Definition Of Law-sources Of Law 32566p

LAW Definition of law “Law is the body of principles recognized and applied by a state in the istration of justice”. Another Definition of law “The law consists of the rules recognized and acted upon by the courts of justice”. Illustrations of ‘law’ i.

The law of Pakistan is the law of state or of the land and the law courts of Pakistan. Basically, it is the body of rules observed in istration of justice.

ii.

Natural law: the term law in this case means the principles of natural right or wrong. It is also called Divine law i.e. commands of God imposed upon men.

iii.

International law: the term law in this case means the law of nations. It is the body of rules which govern the relationship and conduct between states.

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SOURCES OF LAW Main sources of law •

Formal – A Formal source is that from which a rule of law derives its force and validity. Formal source of Civil law is the will and power of state.

•

Material – The Material sources are those from which is derived the matter and not validity of law.

Kinds of Material Sources a.

Legal – are those sources which are recognized by law itself. Legal sources is the name given to those sources which are the instruments or organs of the state by which legal rules are created i.e. through legislation and custom. Legal sources are authoritative (e.g. decisions of Pakistani courts are authoritative whereas decisions of courts of other states are un-authoritative in Pakistan). Legal sources are allowed by law courts as of right.

b.

Historical – They are places where rules, subsequently turns into principles, were first to be found in un authoritative form. These sources are not allowed by the law courts as of right.

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Examples of these are religion, morality, and opinions of text writers. These operate indirectly.

KINDS OF LEGAL SOURCES 1.

LEGISLATION

It is the making of law by the formal expression by legislature e.g in Pakistan making of law by National Assembly and / or Senate of Pakistan. Such legislation is recognized by the courts of law. Such law which has its origin in legislature is called enacted law or statute law. Legislation can be either Supreme or Subordinate. Supreme legislation originates from sovereign power and is from any external control. Subordinate legislation is that which proceeds from any authority other than Sovereign power and is therefore, dependent for its continued existence and validity. Types of Subordinate legislation: a.

Executive – Legislation done by Government departments pursuant to authorization given by Supreme legislation to issue orders to carry out provisions of law.

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b.

Judicial – The Superior courts have the power of rule making for the regulation of their own procedures

c.

Municipal – Local bodies / governments are entrusted with power of establishing special law for the districts under their controls.

d.

Automatic – It is specie of enacted law. E.g. Railways, CAA, Universities etc can make their bye laws or statutes for governance.

Legislation is superior to other sources of law in that it is efficient, has abrogative power and is flexible in of future. Legislation differentiates from Judicature. Duty of Legislature is to make law whereas, duty of judicature is to interpret and apply the laws. 2. PRECEDENT Precedent is establishing of law by recognizing and applying new rules by the courts themselves in the istration of justice. While forming and applying rules, courts observe the following: (a)

Ambiguity: A statute or words of statute may mean more than one thing. So, courts go behind the letter of the law to ascertain the true intention of such legislation.

(b) Inconsistency:

Statutory expression can be inconsistent. A law instead of having one meaning may 4

have more than one meaning or even none. In that case, judges / courts have to ascertain the spirit of the law and to correct the law accordingly.

(c)

Incompleteness: Law may lack in completeness. Text of the statute may have some gaps or lacunas resulting in lack of clear understanding. In such a case, the courts shall have to logically interpret such law to remove incompleteness.

(d) Principles followed by courts in Pakistan regarding rules of Precedent: • Supreme court is the highest authority in the country • Decision of one high court are not authoritative with regard to another high court • In the same high court, the decision of a single judge is binding on another single judge but not on a court of appeal. • A judge of the lower court is bound to follow the rulings of the High Court of his own domain when there is conflict of amongst high courts. • Unreported judgments have as much binding authority as reported ones. 3. CUSTOM Law based on customs is called customary law. Lately, importance of customary source of law has declined. However, it is much inferior to the above two sources of law.

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4. AGREEMENT Conventional law is constituted by agreement as having the force of special law and it can be between parties in derogation of, or in addition to the general law of the land. 5. PROFESSIONAL OPINION This is called juristic law. DIVISIONS OF LAW 1. National Law National law can be further subdivide into two categories namely:

a.

Public Law – which includes Constitutional Law; istrative Law; Criminal Law; Obligations

b.

Civil Law or Private Law – (Property, Contract including Bailment, Pledge, Contingent, Agency; Partnership; Company Law; Tort)

Civil Law is called private law whereas Criminal Law is part of public law. Commercial law is part of Civil Law and embraces obligations and property laws.

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Rights of Citizens Every citizen has certain rights which are well defined in laws and in case of violation of such rights, citizens can sue the violator for punishment or enforcement of rights. Courts find out whether such violation was done with intent on the part of wrong doer to commit crime. Following are the rights: 1. Rights over material things 2.

Rights in respect of ones’ own person – for example right to protection of life and not to be killed, right to be physically protected and safeguarding health safety and integrity. Another right is right to liberty i.e. not to be imprisoned save in due course of law.

3. Right of Reputation 4. Rights in respect of domestic relations – security of family life and . 5.

Right in respect of other rights – assignment of rights, transfer of rights etc.

6.

Rights over immaterial property – Patent rights, Copyrights, trademarks, Good Will.

7.

Right to Services – Right created out of relationship like that of master-servant, doctor-patient, lawyer-client, employer-employee. So the right is the right to benefit from the experience, knowledge and skills of the person so bound. 7

Firstly, intention of the wrong doer is determined; if so then state may in as complainant to punish the wrongdoer. Motive, Magnitude and Character of the offender does become important in this regard. Secondly, if liability is of Civil nature then right infringed in enforced through civil action in courts. 2. Public International Law 3. Private International Law

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