LAW AND JUSTICE

    In general, the law is a set of rules, ordinance, order, bye-laws, regulation, notification, custom or usage, and principles that control, maintain, and govern the conduct of humans in the vast changing society. The determining law is not only referred to as a set of rules and regulations, but also includes justice, morality, reason, and righteousness. Then there arises the importance of justice to serve the law to the right people in emerging conflicts. Man cannot live a harmonious and peaceful life every time in his life. Hence, the conformation of justice which is one of the components of law is necessary and required to continue a harmonious and peaceful living.

    CONCEPT OF LAW

    Each jurist defined “law” in their own view, depending on the type of environment they were brought up in, their social and economic factors, their ideology, their prophecy, etc., but there is no exhaustive definition for law which encompasses all the society. Hence law becomes very difficult to define. Laws made significant development of human existence to enact more laws to regulate them.

    However, according to Salmond, “law may be defined as the body of principles recognized and applied by the State in the administration of justice”. This definition of Salmond went through certain criticism by other jurists. Despite such criticism, this definition is accepted as a workable definition [1].

    Further, according to Austin, a sanction is an essential component of law and law is a general command of the sovereign individual or sovereign body but not a particular command. He stated that “law is the aggregate of the rules set by men politically superior or sovereign to men as politically subject”. He goes on to say that “Law is a command of the sovereign which obliges the person or persons to a course of conduct” [2]. This definition also accompanied some criticisms.

    As per John Chipman Gray’s definition “the law of the state or any organized body of men is composed of the rules which the courts, that is the judicial organ of the body, lays down for the determination of legal rights and duties”.  This definition is criticized since it focused neither only on the nature of law nor on statutory laws.

    NATURE OF LAW

    Law cannot be static by nature. It is dynamic since it varies and must be amended from time to time. The main object of a law is to regulate and govern human conduct. And the purpose of the law is to maintain law and order in society. In order to remain relevant, law has to grow with the development of society. Hence, it is a social and normative science because it regulates human conduct in society. The enforcement of the law is limited to the boundaries of the territorial jurisdiction of the State. Since each state has its own laws and legal systems. But the modern legal system put forth the concept of extra-territorial laws where certain laws can be enforced even beyond the territorial jurisdiction of the State. Indian legal system also recognizes this concept of extra-territorial laws.

    SOURCES OF LAW

    The term ‘sources’ differs from author to author which indicates different causes or subject matter of the law. But in this concept of law, the sources are regarded as legal material sources of law and not as formal and literary sources.  The major legal material sources of law are as follows:

    • Enacted law having source in legislation,
    • Case-law having source in precedent, and
    • Customary-law having source in custom.

    LEGISLATION

    The term ‘legislation’ is derived from the Latin term legis means law and latum which means to make. Thus all law-making functions come under the legislation and it is the will of the legislature. But in analytical school, legislation is the process of making the sovereign’s command into a legal statute. Salmond defined legislation as a source of law that consists of the declaration of legal rules by a competent authority. He categorized legislation into two namely,

    • Supreme Legislation – it refers to a law made by the exercise of a sovereign body in the State. Since it is created by sovereign authority it cannot be amended, changed, or altered by any other legislation.
    • Subordinate legislation – created law is dependent upon the sovereign authority for its existence. It is classified into the following five forms:

    (i) Colonial legislation – since British colonies enjoy varying degrees of self-government, the British parliament was conferred with limited law-making power on the colonies.

    (ii) Executive legislation – the executive carries out the intention of the legislature because it is accompanied by a force of law.

    (iii) Judicial legislation – the superior courts have the authority of rule-making for the regulation of their own procedure.

    (iv) Municipal legislation – municipal bodies enjoys limited power delegated from the legislature for making regulation i.e. by-laws for the areas under their jurisdiction

    (v) Autonomous legislation – here the power is vested with the supreme authority upon a particular group of individuals to govern and regulate them.

