UNIT 1

PART 1 : MEANING AND CLASSIFICATION OF LAWS

Historical School
● Functional approach
● "ubi societas ibi lex"- motto- where there is society there is law
● Law is found, not made
● Historical factors
● Social habits, experiences
Law develops as society develops and adapts to the changing need of the society
● Development of law- organic in nature
● Evolution of law is traced by historical study

Savigny
● Law is a product of people's life, founder of historical school
● Volksgeist theory- law developed through the general will and freedom of
ordinary citizens. Common or popular consciousness of people.
● Law develops with the development of nations, grows with it and passes on
with the disintegration of the country.

Maine
● laws are a mark of a progressive society, making laws in advance is a mark of
a progressive society.
● Status to contract theory
● Law develops through four stages (theological undertone)
1. Law is made by the command of a ruler who is believed to be acting under
divine inspiration
2. The command crystallizes into customary law
3. The law is administered by religious institution (priests etc)
4. Codification of the law
● If the society does noy progress beyond the last stage it is a static society
● Their legal conditions are characterized by the status of the people
● Law of each person is determined by his status
● Slavery, ward, citizen- recognized under their status
Natural School
● Also called philosophical school
● Deals with law as it ought to be in an ideal state Approaches law from an ethical
standpoint- appeals to the reason of man and has no element of compulsion
● Looks at moral law, divine law, law of god, law of reason
● Law with the ideals it is meant to achieve- unjust law is no law
● Principles of morality and natural justice
● Law is the product of human reason and its purpose is to elevate and ennoble
human personality
● The purpose of law is to make man virtuous and so attain perfection
● Maintain social harmony and law and order
● Scholars of philosophical school- Kant, Hegel, Grotius
● St Thomas Acquinas- law "…as an ordinance of reason for the common good
made by him who has care of community and promulgated through reason"
● Social contract theory- Hobbes, Locke and Rousseu
● All men must submit to the directions of the sovereign. Individuals readily
exchange a portion of their freedom to the legislature and government to ensure
the steady, agreeable happiness regarding their lives, freedom and property. The
government's main objective must be to ensure freedom of all its citizens.

Sociological School
● Functional role of law
● Law is not an isolated phenomenon, part of social reality
● Synthesis of various juristic thought- philosophy, ethics, psychology, science,
scientology, sociology, etc
● Studies law as a social phenomenon and examines consequences of law on
humans in a civilized society
● This type of school laid more prominent weight on the utilitarian part of the
law as opposed to its conceptual substance.
 Roscoe Pound
● " law is not a set of rules, but a method or technique for harmonizing
conflicting social interests"
● “The end of law should be to satisfy a maximum of wants with a minimum of
friction.”
● Law as a tool of social engineering, means of social contract
● "social engineering theory"- balance between conflicting interests in society

Dugit
● Based on interdependence of men in society- "social solidarity"
● To produce and manufacture necessities of life men depend on society and
each other
● Did not believe in state sovereignty

Justice Holmes
● Justice Holmes considered law as a means to protect and promote the
collective group interests as compared with individual interests.

Analytical School
● Also called positive school and imperative school
● Deals with the law as it is and not with ideals
● Things as they are and not as they ought to be
● Motto- "ubi civitas ibi lex"- where there is state, there will not be anarchy
● Does not question the authority of the state
● Examines legal sources- legislation, judicial precedent, customary laws
● Does not consider historical development of law, or ethical elements. Only
looks at the legal parts as it is Scientific in its approach

Bentham
● Author of the analytical school
 ● "Law is an assemblage of signs declarative of a volition (power of using one's
will) conceived or adopted by the sovereign in a state"
● Doctrine of Hedonism- "The proper end of every law is the promotion of the
greatest happiness of the greatest number"
● Bentham propounded the principle of utilitarianism
● According to this theory, the right aim of legislation is the carrying out of the
principal utility. Bentham defined utility as the property or tendency of a thing
to prevent some evil or procure some good.

Austin
● "Law is command of a sovereign backed by sanction"
● "law is laid down for the guidance of an intelligent being by an intelligent being
having power over him"
● Law is the rules which differentiate right from wrong made by men to be
followed by men

Kelson
● "an order of human behavior"
● Law is normative, law is a coercive order- coerces human beings to do the
lawful things
● Ought proposition- if X happens, Y ought to happen
● Hierarchy of norms with the grundnorm or basic norm at the top

Hart
● "law consists of rules which are of broad application and non-optional
character, but at the same time are amenable to formalization, legislation and
adjudication"
● Social rules-> legal rules
● Social rules comes from social pressure
● Standard of conduct and not command
 ● It is adhered to not out of a sense of obligation and the expectation that
everyone else will adhere to this obligation as well
● It is internalized

Realist School
● Looks at the judgements
● Considers law as emanating from the judges
● Implementation of the thought process of lawyers and judges

Oliver Wendell Holmes

● “Law is the thing that the courts do; it isn’t simply what the courts state.”
● Emphasis- activity
● “The life of the law has not been the rationale; it has been involvement.”
● Understand law to discern between right and wrong
● "Bad Men"- The Bad Men, according to him, think about what the judges feel
and what is going to be decided in the courts. They do not care about the
other aspects, but about the decision in courts.
● Law, according to him, is not just logic and facts, but the experiences
gathered to conclude a statement of the problem and deliver a prudent
judgment.

James Frank
● Jeremy Frank states that, legal certainty is a myth and there is no certainty of
what would be the outcome of every wrong done, as it contains a lot of
variables and constraints, left out for different interpretations.
● It is always the duty of lawyers and judges to follow the background of the law
and the law is a constructive work in the hands of lawyers and judges and
they shall do it independently and without any imposition.
2. Law and morality

Law is a set of rules laid down by Parliament for the State. Every citizen is bound by the law and breaking
the law allows the State to punish.

Morals are beliefs and values shared by a society or section of society – they tell us what is right and
wrong. Breach of morals results in disapproval or feelings of guilt. They are often derived from religion.

⮚ The Hindu Jurists made no distinction between law and morals.

⮚ Later - distinction - 400 BC- Mimansa philosophy - Jiamini - made a distinction between

obligatory and recommendatory rules.

⮚ Greek and Roman Jurists - Natural rights - based on morals.

⮚ Middle ages - Birth of Christianity - Christian morals were basis of law.

⮚ Law and morals are different and laws are derived from the State and not from Morals.

⮚ Austin “law is a command by the sovereign backed by the sanction “

⮚ Kelsen - supported Austin - Legal NORMS were the subject matter of Jurisprudence(
theory or philosophy of law). He excluded morals.

Famous proponents
Pollock - Though ground is common to both, the subject matter of law and ethics is not the
same. The field of legal rules of conduct does not coincide with that of moral rules and is not
included in it and the purposes for which they exist are different.

3. Functions of Law

Normative Functions of Law

The normative functions of law are essential because they establish the rules and principles that
govern behavior within a society. These functions ensure that people understand what is
expected of them and provide a framework for evaluating and resolving disputes.

1. Determinate Functions

Definition: The determinate function of law refers to its role in creating specific, clear, and
unambiguous rules that guide behavior. These laws leave little room for interpretation, making it
easy for individuals and authorities to understand and apply them.

Examples:

● Traffic Laws: Traffic regulations, such as speed limits or rules requiring drivers to stop at
red lights, are determinate because they provide exact instructions on how drivers
should behave. For example, a speed limit of 50 kilometers per hour is a specific rule
that drivers must follow.
● Criminal Laws: Laws that define criminal offenses, such as theft or assault, and
prescribe specific penalties for these offenses are determinate. If someone steals, the
law clearly outlines the punishment they can expect.
● Contract Law: When a contract stipulates that payment is due within 30 days of
receiving goods, this is a determinate provision. It sets a clear deadline that both parties
must adhere to.

