punished by the criminal courts. It also lays
down the details regarding the arrest, investigation, bail, jurisdiction, appeals, and revisions and
compounding of offence etc with regards to the various offences.

Substantive Law Procedural Law

The Substantive law defines and determines Procedural law lays down the method of aiding,
the obligations and rights of people and legal the steps and procedures for enforcement of
entities Law- Civil and Criminal.
When a particular law defines rights or crimes The laws that determine how the rights of the
or any status, it is called Substantive Law. It plaintiff and defendant will be protected and
defines how a crime or tort will be charged and enforced throughout the course of the case
how the evidence and case facts will be Procedural Laws. It includes procedure,
presented and handled.EX: The definition of pleading, and evidence
‘manslaughter’ is substantive
A Substantive Law also provides for Prohibitions Procedural Laws provides rules to determine,
administered by courts which behaviors are to how the Substantive Laws are to be
be allowed and which are prohibited- such as administered, enforced, changed, and used in
law providing prohibition against murder or the the mediation of disputes -such as filing charges
sale of narcotics. or presenting evidence in court.