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Law: A to Z


Evolution:

Man entered into form of life as an individual. He was self centered, cared for his own felicity and worked for good of his own at that time. He was independent and framed directions for his own welfare. There was no existence of groups, society or communities. Many associated theories were generated which facilitated towards the explanation of evolution of society. The earlier life of man was brutal, poor, nasty and short. Since he was existing as an individual, it was too weak for him to bear the roughness prevailing at that time. In order to escape the misery of the state of nature, man packed himself into groups. Now its strength went on increasing from one to two and so on….

Jean Jacques Rousseau proposed that there are two instincts which must be supposed to constitute our original nature. One is self-love or the instinct of self-preservation. Man first cares for those which he owns for himself. The other is sympathy or the gregarious instinct or the instinct of mutual aid. Had we not been equipped by nature with this instinct, we would have found the struggle for his existence too stiff and perished in it. Self love would compel a mother to satisfy her hunger, but sympathy for her child would dictate that she gives the food to the latter. Both of them cannot be satisfied at the same time and thus led to conflict.

Gradually, as communities evolved into societies there was a social power in need to control all. Legal profession was thus born. Absence of convenient and readily available justice necessitated a system of professional judges, law-enforcing agencies and advocated to keep the crime in check.

What is law?

Law is nothing but a set of rules framed for the protection of peace loving citizens from unscrupulous elements and harm. The ultimate aim of law is Justice which is desired by every civilized family, society and nation and it must be provided to every citizen by the state. It cannot prevail where there are gross inequalities of wealth, resources and opportunities. Removal of these inequalities is the foremost task of law.

Law acts as the regulator of the behavior of the people. Mankind has moved from small settlements into highly organized society where a great number of people live close to each other and ever more dependent on each other’s actions. Law is further divided into two categories namely-

1. National Law

2. International law

National law is the regulator of relationship between one person and the other while international law governs the relationship among the states.

Constitution, Legislation, Precedent and Customs altogether constitute law. These are the general sources from where it is derived. The provisions in the constitution lays down binding rules violation of which must be checked and remedied through court action. Parliament and State Legislature are the authorities which can declare new rules. Law enacted by these authorities is known as legislation. Precedents are the cases which have been decided earlier and have persuasive value. Judges take the help of precedents for deciding further cases. Also the decisions taken by higher courts are binding on lower courts but not vice versa. For example the decision taken by Supreme Court will be binding on High Court and so on. Customs are the most important molders of law. It is the unwritten law of the people and had its origin from the shrutis and smritis which is the text of ancient Hindu law.

Concepts of Law and Justice

Law is a body of rules which regulates human conduct in a society and which is enforced by the State in the courts of law. Justice is the moral idea of being right, just and reasonable. Law aims to ensure justice in the society.

Classification of Law

Law can be classified into different categories on different bases. On the basis of territorial jurisdiction, law may be National or Municipal Law and International Law. Again it may be divided into Civil Law and Criminal Law or Public Law and Private Law. We should learn the meaning of each of them.

I. National or Municipal Law and International Law

All laws applying within the national boundaries are municipal laws. For example: Indian constitution or the statutes passed by Parliament and State Legislatures. Laws emanating from the Parliament or the Central Government are sometimes called Central Laws and those being passed from state legislature are called State Laws. International Law is a body of rules which regulates the relationship between different countries. These are generally in form of treaties and International Customs.

International Law is further divided into two parts:

(a) Public International Law: Also called Law of Peace. It regulates the relationship of different countries as members of International Community.

(b) Private International Law: Also called Conflict of Laws. It regulates the relationship of private individuals or juristic persons like companies of two or more different countries. For example: the marriage of an American with an Indian or dispute between two companies of different countries.

II. Criminal Law and Civil Law

Criminal Law concerns with public wrongs or offences against the state or society at large. State prosecutes for criminal offences which are specific and are defined in Indian Penal Code, 1860 and some other penal laws. Criminal Procedure Code or CrPC. 1973 deals with the procedure to be adopted for enforcing Criminal Law.

Civil Law relates to restoration of rights of private individuals or juristic persons like, companies. For example, Law of contract regulates the relationship between two or more parties making the agreement.

III. Public Law and Private Law

Public Law is that part of law which deals with relations between the state and ordinary individuals in circumstances where state has special rights or powers. Criminal Law is a public law. Constitutional Law and Administrative Law are also public laws.