Purpose and Importance:

● Clarity and Predictability: Determinate laws provide clear guidance to citizens, helping
them understand exactly what is required of them. This clarity reduces confusion and
uncertainty, making it easier for people to comply with the law.
● Consistency in Enforcement: Because determinate laws are specific, they are applied
consistently across similar cases. This consistency is crucial for fairness and justice, as it
ensures that similar situations are treated in the same way.
● Efficiency in Legal Processes: Determinate laws simplify the work of judges and law
enforcement officials, as the rules are clear-cut and do not require extensive
interpretation. This efficiency can reduce the time and resources needed to resolve legal
disputes.

2. Indeterminate Functions
Definition: The indeterminate function of law involves creating broader, more general principles
that allow for interpretation and adaptation to different situations. Unlike determinate laws, these
rules are not fixed and can be applied flexibly depending on the context.

Examples:

● Reasonable Care in Negligence: The legal concept of "reasonable care" in tort law is
indeterminate because what constitutes reasonable care can vary depending on the
circumstances. A doctor’s standard of care may differ from that of a driver or a
manufacturer.
● Good Faith in Contracts: The principle of "good faith" requires parties to act honestly
and fairly in contractual dealings. However, what constitutes good faith may differ based
on the nature of the contract and the expectations of the parties involved.
● Equity and Fairness: Courts often rely on broader principles of equity and fairness
when making decisions in cases where rigid application of the law might result in
injustice. These principles are indeterminate because they allow judges to consider the
unique aspects of each case.

Purpose and Importance:

● Flexibility and Adaptability: Indeterminate laws provide the flexibility needed to

address complex and varied situations that cannot be fully anticipated by rigid rules. This
adaptability ensures that the law remains relevant and just in a wide range of contexts.
● Fairness and Justice: By allowing for interpretation, indeterminate laws enable judges
to consider the specific circumstances of each case and make decisions that are fair and
just. This is particularly important in cases where applying a strict rule would lead to an
unjust outcome.
● Evolving Standards: Indeterminate laws allow the legal system to evolve over time, as
societal values and norms change. For instance, the interpretation of what constitutes
"reasonable care" or "good faith" may shift as society's expectations change.

Social Functions of Law

The social functions of law pertain to how law interacts with and influences society. These
functions go beyond simply regulating behavior; they encompass the broader impact that law
has on social order, stability, and development.
1. Direct Social Functions

Definition: Direct social functions refer to the explicit ways in which law shapes behavior and
achieves social goals. These functions are intentional and are designed to address specific
social issues or objectives.

Examples:

● Crime Prevention: Criminal laws directly prevent crime by deterring potential offenders
through the threat of punishment. For example, laws against theft and assault are
intended to protect individuals and property by discouraging criminal behavior.
● Public Safety: Laws related to public health and safety, such as regulations on food
safety, environmental protection, and workplace safety, directly protect citizens from
harm. For instance, environmental laws that limit pollution directly protect public health
and the environment.
● Social Order: Laws governing civil rights, discrimination, and equality directly promote
social harmony by ensuring that all individuals are treated fairly and justly.
Anti-discrimination laws, for example, directly address issues of inequality and promote
social cohesion.

Purpose and Importance:

● Maintenance of Social Order: Direct social functions are essential for maintaining
social order and stability. By clearly defining acceptable and unacceptable behavior, laws
help prevent chaos and conflict in society.
● Protection of Rights: These laws protect individual rights and freedoms, ensuring that
citizens can live and work in a safe and just environment. For example, laws that protect
freedom of speech or prohibit discrimination safeguard fundamental human rights.
● Promotion of Social Goals: Direct social functions also serve to promote broader social
goals, such as public health, safety, and welfare. Laws that regulate healthcare,
education, and housing directly contribute to the well-being of society.

2. Indirect Social Functions

Definition: Indirect social functions involve the less obvious ways in which law influences
society. These functions may not be explicitly stated in the law, but they occur as a byproduct of
the legal system and its enforcement.
Examples:

● Economic Development: Property laws, by providing security of ownership and

facilitating transactions, indirectly promote economic development. When individuals and
businesses feel confident that their property rights are protected, they are more likely to
invest, innovate, and contribute to economic growth.
● Social Cohesion: Family laws, which regulate marriage, divorce, and inheritance,
indirectly contribute to social cohesion by reinforcing societal norms and values. These
laws help maintain the stability of family structures, which are fundamental to social
order.
● Cultural Continuity: Legal traditions and systems can indirectly preserve and transmit
cultural values and norms across generations. For instance, laws that protect religious
freedom or promote cultural heritage indirectly support the continuity of cultural
practices.

Purpose and Importance:

● Stability and Continuity: Indirect social functions are crucial for the long-term stability
and continuity of society. By supporting economic development, social cohesion, and
cultural preservation, these functions contribute to a stable and prosperous society.
● Subtle Influence on Behavior: While not as overt as direct functions, indirect social
functions play a significant role in shaping behavior and social norms. For example, tax
laws, while primarily focused on revenue generation, can also influence behavior by
encouraging or discouraging certain activities (e.g., tax incentives for charitable
donations).
● Balancing Social Interests: Indirect social functions help balance competing social
interests, such as individual rights and public welfare. For instance, environmental laws
not only protect natural resources but also balance the needs of development with the
preservation of the environment for future generations.

Conclusion

In summary, the normative functions of law provide the standards and principles that govern
behavior, with determinate functions offering clear, specific rules and indeterminate
functions allowing for flexibility and interpretation. The social functions of law, on the other
hand, reflect the broader impact of law on society, with direct functions explicitly shaping
behavior and achieving social goals, and indirect functions influencing society in more subtle,
long-term ways. Together, these functions ensure that law not only maintains order and justice
but also contributes to the overall development and stability of society.
4. Classification of Laws

PART 2 : CONCEPT OF A LEGAL SYSTEM

A) HISTORY AND APPLICABILITY OF COMMON LAW AND CIVIL LAW SYSTEM

CIVIL LAW SYSTEM

Origins of the Civil Law System

● Roman Foundation: The civil-law system originates from the jus civile of the Roman
Republic and Empire, which served as the legal bedrock for modern civil-law systems in
Europe and Latin America.
● Role of Roman Jurists: Roman jurists were legal experts from the upper classes who
provided counsel to the judiciary, parties in litigation, and magistrates. Their work was
crucial in shaping Roman private law, especially as the Empire expanded.

The Role and Influence of Roman Jurists

● Legal Advisors: Jurists offered advice to both the praetors (magistrates) and judices
(trial judges), who often lacked formal legal training. The jurists' responsa (legal
opinions) became an important part of the legal process.
● Creation of Private Law: As the Roman Empire expanded, the need arose to regulate
relationships between citizens and noncitizens. Jurists developed the jus gentium (law of
nations) to address these needs.
● Public Service: Jurists were not government officials but served in a public capacity,
offering their legal expertise pro bono, which elevated their influence in society.

Evolution of the Roman Legal System

● Praetors and Edicts: The praetor issued annual Edicts that guided the administration of
justice. Over time, these Edicts became a significant source of private law.
● Judicial Decisions: Judicial decisions were not given much importance in Rome. The
focus was on written law and jurists' opinions, as reflected in the works of jurists like
Gaius and the compilation of the Corpus Juris Civilis under Emperor Justinian.

The Corpus Juris Civilis

● Comprehensive Legal Code: In the sixth century, Emperor Justinian commissioned the
Corpus Juris Civilis, which included the Digest (writings of classical jurists), the Code
(imperial legislation), and the Institutes (a legal textbook). This compilation became the
foundation of the civil-law system, influencing later legal systems in Europe.

