Fundamentals of Law

Definition of Law
The word ‘Law’ has been derived from the Teutonic word “Lag “ which means ‘definite’ - body of rules of conduct enforced by controlling authority.

Law is a definite rule of behaviour which is backed by the sovereign power of the State. It is the general rule of human conduct in society which is
made and enforced by the government. The violation of which is subject to punishment by the state.

History of the Law

The history of the law links closely to the development of civilization.
Ancient Egyptian law (dating back 3000 BC) contained a civil code in twelve books. It was based on the concept of Ma'at i.e. characterized as social
equality and impartiality.
By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements ("if …
then ...").

Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code
throughout the kingdom of Babylon for the entire public to see. This became known as the “Codex Hammurabi” and was discovered in the 19th century by British
Assyriologists, and has since been fully translated into various languages, including English, Italian, German, and French.

The Old Testament dates back to 1280 BC takes the form of moral imperatives as recommendations for a good society.

 Roman law was heavily influenced by Greek philosophy.

 Its detailed rules were developed by professional jurists and were highly sophisticated.
 This law was adapted to cope with the changing social situations and underwent major codification under Theodosius II and
Justinian I.
 Although codes were replaced by custom and case law during the Dark Ages, Roman law was rediscovered around the
11th century when medieval legal scholars began to research Roman codes and adapt their concepts.
 In medieval England, royal courts developed a body of precedent which later became the common law.
 But the Napoleonic and German Codes became the most influential. In contrast to English common law, which consists of
enormous tomes of case law, these codes are in a small books and easy to export as well as for judges easy to apply.
 EU law is codified in treaties, but develops through the precedent laid down by the European Court of Justice.
 Ancient India and China represented distinct traditions of law and had historically independent schools of legal theory and
practice.
 The Arthashastra (Compiled around 100 AD) and the Manusmriti (Compiled 100–300 AD) were foundational treatises in
India and comprise texts considered as authoritative legal guidance.
 Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.
 This Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British
Empire.
 Remarkably, the Constitution of India is the longest written constitution for a country, containing 444 articles, 12
schedules, numerous amendments and 117,369 words.
 The Eastern Asia Legal tradition reflects a unique blend of secular and religious influences.
 Japan was the first country to begin modernizing its legal system along western lines, by importing bits of the French, but
mostly the German Civil Code.
 Similarly, traditional Chinese Law gave way to westernization towards the final years of the Qing Dynasty in the form of six
private law codes based mainly on the Japanese model of German law.
 The current legal infrastructure in the People's Republic of China was heavily influenced by Soviet Socialist Law. Due to
rapid industrialization, today China is undergoing a process of reform, at least in terms of economic, social and political
rights.
 In Turkey, during the Ottoman Empire, the legal system was “Sharia” like other Muslim countries.
 A committee headed by Ahmet Cevdet Pasha in 1877 compiled the rules of Sharia.
 After the proclamation of Turkish Republic on 29 October 1923, Turkey began to adopt modern laws.
 The Turkish parliament formed a committee to compare the civil codes of European countries. Finally on 25 December
1925 the commission decided on the Swiss civil code as a model for the Turkish civil code. Finally, the Turkish Civil Code
was enacted on 17 February 1926.
 The preamble to the Code was written by Mahmut Esat Bozkurt, the minister of justice in the 4th government of Turkey.
  Although the Code covered many areas of modern living, the most important articles dealt with women’s rights. For the
first time women and men were acknowledged to be equal. Also legal marriage was made compulsory and polygamy was
banned. The women were given the right to choose any profession.

Features of Law
 Law is a general rule of human behaviour in the state. It applies to all people of the state. Even an aliens living in the territory of the
State are also bound by the laws of the state.
 All disputes among the people are settled by the courts on the basis of an interpretation and application of the laws of the State.
 Rule of law, equality before law and equal protection of law are recognized as the salient features of a modern legal system and liberal
democratic state.
 The purpose of Law is to provide peace, protection, and security to the people . It also provides protection to the rights and freedoms
of the people.
 Law is a command of the sovereign. It is made by the representatives of the people who constitute the legislature of the State. Laws are
backed by public opinion and public needs.
 Sovereignty of State is the basis of law and its binding character.

Function of Law
According to Holland, “the function of law is to ensure the well-being of the society”.

 Roscoe Pound attributed four major functions of law, namely:

1) maintenance of law and order in society;
2) maintain status quo (Stability) in society;
3) ensure maximum freedom of individuals; and
4) satisfy the basic needs of the people.

Moreover, he treats law as a species of social engineering.

