EC 276: Introduction to Law

Instructor: Mr. Arshad Nawaz Khan Semester: Spring 2012

Email: manchesterlaw@live.com

________________________ ________________________________________

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

2

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.

3

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

4

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

5

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:

6

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.

7

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

8

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

9

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)

10

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

11

12