Table of Contents

Law is a dynamic concept that evolves with society. Beyond the traditional definitions, legal scholars categorize law into various "Schools of Jurisprudence."

Definition of Law

Definition of law as given by some eminent personalities:

  • Salmond (Analytical School): "Law is the body of principles recognized and applied by the state in the administration of justice." Salmond emphasizes the role of the judiciary; for him, law is what the courts do.
  • Green: "Law is a system of rights and obligations, which the state enforces."
  • The Vedas (Ancient Indian Jurisprudence): Law is "the king of kings," embodying Dharma. It stresses that law is supreme over even the monarch, ensuring that the "weak may prevail over the strong."
  • John Austin (Imperative Theory): Law is the "Command of the Sovereign" backed by a sanction (punishment).
  • Roscoe Pound (Sociological School): Law is a tool for "Social Engineering", balancing competing interests in society to achieve maximum satisfaction with minimum friction.
  • Oliver Wendell Holmes (Legal Realism): "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."

Salient Features of Law:

  1. Uniformity: It is universal in character within its jurisdiction.
  2. Obligatory: It is not optional; it carries a duty of obedience.
  3. Sanction-based: Breaking the law results in penalties or punishments.
  4. Rights & Obligations: Law is the mechanism that creates a balance between an individual's rights and their duties toward others.

Classification of Law

Legal research varies significantly depending on which branch of law is being investigated. Law is broadly categorized into two spheres:

  1. International Law

  1. Public International Law: Governs the relationship between sovereign nations (e.g., UN Charters, Treaties).
  2. Private International Law (Conflict of Laws): Determines which country's law applies when a legal dispute has a "foreign" element (e.g., a marriage between citizens of two different countries).

  1. Municipal or National Law

This refers to the internal law of a specific state, divided into:

  1. Public Municipal Law (Regulates the relationship between the State and its citizens) –
  1. Constitutional Law: The supreme law; defines the structure of government.
  2. Administrative Law: Governs the exercise of power by executive agencies.
  3. Criminal Law: Defines offenses against the State/Society and prescribes punishments.
  1. Private Municipal Law (Regulates relationships between individuals)
  1. Law of Persons: Status, marriage, and family relations.
  2. Law of Property: Ownership and transfer of assets.
  3. Law of Obligations:
  • Contract: Voluntary agreements.
  • Quasi-Contract: Legal obligations imposed by law to prevent unjust enrichment.
  • Tort: Civil wrongs (negligence, defamation) where the remedy is unliquidated damages.

Functions of Law

The law serves several essential functions in society ensuring order and justice. Here are its key functions: -

  1. Protection of Fundamental Rights - There would be no use of any law that does not work towards protecting and securing the rights of people. Law is in place to maintain order and benefit the society. They are written to cater people’s needs and interests. In cases of crimes, law punish violators in order to ensure that the basic rights of the people are protected and further set example to ensure security.
  2. Maintenance of Law and Order in Society – Laws are directives that govern and regulate human behaviour and code of conduct to ensure order. They are made for people within a territory to abide with. Laws are also responsible for keeping peace of a country intact. Many countries possess a very diverse population. If the same law is applied throughout the population irrespective of their diversity, different needs and difference in opinion, it will lead to trouble. Hence, laws are drafted to cater the needs of different people in society and help in maintaining peace in a country. For Example: for a secular country like India, the Constitution leaves certain subjects like marriage under people’s respective religion. These laws are called personal laws.
  3. Defending National Security – Law establish measures to protect a country from internal and external threats through regulations on defence, immigration and cyber security.
  4. Protecting the environment – Laws regulate industries, pollution and resources used, to protect future environment and ensure that our future generations are deprived of the same.
  5. Control of Political System – Law and politics have an obvious relationship. One of the many government functions is to draft and amend laws in the interest of the people. However, the political system is also subject to law and has to perform its duties according to the law and be responsible for its consequences.
  6. Promoting Social Change – Laws help societies evolve by addressing issues like gender equality, environmental protection and human rights.
  7. Regulating economic and social activities – Law govern business, trade, employment and social interaction to promote fairness, competition and public welfare.
  8. Separate regulation of human relations – Human relations such as contract, family agreement, marriage also come under the purview of law. Law place the function of keeping human behaviour and relations in a check. Thus, it automatically influences human relations by restricting unacceptable behaviour. For Example: adultery, cases in marriage like divorce are needed to be approved by the law and registered in order to be valid. Hence, law holds control over the regulation of human relations.
  9. Providing justice and fairness – Law ensure fairness by holding the accountable, compensating victims and preventing discrimination.
  10. Establishing standards of conduct – Laws define what is legally right or wrong, guiding individuals and business in making decisions that align with social expectations.
  11. Resolving disputes – Laws provide mechanism such as court and arbitration to settle conflicts between individuals, business or government, fairly and peacefully.

