Unit 4 To 9 Legal Methods

School of Law

Semester: I

Program: B.A., LL.B. (Hons.) 8101 & B.B.A., LL.B. (Hons.) 8102

Module: Legal Methods
Credit: 4
Unit 2
Law - Meaning, Nature and Functions
Topic Details: Classification of laws:

Civil Legal System
SVKM’s NMIMS Deemed to be UNIVERSITY School of Law
Law is intertwined with the lives of people. It governs the conduct of people from cradle to
the grave and the influence of law in one’s life even extends from before birth to even after
death.
In this society, there is a complex body or set of rules which are made to control the activities
of members of the society. Different laws are available for different situations like laws to
govern working conditions, laws to control leisure pursuits and laws to regulate relationships
of personal nature.
Law
A binding custom or practice of a community : a rule of conduct or action prescribed or

formally recognized as binding or enforced by a controlling authority.
A rule, usually made by the government of a country, that is used to order the way in which
the society has to behave.
The law is a set of rules that are laid down to regulate the government of the state and control
the relationship between the state and its citizens and also to govern the relationship
between one citizen and another which is enforceable by the courts.
Law is indeed is as big like an ocean which has no limits and its barely possible for anyone to
have command over or even knowledge of entire law.
Since, law is so wide and broad it cannot be understood as it is because it will eventually
create confusion because of its complexities and nature therefore, in order to understand law
better, its classification is very important.
It will make the nature, scope, purpose and subject of law easy and understandable. Further,
classification will help in codification of distinct laws for distinct purposes. It also helps in
understanding the inter-relation of among different laws.
Civil Legal System
Common Legal System
Religious Legal System
Public and Private Law
Substantive and Procedural Law
Municipal and International Law

Civil Legal System
Civil law systems draw a sharp distinction between primary and secondary sources. Primary
sources are enacted law, custom, and ‘general principles of law.’ Of these, the main source is
the enacted (statutory) law; it predominates in civil law systems.
A code in a civil law system consists of general principles, arranged in order of importance. At
the beginning, there may be general rules regulating basic problems that need to be
addressed before the particular problem can be analyzed.
For example, if a plaintiff seeks damages for breach of contract, preliminary analysis must
determine whether a contract was validly concluded. Provisions dealing with invalidity and
avoidance of contracts usually are found in the general part of a civil code.
Such a general part may be followed by particular parts dealing with individual fields of law,
such as torts, contracts, property, or the law of succession. The main or basic codes are
supplemented in increasing number by special statutes or codes of limited coverage with
which the legal system reacts to new societal problems. Examples include consumer
protection, telecommunication, and news media.
Custom is also a primary source of law. Customs are unwritten rules, developed and observed
over years and now part of social and economic thinking. Customary law tends to be less
important in practice because it is often difficult to prove its pervasive observance in society.
‘General principles of law’ are what the term expresses: Basic principles of the legal system
that pervade it and derive from norms of positive law.
Civil law judges resort to ‘general principles of law’ as guidelines in the interpretation of
statutory norms both for the purpose of defining their interrelation and for their application.
This is of particular importance when dealing with statutory norms that are rather abstract in
their formulation. It is tempting to consider this process to be not very different from the case
law methodology of the common law.
There is an important difference, however. The common lawyer derives the appropriate rule
by reliance on precedent and its interpretation and, only lacking precedent, resorts to general
principles or to policy considerations. The civilian judge is not so restricted but derives the
appropriate rule from the structure of the legal system and from the general principles of law
that pervade it; nor will the decision in the present case have a necessary effect on later
cases.
Civil law deals with behavior that causes injury to an individual or other private party, such as
a corporation. Example of civil law is defamation, breach of contract, negligence which is
resulting in injury or death, and property damage.
In civil law, cases are initiated (suits are filed) by a private party (the plaintiff); cases are
usually decided by a judge; punishment almost always consists of a monetary award and
never consists of imprisonment; the plaintiff must establish the defendant’s liability only
according to the “preponderance of evidence”; and defendants are not entitled to the same
legal protections as are the criminally accused.
The civil law deals with the private rights and duties which arise between individuals in a
country. The object of a civil action is to correct the wrongdoing that has been committed.
Enforcement of civil law is the accountability of the individual who has committed the wrong
and the state is responsible to provide for the procedure to resolve the dispute. In case of civil
proceedings, the person who claims sues the defendant in the civil court and asks for a
remedy.
The claimant will be successful in his claim if he is able to prove his case. If the claimant is not
successful, the defendant will not be made liable for his actions.
The civil law system is a codified system of law. It takes its origins from Roman law. Features of
a civil law system include:
There is generally a written constitution based on specific codes (e.g., civil code, codes
covering corporate law, administrative law, tax law and constitutional law) enshrining basic
rights and duties; administrative law is however usually less codified and administrative court
judges tend to behave more like common law judges;
Only legislative enactments are considered binding for all. There is little scope for judge-made
law in civil, criminal and commercial courts, although in practice judges tend to follow
previous judicial decisions; constitutional and administrative courts can nullify laws and
regulations and their decisions in such cases are binding for all.
In some civil law systems, e.g., Germany, writings of legal scholars have significant influence
on the courts;
Courts specific to the underlying codes, there are therefore usually separate constitutional
court, administrative court and civil court systems that opine on consistency of legislation and
administrative acts with and interpret that specific code;
Less freedom of contract - many provisions are implied into a contract by law and parties
cannot contract out of certain provisions.
A civil law system is generally more prescriptive than a common law system. However, a
government will still need to consider whether specific legislation is required to either limit
the scope of a certain restriction to allow a successful infrastructure project, or may require
specific legislation for a sector.
The essential features of the system are:
1) Civil Laws are a codified set of legal rules.