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    CUSTOM

    Custom may be defined as the uniformity of conduct of people under like circumstances. It should be followed by a group of people, presumed as long usage, and has a force of law. Further, Salmond defined custom as “the embodiment of those principles which have commended themselves to the national and national conscience as the principle of justice and public equity” [3]. Austin defined custom as a “rule of conduct which is governed spontaneously and not in pursuance of law set by a political superior”. Holland stated that custom is generally observed in courses of conduct. To indicate a custom as a valid custom it should contain the following essentials:

    • It should be time immemorial;
    • It must be general or universal;
    • It should be followed continuously;
    • It must be reasonable, certain, and definite;
    • It should be practiced by large no. of people;
    • It must not be contrary to the law of the land;

    In the Tanistry case [4], the phrase has been described: “It is jus non-scriptum and made by the people in respect of the place where the custom obtains. For where the people find any act to be good and beneficial and apt and agreeable to their nature and disposition, they use and practice it from time to time, and it is by frequent iteration and multiplication of this act that the custom is made and being used from time to which memory believed is not to the contrary obtains the force of law”. Custom is classified into two types, they are:

    • Legal Custom:

    It is the type of custom which has the full force of law regardless of acceptance by the parties it binds upon them. It is again categorized into two scilicet, general and local customs. General customs are customs that are applicable throughout the country whereas the local customs bind and apply only to the specific locality of areas or groups.

    • Conventional Custom:

    It binds only upon the signed or agreed parties to the dispute. These are created by a treaty of practices that are agreed by all parties to the contract or agreement.

    PRECEDENT

    In general, precedent is a case reported, cited, and the decision of the Court is probably followed. Thus the judgment passed by the judges emerged as another important source of law. When there is a lack of law existing at that point in time due to the changing conditions of the society the judges decide the case on their own sense of right and wrong. The kinds of precedent are as follows:

    • Authoritative Precedent – it is a judicial precedent that obliges on the lower courts regardless of acceptance of the judge since it has the legal force of law.
    • Persuasive Precedent – here there is no obligation on the judges to make decisions hence it can be taken into consideration.
    • Conditional Precedent –   judges may ignore either by dissenting or over-ruling it and over-ruling is done only by the higher courts whereas dissenting is done by the courts which have equal jurisdiction.
    • Declaratory Precedent – these are the precedents that rule upon the existing principles of law declared by the judges.
    • Original Precedent – in these precedents there is no existing principle to settle the dispute the judges of the competent court create a principle to settle the dispute through his decision.

    JUSTICE

    Hobbes quoted that “no law can be unjust” [5].  This dictum has been considered as a pernicious paradox (i.e. unfavorable and contradictory in nature) by many other jurists. Austin propounds that “the proposition is neither paradoxical nor pernicious”, i.e. “no positive law can be legally unjust”.  Justice is an absolute ideal that depicts something which is right and just. Hence, justice is recognized, implemented as laws made by the legislature which is applied and enforced by the Courts of Law. 

    NATURE AND LEGAL JUSTICE

    At first, Justice is categorized into two types, scilicet

    • Natural or Moral Justice, and
    • Legal Justice.

    Moral justice represents the ideal to which the second kind, legal justice endeavours to approximate. Natural justice is revealed by the divine reason rooted in the human mind and all human endeavours should be directed to conforming to it.

    If the States observe that some parts of natural justice are so important that their observance cannot be left to the option and good sense of each individual, it formulates them in the form of legal rules conformance to which is obligatory on the part of every subject. The justice provided by the court in accordance with these rules for every individual of the State is said to be justice according to law or legal justice.

    ADMINISTRATION OF JUSTICE

    Administration of justice is one of the crucial functions performed by the State. As the law is an instrument of justice. In all modern States, we find that authoritative rules/laws are drafted to guide the subjects of those particular States with its judicial functions. The Courts of justice are also the Courts of law where justice is rendered according to law only. Salmond stated that “The law is, without doubt, a remedy for great evils, yet it brings with it evils of its own”. He observed that a legal system confirms uniformity and certainty in the administration of justice; guarantees of impartiality in the administration of justice; and acts as a corrective to the fallibility of individual judgment[6].