Private Law regulates relations among subjects. Hindu law and Mohammedan law regulate relations among Hindus and Muslims, hence they are private laws.

IV. Common Law and Civil Law Systems

Laws laid down by courts in judicial decisions also called precedents constitute the Common Law. England and those countries which have modeled their legal system on the basis of English Law are members of Common Law System. India is also a part of Common Law fold. Civil law system does not recognize precedent or decisions of the courts as laws. Countries like Germany and France are Civil Law Countries. The do not recognize precedents or Judge Made Laws.

V. Substantive Law and Procedural Laws

Law which provides specific provisions as to the rights, duties or obligations of an individual is normally substantive laws. Indian Penal Code provides specific crimes and their punishments are hence it is substantive law. Procedural laws are those laws which regulate the functioning of the court or the judicial system to ensure compliance of the substantive laws. For example, Code of Civil Procedure, 1908 regulates the functioning of Civil Courts and Cr. P.C. regulates the affairs of a criminal court.

SOURCE OF LAW: FROM WHERE OUR LAW COMES?

The main sources of law in India are the Constitution, statutes (legislation), customary law and case law. Statutes are enacted by Parliament, State legislatures and Union Territory legislatures. Besides, there is a vast body of laws known as subordinate legislation in the form of rules, regulations as well as bye-laws made by Central/State governments and local authorities like municipal corporations, municipalities, gram Panchayats and other local bodies. This subordinate legislation is made under the authority conferred or delegated either by Parliament or State or Union Territory legislatures concerned. Therefore they are called delegated legislation also Judicial decisions of superior courts like Supreme Court are binding on all courts within the territory of India.

Local customs and conventions which are not against statute, morality, etc., are also recognized and taken into account by courts while administering justice in certain spheres.

ENACTMENT OF LAWS: WHO CREATES LAW FOR US?

Parliament is competent to make laws on matters enumerated in the Union List. State legislatures are competent to make laws on matters enumerated in the State List. Parliament alone has power to make laws on matters not included in the State or Concurrent List. On matters enumerated in the Concurrent List, laws can be made by both Parliament and legislatures. But in the event of repugnancy or conflict law made by Parliament shall prevail and law made by State legislature, to the extent of repugnancy, be void.

Acts and Ordinances

An Act of Parliament is an Act passed by both the Houses of Parliament and assented to by the President. Ordinances can be promulgated by the President (for the Union) and by the Governor (for the State) when circumstances make immediate action necessary and Parliament (or the State Legislature) is not in session.

Ordinances are temporary laws. They can be made on any matter which is within the competence of Parliament (or State Legislature). However, an Act must be passed to replace the ordinance within six weeks of the reassembly of Parliament or State legislature otherwise the validity of the Ordinance expires.

LEGAL PROFESSION: PEOPLE WHO PRACTICE LAW

In India, the law relating to legal profession is governed by The Advocates Act, 1961 and the rules framed there under by the Bar Council of India. It is a self-contained code of law relating to legal practitioners and provides for the constitution of State Bar Councils and Bar Council of India. A person enrolled as an advocate under the Advocates Act, 1961, is entitled to practice law throughout the country. An advocate on the roll of a State Bar Council may apply for transfer to the roll of any other State Bar Council in the prescribed manner. No person can be enrolled as an advocate on the rolls of more than one State Bar Council. There are two classes of advocates, namely, senior advocates and advocates. An advocate with his consent, may be designated as a senior advocate, if the Supreme Court or a High Court is of the opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law, he deserves such distinction.

Branches of law-

It is grouped into two categories i.e.

1. Civil Law

2. Criminal Law

Civil law relates to all rights, duties and obligations of the individual members of the society among themselves. It includes the chapters such as family law, property law, law of torts (civil wrong), Law of contract, labour law, environmental law etc. It relates to restoration of rights of private individuals or juristic persons like, companies.

For example: Law of contract regulates the relationship between two or more parties making the agreement.

Criminal law is related to the public wrongs. Persons held guilty are punished and prosecuted by the state. All such wrongs are defined in IPC. Criminal Law concerns with public wrongs or offences against the state or society at large. State prosecutes for criminal offences which are specific and are defined in Indian Penal Code, 1860 and some other penal laws. Criminal Procedure Code or CrPC, 1973 deals with the procedure to be adopted for enforcing Criminal Law.