2) The codified Law bears a binding for all. There is little scope for judge-made law in civil
courts. Yet, looking into the practical aspect, the judges follow the precedents.
3) Writings of the Legal Scholars do have a substantial influence on the courts.
Branches of Civil Laws
Within civil society, disagreements between human beings and institutions are
understandable. Civil laws are thus, formed to establish an impartial dispute resolving judicial
machinery. Civil Laws have a vast scope. A few of them are well defined and codified, and the
remaining are based upon the precedents. Some of the civil laws in India are:
Administrative Law
Family Law
Contract Law
Tort Law
Business Law
Media Law
Sports Law
Tax Law
Consumer Law
The social rules are made by the members of the society. Disobedience of the social rules is
followed by punishment of social disapproval. There is no positive penalty associated with the
violation of rules except excommunication or ostracism.
On the other hand, law is enforced by the state. The objective of law is to bring order in the
society so the members of society can progress and develop with some sort of security
regarding the future. The state makes laws.
Disobedience of state laws invites penalty, which is enforced by the government by the power
of the state. What is not enforceable is not Law.
The Code of Civil Procedure, 1908, deals with the procedural part of the civil proceedings. The
code has two divisions:
1) the first part contains 158 sections, and
2) the second part includes the First Schedule, which has 51 Orders and Rules.
The sections deal with the general principles relating to the jurisdiction of the matters and
orders. They also include rules that provide in detail the procedures that govern civil
proceedings in India. The main aim behind the act is to ensure speedy disposal of the cases.
Contract Law
Contract Law deals with an agreement entered between two or people. They can be
individuals or companies, both having an obligation to fulfill it. For example, two parties sign a
contract regarding the delivery of goods. If one party violates any of the contract provisions, it
qualifies as a “breach of contract.” Contracts/Agreements may be either oral or written unless
expressly stated as a requirement by any particular law to be put in writing.
Tort Law
It is concerned with personal injuries against private individuals. A tort can be against either a
private individual or property. The property can be movable or immovable. The injured party
receives monetary compensation. i. There can be either a case of intentional, unintentional
tort or no-fault liability. The two essentials of torts are:
1- The existence of a legal right,
2- Its violation to which damages are awarded.
Property Law
This category covers any property: personal or real, tangible, or intangible. Tangible property
includes anything that can be seen or touched like animals, jewelry, etc. The intangible
property comprises property such as intellectual property rights or stocks and bonds. As per
Law, the land is not only defined as the surface in general. It also includes all the things
attached to it.
For example: A woman noticed that while planting flowers in her garden, her neighbor had
five extra flower pots with her. But there was no place to put them in her garden. So, she
decided to take additional containers without seeking permission from the neighbor. She
wanted to put them in her yard as well. Therefore, she deprived her neighbor of her saplings
and planted them in her yard. The woman’s action, in this case, would amount to conversion.
Family Law
Family law is a branch of Civil Law that deals with marriage, divorce, annulment, child custody,
adoption, birth, child support, and other issues relating to families. This branch of Civil Law is
unique in the sense that there is not necessarily one person who commits a civil wrong. The
involvement of family courts come into picture in cases relating to the division of property and
other assets, establishing custody of a child, deciding maintenance in divorce cases, spousal
support, etc.
Hierarchy of Civil Courts in India:

India follows a hierarchical system, giving different powers and authority to courts in
India. The Supreme Court of India located in New Delhi is the apex court; the factors in
determining the further hierarchy of the civil courts are jurisdiction, i.e., monetary and
territorial. Pecuniary means depending upon the case value of suit and territorial refers to the
area in which the particular offense was executed.
Supreme Court of India: The Supreme Court of India is the apex Court having an appellate
jurisdiction for all civil matters. The judgments of the Supreme Court of India are considered
as final. These are also binding on all the Indian courts.
High Courts: Next in the hierarchy are the High Courts, established state-wise, or common
High Court for two or more states.
District Courts/ City Civil Courts: Then comes the District Courts generally having pecuniary
jurisdiction of Rs 20 lakh but more than 3 lakh.
Further, there are courts established to deal with particular matters like Family Courts,
Consumer Courts, and various tribunals
Common Legal System
Common-Law systems come from legal principles that are judge-made laws. These precedents
have authority. The concept of civil justice has existed in India for ages. Manu compiled the
justice system of India.
His voluminous work entitled “Manava Dharma Shastra” contains the legal provision.
However, the Vedas incorporate the concept of justice.
Law may further be classified as per the nature as to whether they form part of the common
law or equity. The distinction between the systems of common law and equity rises from far
long in history and could be understood properly by an examination of the origins of English
law.
The common law is the law followed and gained by the Crown of England. It could be traced
back to 1066 when William of Normandy obtained the crown of England by defeating King
Harold in the Battle of Hastings. Before the Normans arrived there was no such thing known
as English law.
The Anglo-Saxon system of law was based on the local community. Each and every area
possessed its own system of courts wherein the local customs were applied as common law.
The Normans were great administrators and they undertook a process of centralization that
created an accurate climate for the evolution of a uniform system of law for the entire country
which is equally applicable as a rule of law.
The Common Law also known as case law or Judicial precedent or judge-made law is a section
of law which is derived from the judicial decision of courts and similar tribunals.
Common law is a body of unwritten laws based on legal precedents established by the courts.
Common law influences the decision-making process in unusual cases where the outcome
cannot be determined based on existing statutes or written rules of law.
History of Common Law
It is a term that was originally used in the 12th century, during the reign of “Henry II” of
England. The ruler established tribunals with the goal of establishing a system which is
uniform in deciding legal matters. Such decisions created a unified “common” law throughout
England.
The precedent set by the Courts through the twelfth and thirteenth centuries were often
based on tradition and custom and was known as a “common law” system.
Common law in the United States dates back to the arrival of the colonists, who brought with
them the system of common law with which they were already familiar. They followed the
American system and the newly formed states adopted their own forms of common law which
were different from the federal law.
The application of common law has been comprehensive in the Indian context. It has been
incorporated in the Indian legal system over two centuries by the English to the point that one
cannot assign an individual identity to Indian jurisprudence. Therefore, it can be said that
common law has been applicable in a different format than that of England as the needs and
demands of the Indian society were different from that of the English.
Common law, also known as case law, is a body of unwritten laws based on legal precedents
established by the courts.
Common law draws from institutionalized opinions and interpretations from judicial
authorities and public juries.
Common laws sometimes prove the inspiration for new legislation to be enacted.
A precedent, known as stare decisis, is a history of judicial decisions which form the basis of
evaluation for future cases. Common law, also known as case law, relies on detailed records of
similar situations and statutes because there is no official legal code that can apply to a case
at hand.
The judge presiding over a case determines which precedents apply to that particular case.
The example set by higher courts is binding on cases tried in lower courts. This system
promotes stability and consistency in the U.S. legal justice system. However, lower courts can
choose to modify or deviate from precedents if they are outdated or if the current case is
substantially different from the precedent case. Lower courts can also choose to overturn the
precedent, but this rarely occurs.
Common law is generally uncodified. This means that there is no comprehensive compilation
of legal rules and statutes. While common law does rely on some scattered statutes, which are
legislative decisions, it is largely based on precedent, meaning the judicial decisions that have
already been made in similar cases.
These precedents are maintained over time through the records of the courts as well as
historically documented in collections of case law known as yearbooks and reports. The
precedents to be applied in the decision of each new case are determined by the presiding
judge.
This system requires several stages of research and analysis to determine the appropriate law
in a given situation. The facts should be ascertained properly and relevant cases and statutes
are to be identified.
The common law is different from codified law as it follows the judgment while the codified
law precedes it. So it can be rightly said that it is a system of rules and declarations of
principles from where the judicial ideas and legal definitions are derived.
Religious Legal System
There are dozens of religions that exist in our world today. Each of them has a set of rules that
govern how we should behave.
While these laws are meant to try and produce a good individual, the end game is to please a
higher power, so the consequences for not following these rules may not be seen most
distinctly in this life.
Unlike in the past, today there is a distinct division between secular laws and religious laws.
The source of religious law is the deity, legislating through prophets, whereas secular law is
made by human beings. It also then follows that religious laws are perceived to be eternal and
non-changing, while secular rules can be changed by their makers.
Furthermore, religious law tells people what to believe as well as how to behave, whereas
secular law deals with our external actions as they affect others. Oftentimes, these can
intersect.
For example, many religions teach that life is sacred and that we should not kill. Secular law
also believes that we should not kill but bases that belief in how killing would negatively affect
others rather than bringing displeasure to a higher power.
In a religious legal system, disputes are usually overseen by an officer of that religion, so the
same person is both judge and priest. In a secular system, by contrast, the office of judge is
separate. So in a secular system, disputes are overseen only by a judge with no influence from
religious leaders.
Religion is the very basis of human life which is not just following a belief but it is also a the
way of living because the followers of a particular religion follows a definite kind of livelihood
and with this moral duty of following certain rules the religion enters the boundary of law
whereby a person is compelled to follow or not to break the rules decided by a state (i.e. any
country).
Hence it is very evident that the law and religion are dependent on each other because before
the concept of state or democracy, people were bound to follow the religious duties and can
claim religious rights. Thus in this way religion was playing a very vital role of maintaining law
and order in ancient societies at different parts of the world.
Religion in India
India is a country of religious diversity and religious tolerance is established in both law and
custom. Throughout the history of India, religion has been an important part of the country's
culture. A vast majority of Indians associate themselves with a religion.
Indian census has established that Hinduism accounts for 80.5% of the population of India.
The second largest religion is Islam, at about 13.4% of the population. The third largest
religion is Christianity at 2.3%. The fourth largest religion is Sikhism at about 1.9% of India's
population. This diversity of religious belief systems exiting in India today is a result of, besides
the existence and birth of native religions, assimilation and social integration of religions
brought to the region by traders, travelers, immigrants, and even invaders and conquerors.
Other native Indian religions are Buddhism and Jainism. Ancient India had two philosophical
streams of thought, the Shramana religions and the Vedic religion, parallel traditions that have
existed side by side for thousands of years. Both Buddhism and Jainism are continuations of
Shramana traditions, while modern Hinduism is a continuation of the Vedic tradition. These
co-existing traditions have been mutually influential.
India's religious tolerance extends to the highest levels of government. The Constitution of
India declares the nation to be a secular republic that it must uphold the right of citizens to
freely worship and propagate any religion or faith (with activities subject to reasonable
restrictions for the sake of morality, law and order, etc). The Constitution of India also declares
the right to freedom of religion as a fundamental right.
Citizens of India are generally tolerant of each other's religions and retain a secular outlook,
although inter-religious marriage is not widely practiced. Inter-community clashes have found
little support in the social mainstream, and it is generally perceived that the causes of
religious conflicts are political rather than ideological in nature.
Law
The preamble to the Constitution of India proclaimed India a "sovereign socialist secular
democratic republic". The word secular was inserted into the Preamble by the Forty-second
Amendment Act of 1976. It mandates equal treatment and tolerance of all religions. India
does not have an official state religion; it enshrines the right to practice, preach, and
propagate any religion.
No religious instruction is imparted in government-supported schools. In S. R. Bommai vs.