Medieval Developments in Italy

● Rise of the Glossators: From the eleventh to fifteenth centuries, northern Italy saw the
rise of the "glossators" in Bologna. These scholars focused on interpreting and
systematizing the Corpus Juris Civilis to meet the needs of medieval Europe.
● Educational Influence: The glossators, who were primarily law professors, taught at
universities like Bologna, which became the first true law schools in Europe. Their
teachings spread across Europe, influencing the development of legal systems in
countries like Germany, France, Spain, and Switzerland.

Reception of Roman Law in Europe

● Influence on European Legal Systems: The glossators' interpretation of Roman law

was carried by students back to their home countries, leading to the widespread
adoption of Roman legal principles in modern European legal systems.
● Impact on Spain and Latin America: In Spain, the Corpus Juris Civilis influenced the
creation of the Codigo de Las Siete Partidas in the thirteenth century, which served as
the foundation of Spanish law and was later exported to Latin America during
colonization.

Key Contributions to Civil-Law Development

● Systematization of Law: The glossators and later jurists (post-glossators) played a

critical role in building a systematic legal doctrine based on Roman law. They
 emphasized the logical structure of legal principles and incorporated local customs
where necessary.
● Legacy of the Glossators: The glossators' work laid the groundwork for the civil-law
systems that dominate much of Europe and Latin America today. Their interpretations
and teachings continue to influence modern legal education and practice.

Italian Law and Its Influences

Italian law significantly influenced the development of European legal systems. It was derived
from two primary sources: Roman law, as captured in Justinian’s Corpus Juris Civilis, and
customary (local) law. Two major developments in medieval Europe shaped the civil-law
systems: Canon Law and the Law Merchant.

Canon Law

Canon Law was created by the Roman Catholic Church and became a comprehensive legal
system primarily concerned with the administration of the church. It was characterized by
systematic legal expositions and scholarly writings that guided ecclesiastical courts. The
Decretum by the Bishop of Worms and the Concordia Discordantium Canonum by Gratian laid
the foundation for canon law, which covered a wide range of subjects including ecclesiastical
offices, clerical behavior, church property, marriage, and sacraments.

Ecclesiastical courts, with their uniform structure and educated judges, played a significant role
in the development of European legal procedures. They introduced systematic methods for
court proceedings, including the use of documentary evidence, witness testimony, and legal
arguments, which influenced secular courts.

The Law Merchant

The Law Merchant developed as a response to the growth of commercial activities in medieval
Europe. It emerged from the expansion of commerce among Italian city-states and between
these states and other European cities. The law merchant covered maritime commerce, fair
trade, and market transactions, and was characterized by the organization of merchants into
associations and guilds.

This body of law was influenced by Roman private law but varied significantly across different
regions. Maritime codes like the Capitulare Navium in Venice and the Consolato Del Mare in
Barcelona became influential, covering various aspects of sea transport and trade practices. On
land, informal courts such as the “piepowder courts” in England handled trade disputes, which
later evolved into official commercial courts.

Codification and Intellectual Movements

The process of codification in Europe was influenced by three intellectual movements:

Humanism, the Natural Law school, and the Enlightenment. Humanism, emerging in
sixteenth-century France, emphasized rational thought and the potential for individual
achievement. It inspired a scholarly examination of law, leading to the foundation of
jurisprudence.

The Natural Law school, with figures like Grotius, advocated for universal legal concepts based
on human experiences and the desire for an orderly society. This approach laid the groundwork
for systematic codification. Jurists like Samuel Pufendorf further developed legal systems using
scientific methods, influencing the modern practice of including general principles in legal codes.

The Enlightenment was the final intellectual force behind codification. It emphasized reason
and the importance of citizens understanding their rights and duties under the law. The
movement culminated in the creation of modern comprehensive legal codes in European states,
particularly in France and Germany.

Conclusion

The main river of substantive law in medieval Europe, which became the foundation of modern
European law, was a convergence of four tributaries: Roman law, customary law, canon law,
and the law merchant. These streams collectively formed the jus commune, the common law
across European kingdoms, leading to the codification processes that shaped modern civil-law
systems.
The Codification Processes in France and Germany

Historical Context of Codification

● Sixteenth Century Codification: In this period, codification focused on restating

existing laws rather than creating new, systematic frameworks. This was more about
compiling and organizing the existing legal norms and practices rather than developing a
comprehensive, rational system of law.
● Eighteenth and Nineteenth Century Codification: This era marked a significant shift
towards creating a rationally organized and comprehensive legal system. The aim was to
provide a unified, systematic presentation of the entire field of law, influenced by
Enlightenment principles of reason and order.

The French Codification Process

● Napoleon’s Vision:
○ Napoleon Bonaparte regarded the creation of the Code Civil as one of his
greatest achievements, surpassing even his military victories. He believed that
the Code Civil would outlast his other accomplishments, demonstrating its
profound significance in shaping legal history.
● Development and Creation:
○ Commission Formation: In 1800, Napoleon appointed a commission consisting
of four senior jurists who were well-versed in the natural law tradition, influenced
by prominent scholars such as Grotius and Pufendorf.
○ Drafting Process: The commission held 102 sessions over four years to draft
the Code Civil. The drafting process was intensive and collaborative, involving
detailed discussions and revisions.
● Structure and Content:
○ Book I: Contains foundational principles of law, including the general application
of laws, civil rights, the status of persons, and family-related matters (marriage,
divorce, paternity).
○ Book II: Addresses property law, covering both real and personal property,
ownership, and related rights.
 ○ Book III: Focuses on obligations, contracts, and succession. It covers various
forms of obligations, including contractual, quasi-contractual, and tort obligations,
as well as property rights within marriage.
○ General Principles: The Code starts with six articles outlining general legal
principles, emphasizing the clarity and accessibility of the law.
● Influences and Legacy:
○ Influence of Justinian’s Corpus Juris Civilis: The structure of the Code Civil
reflects the influence of the Corpus Juris Civilis, integrating Roman legal
principles.
○ Influence of the Declaration of the Rights of Man: The Code also incorporates
principles from the French Revolution, such as individual rights and equality
before the law.
○ Subsequent Amendments: While the Code Civil has been amended over time,
it has retained its core structure and principles. Its clarity and simplicity have led
to a rich body of case law and interpretation.

The German Codification Process

● Historical Development:
○ The German codification process was shaped by the legal traditions of three
Germanic states: Bavaria, Prussia, and Austria. Each state developed its own
codification, which later influenced the creation of a unified German code.
● Bürgerliches Gesetzbuch (BGB):
○ Commission and Creation: In 1873, a statutory commission was established to
create a comprehensive German civil code. The BGB was approved in 1896 and
came into effect on January 1, 1900.
○ Structure of the BGB:
■ Book I: General principles, covering natural and juristic persons,
definitions of legal acts, and prescriptive periods.
■ Book II: Law of obligations, including formation and discharge of
obligations, contract law, and delict (tort).
■ Book III: Real and personal property law, including ownership,
possession, servitudes, and securities.
■ Book IV: Family law, addressing marriage, divorce, and family
relationships.
 ■ Book V: Law of succession, including inheritance, wills, and proof
requirements.
● Influences and Legacy:
○ Influence of Previous Codifications: The BGB drew from earlier Germanic
codes and the Roman law tradition, integrating principles from the French Code
Civil and other European codes.
○ Impact and Model: The BGB has been influential worldwide, serving as a model
for other legal systems and remaining a cornerstone of German civil law.

