Download - Introduction to law
EC 276: Introduction to Law
Instructor: Mr. Arshad Nawaz Khan Semester: Spring 2012
Email: [email protected]
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Classification of Law
1. Constitutional law
Constitutional law is set of fundamental principles to govern the state and its organs.
A fundamental part of any legal system is its constitution. A constitution is the basic
law of the state providing the rules by which the state is governed and setting out the
rights and responsibilities of the state and its citizens. Constitutions are important
because they essentially set out the broad principles concerning who can make law.
They also allocate the balance of power between the main institutions of the state –
the government, legislature, executive and judiciary – and provide the framework for
the use of these institutions' powers.
A constitution may also indicate the basic principles by which a country should
expect to be governed, for example, that people should not be punished unless they
have broken the law; or that certain rights and freedoms, such as freedom of speech,
thought and conscience, are guaranteed. The constitution may be termed as grund
norm of the state, This is unusual as every other Western democracy has a written
constitution beside England.. In many cases, such as for France, Germany and the
United States of America, the document containing the constitution was written after
a major change, such as a revolution or war.
In United Kingdom, underlying the unwritten constitution are three important
principles:
The separation of powers
The supremacy of Parliament
The rule of law.
The separation of powers recognises that all state power can be divided into three
types: executive, legislative and judicial. The executive element represents the
government (and its ‘servants’ or employees), the legislative side is Parliament and
the judicial element means the judges. The idea behind this separation is that these
three types of power should not be concentrated in the hands of any one person, as
this could lead to absolute control with no one to check whether that power was
exercised for the good of the country as a whole.
In written constitutions India has the lengthiest constitution while USA has shortest.
What is to be included in the constitution?
Grund norm
Federal or unitary state
Fundamental rights
Principles of policy
Structure and functions of executive, legislature and judiciary
Parliamentary or presidential form of government
Emergency provisions
Procedure of amendment etc.
While considering constitutional law we must know about the
Concept of ultra vires
Judicial review
Law of writs
Concept of sovereignty
Seperation of powers
Revolution
Major characteristics of Pakistani constitution
Sovereignty of Allah
Parliamentary form of government
Bicameral legislature
Islamic provisions
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Law of writs Article-199 and 184 (3)
2. Public and Private law
Public law is a theory of law governing the relationship between individuals (citizens,
companies) and the state. Individuals include both natural and legal persons.
Examples are constitutional law, administrative law, taxation, welfare law and
criminal law.
Within a legal system, two distinct areas of law operate. These are public and private
law. They both aim to create social order, but have a number of distinct differences.
Within public law, different categories exist. These include criminal law,
constitutional law, administrative law, social welfare law and all deal with matters
relating to the whole country. Private law is concerned with the law enforced between
individuals. This can include contract law, family law and other areas which deal with
intellectual property rights (copyrights, designs and patents), land law (and the way in
which it is transferred), probate (dealing with wills and how property is distributed
after someone dies) and company law (which deals with the ways in which companies
are created and rules regulating how they operate their business). Generally speaking,
private law is the area of law in a society that affects the relationships between
individuals or groups without the intervention of the state or government. In many
cases the public/private law distinction is confounded by laws that regulate private
relations while having been passed by legislative enactment. In some cases these
public statutes are known as laws of public order, as private individuals do not have
the right to break them and any attempt to circumvent such laws is void as against
public Procedural law comprises the set of rules that govern the proceedings of the
court in criminal lawsuits as well as civil and administrative proceedings. The court
needs to conform to the standards setup by procedural law, while during the
proceedings. These rules ensure fair practice and consistency in the "due process".
3. Substantive and Procedural Law
Substantive law is a statutory law that deals with the legal relationship between
people or the people and the state. Therefore, substantive law defines the rights and
duties of the people, but procedural law lays down the rules with the help of which
they are enforced.
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Procedural law Substantive law
Structure: Elaborates on the steps which the case passes through
Deals with the structure and facts of the case
Enforcement: Creates the machinery for the enforcement
Defines the rights and duties of citizens
Powers: No independent powers Independent powers to decide the fate of a case
Application: Can be applied in non legal contexts
Cannot be applied in non legal contexts
Examples: Code of Civil Procedure
Code of Criminal Procedure
Qanun-e-Shahdat
Contract act
Pakistan Penal Code
In order to understand the differences between the structure and content of
substantative and procedural law, let's use an example. If a person is accused and
undergoing a trial, substantive law prescribes the punishment that the under-trial will
face if convicted. Substantaive law also defines the types of crimes and the severity
depending upon factors such as whether the person is a repeat offender, whether it is a
hate crime, whether it was self-defense etc. It also defines the responsibilities and
rights of the accused.
