orientation to law

8/17/2019 Orientation to Law

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Orientation to Law Orientation to Law S.K. MohantyS.K. Mohanty

Advocate Advocate

Supreme Court of IndiaSupreme Court of India

E-mail:E-mail:[email protected]@mail.com


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Introduction to Law Introduction to Law


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Meaning and Concept ofMeaning and Concept of

Law Law ! "atural and inaliena#le riht of every"atural and inaliena#le riht of everyhuman #ein to protect his o$n personhuman #ein to protect his o$n personand property.and property.

! %ime and aain rihts of one individual%ime and aain rihts of one individualmay come into con&ict $ith the rihts ofmay come into con&ict $ith the rihts ofanother individual or roups of individuals'another individual or roups of individuals'con&ict of interest can also occur #et$eencon&ict of interest can also occur #et$een

the rihts of t$o or more roups.the rihts of t$o or more roups.

! %his is $here the concept of la$ comes%his is $here the concept of la$ comesinto picture.into picture.


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Meaning and Concept ofMeaning and Concept of

Law Contd.Law Contd.! (a$ is an instrument of social reulation.(a$ is an instrument of social reulation.

! It contri#utes to the ma)imi*ation ofIt contri#utes to the ma)imi*ation of

happiness and $ell #ein of humanhappiness and $ell #ein of human

#eins as individuals and also as part of#eins as individuals and also as part ofthe society.the society.

! It also plays an important role to resolveIt also plays an important role to resolve

the present and potential con&ictsthe present and potential con&icts#et$een con&ictin interests in a society.#et$een con&ictin interests in a society.


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Denition of Law Denition of Law

! (a$ is #asically a normative structure(a$ is #asically a normative structure

incorporatin rules of permission +,mayincorporatin rules of permission +,may

do' prescription +,shall do' anddo' prescription +,shall do' and

proscription +,shall not do intended forproscription +,shall not do intended forreulation of conduct of individuals thatreulation of conduct of individuals that

compose an orderly society.compose an orderly society.

! As per Salmond: / (a$ is the #ody of As per Salmond: / (a$ is the #ody ofprinciples reconi*ed and applied #y theprinciples reconi*ed and applied #y the

State in the administration of the State.0State in the administration of the State.0


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Denition of Law contd.Denition of Law contd.

! 1oodro$ 1ilson de2nes (a$ as that portion of1oodro$ 1ilson de2nes (a$ as that portion ofthe esta#lished ha##it and thouht of man3indthe esta#lished ha##it and thouht of man3ind$hich has ained distinct and formal reconition$hich has ained distinct and formal reconitionin the shape of uniform rules #ac3ed #y thein the shape of uniform rules #ac3ed #y the

authority and po$er of the 4overnment.authority and po$er of the 4overnment.! (a$ represents the code of conduct $hich is(a$ represents the code of conduct $hich is

esta#lished and enforced #y the State.esta#lished and enforced #y the State.

! So la$ has three fold aspect:So la$ has three fold aspect:

It is an a#stract #ody of rules.It is an a#stract #ody of rules. It is a social machinery re5uired for securinIt is a social machinery re5uired for securinorder in the community.order in the community.

It is not static.It is not static.


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Varied Understanding of Varied Understanding of

Law contd.Law contd.! 7or a (a$ student the term la$ enerally refers to a set of7or a (a$ student the term la$ enerally refers to a set of

rules and reulations $hich are framed #y the sovereinrules and reulations $hich are framed #y the sovereinauthority of a State for reulatin the conduct of the citi*ens ofauthority of a State for reulatin the conduct of the citi*ens ofthe State.the State.

! 7or a (eislator (a$ is somethin $hich is created #y him.7or a (eislator (a$ is somethin $hich is created #y him.

! 7or a la$yer $ho practices' he may thin3 of (a$ as a vocation.7or a la$yer $ho practices' he may thin3 of (a$ as a vocation.

! 7or a ude' (a$ is the set of uidin principles $hich are to7or a ude' (a$ is the set of uidin principles $hich are to

#e applied in decision ma3in.#e applied in decision ma3in.

! (ast #ut not the least for a citi*en (a$ is a set of rules $hich(ast #ut not the least for a citi*en (a$ is a set of rules $hichhe must o#ey.he must o#ey.


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Main Object and PurposeMain Object and Purpose

of Law of Law ! Main o#ject of (a$ is to overn aMain o#ject of (a$ is to overn a

society for the protection of its orderlysociety for the protection of its orderly

co-e)istence.co-e)istence.

! Its purpose is to overn and reulate theIts purpose is to overn and reulate the#ehaviour of the mem#ers of the society.#ehaviour of the mem#ers of the society.


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Other Instruments of ocia!Other Instruments of ocia!

"egu!ation"egu!ation! (a$ is not the only instrument of(a$ is not the only instrument of

social reulation.social reulation.

! Ethics' morals' reliion etc. also playEthics' morals' reliion etc. also play

an important role in social reulation.an important role in social reulation.! ;ut la$ di6ers from these;ut la$ di6ers from these

instruments in t$o respects:-instruments in t$o respects:-

(a$ is made #y the soverein(a$ is made #y the sovereinIt is also enforced #y the soverein #yIt is also enforced #y the soverein #y

the use of coercive po$er.the use of coercive po$er.


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#istorica! De$e!opment#istorica! De$e!opment

of Law of Law

"atural (a$

9ositive (a$


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%atura! Law %atura! Law

! %he concept of "atural (a$ is the oldest 3no$n concept in the%he concept of "atural (a$ is the oldest 3no$n concept in thehistorical development of la$.historical development of la$.

! It indicates a super natural and supra < natural oriin andIt indicates a super natural and supra < natural oriin andapplication of (a$.application of (a$.