Comparative Influence of Jurists in France and Germany

● Role of Jurists in Germany:

○ Historical Context: In the sixteenth and seventeenth centuries, German courts
were staffed by lay judges who were not well-trained in law. As a result, judges
sought advice from law professors, leading to a significant role for academic
jurists.
○ Evolution of Jurists’ Role: German jurists became key in interpreting and
applying the law, functioning similarly to the jurists of ancient Rome. Their
writings and doctrines were influential in shaping legal decisions and developing
legal theory.
○ Doctrine and Precedent: In Germany, legal doctrine developed by jurists was
critical, and judicial decisions often relied on scholarly opinions rather than
precedent. This emphasis on doctrinal analysis over precedent influenced the
development of German law.
● Role of Jurists in France:
○ Judicial Training: French judges were typically formally trained and did not rely
heavily on external legal advice. This led to a less prominent role for legal
scholars compared to their German counterparts.
○ Historical Context: Leading French jurists were often practitioners rather than
academics, which shaped the development of French legal doctrine. French legal
scholarship did not achieve the same level of influence as in Germany.
○ Judicial Decisions: French legal decisions are often brief and focused on code
provisions without extensive reference to scholarly works. This reflects a practical
approach to law, emphasizing the application of the code rather than doctrinal
elaboration.
Conclusion

● Differences in Codification Approaches:

○ The codification processes in France and Germany highlight distinct approaches
to legal system development. France’s Code Civil emphasized clarity and
accessibility, with significant influence from Roman law and revolutionary
principles. Germany’s BGB, on the other hand, integrated a more comprehensive
and systematic approach, reflecting the influence of earlier Germanic codes and
a strong role for academic jurists.
● Legacy and Influence:
○ Both the French Code Civil and the German BGB have had a profound impact on
the development of civil law systems worldwide. They represent two different
paths in the evolution of codified legal systems, with France focusing on practical
application and accessibility, and Germany emphasizing doctrinal development
and systematic organization.

Part II: The Civil-Law System As It Exists and Functions in the Modern Era

The Public Law–Private Law Dichotomy

● Basic Division: Civil-law systems classify law into public and private law. This distinction
is fundamental and evident in civil-law jurisdictions but lacks uniform theoretical basis
and scope agreement across countries.
● Private Law: Includes civil and commercial codes, focusing on private rights and the
enforcement of private disputes. Other areas like civil procedure, labor law, and social
security may be classified as mixed.
● Public Law: Concerned with the public interest through state action. Includes
constitutional law, administrative law, and criminal law. Developed alongside the modern
administrative state, separating disputes involving the state from private law rules.
● Modern Trends: Factors such as the influence of common law, increased government
regulation, and written constitutions are blurring the lines between public and private law.

Court Structure
 ● Ordinary Courts: Handle the majority of civil and criminal cases. Example: In France,
these include general civil and criminal trial courts and specialized courts like
commercial and labor courts.
● Administrative Courts: Address disputes involving state actions. The French model
uses the Council of State, while Germany has independent administrative courts.
● Constitutional Courts: In countries like Germany and Italy, separate constitutional
courts review the constitutionality of legislative actions, respecting the separation of
powers.

The Legal Process

● Civil Procedure:
○ Process: Involves a series of meetings, hearings, and written communications.
No formal discovery process; evidence is presented in writing or oral hearings.
○ Role of the Judge: Actively supervises and shapes fact-finding and evidence
collection. Cross-examination is rare.
○ Trial Structure: Trials are not typically single-event proceedings but a sequence
of hearings and submissions.
● Criminal Procedure:
○ Phases: Divided into investigative, examining, and trial phases. The public
prosecutor collects evidence, and an examining judge reviews it before trial.
○ Trial: Focuses on presenting the already-prepared record to the judge. Some
countries use lay judges or mixed panels for serious criminal cases.
● Appellate Procedure:
○ Review: Intermediate appellate courts may review facts and law de novo.
Appellate courts of last resort typically consider questions of law. Some systems,
like France, use a cassation model focusing on legal questions without
re-examining facts.

Legal Actors: Tradition and Transition

● Legal Scholars:
○ Role: Provide foundational theories and interpretations influencing both
legislation and judicial practice. Although not a formal source of law, their
doctrines are highly valued.
 ● The Legislature:
○ Function: Updates and supplements civil codes, striving for clarity and
consistency with established legal principles.
● Judges:
○ Selection and Role: Enter directly from law school and progress based on
seniority. Their role is seen as applying laws designed by scholars, with limited
discretion.
● Legal Education and Lawyers:
○ Training: Focuses on theoretical principles rather than practical skills. Legal
practice is divided between advocates (litigators) and notaries (document
experts).
● Transition:
○ Current Trends: The strict adherence to traditional roles and codes is evolving.
Judges increasingly interpret and supplement codes, and judicial decisions are
forming a de facto system of precedent.

This summary captures the key elements of the civil-law system, focusing on its structure,
procedural differences, and the roles of legal actors, all essential for an exam perspective.

COMMON LAW SYSTEM

Part III: The Common Law and a Comparison of the Civil-Law and
Common-Law Systems

Origins of the Common-Law System

● Early Development: The common-law system began in medieval Britain, influenced by

the jury system. Initially, juries were used for land disputes and other issues, with their
origins tracing back to medieval France under the Frankish kings.
● Evolution: After the Norman Conquest of England in 1066, the jury system was
formalized. King Henry II (reigned 1154-1189) made jury trials a standard part of the
justice system. The Magna Carta (1215) confirmed the right to a jury trial in criminal
cases.
 ● Roman and Canon Law: Although Roman law influenced Britain, it was not as
significant as in civil-law countries. The English legal system evolved independently,
focusing on jury trials and royal courts. Legal education and practice centered around
the inn of court system, emphasizing adversarial advocacy and the development of
common law.

Jurists in the Common-Law System

● Role of Jurists: Unlike civil-law systems, common-law systems do not have a prominent
role for jurists. The common law relies heavily on judicial precedent, meaning past
decisions guide future cases. Legal scholars have less influence compared to their
civil-law counterparts.
● Historical Context: Most prominent common-law jurists have been judges, not legal
scholars. Common-law writings often compile case law rather than present original legal
theory. Despite notable exceptions, such as influential treatises and the Restatement of
the Law series, juristic writings play a minor role in judicial decisions and legal
development.

Differences Between Civil-Law and Common-Law Systems

● Influence and Codification: The civil-law system is heavily influenced by the Corpus
Juris Civilis and features comprehensive codes that cover various areas of law. In
contrast, common-law systems develop legal principles through case law and judicial
decisions, with statutes reflecting judicial precedents rather than originating from a
codification process.
● Equity Law: Equity law, which developed in England to address gaps and injustices in
common law, does not have a direct counterpart in civil-law countries. Civil-law systems
integrate fairness into their codes, avoiding separate equity principles.
● Judicial Precedent and Reasoning: Common-law systems prioritize judicial precedent,
using inductive reasoning to derive general principles from specific cases. Civil-law
systems rely on deductive reasoning from comprehensive codes, with judges applying
established legal rules to specific cases.
● Court Structures: Common-law countries have integrated court systems with general
jurisdiction. Civil-law countries often have specialized courts for different types of law
(e.g., constitutional, criminal, administrative).
 ● Trial Process: Civil-law trials involve an extended process with the judge playing an
active role in investigating and questioning. Common-law trials are adversarial, with
lawyers taking the lead and judges acting as referees.
● Judicial Roles and Training: Civil-law judges are typically career civil servants selected
through a formal process, while common-law judges are often appointed or elected
politically, serving fixed terms or for life. Legal education in civil-law countries is usually
undergraduate-focused, while in common-law countries, it is post-graduate with a
broader educational background.