Procedural law, on the other hand provides the state with the machinery to enforce the
substantive laws on the people. Procedural law comprises the rules by which a court
hears and determines what happens in civil or criminal proceedings. Procedural law
deals with the method and means by which substantive law is made and administered.
In other words, substantive law deals with the substance of the case, how the charges
are to be handled and how the facts are to be dealt with; while procedural law will
give a step by step action plan on how the case is supposed to proceed in order to
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achieve the desired goals. Therefore its procedural law that helps decide whether the
case requires trial or otherwise.
Substantive law is an independent set of laws that decide the fate of a case. It can
actually decide the fate of the under-trial, whether he wins or loses and even the
compensation amounts etc. Procedural laws on the other hand, have no independent
existence. Therefore, procedural laws only tell us how the legal process is to be
executed, whereas substantive laws have the power to offer legal solution.
Another important difference lies in the applications of the two. Procedural laws are
applicable in non legal contexts, whereas substantive laws are not. So, basically the
essential substance of a trial is underlined by substantive law, whereas procedural law
chalks out the steps to get there.
Elements Of Prcedural Law:
Following are the elements of judicial procedure or procedural law.
(i) Summons:
This is give an opportunity to all the parties interested, to present themselves before
the court and making the case heard.
(ii)Pleadings:
Pleadings bring to light the matters in-issue between the parties. In civil law, it
consists of plaint, written statement and replication. In criminal law, it includes
complaints and written statement.
(iii)Proof:
Proof is the process by which the parties supply the court with the data necessary for
the decision of the case.
(iv)Judgement:
A judgement is the decision of the court. It may be in the form of decree or order.
(v)Execution:
It is the use of the physical force of the state in enforcing the judgement when
voluntary submission to it is withheld.
Other Distinctions Between Substantive And Procedural Law:
(I)As To Purpose:
Substantive law is concerned with the ends which the administration of justice seeks.
Procedural law deals with the means and instruments by which those ends can be
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achieved.
(II)Regulation:
Substantive law determines the conduct and relation of litigants in respect of the
matters litigated.
Procedural law regulates the conduct and relations of courts and litigants in respect of
the litigation itself.
(III)Subject Matter:
Substantive law regulates the affairs controlled by judicial proceedings.
Procedural law regulates the conduct of affairs in the judicial the conduct of affairs in
the judicial proceedings.
(IV)As To Facts Constitute A Wrong:
What fact constitute a wrong is determined by substantive law.
What facts constitute proof of a wrong is a question of procedure.
(V)Nature:
Substantive law deals with the ends which the administration of justice seeks.
Procedural law deals with the means and instruments by which the administration of
justice achieve.
(VI)As To Connection:
Substantive law is related and connected with public at large.
Procedural law is connected with the parties before the court.
(VII)As To Abolition Of Punishment:
The abolition of capital punishment is an alteration of the substantive law.
The abolition of imprisonment for debt is merely an alteration in the law of procedure
as the imprisonment for debt is merely an instrument to enforce payment.
(VIII)Scope:
Substantive law relates to matters outside the court.
Procedural law deals with matters inside courts.
(IX)Appearance:
Substantive law provides substance of law in the shape of statute.
Procedural law is the law of actions meanings by actions.
(X)Branch Of Law:
Procedural law is that branch of the law which governs the process of litigation.
All the residue is substantive law.
(XI) Supremacy:
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Substantive law is supreme in nature.
Procedural law is subordinate in nature.
3. Criminal law
Criminal law generally may be defined as the law which is related with crimes. It
might be defined as the body of rules that defines conduct that is not allowed
because it is held to threaten, harm or endanger the safety and welfare of people,
and that sets out the punishment to be imposed on people who do not obey these
laws. Criminal law is to be distinguished from civil law.
Purposes of criminal law
State to accomplish its primary by protecting the citizens.
Retribution – Criminals ought to suffer in some way. This is the most widely
seen goal. Criminals have taken improper advantage, or inflicted unfair
detriment, upon others and consequently, the criminal law will put criminals at
some unpleasant disadvantage to "balance the scales." People submit to the
law to receive the right not to be murdered and if people contravene these
laws, they surrender the rights granted to them by the law. Thus, one who
murders may be murdered himself. A related theory includes the idea of
"righting the balance."
Deterrence – Individual deterrence is aimed toward the specific offender. The
aim is to impose a sufficient penalty to discourage the offender from criminal
behavior. General deterrence aims at society at large. By imposing a penalty
on those who commit offenses, other individuals are discouraged from
committing those offenses.
Incapacitation – Designed simply to keep criminals away from society so that
the public is protected from their misconduct. This is often achieved through
prison sentences today. The death penalty or banishment have served the same
purpose.
Rehabilitation – Aims at transforming an offender into a valuable member of
society. Its primary goal is to prevent further offense by convincing the
offender that their conduct was wrong.