Union of India, the Supreme Court of India held that secularism was an integral tenet of the
Constitution.
The right to freedom of religion is a fundamental right according to the Indian Constitution.
The Constitution also suggests a uniform civil code for its citizens as a Directive Principle.
However this has not been implemented until now as Directive Principles are Constitutionally
unenforceable.
The Supreme Court has further held that the enactment of a uniform civil code all at once
may be counterproductive to the unity of the nation, and only a gradual progressive change
should be brought about in Pannalal Bansilal v State of Andhra Pradesh, 1996.
In Maharishi Avadesh v Union of India (1994) the Supreme Court dismissed a petition seeking
a writ of mandamus against the government to introduce a common civil code, and thus laid
the responsibility of its introduction on the legislature.[10]
Major religious communities continue to be governed by their own personal laws. Personal
laws exist for Hindus, Muslims, Christians, Zoroastrians, and Jews. The only Indian religion
exclusively covered under the secular ("civil") law of India is Brahmoism starting from Act III of
1872. For legal purposes, Buddhists, Jains and Sikhs are classified as Hindus and are subject to
Hindu personal law.
The Indian Constitution posits a separation between a secular domain regulated by the State,
and a religious domain in which it must not interfere. However, courts of law are regularly
called upon to resolve a multiplicity of issues related to religion, and their decisions may have
a far-reaching impact on religious conceptions and practices.
The judicial process requires that standardized, clear-cut definitions of many notions (such as
“religion” itself, or “worshipper,” “custom,” “usage,” “religious service,” “religious office,”
“religious honor,” etc.) be established in order for them to be manageable within a legal
context. Moreover, even though a religious domain may be distinguished from a secular one
and protected from State intervention, there are litigations concerning civil rights that involve
religious issues on which civil courts may therefore have an explicit duty to rule. Interventions
such as imposing legal definitions or deciding on religious matters on which civil rights depend
are systemic in character and intrinsic to “modern” law itself.
In this they do differ from any explicit policy of state secularism or the no less explicit
reformist will of some judges, which may change according to the historical period or to their
personal dispositions
Public and Private Law
Public Law
Meaning of Public law: Public law is the part of law that governs relations between legal
persons and a government, between different institutions within a state, between different
branches of governments, as well as relationships between persons that are of direct concern
to society. The activities of the state are regulated by public law.
It determines and controls the organization and functioning of the state and also determines
the relationship of the state with its subjects. The term ‘public’ means a state or a sovereign
part of it or a body, or a person holding a delegated authority under the state.
Public law can be further divided into:
Constitutional Law: – Constitutional Law is the law that determines the nature of the state
and the structure of government. It is above and supreme from the general law of the land. It
describes the structure and function of the three organs of the state. Ordinary law derives its
value from constitutional law.
Administrative Law: – Administrative law is the body of law that gives permission for the
creation of public regulatory agencies and includes all the laws, judicial decisions, and rules.
This law is created by administrative agencies and the purpose is to implement their powers
and duties in the form of rules, regulations, orders and decisions.
Criminal Law: – It is the body of law that defines criminal offenses, regulates the cognizance,
create charges and trial of suspects, and also fixes the methods of punishment and treatment
applicable to convicted offenders. Its purpose is to stop crime and punish the wrongdoer.
Private Law
Meaning of Private law: Private law is the branch of law that deals with the rights and duties
of private individuals and the relationship between them. Private law deals with the rights
and obligations of individuals, families, businesses and small groups and exists to assist
citizens in disputes involving private matters.
Further classification of private law is as follows:

Law of the person
Property law
Law of liability conflict of laws
Public law is the law that is concerned with the relationship of the citizens and the state. This
consists other different specialist areas as follows:
Constitutional law:
Constitutional law is concerned with the Indian constitution. It covers within its twenty five
parts and twenty schedules the composition and procedures of Parliament, the functioning of
central and local government, citizenship and the fundamental rights and liabilities of the
citizens of the country.
Administrative law:
Administrative law is the law that is brought to for better and convenient administration of
the government and the government bodies. There has been a stark increase in the activities
of government over the past few years. Many schemes have been introduced by the
Government for helping to ensure a proper standard of living for everyone. A huge number of
disputes arise out of the administration of different schemes and a body of law has been
developed to deal with the problems of such persons against the decision of administrative
agency.
Private law
Private law is the law that is predominantly concerned with the rights and liabilities of
individuals towards each other. The involvement of the states in this area of law is restricted
to providing a proper method of resolving the dispute which has arisen. Therefore, the legal
process gets started by the citizen who is aggrieved and not by the state. Private law is also
known as ‘civil law’ and often it is in contrast with criminal laws.
Difference between Public and Private Law
S.NO. PUBLIC LAW PRIVATE LAW