Law streams and related career opportunities

The aim of going to a law school is to become a lawyer. While the majority of law students opt for legal practice, there are also many fields where you can use your law degree. Besides the below given, you can also go for teaching in law schools, universities etc.

1. Civil law- deals with wrongdoings, land disputes, contracts and torts.

2. Criminal law- Includes cases like murder, theft, kidnapping, corruption, robbery, contempt of court, rape etc…

3. Constitutional law- includes cases of individual rights, fundamental rights, division of power between Centre and State.

4. Corporate law- involves business liability, intellectual property, contracts, financing, economics and budget.

5. Tax law- involves assisting business organizations and individuals in advising on tax loopholes.

6. Labour laws- you can work for either management side or labour or trade union side. Deals with working conditions at workplace, wrongful discharge and dismissal of employees, bonus, rights of employers and employees etc.

7. Family laws- Involves family disputes, adoption, succession, marriage, divorce, wills etc.

8. Intellectual property law- copyrights, trademarks, patents etc.

9. Cyber laws- Involves working with IT act, computers, e-contract, e-commerce and cyber crime etc.

10. International Law- Involves working with multinational companies, international issues like human rights, extradition, hijacking, piracy, territorial waters, war crimes etc.

Today is the era of globalization. It has not only gifted overall development in all spheres but has also brought opportunities in all professional fields including law. Legal profession is no more seen as a ‘court affair’ but is one of the most lucrative, heralded and growing professions all over the world. Demand for bright law graduates continues to rise. Law is packed with many exciting opportunities such as an Advocate, Solicitor, Consultant, Counselor, Academician, Researcher, Author, Social Worker, Teacher, Court Reporter, Legal Editor, Legal Advisor, Political and Business Correspondent, Legal or Personal Manager/ Executive in Multinational Companies or Government Service, Arbitrator, Judge, LPO (Legal Process Outsourcing) and many more…

However this is highly competitive field where you need to score well, work your hardest and thus prove the best of your part otherwise your survival in this field will decay day by day. This thing makes it both adventurous and exciting. Law is not a stagnant field. It keeps on changing with time. To keep it simple, law is overall based by the people, for the people and of the people. It aims at all day-to-day matters howsoever complicated must be solved and thus has a dominant share in begetting a civilized modern society.

How to explore your interest in Legal Career

1. Conduct research in the field.

2. Talk with lawyers who are your family friends.

3. Study the scope of law as a career.

4. Must do a research “impact of legal career on your personal life”.

5. Speak with the students/lawyers who became dissatisfied and left the field.

6. Discuss the law school experience with the current law students.

Qualities- what you need as a lawyer

Lawyering is not a science anyone can teach you but it’s an art and can be handled only by practice, practice and practice. Here, experience and aptitude counts a lot. A lawyer must cultivate a good physical health and a resilient mind. His day passes on advices and opinions which may require the burning of midnight lamp. His day in the chambers starts as early as 08:30 hrs in the morning and continues till late evening and still he may have to carry homework with him. Lawyer’s professional life involves talking, listening, good reading, good memory and last but not the least thinking.

1. Convincing voice- A clear statement not only invites confidence but also brings some weight to your arguments. While speaking in the court, you must be fairly slow or otherwise a part of the argument may be missed.

2. Persistence- A lawyer mostly learns from his tactics. He is not very successful at the inception of his practice doesn’t means that he will not succeed at it. What a lawyer needs to have is a “never to die” attitude. His persistence counts a lot because it enables him the power to fight the cases to the end in spite of unexpected difficulties.

3. Self- confidence- I can only say that it is the most important quality for a lawyer to exist in his profession. Confidence not only increases his will to win the case but also helps him to achieve higher goals.

In majority of the Law schools, many non- serious students take admission for one reason or the other rather than a keen professional career. Legal profession has suffered a lot due to the absence of quality legal education in the country and due to the entry of non-serious students into the course which acts as the black sheep of the profession. These students neither read text books on law, nor refer to law journals during their law course but rather depend on cheap guide books or model question papers to pass the examinations. Some students also indulge themselves in mass copying during their examinations. Unfortunately, due to the aforesaid reasons, respect and credibility of the law degree has grossly eroded.


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