 So, the fundamental functions of law are:

 Regulates conduct
 Avoids or Settles disputes
 Set out rights and obligations
 Provides remedies: ubi jus ibi remedium
 Maintains Order & provides protection
 Sets up the structure of government i.e. Constitution
 Directs how to make laws i.e. the Parliament.

Types of Law

Broadly speaking there are two main kinds of Law:

1. National Law i.e. the body of rules which regulates the actions of the people in society and it is backed by the coercive power of the State.

2. International Law i.e. the body of rules which guides and directs the behaviour of the states in international relations. It is backed by their
willingness and consent of that states to obey the rules of International Law. It is a law among nations and is not backed by any coercive
power.

National Law can be classified as: Constitutional Law and Ordinary Law:
 Constitutional Law: Constitutional Law is the supreme law of the country. The Constitutional Law lays down the organization, powers, functions and inter-
relationship of the three organs of government. It also lays down the relationship between the people and the government as well as the rights, freedoms
and duties of the citizens.
  Statute Law or Ordinary Law: It is also called the national law or the municipal law. It is made by the legislature and it determines and regulates the
conduct and behaviour of the people. Actually, legislature makes these laws, executive implements these and judiciary interprets and applies these to
specific cases.

Ordinary Law is classified into two parts: Private Law and Public Law.
 Private Law: Private Law regulates the relations among individuals. It lays down rules regarding the conduct of the individual in society
and the relations with other persons. E.g. Law of person, Law of property, Inheritance law.

 Public Law: The law which regulates the relations between the individual and the State is Public Law. It is made and enforced by the
State on behalf of the community. E.g. Criminal Law, Tax Law, Administrative law.

Other Types of Law

 Substantive Law: It defines the rights and duties of parties and provides remedies when those rights are violated e.g. law of contract,
negligence, defamation.  It defines offences and prescribes punishment e.g. Penal Code Cap 63.

 Procedural Law: It consists of the steps or guiding principles or rules of practice to be complied with or followed in the administration of
justice or in the application of substantive law. It is also referred to as adjective law e.g. Criminal Procedure code Cap 75, civil procedure
Act Cap 21

 Criminal Law: has been defined as the law of crimes.  A crime has been defined as an act or omission, committed or omitted in violation
of public law egg murder, manslaughter, robbery, burglary, rape, stealing, theft by servant or agent. Offences are generally prosecuted by
the state through the office of the Attorney General. The standard of proof in criminal cases is beyond any reasonable doubt.   In the
event of any reasonable doubt the accused is set free (acquitted). The court must be satisfied that the accused committed offence as
charged. 

 Civil Law: is concerned with violations of private rights in their individual or corporate capacity egg breach of contract, negligence,
defamation, nuisance, passing off trespass to the person or goods. If a person’s private rights are violated, the person has a cause of
action.  The person whose rights have been allegedly violated sues the alleged wrong doer. 

Legal Systems Of The World

The following is a list of the five major legal systems used throughout the world:

 Civil Law. the most widespread legal system in the world. The distinguishing feature of the civil law system is that its legal
authority is organized into written codes. The civil law system is derived from Roman law and is found in much of
continental Europe, Central America, South America, and several other regions.

 Common Law. In contrast to the codified laws of the civil law system, doctrines and rules developed over time by judges serve as
"legal precedent" in the common law system. The common law system is derived from the English common law and is found in many
parts of the English speaking world such as Australia, Canada, England, the United States, Wales, and other countries.

 Customary Law. rooted in the customs of a community. Customs may be unwritten but it can govern social relations and widely
accepted by the community's members. Customary law systems are found in Africa, the Pacific Islands, and elsewhere.

 Religious Law. The religious law system is a legal system that is based on religious beliefs or texts. Islamic law (or Sharia law) is the
most widespread religious law system, and it governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among Muslim countries.

 Mixed Law. Mixed law refers to a combination of elements of the legal systems described above. In the United States, the most
noteworthy mixed law system is found in the State of Louisiana, which has elements of both civil law and common law.

The Republic of Turkey has a civil law legal system.

 Under the Turkish Constitution, the Grand National Assembly is the supreme legislative authority and can create or abolish any law.
 All state power is derived from the Constitution.
  Sovereignty belongs to the nation without any reservation or condition and is exercised through competent organizations in compliance
with the principles set out in the Constitution.
 The assembly is composed of 600 deputies elected from 81 provinces and 85 electoral districts.

Sources of Law

General Concepts
 The term "Sources of law" means the origin from which rules of human conduct came into existence.
 The term has been used in different senses by different writers and different views have been expressed from time to time.
 According to Keeton “Source means the material, out of which is eventually fashioned, through the activity of judges”.
 Oppenheim defines source of law as “The name for a historical fact out of which the rules of conduct came into existence and acquire
legal force”.