1. Public law deals with issues that affect Private law deals with the rights and
the general public or the state – society obligations of individuals, families,
as a whole. businesses and small groups and exists to
assist citizens in disputes involving
private matters.
2. Public law includes inter-relationships Private law includes participation among

between the state and the general private citizens.
population.
3. Public law consists of three subdivisions: Private law consists of the law of
Constitutional, administrative and obligations and the law of torts.
criminal law.
4. Public law deals with a larger scope. Private law operates with a more specific
scope.
5. Public law focuses more on the issues Private Law deals more with the issues
that affect the general public or the state affecting private individuals, or
itself. corporations.
Public bodies, such as central and local government, have to obey the law. The type of law
governing the conduct of public bodies is known as ‘public law’. Public law should ensure that
public bodies act lawfully, rationally, fairly, and compatibly with the human rights of those
affected by their actions.
Where a public body acts unlawfully, there are a number of ways that those affected can
challenge that behaviour or decision.
These include:
Complaining using public bodies’ complaints procedures or Ombudsmen
Exercising rights of appeal to a tribunal (if such rights exist in relation to the particular decision
to be challenged, such as in welfare benefits cases)
Asking a public body to review its decision
Through a process called judicial review
Judicial review is a particularly important aspect of the constitutional settlement in the UK. It
is a process, a court case, where a judge or judges decide whether a public body has behaved
lawfully. It performs an essential task in that it allows the courts and judiciary oversight of the
government. The diagram below shows the ‘separation of powers’ model and the relationship
between Parliament, the courts and judiciary, and the executive.
This constitutional model exists to prevent the abuse of power.
For instance, if the executive implements a Government policy that turns out to be unlawful
the courts can, if a case is brought to them showing that the policy is unlawful, give a
judgment holding the policy unlawful.
Private law applies to any circumstances relating to relationships between individuals in a

legal system. Therefore, this type of law governs the relationship between individuals and
governments. This is also referred to as common law.
It includes the law of property and trust, family law, the law of contract, mercantile law and
the law of tort
In ‘Socialist Legal System’, Private Law has no space and all law has to be in the nature of
‘Public Law’ which means that all law deals with State matters or public matters, such as
Constitutional Law, Administrative Law, and Criminal Law.
By Constitutional Law, we mean that law which determines the nature of the State and the
structure of the government. It is above and superior to the ordinary law of the land.
Administrative Law deals with the structure, powers and functions of the organs of
administration, the limits of their powers etc. Private Law, which regulates and governs the
relations of citizens with each other, is either abrogated or is given less importance than the
Public Law. Examples of Private Law are the law of torts, contract, property, and intellectual
property rights.
In ‘Socialist Legal Systems’, many branches of Private Law have shifted and have become a
part of Public Law. Thus, Law of Contract which was considered to be a law regulating the
contractual freedom of individuals has also now been substantially controlled and the
freedom to contract has been severely restricted in this Legal System.

Substantive law refers to how facts of each case are handled and how to penalize or ascertain
damages in each case. Whereas, Procedural law refers to the different processes through
which a case proceeds.
Substantive laws define the legal relationship between different individuals, or between
individuals and the State. Procedural laws define the rules with which substantive laws may be
enforced. Substantive law is considered to be main law and Procedure law as subordinate to
Substantive Law.
Separate penal actions are provided in various statutes for violation of law whether it is
substantial or procedural. If a person does not pay his due taxes, severe penal actions are
provided and in case a person pays taxes but does not file returns, soft penal actions are
provided.
Substantive part of law establishes the rights, duties and liabilities of individuals. Procedural
law establishes the methods, practices and ways in which a court proceeding takes place.
Substantive law consists of written statutory law passed by legislature that govern how people
behave.
They also define our rights and responsibilities as citizens, on the other hand, Procedural
law governs the mechanics of how a legal case flows, including steps and processes of a case,
it adheres to due process.
Substantive laws define the rights and responsibilities in civil law and crimes and punishments
in criminal law. Substantive laws are codified in legislated statutes or may be practised or
modified through precedent, especially in the common law system. These laws can also be
enacted through the initiative process. Substantive laws refer to the actual claims and
defences to refer to in any particular case.
Nature of substantive laws
Substantive laws deal with those areas of law which establish the rights and obligations of the
individuals and what individuals may or may not do.
These laws have independent power to decide any case.
Substantive laws dictate the legal context of any crime such as how the case will be handled
and what specific punishments to be given for any crime.
Statutory laws or precedents in the common law system are substantive laws.
Substantive laws deal with the legal relationship between individuals or the legal relationship
between an individual and the State.
Substantive laws are the statutory laws which define and determine both the rights and
obligations of the citizens to be protected by law and the crimes or wrongs and also their
remedies.
Substantive laws determine the subject matter of litigation pertaining to the administration of
justice.
In the case of Thirumalai Chemicals Ltd. v. Union of India and others (2011), the Supreme
Court ruled that substantive laws are a body of rules that “creates, defines and regulates
rights and liabilities”. On the other hand, procedural laws establish “a mechanism for
determining those rights and liabilities and a machinery for enforcing them”.
Sources of substantive laws.
The Substantive Laws are usually derived from:

I. the principles in Common laws which already exist, codified statutory laws
II. Constitution
III. judicial precedents in cases with similar facts and circumstances.
Substantive laws are also derived from various treaties that dictate the conditions of the law.
One such example is the regulations and directives of the European Union followed by trade
treaties, rules of the WTO and bilateral treaties.
Substantive civil laws
Substantive civil laws are the laws which deal with disputes between any individuals,
organisations or between both of them where the victim is entitled to compensation. Using
substantive civil laws, the courts find out whether the legal rights of the plaintiff have been
violated or not.
The plaintiff should have to prove that he/ she has gone through damages or has suffered
injury by using the relevant substantive civil laws. If the plaintiff is successful in proving his/
her point before the court by himself/ herself or through his/ her attorney, substantive civil
laws would be used to compensate the plaintiff for any injury or harm caused accordingly.
Substantive civil laws do not provide any constitutional protection to any of the parties but
provide the right to appeal to both the parties.
Some examples and functions of substantive civil laws in India include:

Law of Contracts such as the Indian Contract Act, 1872 defines what are the essential
elements and conditions required to enter into any contract. The broader category of the laws
related to the contract also includes the Sale Of Goods Act, 1930 for the sale of goods and the
Partnership Act, 1932 for the law related to the formation and registration of partnership
firms and businesses.
The Indian Succession Act, 1925 is an Act dealing with the substantive laws of testamentary
and intestate succession concerning the persons who follow any forms of Christianity in India.
Other substantive civil laws in India are the Transfer of Property Act 1882; Indian Trust Act,
1882; Maternity Benefit Act, 1961; The Factories Act, 1948; Industrial Disputes Act, 1947 etc
Substantive civil laws also include any private wrong caused to anyone or ‘Tort’. The Law of
Torts is also an example of substantive civil laws. However, the law of Tort in India has evolved
from that of its English counterpart and is not codified.
Substantive criminal laws
Substantive criminal laws deal with criminal offences and the punishments to be awarded for
each of these criminal offences.
A criminal prosecution starts after the defendant violates any criminal statute. The primary
purpose of substantive criminal laws is to provide punishment to the convict while
compensation may be provided to the victim depending on the situations.
Using substantive criminal laws, the court finds out whether the accused is guilty or not and if
found guilty, what should be the punishments for the criminal offence.
Unlike substantive civil laws, substantive criminal laws offer constitutional protections to the
accused from the very beginning of the trial. However, here only the defendant can appeal
instead of both the parties as in the case of substantive civil laws.
Limitations of substantive laws
Elements of substantive laws sometimes act as an obstacle to access to justice. Some

elements of substantive laws which are unfavourable to any litigant will constitute an
impediment to justice.
Substantive laws can be used to limit and restrict the power and freedom of any individual.
The State possesses the uncontrolled and unlimited power to frame laws according to its own
will which the judiciary is bound to follow.
However, in India, the judiciary may strike down any law if it is unconstitutional.
Procedural laws
In contrast to substantive laws, procedural laws, also known as Adjective Laws, are the laws
which act as the ‘machinery’ for enforcing rights and duties. Procedural laws comprise the
rules by which a court hears and determines what happens in civil, criminal or administrative
proceedings, as well as the methods by which substantive laws are made and administered.
The rules are designed to ensure a fair and consistent application of due process and
fundamental justice to all cases before any particular court.
The validity of the substantive laws is tried and tested through the procedures of the
procedural law. In the context of procedural laws, the rights may not exhaustively refer to the
rights to information, rights to justice, rights to participate and general civil and political
rights.
For example, in the sphere of environmental law, these procedural rights have been
considered in the UNECE Convention On Access To Information, Public Participation In
Decision-Making And Access To Justice In Environmental Matters, also known as the Aarhus
Convention.
Procedural laws are made to ensure the best distribution of judicial resources. All procedural
laws are made following the due process of the law.
A court cannot impose a civil or criminal penalty on any individual who has not received any
notice of the case filed against him/ her or has not got a fair opportunity to present evidence
or defend himself/ herself.
The standardisation of the procedural laws depends on how any case is filed, parties are
informed, evidence is presented and the facts are determined to maximise the fairness of any
legal proceeding.
Nature of procedural laws
Procedural laws lay down the ways and means substantive laws can be enforced.
They do not carry any independent powers to decide any case.
These laws are applied in the legal procedure which sometimes may be used in non-legal
contexts, such as filing any suits or the manner any case will proceed.
These laws are enforced by the Acts of Parliament or implemented by the government.
Apart from prescribing ways and means of enforcing rights, procedural laws also redress for
the infringement of rights, also describe the machinery for proceedings of any suit.
In the opinion of Holland, although procedural laws are concerned with the rights and acts of
private litigants, it also describes the organisation of Courts and the duties of judges.
A procedural law should always follow substantive law. The Madhya Pradesh High Court held
the decision in Farookh Mohammed v. the State of Madhya Pradesh (2015).
The Himachal Pradesh High Court held that procedural law should not ordinarily be
considered “mandatory” in the case of Gurudwara Bei Sehjal v. Nanhku And Others (2022).
Sources of procedural laws
Procedural laws are extremely important in the administration of justice. They function as the
means by which substantive laws should be implemented.
The primary source of procedural laws is the Constitution. Other sources of procedural laws
include:
Statutes enacted by the legislature;
Written regulations for employees of various law enforcement agencies. These regulations
cannot be considered as laws but violating them results in taking internal actions.
Various rules, procedural guidelines and rulings of cases laid down by the Supreme Court.
Types of procedural laws
Different legal systems have different procedural laws. Some of the procedural laws may
primarily look for the truths or fairness between the parties and some procedural laws target
a speedy resolution of disputes. Other procedural laws may also consist of a proper and
thorough application of legal principles. Procedural laws are the means to enforce substantive
laws.
Hence, there exist different types of procedural laws depending on the characteristics of
substantive laws.
Based on these, the procedural laws are primarily of two types:

Civil procedural laws or laws of civil procedure and
Criminal procedural laws or laws of criminal procedure
Laws of Civil Procedures
Laws of Civil Procedures comprise the rules, regulations and standards for the courts to follow
during the cases relating to civil matters and various civil trials.
These procedural laws govern how a civil suit or case should commence and the procedures
to be followed during the case.
They also dictate:
the nature of pleadings and statements of case, motions or applications;
available remedies for civil cases;
the orders to be passed in civil cases;
the limiting time for appeal and the manners of how the cases are to be disposed of;
the conduction of civil trials;
the process for passing judgement, and
how the courts, judicial officers and clerks must function.
Civil procedural laws determine the parties of any civil case. The parties for claims concerning
the civil actions by private individuals or groups, companies, organisations or institutions
against one another and in addition. The government in power or any of the subdivisions or
agencies of the government may also be parties to civil suits filed by private individuals or
groups.
Laws of Criminal Procedures
While substantive criminal laws deal with punishment for criminal offences against public and
private individuals. The laws of criminal procedure can be termed corollary where these laws
lay down the criminal procedures. These laws describe how criminal law should be applied
and its procedures.
Judicial proceedings intend to find out the true facts and establish guilt or innocence by
making the best use of the available pieces of evidence. Hence, criminal procedural laws also
govern the presentation of evidence, becoming witnesses for the criminal offence committed
and the documentation and establishment of offences through physical proof.
Limitations of procedural laws
Procedural laws have certain drawbacks and limitations.

Some of the procedural laws may impose strict time limitations which may either hasten or
slow down the speed of the legal proceedings.
Any party who is unfamiliar with procedural laws may breach the guidelines. Though they may
not affect the merits of the case, the failure to follow these guidelines may severely damage
the chances of the party.
Procedural laws are constantly torn between arguments that judges should have greater
discretion to avoid the rigidity of the rules. While the other argument is that the judges should
have less discretion in order to avoid a result based more on personal preferences than the
laws or the facts.
Differences between substantive laws and procedural laws
Topic Substantive laws Procedural laws
Substantive laws deal with the legal

rights and obligations of the Procedural laws describe the ways and methods
Subject matter
individuals among themselves and following which substantive law is enforced.
towards the state.
These laws control and govern the Procedural laws exclusively deal with the proceedings
Objective
rule of law as a whole. in the court and the methods to start a legal case.
Substantive laws are applied only in Procedural laws are applied in both legal and non-legal
Context of application
legal contexts. contexts including proceedings of litigation.
Substantive laws are regulated by

Regulation the Acts of Parliament or Procedural laws are regulated by statutory laws only.
governmental implementations.
Substantive laws have individual

Procedural laws only can dictate the paths any legal
Capacity capacities to decide the course of
proceeding should follow.
any legal proceedings.
Both substantive and procedural laws play an important role in administration of justice.
Substantive laws deal with the rights and obligations of the individual towards one another
and towards the state.
These laws also deal with the objectives and subject matters of the litigations. On the other
hand, procedural laws supervise and direct the proceedings of the litigation of any particular
case.
The substantive and procedural laws are complementary to each other. While substantive
laws explain the guiding rules and regulations as per law, procedural law describes how the
laws should be enforced. As rightly held by the Hon’ble Supreme Court and confirmed in
several of the cases, “A procedural law is always subservient to the substantive law.”
Municipal and International Law

Municipal Law is the law specific to a particular city or county (known legally as a
"municipality"), and the government bodies within those cities or counties. This can cover a
wide range of issues, including everything from police power, zoning, education policies, and
property taxes.
Bylaws: A set of rules by which a municipality conducts its business. Bylaws tend to govern
activities such as meetings, votes, record taking, and budgeting.
Land Use: Otherwise known as zoning, land use laws govern the purposes for which land may
be used.
Municipal Charter: A municipality's founding document.
Municipal Corporation: The legal structure assigned to a municipality which allows it to buy
and sell property, and sue or be sued.
Police Power: The legal term for the ability to use police to regulate the behavior of a
municipality's residents.
Ordinance: The technical term for the "law" issued by a municipality.

Land Use Laws: Municipalities are largely responsible to setting land use policy.
Real Estate: Property taxes and zoning issues, which affect real estate cases, are set by
municipalities.
Small Business: Many municipalities require small businesses to file local business licenses,
and zoning laws can affect where and how small businesses operate.
Taxes: Property taxes are usually set by a municipal taxing authority, and the city council often
decides what the municipality uses those taxes for.
Education Law: The local board of education is responsible for setting a large portion
of education policy.
Civil Rights: Local police, who must abide by civil rights laws, are employed by municipalities.
The municipalities typically pay any damages resulting from civil rights abuses at the hands of
police.
International law
International law, also called public international law or law of nations, the body of legal rules,
norms, and standards that apply between sovereign states and other entities that are legally
recognized as international actors. The term was coined by the English philosopherJeremy
Bentham
In principle, international law operates only at the international level and not within domestic
legal systems, a perspective consistent with positivism, which recognizes international law and
municipal law as distinct and independent systems.
Conversely, advocates of natural law maintain that municipal and international law form a
single legal system, an approach sometimes referred to as monism.
Such a system, according to monists, may arise either out of a unified ethical approach
emphasizing universal human rights or out of a formalistic, hierarchical approach positing the
existence of one fundamental norm underpinning both international law and municipal law.
According to Bentham’s classic definition, international law is a collection of rules governing