    There is a need for enforcement of the institutionalized law since without a legal enforcement man tends to rectify his wrongs by his own hand. For that, a more enlightened and civilized legal system of administration of justice, which is provided by the modern State substitutes the primeval practices.  Such that a private vengeance is altered as the administration of criminal justice; while the administration of civil justice replaces the act of violent self-help. Therefore administration of justice is divided into the following two categories:

    CRIMINAL JUSTICE

    In the criminal justice system, the proceedings of law are enforced only after the crime is committed and reported. The offence committed by the defendant is considered as a crime against the State, so the defendant is made liable to the State. The State has to prosecute and prove that the perpetrators’ guilt is beyond a reasonable doubt. The perpetrator in the majority of cases is believed to be innocent until the crime done by him is proved. If such crime is proved then he is entitled to the punishment of imprisonment, if not the State becomes incapable to take legal action against the perpetrator.   

    CIVIL JUSTICE

    In this Civil justice system, it is not necessary to prove the innocence or guilt of the perpetrator. This system aims to ascertain whether the perpetrator is liable for his act of damage suffered by the victim. The State does not prosecute or be involved in legal proceedings hence the required legal enforcement proceedings are initiated only by the victim in the Civil Court. If the perpetrator is found liable then he has to pay a sum of monetary compensation to the victim that is reasonable, necessary, and helpful to restart the happenings in the victim’s life.

    However, the judge has to enforce the law based on the facts and to ascertain the true position of facts finally to determine the rule of law by which those facts are governed. The decision is taken by the judge relied on-

    • the questions of law (question must be answered only by applying relevant legal principles and interpretation of the law),
    • the questions of fact (question must be answered only with reference to facts, interferences arising from those facts and evidence), and
    • exercise of judicial discretion of the judges.   

    ELEMENTS OF JUDICIAL PROCEDURE

    There are five fundamental elements regarding the judicial procedure, they are as follows:

    SUMMONS

    It is the court order to appear before the Court of law. When the jurisdiction of the court is invoked, a summons is the first procedure served on the defendant requiring him to appear before the judge for presenting the case. If such summons are not obeyed or the defendant failed to appear before the Court, the judgment may be given against the defendant in his absence (ex parte).  

    PLEADINGS

    This is the formal statement by the plaintiff of his cause and the defendant’s reply to the same. Its main objective is to segregate the issues on which the parties are not agreed with and on which adjudication by the court is sought. Based on pleadings, the court settles the issues between the parties. The defendant may repudiate the facts alleged by the plaintiff is called a traverse. The defendant also repudiates his legal liability even is the facts assumed are true are called demurrer. Here the defendant may also admit the certain facts alleged by the plaintiff but can plead that other facts might be negative; this claim is called confession and avoidance pleading. 

    PROOF

    The proof is the process by which the parties provide before the court with the required materials for deciding upon the issues from the pleadings. And in modern times proof is made by means of the production of evidence.

    JUDGMENT

    Judgment is one of the most essential elements of the judicial procedure. It is the final decision awarded by the Court and the decision is based upon the evidence placed before the Court of law. For example, the decision may be related to a declaration of validity of an act, or dissolution of status, right to property, or order for specific performance, or any award for damages. When a decision is unsatisfied, the losing party may challenge the soundness of the judgment through an appeal to a higher court only if the right of appeal prevails in such a case.  

    EXECUTION

    Execution is the final judicial procedure where the successful party requests the officers of the Court or other appropriate State functionaries to use, either against the judgment-debtor’s person or his property, such force as may be necessary to carry the order of judgment into effect.

    CONCLUSION

    The phrase “Law” extends its definitions and kinds as there arise varying changes in this living society. However, in all fields of aspects, justice is protected and rendered according to the law without injustice to the individual or society. Thus the concept of law and justice are closely interconnected with each other in order to maintain decorum and harmony by all spheres of groups in all the aspects of matters and fields.

     REFERENCE

    [1] G.C. VENKATA SUBBARAO, JURISPRUDENCE AND LEGAL THEORY, 56, (EBC Publishing (P) Ltd., Lucknow, 9th edition, reprinted 2012 ).

    [2] Id.

    [3] Id.

    [4] 30 ER 516.

    [5] Supra 1.

    [6] Id.


    BY HARI HARAN.V | SCHOOL OF EXCELLENCE IN LAW , PERUNGUDI

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