Kinds of Sources of law:

Sources of law may be classified into –
1. Formal Sources
2. Material Sources

Formal sources
The formal sources law also be called the Actual or ultimate Sources of law.
 According to Sir John Salmond, “The sources from which a rule of law derives its force and validity”.
 This source of law includes:-
1. Will of the State
2. Will of the People
3. Judicial decisions of the court

Material Sources
- are those which gives the matter or content of a principal of law.
 Material sources deal with the substance, elements or constituent material of law.
 It also tells us what is contained in the law.
 According to Salmond, material sources are of two kinds: Historical Sources and Legal Sources

Historical Sources

Historical Sources of law expresses the history or evolution for the principal of law and the circumstances through which
it attained the form of law.
 These Sources are not authoritative and have no legal recognition.
 They have only persuasive value.
 Historical Sources may become legal if they are recognized by law.
 Example: Work of H. L. A Hart is a Historical Source.
 These sources basically help us to know the historical significance and the need for such development of law.
 They operate indirectly. Under this class, juristic writings, foreign decisions and numerous other things from which a judge derives help
in shaping his judgment.
Legal Sources
Legal sources are considered as the most significant sources of law.

 Basically, legal sources are the sources by which legal rules are formed.
 These are considered as one of the primary and important organs for the development of legal rules.
 It is the authentic source for the formation of law.
 Legal sources are even followed in the courts when some decision has to be pronounced.
 These sources serve the basis for the formation of laws.

Salmond has classified the Legal Sources of English Law into four divisions:
1. Legislations
2. Precedent
3. Customs
4. Agreement, Treaties and Conventions

Legislations
 It is considered to be one of the primary sources of law.
 ‘Legis’ means regulation and ‘latum’ means making. Generally refers to law making.
 According to Salmond “Legislation is that source of law which consists the declaration of legal rules by a competent
authority”
 John Austin says “There may be no law without a legislative act.”

Kinds of Legislations

 Supreme legislation: An ultimate legislation is that which proceeds from the sovereign strength of the nation. It
cannot be repealed, annulled or managed via another legislative authority. For example, Parliament.

 Subordinate legislation: It proceeds from any authority aside from the sovereign power and is dependent for
its persistent existence and validity on some superior authority. For example, Rules made by administrative
authority.

Precedent
Judicial precedent makes a previous decision of one court be binding on a lower court.

 The concept of stare decisis plays a role here.

 In other words, if a higher court has decided on a case and another similar case comes up at a lower court, the lower court will treat the
case alike and pass the judgment exactly as like done by the higher court.
 This is because the previous judge had set a precedent for the lower court and the lower court is bound to follow the precedent as such
as it was decided earlier by the higher court

The key principles of Judicial Precedent are:

 Consistency
 Hierarchy
 Bound by its own decision

Customs
 Customs is the general practices of a society.
 Custom can be a great source of law.
 When a law comes from the customs, it is called as customary law.
  Conditions of a valid Custom:
 Antiquity
 Continuous in nature.
 Peaceful Enjoyment
 Obligatory Force
 Certainty
 Consistency
 Reasonableness

Agreement, Treaties and Convention

Treaties and conventions are the persuasive source of global law.
 Treaties can play the role of contracts between two states. Example: Extradition Treaty.
 Treaties also can be a law to adjust a specific thing of international family members or form the constitutions of worldwide agencies.
 Whether or not or not all treaties can be regarded as resources of law, they’re assets of obligation for the parties to them.

Rights
 Right refers to entitlement to do or possess something with justice and due process.
 Rights are the fundamental normative rules about what is allowed to people according to some legal system, social
convention, or ethical theory.
 Rights are often considered fundamental to civilization as they are established the pillars of society and culture.
 According to the Stanford Encyclopedia of Philosophy, "rights structure the form of governments, the content of laws,
and the shape of morality as it is currently perceived“.
 In simple words, rights are the common claims of people which every civilized society recognizes which are enforced by
the state.
 Rights are those conditions of social life without which no man can seek in general, to be himself at his best.” -Laski
 So, Rights are common and recognized claims of the people which are essential for their development as a human beings.