Conclusion

● Common-Law Approach: Common-law lawyers focus on resolving individual cases

using precedents, with less concern for developing a comprehensive legal system. They
value practical decision-making and use precedents as tools rather than seeking a
systematic legal framework.
● Civil-Law Approach: In civil-law countries, law is viewed as a science. Legal education
emphasizes creating a systematic structure derived from positive legislation, focusing on
building a coherent and comprehensive legal system.

OVERALL SUMMARY

Origins of the Civil-Law System

Roman Foundation

● Jus Civile: The civil-law system traces its roots to the jus civile of the Roman Republic
and Empire, which laid the groundwork for modern civil-law systems in Europe and Latin
America.
● Roman Jurists: Roman jurists, legal experts from the upper classes, played a pivotal
role in developing private law, especially as the Roman Empire expanded. Their
responsa (legal opinions) significantly influenced legal practices.

Role and Influence of Roman Jurists

 ● Legal Advisors: Jurists advised magistrates and trial judges, whose legal training was
often insufficient. Their opinions were integral to the legal process.
● Creation of Private Law: They developed jus gentium (law of nations) to address the
complexities of relationships between citizens and non-citizens.
● Public Service: Jurists offered their expertise pro bono, which enhanced their societal
influence.

Evolution of the Roman Legal System

● Praetors and Edicts: Praetors issued annual Edicts that became a vital source of
private law.
● Judicial Decisions: Judicial decisions were less emphasized compared to written laws
and jurists' opinions, as seen in the Corpus Juris Civilis.

The Corpus Juris Civilis

● Comprehensive Legal Code: Emperor Justinian's Corpus Juris Civilis (6th century)
included the Digest, Code, and Institutes, forming the foundation of civil-law systems and
influencing European legal codes.

Medieval Developments in Italy

● Glossators: From the 11th to 15th centuries, glossators in Bologna interpreted and
systematized Roman law, shaping the legal systems of Europe.
● Educational Influence: Their teachings at universities like Bologna spread across
Europe, influencing legal systems in Germany, France, Spain, and Switzerland.

Reception of Roman Law in Europe

● Influence on European Systems: The glossators' work led to widespread adoption of

Roman legal principles in Europe and Latin America.
● Impact on Spain and Latin America: The Codigo de Las Siete Partidas in Spain and
its export to Latin America during colonization reflected the influence of Roman law.

Key Contributions to Civil-Law Development

 ● Systematization of Law: Glossators and later jurists systematized legal doctrine based
on Roman law and local customs.
● Legacy: Their work established the systematic legal principles that continue to influence
modern civil-law systems.

Italian Law and Its Influences

Canon Law

● Development: Created by the Roman Catholic Church, Canon Law was influential in
ecclesiastical courts and legal procedures.
● Key Texts: The Decretum and Concordia Discordantium Canonum provided
foundational guidance on various church matters.
● Influence: Ecclesiastical courts influenced secular legal procedures with systematic
methods for evidence and testimony.

The Law Merchant

● Origins and Development: Evolved from medieval European commerce, covering

maritime and market transactions.
● Maritime Codes: Influential codes like the Capitulare Navium and Consolato Del Mare
addressed trade practices.
● Regional Variations: Law Merchant varied across regions but was integral to
commercial law development.

Codification and Intellectual Movements

Codification Processes

● Early Codification (16th Century): Focused on compiling existing laws rather than
creating new frameworks.
● Eighteenth and Nineteenth Century: Shifted towards rational, comprehensive legal
systems influenced by Enlightenment principles.
French Codification Process

● Napoleon’s Vision: The Code Civil (1804) was a major achievement, reflecting Roman
law and revolutionary principles.
● Structure: Organized into Books covering foundational principles, property law,
obligations, and succession.
● Legacy: Influenced by the Corpus Juris Civilis and the Declaration of the Rights of Man,
with ongoing amendments and case law development.

German Codification Process

● Bürgerliches Gesetzbuch (BGB): Approved in 1896, effective in 1900, structured into

General Principles, Obligations, Property Law, Family Law, and Succession.
● Influences: Integrated principles from French and earlier Germanic codes, impacting
global legal systems.

Comparative Analysis: Civil-Law and Common-Law

Systems

Origins of Common Law

● Early Development: Began in medieval Britain, influenced by jury trials formalized

post-Norman Conquest.
● Influence: Emphasized jury trials and royal courts, with Roman and Canon Law less
significant.

Jurists in Common Law

● Role: Common-law systems focus on judicial precedent rather than prominent jurists.
Legal scholars have less influence compared to civil-law systems.

Differences Between Civil-Law and Common-Law Systems

● Influence and Codification: Civil-law systems rely on comprehensive codes influenced

by Roman law. Common law evolves through judicial precedents.
 ● Equity Law: Common-law systems developed equity law to address gaps in common
law; civil-law systems integrate fairness into codes.
● Judicial Precedent: Common-law systems use precedent for legal reasoning, while
civil-law systems apply deductive reasoning from codes.
● Court Structures: Common-law systems have integrated courts, whereas civil-law
systems often feature specialized courts.
● Trial Process: Civil-law trials involve extensive judicial investigation, while common-law
trials are adversarial, with lawyers leading the proceedings.

Judicial Roles and Training

● Civil-Law Judges: Typically career civil servants with limited discretion, selected
through formal processes.
● Common-Law Judges: Often appointed or elected, serving fixed terms or for life, with
legal education focusing on broader practical skills.

Conclusion

● Common-Law Approach: Focuses on resolving individual cases using precedents and

practical decision-making.
● Civil-Law Approach: Emphasizes creating a systematic, comprehensive legal
framework through positive legislation and theoretical foundations.

B) INQUISITORIAL AND ADVERSARIAL SYSTEM (APPLICATION AND DISTINCTION)

Inquisitorial System

Definition and Overview

The inquisitorial system is a legal framework where the judge or magistrate takes an active role
in investigating and determining the outcome of a case. It is prevalent in civil-law jurisdictions
and is rooted in the Roman legal tradition.

Key Characteristics
1. Active Judge Role:
○ Investigation: In the inquisitorial system, the judge actively investigates the
case. This involves directing inquiries, gathering evidence, and questioning
witnesses. The judge's role is not limited to adjudicating based on presented
arguments but extends to uncovering the truth.
○ Evidence Collection: The judge or judicial officer is responsible for collecting
evidence. This process can include visiting crime scenes, interviewing witnesses,
and reviewing documents. The judge has significant discretion in deciding what
evidence is relevant and necessary for the case.
2. Case Management:
○ Procedural Control: Judges in inquisitorial systems control the procedural
aspects of the trial. They set the agenda, manage the timeline, and determine the
scope of evidence collection. This proactive approach is intended to ensure a
thorough examination of the facts.
○ Continuous Investigation: The investigation continues throughout the legal
process. This contrasts with systems where the investigation phase is separate
from the trial phase.
3. Role of the Parties:
○ Reduced Role: The parties involved (plaintiff and defendant) have a less active
role in the investigation compared to adversarial systems. Their role is primarily
to present their case based on the evidence gathered by the judge.
○ Submission of Evidence: Parties can submit evidence and make arguments,
but the judge directs the overall evidence-gathering process.
4. Trial Process:
○ Sequential Hearings: Trials are often conducted over multiple hearings. The
judge leads the proceedings, questioning witnesses and reviewing evidence at
each stage.
○ Fact-Finding: The focus is on uncovering the truth through an extensive
fact-finding process, with less emphasis on the strategic presentation of cases.
5. Example Countries:
○ France: The French legal system is a prime example of an inquisitorial system.
French judges are deeply involved in investigating cases and managing
evidence.
 ○ Germany: German courts also follow the inquisitorial model, with judges playing
an active role in the procedural aspects of trials.