relations between states. It is a mark of how far international law has evolved that this original
definition omits individuals and international organizations, two of the most dynamic and vital
elements of modern international law.
Furthermore, it is no longer accurate to view international law as simply a collection of rules;

rather, it is a rapidly developing complex of rules and influential though not directly
bindingprinciples, practices, and assertions coupled with increasingly sophisticated structures
and processes.
International law consists of rules and principles governing the relations and dealings of
nations with each other, as well as the relations between states and individuals, and relations
between international organizations.
Public international law concerns itself only with questions of rights between several nations
or nations and the citizens or subjects of other nations. In contrast, private international
law deals with controversies between private persons. These controversies arise out of
situations which have a significant relationship to multiple nations.
In recent years the line between public and private international law has became increasingly
uncertain. Issues of private international law may also implicate issues of public international
law, and many matters of private international law have substantial international significance.
Domains of International Law
International Law includes the basic, classic concepts of law in national legal systems (i.e.
statutes, property law, tort law, etc). It also includes substantive law, procedural law, due
process, and remedies.
The following are major substantive fields of international law:

International economic law
International security law
International criminal law
International environmental law
Diplomatic law
International humanitarian law
International human rights law
Sources of International Law
Customary law and conventional law are primary sources of international law.
Customary international law results when states follow certain practices generally and
consistently out of a sense of legal obligation.
Recently the customary law was codified in the Vienna Convention on the Law of Treaties.
Conventional international law is derived from International conventions and may take any
form that the contracting parties agree upon. These contracting parties, however, may not
violate the rules of international law.
Similar to contract law in the United States, international agreements create law for the
parties of the agreement. Customary law and laws made by international agreements (such as
those passed by the United Nations) have equal authority as international law. Private or
public parties may assign higher priority to one of the sources by agreement.
General principles which are common to systems of national law can be a secondary source of
international law. There are situations where neither conventional nor customary
international law can be applicable. In these cases, a general principle may be invoked as a
rule of international law.
International law is a distinctive part of the general structure of international relations. In

contemplating responses to a particular international situation, states usually consider
relevant international laws.
Although considerable attention is invariably focused on violations of international law, states

generally are careful to ensure that their actions conform to the rules and principles of
international law, because acting otherwise would be regarded negatively by the
international community.
The rules of international law are rarely enforced by military means or even by the use of
economic sanctions.
Instead, the system is sustained by reciprocity or a sense of enlightened self-interest. States

that breach international rules suffer a decline in credibility that may prejudice them in future
relations with other states.
Thus, a violation of a treaty by one state to its advantage may induce other states to breach
other treaties and thereby cause harm to the original violator. Furthermore, it is generally
realized that consistent rule violations would jeopardize the value that the system brings to
the community of states, international organizations, and other actors.
This value consists in the certainty, predictability, and sense of common purpose in
international affairs that derives from the existence of a set of rules accepted by all
international actors. International law also provides a framework and a set of procedures for
international interaction, as well as a common set of concepts for understanding it.
Q & A Session

Unit 4 To 9 Legal Methods

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School of Law

Module: Legal Methods

Topic Details: Classification of laws:

A binding custom or practice of a community : a rule of conduct or action prescribed or

Civil Legal System

Common Legal System

Religious Legal System

Public and Private Law

Substantive and Procedural Law

Municipal and International Law

Civil Legal System

The essential features of the system are:

1) Civil Laws are a codified set of legal rules.

Branches of Civil Laws

Hierarchy of Civil Courts in India:

Common Legal System

History of Common Law

Religious Legal System

No religious instruction is imparted in government-supported schools. In S. R. Bommai vs.

Public and Private Law

Public law can be further divided into:

Further classification of private law is as follows:

Difference between Public and Private Law

S.NO. PUBLIC LAW PRIVATE LAW

2. Public law includes inter-relationships Private law includes participation among

This constitutional model exists to prevent the abuse of power.

Private law applies to any circumstances relating to relationships between individuals in a

Substantive and Procedural Law

Substantive and Procedural Law

Nature of substantive laws

The Substantive Laws are usually derived from:

Substantive civil laws

Some examples and functions of substantive civil laws in India include:

Substantive criminal laws

Limitations of substantive laws

Elements of substantive laws sometimes act as an obstacle to access to justice. Some

Nature of procedural laws

Sources of procedural laws

Types of procedural laws

Based on these, the procedural laws are primarily of two types:

Laws of Civil Procedures

Laws of Criminal Procedures

Limitations of procedural laws

Procedural laws have certain drawbacks and limitations.

Differences between substantive laws and procedural laws

Topic Substantive laws Procedural laws

Substantive laws deal with the legal

Substantive laws are regulated by

Substantive laws have individual

Municipal and International Law

Municipal Charter: A municipality's founding document.

Ordinance: The technical term for the "law" issued by a municipality.

According to Bentham’s classic definition, international law is a collection of rules governing

Furthermore, it is no longer accurate to view international law as simply a collection of rules;

Domains of International Law

The following are major substantive fields of international law:

Sources of International Law

International law is a distinctive part of the general structure of international relations. In