! As per this concept (a$ is vie$ed as a product of 4od or of As per this concept (a$ is vie$ed as a product of 4od or ofnature.nature.

! Accordin to this concept (a$ endo$s man $ith riht reason. Accordin to this concept (a$ endo$s man $ith riht reason.

! "atural (a$ is the standard #y $hich justice or injustice is"atural (a$ is the standard #y $hich justice or injustice ismeasured.measured.


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Positi$e Law Positi$e Law

! As per this concept of (a$ has no divine oriin As per this concept of (a$ has no divine oriin

#ut is made #y a human #ein for a human #ein.#ut is made #y a human #ein for a human #ein.

! It is vie$ed as a product of a human orani*ationIt is vie$ed as a product of a human orani*ationcalled State and it is enforced #y the State $ithcalled State and it is enforced #y the State $ith

the help of coercive force.the help of coercive force.


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ources of Law ources of Law

! %he term Sources of (a$%he term Sources of (a$

enerally refers to theenerally refers to the

source from $here $esource from $here $e

o#tain the 3no$lede ofo#tain the 3no$lede of

(a$ or the cause for the(a$ or the cause for the

passin of the (a$ or thepassin of the (a$ or the

authority that passes theauthority that passes the

(a$.(a$.

! As per Salmond' Sources As per Salmond' Sourcesof (a$ can #e divided inof (a$ can #e divided in

the follo$in manner:the follo$in manner:

ources of Law

&orma! ources Materia! ources

Lega! ources #istorica! ources


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Principa! ources ofPrincipa! ources of

Indian Law Indian Law ! 7ormal Sources of (a$:7ormal Sources of (a$: (eislation(eislation

9recedents9recedents

%reaties%reaties! Material Sources of (a$:Material Sources of (a$:

o CustomCustom

o Standards of usticeStandards of ustice

o E5uityE5uity


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Principa! ources of IndianPrincipa! ources of Indian

Law contd.Law contd.

! 7urther the Sources of (a$ can also #e divided7urther the Sources of (a$ can also #e divided

into primary and secondary sources.into primary and secondary sources.

! 9rimary Sources are the Constitution' the9rimary Sources are the Constitution' the

leislation' the administrative rules' the judicialleislation' the administrative rules' the judicial

decisions etc.decisions etc.

! Secondary Sources are treaties' te)t #oo3s'Secondary Sources are treaties' te)t #oo3s'

o6icial records etc.o6icial records etc.


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"u!e of Law "u!e of Law

! Important feature of a =emocratic Country.Important feature of a =emocratic Country.

! E)pression >ule of (a$ derived from the 7renchE)pression >ule of (a$ derived from the 7rench

phrasephrase “la principle de legalite”“la principle de legalite” $hich means / a$hich means / aovernment #ased on the principles of (a$0.overnment #ased on the principles of (a$0.

! %his term is #asically used to indicate that the%his term is #asically used to indicate that the

(a$ is supreme and that the activities of the(a$ is supreme and that the activities of the4overnment must have the sanction of (a$.4overnment must have the sanction of (a$.


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"u!e of Law contd."u!e of Law contd.

! Main 9roponent of the concept of >ule of (a$ is A.?. =icey'Main 9roponent of the concept of >ule of (a$ is A.?. =icey'the famous Enlish urist.the famous Enlish urist.

! Accordin to him /%he a#solute supremacy or predominance Accordin to him /%he a#solute supremacy or predominanceof reular la$ is opposed to the in&uence of ar#itrary po$erof reular la$ is opposed to the in&uence of ar#itrary po$er

and e)cludes the e)istence of ar#itrariness' of preroative' orand e)cludes the e)istence of ar#itrariness' of preroative' oreven $ide discretionary authority on part of the 4overnment0.even $ide discretionary authority on part of the 4overnment0.

! Accordin to him >ule of (a$ has three meanins: Accordin to him >ule of (a$ has three meanins: "o man is punisha#le or can la$fully #e made to su6er in #ody or"o man is punisha#le or can la$fully #e made to su6er in #ody or

oods e)cept for a distinct #reach of la$ esta#lished in theoods e)cept for a distinct #reach of la$ esta#lished in theordinary leal manner #efore the ordinary Courts of (a$.ordinary leal manner #efore the ordinary Courts of (a$. "o one is a#ove la$."o one is a#ove la$. 4eneral 9rinciples of the Constitution are the results of judicial4eneral 9rinciples of the Constitution are the results of judicial

decisions determinin the rihts of private persons in particulardecisions determinin the rihts of private persons in particularcases #rouht #efore the Court.cases #rouht #efore the Court.


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"u!e of Law contd."u!e of Law contd.

! >ule of (a$ #ased on the principles of "atural>ule of (a$ #ased on the principles of "atural

ustice: ustice:

Audi Alteram 9artem Audi Alteram 9artem

"emo ude) in re sua"emo ude) in re sua

! %he concept of >ule of (a$ developed to%he concept of >ule of (a$ developed to

control the orans of the 4overnment incontrol the orans of the 4overnment in

$or3in.$or3in.! It advocates the a#sence of ar#itrariness inIt advocates the a#sence of ar#itrariness in

the decision of the 4overnment.the decision of the 4overnment.


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Conc!usionConc!usion

! So all societies vie$ (a$ not as an end in itselfSo all societies vie$ (a$ not as an end in itself

#ut as a means to an end i.e. justice.#ut as a means to an end i.e. justice.

! As per Salmond' the reat leal jurist / (a$ is As per Salmond' the reat leal jurist / (a$ is

not riht alone or miht alone #ut it is thenot riht alone or miht alone #ut it is the

perfect union of the t$o0.perfect union of the t$o0.

orientation to law

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