Application

1. Criminal Cases:
○ Investigative Role: In criminal cases, the judge leads the investigation, gathers
evidence, and questions witnesses. This approach is designed to ensure that all
relevant facts are considered, aiming for a fair and comprehensive resolution.
○ Decision Making: The judge's findings are crucial in determining guilt or
innocence, with the goal of achieving justice based on a thorough understanding
of the case.
2. Civil Cases:
○ Judicial Oversight: In civil disputes, judges oversee the evidence collection and
case presentation. This ensures that the case is examined thoroughly, even if
parties are less proactive in presenting evidence.

Adversarial System

Definition and Overview

The adversarial system is a legal framework where the parties involved in a case present their
arguments and evidence before an impartial judge or jury. This system is prevalent in
common-law jurisdictions and emphasizes the role of parties in the litigation process.

Key Characteristics

1. Passive Judge Role:

○ Neutral Arbiter: In the adversarial system, the judge or jury acts as a neutral
arbiter. They oversee the proceedings and ensure that legal rules are followed
but do not actively investigate the case.
○ Decision-Making: The judge or jury makes decisions based on the evidence and
arguments presented by the parties.
2. Role of the Parties:
 ○ Active Participation: The parties (plaintiff and defendant) are responsible for
presenting their case, gathering and submitting evidence, and making legal
arguments. Each side competes to persuade the judge or jury of their position.
○ Evidence Presentation: The parties handle evidence collection, discovery, and
presentation. They can cross-examine witnesses and challenge evidence
presented by the opposing side.
3. Trial Process:
○ Adversarial Proceedings: The trial is structured as a contest between the
parties. Each side presents its case, makes arguments, and attempts to
undermine the opponent's case.
○ Focus on Advocacy: The focus is on effective advocacy and presentation. The
parties' skill in presenting their case can significantly impact the outcome.
4. Example Countries:
○ United States: The U.S. legal system is a classic example of the adversarial
model, with a strong emphasis on the role of the parties and judicial precedent.
○ United Kingdom: The UK also employs the adversarial system, particularly in
criminal and civil cases, where parties present their cases before a judge or jury.

Application

1. Criminal Cases:
○ Prosecution and Defense: In criminal cases, the prosecution and defense each
present their case to prove or disprove the accused's guilt. The burden of proof
rests with the prosecution, and the defense works to create reasonable doubt.
○ Trial Process: The trial process involves presenting evidence, making
arguments, and cross-examining witnesses. The judge or jury decides the
outcome based on the evidence and arguments presented.
2. Civil Cases:
○ Plaintiff and Defendant: In civil disputes, the plaintiff and defendant each
present their case, submit evidence, and make legal arguments. The trial focuses
on resolving the dispute based on the evidence and legal principles.

Distinctions Between Inquisitorial and Adversarial Systems

1. Role of the Judge:

 ○ Inquisitorial: The judge is actively involved in investigating the case, gathering
evidence, and questioning witnesses. The judge's role is to uncover the truth and
manage the case.
○ Adversarial: The judge or jury serves as a neutral referee, overseeing the
proceedings and ensuring that legal rules are followed without actively
investigating the case.
2. Evidence Collection:
○ Inquisitorial: Evidence is gathered by the judge or judicial officers, who direct
the investigation and review all relevant materials.
○ Adversarial: Evidence is collected by the parties involved, who are responsible
for presenting their case and challenging the opponent's evidence.
3. Trial Focus:
○ Inquisitorial: The focus is on discovering the truth through comprehensive
investigation and examination of evidence.
○ Adversarial: The focus is on the competition between parties, with each side
presenting arguments and evidence to persuade the judge or jury.
4. Case Management:
○ Inquisitorial: The judge manages the case, directs the investigation, and
ensures a thorough examination of the facts.
○ Adversarial: The parties manage their own cases, with the judge overseeing the
process and ensuring procedural fairness.
5. Role of Parties:
○ Inquisitorial: Parties have a less central role in the investigation and evidence
collection. Their role is primarily to present their case based on the evidence
gathered by the judge.
○ Adversarial: Parties play a central role in presenting their case, gathering
evidence, and making legal arguments. Their effectiveness in presenting their
case can significantly impact the outcome.
6. Outcome Determination:
○ Inquisitorial: The judge determines the outcome based on a comprehensive
review of evidence and findings.
○ Adversarial: The judge or jury decides based on the arguments and evidence
presented by the parties, with the burden of proof resting on the party making the
claim.
Conclusion

The inquisitorial and adversarial systems represent two distinct approaches to legal
proceedings. The inquisitorial system emphasizes judicial investigation and comprehensive
evidence review, aiming for a thorough examination of the facts. The adversarial system relies
on the competition between parties, with a focus on effective advocacy and presentation of
evidence. Understanding these systems is crucial for comprehending how different legal
frameworks approach justice and legal proceedings.

SOURCES OF LAW
A) STATUTE AS A SOURCE OF LAW
Babitha’s ppt

C) CUSTOM AS A SOURCE OF LAW

Customs are one of the earliest and most significant sources of law, originating from the habitual
codes of conduct that people in a society voluntarily follow. Before the codification of laws,
customs guided various religions, castes, and tribes, forming the foundation of legal systems
like English Common Law. Customs are cultural practices that gain obligatory force through
widespread practice over generations. They are formed through spontaneous reactions and
coordinated decisions in early societies, and eventually systematized into social regulations.

Prominent legal scholars like John Salmond, J.L. Austin, and C.K. Allen have defined customs
as principles of justice, rules of conduct, and social phenomena, respectively. The difference
between customs and usage lies in their binding nature—customs are obligatory without explicit
agreement, while usage requires express acknowledgment.

For a custom to be valid, it must be ancient, reasonable, beneficial, consistent with statutory
law, and not conflict with other customs. Customs are classified into those without binding
obligations, like social conventions, and those with binding obligations, such as marriage and
property transmission.
Different schools of law view customs differently. The historical school, led by Savigny, sees
customs as an authoritative source of law rooted in the past, while the analytical school,
represented by Austin, considers customs less authoritative, viewing English customary law as
an invention of judges.

Key Points:

1. Definition and Formation:

○ Customs are habitual codes of conduct followed voluntarily by a society.
○ They are formed through spontaneous and coordinated actions in early societies,
eventually becoming systematized.
2. Importance:
○ Customs are foundational to legal systems, such as English Common Law, and
play a crucial role in maintaining societal balance.
3. Scholarly Views:
○ John Salmond, J.L. Austin, and C.K. Allen offer different perspectives on the
nature of customs.
○ The historical school sees customs as the original source of law, while the
analytical school is more critical of their authority.
4. Difference Between Customs and Usage:
○ Customs are binding without explicit agreement, while usage requires express
consent.
5. Requisites for Valid Customs:
○ Must be ancient, reasonable, beneficial, consistent with the law, and
non-conflicting.
6. Types of Customs:
○ Customs without binding obligations (social conventions).
○ Customs with binding obligations (essential societal functions like marriage and
property).
7. Conclusion:
○ Customs are deeply rooted in the history of societies and continue to influence
modern legal systems. They are a vital part of law, reflecting the practices and
values of a society over time.

SUMMARY
Customs can be described as a cultural idea that defines a regular pattern of behaviour that is
considered a characteristic of life in a social system. They're one of the earliest sources of law.
Customs are important for maintaining balance and peace in a society. Even today, customs are
a basis of a large number of laws. Therefore, it can be seen that Customs are a very important
source of law that have their historical roots in the earliest and most primitive of societies, and
still hold relevance. Society is constantly in the process of establishing newer practices which
might in due time turn into usages or customs. We depend on customs and are governed by
them, knowingly or not. English Common law can be interpreted as a systematization of existing
customs, and therein lies the importance of having the right customs in society. In the early
stages of the society the customs are the most important, and in some cases, the sole source of
law. The customs lie in the foundation of all the legal system. They come into existence with the
existence of the society. Custom is the repeated practice of the primitive society. Custom is a
rule or practice which is followed by the people from time immemorial. Customs are rationalised
and are incorporated and embodied in legal rules

D) JURISTIC WRITINGS

● Juristic writing encompasses the written work produced by legal scholars, judges, and
practitioners.