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Restitution – This is a victim-oriented theory of punishment. The goal is to
repair, through state authority, any hurt inflicted on the victim by the offender.
For example, one who embezzles will be required to repay the amount
improperly acquired. Restitution is commonly combined with other main goals
of criminal justice and is closely related to concepts in the civil law, that is to
say returning the victim to his original position.
Element (criminal law)
Mens rea
Actus reous
Mens rea means intention of the accused of committing certain act while Actus reus is
Latin for "guilty act" and is the physical element of committing a crime. It may be
accomplished by an action, by threat of action, or exceptionally, by an omission to
act, which is a legal duty to act. For example, the act of A striking B might suffice, or
a parent's failure to give food to a young child also may provide the actus reus for a
crime.
Where the actus reus is a failure to act, there must be a duty of care. A duty can arise
through contract, a voluntary undertaking, a blood relation with whom one lives,and
occasionally through one's official position. Duty also can arise from one's own
creation of a dangerous situation.
An actus reus may be nullified by an absence of causation. For example, a crime
involves harm to a person, the person's action must be the but for cause and proximate
cause of the harmIf more than one cause exists (e.g. harm comes at the hands of more
than one culprit) the act must have "more than a slight or trifling link" to the harm.
Mens rea is another Latin phrase, meaning "guilty mind". This is the mental element
of the crime. A guilty mind means an intention to commit some wrongful act.
Intention under criminal law is separate from a person's motive
A lower threshold of mens rea is satisfied when a defendant recognises an act is
dangerous but decides to commit it anyway. This is recklessness. It is the mental state
of mind of the person at the time the actus reus was committed. For instance, if C
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tears a gas meter from a wall to get the money inside, and knows this will let
flammable gas escape into a neighbour's house, he could be liable for poisoning.
Courts often consider whether the actor did recognize the danger, or alternatively
ought to have recognised a risk. Of course, a requirement only that one ought to have
recognized a danger (though he did not) is tantamount to erasing intent as a
requirement. In this way, the importance of mens rea has been reduced in some areas
of the criminal law but is obviously still an important part in the criminal system.
Wrongfulness of intent also may vary the seriousness of an offense and possibly
reduce the punishment but this is not always the case. A killing committed with
specific intent to kill or with conscious recognition that death or serious bodily harm
will result, would be murder, whereas a killing effected by reckless acts lacking such
a consciousness could be manslaughter. On the other hand, it matters not who is
actually harmed through a defendant's actions. The doctrine of transferred malice
means, for instance, that if a man intends to strike a person with his belt, but the belt
bounces off and hits another, mens rea is transferred from the intended target to the
person who actually was struck.
Procedure of criminal law in Pakistan
commission of offence
FIR or complaint before the magistrate
Investigation by police
Arrest, 24 hour custody
Police remand
recoveries
161 statements
164 confessions
Challan to be submitted in the court
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Framing of charge
Evidence of prosecution
342 statement
Evidence of defense
Final arguments
Acquittal or conviction
Execution.
4. Civil law
That branch of law which enforces the private rights of the individuals. The
examples may be considered as law of property, contract, family laws, consumer
laws and employment laws. The standard of proof in civil litigation as not as high
and the civil cases are decided on the balance of evidence. More evidence is
needed to find the accused at fault in criminal cases than to find the defendant at
fault in civil ones. To convict someone of a crime, the prosecution must show
there is proof beyond a reasonable doubt that the person committed the crime and,
in most cases, which they intended to commit it. Judges and juries cannot convict
someone they believe probably committed the crime or likely is guilty - they must
be almost certain. This gives the accused the benefit of any reasonable doubt and
makes it less likely an innocent person will be wrongfully convicted and
imprisoned. Civil cases, in contrast, must be proven on a balance of probabilities -
if it is more likely than not that the defendant caused harm or lThe purpose of civil
law is to regulate relationships between individuals and to compensate the victim
for harm suffered.
The main remedies and sanctions of the civil law are:
Damages (compensation)
Injunction (order to stop)
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Specific performance (order to perform a task)
The concept of locus standi
Llocus standi means the place to stand, in legal sense it is the ability of a party to
demonstrate to the court sufficient connection to and harm from the law or action
challenged to support that party's participation in the case. In civil law the first of
the plaintiff is to prove his locus standi Otherwise, the court will rule that the
plaintiff "lacks standing" to bring the suit, and will dismiss the case without
considering the merits of the claim. The party suing must have something to lose
in order to sue unless it has automatic standing by action of law.
Courts system:
The civil cases are initiated in civil courts
Procedure in Pakistan
Legal notice
Plaint to be filed by plaintiff
Summons
Written statement by defendant
Framing of issues
Plaintiff evidence
Defendant evidence
Judgment
Decree
Execution
How a court order may be challenged
Appeal
Review
Revision
The concept of Reference
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