Sources of Law

In Legal Research, sources are divided based on their authority and binding nature. They are broadly categorised into:

  • Primary Sources - which establish law (Binding Authority)
  • Secondary Sources - which interprets or explain law (Persuasive Authority)

Primary Sources (Binding Authority)

Primary sources are the "organic" origins of law. They possess the force of law by their very nature. Primary sources are as follows:

  1. Enacted Law (Legislation): The most prolific source in modern times.

Example:

  • The Companies Act, 2013, and
  • the Digital Personal Data Protection Act, 2023.
  1. Case Law (Judicial Precedent): Case law/Precedent, as used in research, is the collection of legal norms and concepts derived from court rulings. These rulings, especially those from higher courts set precedents that must be adhered to by subordinate courts. Statutes and regulations are frequently supplemented by case law, which serves as the main source of law. In the judicial field, it means the guidance or authority of past decisions for future cases. Only such decisions which lay down some new rules or principles are called precedents. In India, under Article 141, the law declared by the Supreme Court is binding on all courts.

Example:

  • Keshvananda Bharti v. UOI (1973) – established the basic structure of doctrine in India.
  • Maneka Gandhi v. UOI (1978) – expanded the meaning of right to life and personal liberty in Article 21.
  1. Customary Law: Customary law refers to traditional legal systems based on the customs, practices, and norms of a particular community or group, often unwritten but widely recognized and followed. It plays a crucial role in various societies, especially in indigenous cultures, where it governs personal relationships, land use, and conflict resolution, complementing formal legal frameworks. In short, for a custom to be a source of law, it must be: Ancient, Continuous, Reasonable, and not opposed to Public Policy.

Example: Hindu and Muslim Personal Laws.

Case: Harpurshad v. Dayal (1876) - Defined custom as a rule having the force of law through long usage.

  1. Conventional Law (having its source in agreement): Laws arising from agreements (e.g., International Treaties or Private Contracts). It is the body of rules agreed upon and followed by the concerned parties to regulate their mutual conduct. Such customs are binding not due to any legal authority independently possessed by them but because it has been a contract between the parties to it.
  2. Statutory Interpretation: This is the "living" source of law where judges fill the gaps in legislation using the Golden Rule, Mischief Rule, or Literal Rule. The law which comes into being through legislation is called enacted/statute law. It is for the courts to apply these formulas to specific cases. The process of ascertaining the meaning of the letters and expressions of the enactment by court is called interpretation.

Secondary Sources (Persuasive Authority)

Secondary sources do not have the force of law but help in finding, explaining, and criticizing primary sources. Secondary sources are as follows:

  1. Legal Encyclopaedias: A legal encyclopaedia is a reference work that summarizes and explains legal concepts, legislation, and court cases. It can be a general reference or focus on a specific area of law. Legal encyclopaedias are a useful starting point for research. Encyclopaedias are a way to find citations to cases and other useful materials on a particular issue.

For e.g.: Halsbury’s Laws of India

  1. Journal Articles: Peer-reviewed critiques that often influence future legislative changes. A journal article is a scholarly or peer reviewed academic report by scholars or professionals who are experts in their fields. Journal articles are short research papers which cover detailed and in-depth aspects of a specific subject. They are published regularly in issues or as parts of journals.

For e.g.: ‘The Journal of Indian Law Institute’, ‘Indian Journal of International Law’

  1. Legal Treaties and Commentaries: Comprehensive books on specific subjects (e.g., Mulla on Hindu Law).

Treaties (sometimes called agreements, conventions, exchanges of notes or protocols) between States – or sometimes between States and international organizations – are the other main source of law. A treaty is a formal, legally binding agreement between sovereign states, establishing rules and obligations on international matters.

Legal commentaries provide up to date, detailed information on a particular subject area such as criminal law, property law, contract law etc. They often provide a mixture of expert commentary, legislation and key cases. These are books or other resources that provide explanations and interpretations of laws, regulations, and other legal texts. They can help you understand the law and how it applies to specific situations.

Example:

  • Choudhari's Commentary on Protection of Women from Domestic Violence Act, 2005
  • M N Shrivasan's Commentary on the Hindu Marriage and Divorce
  1. Personal Documents: Personal documents refer to a wide variety of papers and other documentary material which can be used as a valuable qualitative source of secondary data. Personal Documents are usually made up of written texts, including diaries, letters, and other expressive documents such as biographies and autobiographies. It includes all such written materials as written by an individual to narrate his/her view upon personal relationship or social phenomenon. Most of these documents are written from personal point of view. There are many kind of personal documents such as – life history, diaries, letters and memoirs. The personal documents express the innermost feelings of the heart of the writer and at times, these documents throw light on such aspects of life as would have been difficult to know through observation or interview.