● It is a specialised form of writing that involves critical analysis, interpretation, and

explanation of legal principles, statutes, case laws, and doctrines.

● Juristic writing serves as a bridge between theory and practice in the legal world

● It contributes to the development of legal theory, informs legal practice, and

influences judicial decision-making.

TYPES OF JURISTIC WRITING

Scholarly Articles: Published in law journals, these offer in depth analysis on legal issues.

Judicial Opinions: Written by judges, these provide reasoning behind court decisions and set
precedents.
Commentaries: These are interpretations and explanations of statutes, case law, or legal
principles.

Books and Treatises: Comprehensive works that cover broad areas of law, often used as
reference materials.

Formal sources: The sources from which the law derives its source and validity are formal
sources of law.

a. Will of the state: The state, meaning the government, has the power to create laws for the
benefit of its people. These laws are made through a formal process that follows the rules set
out in the country’s constitution or other legal frameworks.

b. Will of the people: Laws are also made by the will of the people sometimes on facing certain
problems though it has to be considered acknowledgeable by the state. Then the state makes it
in the form of law.

c. Judicial decision of the court: In this case sometimes judgments of some lordships with
immense value are treated and transferred into a law.

Informal sources or Material sources: law derives not its validity but the matter of which it is
composed of It is the place from where we take the material of law

i. Legislations

ii. Treaties

iii. Customs

iv. Historical sources

It’s done in 2 ways

1. Predictive Legal Analysis

Definition: Predictive legal analysis involves evaluating a legal question to predict its likely
outcome. This type of analysis is most commonly found in a legal memorandum, which is a
document that lawyers use to analyze and explain the law related to a specific issue.
Purpose: The primary goal is to provide an objective assessment of how a court or other legal
authority is likely to rule on a particular issue based on existing laws, previous court decisions
(precedents), and the facts of the case.

Example: Suppose a lawyer is asked whether a client might be liable for damages in a contract
dispute. The lawyer would write a legal memorandum analyzing relevant contract laws and past
court decisions to predict whether the client is likely to win or lose the case.

2. Persuasive Legal Analysis:

Definition: Persuasive legal analysis is used when a lawyer tries to convince a judge, arbitrator,
or opposing party to decide in favor of their client. This type of analysis is typically found in
documents like motions or briefs, which are submitted during legal proceedings.

Purpose: The goal is to advocate for the client's position by presenting arguments that highlight
the strengths of their case and downplay the weaknesses of the opposing side. The lawyer aims
to persuade the deciding authority to rule in the client's favor.

Example: In a criminal case, a defense attorney might file a motion to dismiss charges against
their client, arguing that the evidence was obtained illegally and should be excluded. The motion
would aim to persuade the judge to agree with this interpretation and dismiss the charges

E) JUSTICE, EQUITY AND GOOD CONSCIENCE

Summary of "Justice, Equity, and Good Conscience as a Source of Law"

“Advocates” PDF

Introduction: The maxim of justice, equity, and good conscience originated in 13th-century
England, aimed at remedying the rigidity and procedural issues in common law courts.
The principle emerged as people sought justice directly from the King when common law
failed to deliver fair outcomes.

History and Development: By 1253, the writ system in England, meant to provide legal
remedies, often produced unjust results due to its rigidity. When the writ system fell short,
people appealed to the King for justice, leading to the evolution of equity as a legal principle. Sir
John Selden criticized equity as being dependent on the conscience of the Chancellor,
highlighting its subjective nature.
Principles of Justice, Equity, and Good Conscience:

● Justice: Defined as fairness, often involves balancing equality and freedom. John
Rawls and Plato offered perspectives on justice, with Rawls focusing on fairness and
Plato on the performance of duty.
● Equity: Derived from the Latin "aequitas," meaning fairness, equity involves principles
like "he who seeks equity must do equity" and "he who comes into equity must come
with clean hands." It aims to address legal inadequacies by providing remedies such as
injunctions and specific performance.
● Good Conscience: Involves the "real will" of an individual, focused on public welfare. It
is discretionary, based on moral and intellectual reasoning, but requires checks to
prevent abuse due to self-interest.

Origin and Application in India: The principle was introduced in Bengal in 1780, primarily
for cases involving people not governed by Hindu or Mohammedan laws. The Privy Council held
that justice, equity, and good conscience should be the ultimate test for provincial courts in
India. Over time, English law became a valuable source of legal principles in India, providing a
uniform legal foundation and reducing legal uncertainty.

In Muhammad Raza v. Abbas Bandi9

the Privy Council held that the principle of justice, equity

and good conscience was adopted as the ‘ultimate test’ for all the provincial Courts in
India.10

Case Law:

● Waghela Rajanji v. Shekh Masluddin (1887): The Privy Council held that English law
principles should apply in India if they are relevant to Indian society. In this case, a
guardian's covenant binding an infant ward was deemed inappropriate under both Indian
and English law.
● Kallup Nath Singh v. Kumlaput Jah: A contract entered into by a minor was held void
ab initio under Hindu law, illustrating the application of the principle.
SOURCES OF THIS PRINCIPLE :

1. Reason of the person applying this principle;

2. Customs of the region where it is applied.

Advantages and Disadvantages:

● Advantages: Provided a source of legal principles when indigenous rules were

insufficient, introduced certainty, and reduced legal dichotomy between different regions
in India.
● Disadvantages: Courts struggled to determine the applicability of English law in Indian
contexts, leading to inconsistencies and the need for legal codification.

Conclusion: The principle of justice, equity, and good conscience, rooted in intellect and natural
justice, aims to simplify legal procedures and ensure fairness. It has been vital in shaping Indian
jurisprudence, particularly in the interpretation of Article 21 of the Indian Constitution. However,
absolute justice remains an unattainable ideal, and legal interpretations must adapt to the
evolving needs of society.

F) INTERNATIONAL LAW AS A SOURCE OF MUNICIPAL LAW

International law as a source of municipal (domestic) law involves the integration and
application of international legal norms within the legal frameworks of individual
countries. This process can vary depending on a country's legal system and its approach to
international law. Here’s a detailed exploration of how international law influences municipal law:

1. Understanding International Law

International Law refers to the body of rules and principles that govern relations between
states and other international actors. It includes treaties, customary international law, and
general principles recognized by civilized nations.

2. Incorporation of International Law into Municipal Law

Countries approach the incorporation of international law differently based on their legal
traditions and constitutional frameworks. The key methods include:

A. Monist Systems

1. Definition:
○ In monist systems, international law and domestic law are viewed as part of a
single legal system. International law automatically becomes part of domestic law
without the need for additional legislation.
2. Application:
○ Direct Applicability: International treaties and conventions can be directly
applied by domestic courts without needing further legislative action. For
example, if a country ratifies a human rights treaty, its provisions can be used by
domestic courts to adjudicate cases.
○ Judicial Enforcement: Courts in monist countries can apply international law
directly in resolving disputes, provided the international norms are sufficiently
clear and precise.
3. Example Countries:
○ Netherlands: The Dutch legal system is monist, meaning international treaties
and customary international law are directly applicable within the domestic legal
order.
○ France: France also follows a monist approach, where international agreements
are considered part of domestic law once ratified.

