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Fundamentals of Law


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PGDM 17/ BL- FUNDAMENTALS OF LAW / TJK 2

Mankind must either give themselves a law and

regulate their lives by it or live no better thanthe wildest of the wild beasts. Plato

Law is the great civilizing machinery. It

liberates the desire to build and subdues thedesire to destroy. And if war can tear us apart,

Law can unite us out of fear, or love or

reason, or all three.

Law is the greatest human invention. All therest, give man mastery over his world.

Law gives him mastery over himself

- Lyndon B. Johnson, TIME Sept. 24, 1965


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Law is command of Sovereign Austin.

The body of principles recognized andapplied by the State in the administration of

justice. - Salmond

Body of rules whether proceeding fromformal enactment or from custom, which a

particular state or community recognizes as

binding on its subjects or members. Rule of conduct of persons imposed upon

and enforced among the members of a

given state.PGDM 17/ BL- FUNDAMENTALS OF LAW / TJK 3


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A basic necessity of the society.

Smooth functioning of social, economic andpolitical systems of the nation.

Rules and Regulations are required to

provide firmness in our Mutual relationships. Rule of law is the essence of civilized

society.

It provides certainty to our relationships. Establish rights and duties of individuals.

control concentration of power.



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A body of Rules

Prescribe the conduct, standard or pattern to whichactions of the persons in the state are required toconform. Not ethical or moral rules.

Not static

responds to public opinion and changes throughoutthe course of history.

Is for the guidance and conduct of persons. to ensure that members live and work together in an

orderly manner. is imposed.

obligatory on the members of the society.

- Contd.



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enforced by the executive

fear of consequences ensures observance oflaw.

presupposes a state a territorial division

maintain some form of social order in agroup.For self preservation of the group, formed due to

social instinct. compel group members to be within that

orderBy penalising non-observance of rules.

Serve social, political or economic purpose.PGDM 17/ BL- FUNDAMENTALS OF LAW / TJK 6


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Indian law has its origin in British Laws

Many Indian laws adhere to the UNguidelines of human rights and environment.

Indian Family Law is complex with each

religion adhering to its won laws In Goa, Portuguese civil Code is in force. All

religions have uniform laws for marriage,

divorce and adoption. 1200+ laws in force in India.


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Law and business are closely related.

They complement each other.

Most business aspects are regulated by law.

Installation of business itself involve legal

provisionsContracts entered into by the Company

Decision making process in business

Settlement of disputes between different parties.




Constitution The fountain source of law

Statutes due recognition by the constitution, enacted by Parliament,

State Legislatures and Union Territory Legislatures

Judicial precedents - Case law The decisions of the higher courts are binding on lower courts. customary law local customs and conventions which are not against statute,

morality, etc.

subordinate legislation in the form of rules, regulations as well as by-laws made by

Central and State Governments and local authorities

Personal Laws. Marriage, succession etc.. , based on religion.

English law.

The common Law, equity, the law Merchant


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An important legal maxim:

Ignorantia juris non excusat

Meaning:

Ignorance of law is not an excuse.



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WE, THE PEOPLE OF INDIA,

having solemnly resolved to constitute India into a

SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC

and to secure to all its citizens:

JUSTICE social, economic and political;

of thought, expression, belief,

faith and worship;

of status and of opportunity;

and to promote among them allFRATERNITY

assuring the dignity of the individual and the unity and integrity of theNation;

IN OUR CONSTITUENT ASSEMBLY

this twenty-sixth day of November, 1949,DO HEREBY ADOPT ENACT AND GIVE TO OURSELVES THIS CONSTITUTION

oLIBERTY

EQUALITY


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"The King can do no wrong" Old English Common Law the maxim

Crown Proceedings Act, 1947 changed the position.

The Federal Torts Claims Act, 1946 is also similar legislation. Aristotle : "law should govern and those in power should be servants of

the laws.

no one is above the law.

The core of rule of law is an autonomous legal order.

The doctrine of Rule of Law has been adopted in Indian Constitution. The Constitution guarantees equality before law and equal protection

of laws.

The most important application of the rule of law is the principle thatgovernmental authority is legitimately exercised only in accordancewith written, publicly disclosed laws adopted and enforced in

accordance with established procedural steps that are referred to asdue process.

Article 13(1) of the Constitution : All laws in force in the territory of Indiaimmediately before the commencement of the Constitution, in so far asthey are inconsistent with the provision of Part III dealing with theFundamental Rights, shall, to the extent of such inconsistency, be void.

Article 13(2): The State should not make any law which takes away orabridges the fundamental rights and any law made in contravention of



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The Constitution of India lays down the frameworkdefining fundamental political principles, establishes the

structure, procedures, powers and duties, of thegovernment and spells out the fundamental rights,directive principles and duties of citizens.

provides for separate executives and legislatives for theUnion and for each of the States and demarcates the

powers of each. The residual power is with the Union.