Features of Rights are:

1. Rights exist only in society and these are the products of social living.
2. Rights are claims of the individuals for their development in society.
3. Rights are recognized by the society as common claims of all the people.
4. Rights cannot be exercised against the society.
5. Rights are equally available to all the people.
6. Rights are not absolute. Limitations can be maintained for public health, security, order and morality.
7. Rights are inseparably related with duties. “No Duties Ho Rights. No Rights No Duties.” “If I have rights it is my duty to
respect the rights others in society”.
8. Rights are protected and enforced by the laws of the state and it is the duty of a state to protect the rights of the people.

Types of Right

Natural Rights

 Generally, people inherit these rights from nature.

 Before they came to live in society and state, they used to live in a state of nature.
 Example: Right to life, right to liberty and right to property.
 Natural rights are parts of human nature and reason.
 However, several other scholars regard the concept of natural rights as imaginary since rights are the products of social living and these
can be used only in a society.
Moral Rights
Moral Rights are those rights which are based on human consciousness.
 They are backed by moral force of human mind like sense of goodness and justice.
 These are not backed by the force of law.
 If any person violates any moral right, no legal action can be taken against him. The state does not enforce these rights
and courts do not recognize these rights.
 Moral Rights include rules of good conduct, courtesy and moral behaviour.

Legal rights
 Legal rights are those rights which are recognized and enforced by the state.
 Any violation of any legal right is punished by law and courts of the state enforce legal rights.
 These rights can be enforced against individuals as well as the government.
 Legal rights are equally available to all the citizens. All citizens enjoy legal rights without any discrimination.

Other Types
 Individual Rights: These rights held by individual people regardless of their group membership. Example: Right to take
own profession.
 Group Rights: These rights have been granted to a group. Example: Right to Procession.

Human Rights
 Human rights are the basic rights and freedoms that belong to every person in the world from birth until
death. 
 They can never be taken away but sometimes can be restricted.
 They are equally applicable everywhere and at every time as these are universal.
 1st sentence of the Preamble to the United Nations Universal Declaration of Human Rights (UDHR) said “All
human beings are born free and equal in dignity and rights”. (Article 1 of the Universal Declaration of Human
Rights)

Classification of Human Rights

 Human rights can be classified in several different ways.
 At international level, the most common categorization of human rights are : Civil and political rights and Economic, social
and cultural rights.
 Civil and political rights are enshrined in articles 3 to 21 of the Universal Declaration of Human Rights (UDHR) and in the
International Covenant on Civil and Political Rights (ICCPR).
 Economic, social and cultural rights are enshrined in articles 22 to 28 of the Universal Declaration of Human Rights (UDHR)
and in the International Covenant on Economic, Social and Cultural Rights (ICESCR).

History of the Human Rights

The earliest concept of human rights emerged from natural law.
 The first recording of human rights were inscribed by Cyrus the Great (the founder of the Achaemenid Empire) into the
Cyrus Cylinder. The Cyrus Cylinder is a clay tablet created in 539 B.C. it stated the freedom to practice one's faith without
persecution and forced conversions.
  The Mauryan Emperor Ashoka ruled from 268 to 232 BC and established the largest empire in South Asia. Following the
reportedly destructive Kalinga War, Ashoka adopted Buddhism and abandoned an expansionist policy in favor of
humanitarian reforms. The Edicts of Ashoka were erected throughout his empire, containing the “Law of Piety”. These laws
prohibited slavery, religious discrimination, and cruelty against both humans and animals.

History of the Human Rights

Later documents of human rights are:
 Constitution of Medina (622),
 Al-Risalah al-Huquq (late 7th to early 8th century), Magna Carta (1215),
 The German Peasants' War Twelve Articles (1525),
 The English Bill of Rights (1689),
 The French Declaration of the Rights of Man and of the Citizen (1789), and
 The Bill of Rights in the United States Constitution (1791).

History of the Human Rights 16th–18th Century

In 1689, the English Bill of Rights and the Scottish Claim of Right made illegal in Britain oppressive governmental
actions.
 In 17th-century English philosopher John Locke discussed natural rights.
 He identified “life, liberty, and estate (property)” as fundamental rights.
 By this time, two major revolutions occurred during the 18th century in the United States (1776) and in France (1789),
leading to the United States Declaration of Independence and the French Declaration of the Rights of Man and of the
Citizen respectively, and both of which articulated certain human rights.
 Additionally, the Virginia Declaration of Rights, 1776 encoded a number of fundamental civil rights and civil freedoms.
 These were followed by some philosophers i.e. Thomas Paine, John Stuart Mill and G.W.F. Hegel during the 18th and 19th
centuries.