B. Dualist Systems

1. Definition:
○ In dualist systems, international law and domestic law are considered separate
legal systems. International law must be explicitly incorporated into domestic law
through legislative action before it can have domestic effect.
2. Application:
○ Legislative Incorporation: International treaties and conventions require
specific legislation or amendments to domestic statutes to be applied. This
ensures that international agreements are integrated into the national legal
framework.
 ○ Implementation Acts: Countries may pass "implementation acts" that convert
international obligations into domestic law. These acts detail how international
treaties will be applied and enforced within the country.
3. Example Countries:
○ United Kingdom: The UK follows a dualist approach, where international
treaties are not automatically part of domestic law. They require an act of
Parliament for incorporation.
○ Australia: Similarly, Australia uses a dualist system where international treaties
need to be incorporated into domestic law through specific legislation.

3. Role of International Law in Municipal Legal Systems

A. Treaties

1. Definition:
○ Treaties are formal agreements between states that are legally binding. Once
ratified by a country, they can influence domestic law depending on the country's
approach.
2. Implementation:
○ Monist Systems: Treaties are automatically incorporated into domestic law and
can be enforced directly by courts.
○ Dualist Systems: Treaties require implementing legislation to have domestic
effect. Without such legislation, they do not have legal force domestically.

B. Customary International Law

1. Definition:
○ Customary international law consists of practices and norms that have developed
over time and are accepted as legally binding. It is based on the consistent
practice of states accompanied by a belief that such practice is legally obligatory
(opinio juris).
2. Application:
○ Monist Systems: Customary international law may be directly applicable in
domestic courts without the need for legislative incorporation.
○ Dualist Systems: Customary international law is generally incorporated into
domestic law through legislation or judicial recognition.
C. General Principles of Law

1. Definition:
○ General principles of law are fundamental legal principles recognized by civilized
nations, such as principles of justice, fairness, and equity.
2. Application:
○ These principles may guide domestic courts and legislatures in interpreting and
applying laws, especially in cases where domestic law is silent or ambiguous.

4. Influence on Domestic Legal Systems

A. Human Rights Law

1. International Human Rights Treaties:

○ Treaties like the International Covenant on Civil and Political Rights (ICCPR) and
the Convention on the Rights of the Child (CRC) influence domestic human rights
laws. Countries that ratify these treaties often incorporate their provisions into
national legislation to fulfill their international obligations.
2. Judicial Review:
○ National courts may use international human rights standards to review and
interpret domestic laws, ensuring compliance with international human rights
norms.

B. Environmental Law

1. International Environmental Agreements:

○ Treaties such as the Paris Agreement on climate change influence domestic
environmental policies and regulations. Countries often pass national legislation
to align with international environmental commitments.
2. Domestic Legislation:
○ National laws on environmental protection are often shaped by international
agreements and standards, reflecting the global commitment to environmental
sustainability.

C. Trade and Investment Law

1. Trade Agreements:
 ○ International trade agreements, such as those under the World Trade
Organization (WTO), impact domestic trade regulations and policies. Countries
implement these agreements through domestic laws and regulations.
2. Investment Treaties:
○ Bilateral and multilateral investment treaties influence domestic investment
policies, offering protections and rights to foreign investors.

5. Challenges and Considerations

1. Conflicts Between International and Domestic Law:

○ Monist Systems: There may be conflicts between international norms and
domestic laws. Courts may need to reconcile differences and ensure that
domestic laws comply with international obligations.
○ Dualist Systems: Legislative incorporation can be complex, and there may be
delays in integrating international norms into domestic law. Additionally, there can
be instances where domestic law conflicts with international obligations.
2. Judicial Interpretation:
○ Interpretation Challenges: Courts may face challenges in interpreting and
applying international law within the domestic context, particularly in dualist
systems where international norms are not directly applicable.
3. Constitutional Constraints:
○ Domestic Constitutional Provisions: Some countries have constitutional
provisions that restrict or shape the incorporation of international law into
domestic law. For example, a constitution may require specific procedures for
ratifying treaties or incorporating international norms.

Conclusion

International law plays a significant role in shaping and influencing municipal law. The methods
of incorporating international law into domestic systems vary between monist and dualist
approaches, impacting how treaties, customary international law, and general principles are
applied. Understanding these dynamics is crucial for ensuring that international obligations are
effectively integrated into national legal frameworks and for addressing any potential conflicts
between international and domestic legal norms.
INDIA

In India, the relationship between international law and municipal (domestic) law is shaped by
the country's constitutional framework and legal traditions. Here's how international law is
incorporated and applied in India:

1. India's Legal System: A Dualist Approach

India follows a dualist approach to international law. This means that international treaties and
agreements do not automatically become part of Indian law. For them to have legal effect within
the country, they must be formally incorporated into domestic law through legislation.

A. Constitutional Provisions

1. Article 51(c) of the Indian Constitution:

○ This article directs the state to respect international law and treaty obligations in
its relations with other countries. However, it does not make international law
automatically applicable within India.
2. Article 253:
○ This article empowers the Parliament to make laws to implement international
treaties, agreements, and conventions. Parliament has the authority to enact
legislation even in matters that fall within the state list (usually under state
jurisdiction) if it is necessary to fulfill international obligations.

2. Incorporation of International Law in India

A. Treaties and Conventions

1. Ratification and Legislation:

○ When India signs and ratifies an international treaty or convention, it does not
automatically become part of Indian law. The treaty needs to be incorporated into
domestic law through an act of Parliament.
2. Example:
○ The International Covenant on Civil and Political Rights (ICCPR) was ratified
by India in 1979. However, for its provisions to be enforceable within the country,
they must be incorporated into domestic law. In many cases, existing laws in
 India may already cover the provisions of international treaties, but if new laws
are required, Parliament must pass them.

B. Customary International Law

1. Application in India:
○ Customary international law, which consists of international practices accepted
as law, can be applied by Indian courts as long as it does not conflict with
domestic laws or the Constitution.
2. Judicial Interpretation:
○ Indian courts have, in some instances, referred to customary international law
when making decisions, particularly in areas where domestic law is silent or
unclear. However, this is done cautiously, ensuring that it aligns with national
legal principles.

C. General Principles of Law

1. Guidance for Courts:

○ General principles of international law, such as justice, equity, and good
conscience, can be used by Indian courts to guide their decisions, especially in
areas where the law is not explicitly clear.

3. Examples of International Law in Indian Context

A. Human Rights

● Incorporation of International Human Rights Standards:

○ India has incorporated various international human rights standards into its
domestic laws. For example, the Protection of Human Rights Act, 1993, was
enacted to address human rights issues in line with international standards.

B. Environmental Law

● International Environmental Agreements:

○ India is a party to several international environmental agreements like the Paris
Agreement on Climate Change. To meet its international commitments, India
 has enacted and amended various environmental laws, such as the
Environment Protection Act, 1986.

C. Trade Law

● World Trade Organization (WTO) Commitments:

○ India's participation in the WTO influences its trade policies and legislation. To
comply with WTO agreements, India has enacted laws such as the Patents
(Amendment) Act, 2005, which aligns with the TRIPS (Trade-Related Aspects of
Intellectual Property Rights) agreement.

4. Judicial Approach to International Law

A. Case Law

1. Vishaka v. State of Rajasthan (1997):

○ In this landmark case, the Supreme Court of India used international
conventions, specifically the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), to address the issue of sexual
harassment in the workplace. The Court laid down guidelines, treating CEDAW
as a tool to interpret constitutional guarantees.
2. Kesavananda Bharati v. State of Kerala (1973):
○ The Supreme Court recognized that international law could be used to interpret
and expand constitutional provisions, provided it does not contradict domestic
law.