The judiciary is unitary in structure

Laws made by Parliament may extend throughout or in

any part of the territory of India Laws made by State Legislatures may generally apply

only within the territory of the State concerned.

the judiciary, has the power to adjudicate upon theconstitutional validity of all laws.

If a law violates any provision of the Constitution, theSu reme Court has the ower to declare such a lawPGDM 17/ BL- FUNDAMENTALS OF LAW / TJK 13


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Single integrated system of Courts to administerboth Union and State laws.

Apex of the entire judicial system - Supreme Courtof India

Below are the High Courts in each State or group ofStates.

A hierarchy of Subordinate Courts exist below that. State laws provide for different kinds of Subordinate

Courts

Each State is divided into judicial districts presided

over by a District and Sessions Judge. The SessionsJudge is the highest judicial authority in a district.

Below Sessions Court, there are Courts of civiljurisdiction, known in different States as Munsiffs,Sub-Judges, Civil Judges and the like.

The criminal judiciary comprises the Chief JudicialPGDM 17/ BL- FUNDAMENTALS OF LAW / TJK 14


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Original Jurisdiction - Art. 131 Disputes among Sates or between states and Govt. of India

Writ Jurisdiction - Art. 32 Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto

Appellate Jurisdiction: Civil and criminal Art. 132(1), 133(1) or 134 From Judgment, Final Order, Decree, Sentence of High Court

Special Leave to Appeal - Art. 136

from any judgment, decree, sentence or order in any cause or matter passedor made by any Court or Tribunal in the territory of India.

Advisory Jurisdiction Art.143 opinion on question of Law or Fact, which has arisen or likely to arise and

of great public importance. Opinion not binding on Govt.

Review - Art. 137

To review any judgment pronounced or order made Court of Record Art. 129 and 142

Power to punish for Contempt of itself

Complete justice Art.142 Powers to pass such decree or order as may be necessary for doing

complete justice between the parties.



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Public law

determines and regulates the organisation andfunctioning of states.

Also regulates the relation between the state and itssubjects.

includes Constitutional Law, Administrative Law, Criminallaw, Municipal Law, International Law

Private Law regulates the relations of citizens with one another as of

that of public importance

Primarily concerned with the rights and duties ofindividuals with each other

includes Law of contract, Law of Tort, Law of Property,Family Laws etc.



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Legal personality allows one or more natural persons to act asa single entity (a composite person) for legal purposes.

Legal personality allows such composite to be consideredunder law separately from its individual members orshareholders.

They may sue and be sued, enter into contracts, incur debt,and have ownership over property.

Entities with legal personality may also be subject to certainlegal obligations, such as the payment of tax.

An entity with legal personality may shield its shareholdersfrom personal liability.

In addition to Companies Act, 1956, there are some otherlaws under which artificial persons can be brought intoexistence. Eg. Societies Registration Act, 1860; Co-operativeSocieties Act, 1912.




Rights over property occurs when there is

some law to define such property.Ownership is

a bundle of rights in rem against the whole

world.unspecified duration and use, inheritable

and transferable.

Ownership cannot exist without law.


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1. Part of Public Law

2. Crime - against State.

3. Concerned with wrong doingsagainst individuals or public atlarge.

4. Some govt. Agencies or officialsinitiate action.

5. Attracts legal punishment by wayof imprisonment or fine.

6. Objective is to awardpunishment for the unlawful actcommitted by the person.

7. Injured individual can also

enforce criminal law by initiatingcriminal proceedings.

8. The injured individual will notget compensated.

1. Part of Private law.

2. Civil wrong against individuals.

3. Concerned with the rights andduties of individuals against eachother.

4. The plaintiff institutes civil suitagainst the defendant.

5. No punishment, butcompensation or damages.

6. To restore the injured party tothe position he occupied prior tothe defendants wrongful act.

7. Even when criminal case is

pending, civil action is possiblefor the same wrong.

8. The injured individual getscompensated.

PGDM 17/ BL- FUNDAMENTALS OF LAW / TJK

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Tort law exists to protect an individual's bodily safety and security,

tangible property and intellectual property, reputation.

If any of these things are compromised or damaged by another personor organisation, a remedy can be sought - monetary damages.

Money damages is intended to make up for the loss or damage

suffered, and to restore the injured person to the position he or shewas in before the tort was committed.

Civil courts may impose other conditions, such as an 'injunction -forbidding someone to do something- change one's legal status interms of a divorce or a change of name.

Civil actions sometimes flow on as a result of criminal action, and a

civil lawsuit can be successful even when the defendant was found notguilty under criminal law. O.J. Simpson trial (US): Simpson was charged for the murder of his ex-

wife and another man. Court found him not guilty. But was found liable forthe tort of wrongful death in the civil trial that followed. He was ordered topay US$33 million in damages to the victims' families.



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That branch of Law which prescribes a set

of rules For the governance of certain transactions

and relations between :-

Business and businessBusiness and customers.

Business and government.

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