History of the Human Rights (19th Century)

In the 19th century, human rights became a central concern over the issue of slavery.
 A number of reformers (notably British Member of Parliament William Wilberforce) worked towards the abolition of the
Atlantic slave trade and abolition of slavery.
 This was achieved across the British Empire by the Slave Trade Act 1807, which was enforced internationally by the Royal
Navy and the Slavery Abolition Act 1833.
 In the United States, all the northern states had abolished the institution of slavery between 1777 and 1804.
 In Russia, the reformer Tsar Alexander II ended serfdom in 1861 .
 In Europe and North America, labour unions brought about laws granting workers the right to strike, establishing
minimum work conditions and forbidding or regulating child labour.
History of the Human Rights (20th Century)
 The World Wars caused huge losses of life and gross abuses of human and these were a driving force behind the
development of modern human rights instruments.
 The League of Nations was established in 1919 at the negotiations over the Treaty of Versailles following the end of World
War I. The League's goals included disarmament, preventing war through collective security, settling disputes between
countries through negotiation and diplomacy, and improving global welfare. Later these were included in the Universal
Declaration of Human Rights.
 Under the 1945 Yalta Conference, the United Nations was established. It has played an important role to develop the
international human-rights law since its creation.
 Following the World Wars II, the United Nations and its members developed International humanitarian law and
international human rights law.

Cairo Declaration on Human Rights (CDHR) in Islam

  It was signed by member states of the OIC in 1990 at the 19th Conference of Foreign Ministers held in Cairo, Egypt.
 The object of the CDHR was to “serve as a guide for member states on human rights issues”.
 CDHR translated the Qur'anic teachings as follows: “All men are equal in terms of basic human dignity and basic obligations
and responsibilities, without any discrimination on the basis of race, colour, language, belief, sex, religion, political
affiliation, social status or other considerations”.

Universal Declaration of Human Rights (UDHR)

This historic document was adopted by the United Nations General Assembly at its third session on 10 December 1948
as Resolution 217 in Paris, France.
 Of the then 58 members of the United Nations, 48 voted in favor, none against, eight abstained, and two did not vote.
 The Declaration consists of 30 articles affirming an individual's rights which, although not legally binding in themselves,
have been elaborated in subsequent international treaties, economic transfers, regional human rights instruments,
national constitutions, and other laws.
 The Declaration was the first step in the process of formulating the International Bill of Human Rights, which was
completed in 1966, and came into force in 1976, after a sufficient number of ratification.

History of UDHR
During World War II, the Allies adopted the Four Freedoms as their basis of war. Which are : freedom of speech,
freedom of religion, freedom from fear, and freedom from want.
 The United Nations Charter reaffirmed faith in fundamental human rights and dignity, and worth of the human person . It
committed all member states to promote “universal respect for, and observance of human rights and fundamental
freedoms for all without distinction as to race, sex, language, or religion”.
 In June 1946, the UN Economic and Social Council established the Commission on Human Rights, comprising 18 members
from various nationalities and political backgrounds.
 The Commission was constituted to undertake the work of preparing the International Bill of Rights.
 The Commission established a special Universal Declaration of Human Rights Drafting Committee chaired by Eleanor
Roosevelt to write the articles of the Declaration. The Committee met in two sessions over the course of two years.
 Canadian John Peters Humphrey became the Declaration's principal drafter.
 Other well-known members of the drafting committee included René Cassin of France, Charles Malik of Lebanon, and P.
C. Chang of the Republic of China (Taiwan).
 Once the Committee finished its work in May 1948, the draft was further discussed by the Commission on Human Rights,
the Economic and Social Council. During these discussions many amendments and propositions were made by UN Member
States.
 The Universal Declaration was adopted by the General Assembly as Resolution 217 on 10 December 1948.
 The Declaration of Human Rights Day is commemorated every year on December 10, the anniversary of the adoption of
the Universal Declaration, and is known as Human Rights Day or International Human Rights Day.

Structure and Content of UDHR

The Declaration consists of a preamble and thirty articles:
 The preamble sets out the historical and social causes that led to the necessity of drafting the Declaration.
 Articles 1–2 established the basic concepts of dignity, liberty, equality, and brotherhood.
 Articles 3–11 established other individual rights, such as the right to life and the prohibition of slavery, as well as a
universal freedom of speech.
 Articles 6–11 refer to the fundamental legality of human rights with specific remedies cited for their defence when
violated.
 Articles 12–17 established the rights of the individual towards the community (freedom of movement).
  Articles 18–21 sanctioned the so-called "constitutional liberties", and with spiritual, public, and political freedoms, such as
freedom of thought, opinion, religion and conscience, word, and peaceful association of the individual.
 Articles 22–27 sanctioned an individual's economic, social and cultural rights, including healthcare.
 Articles 28–30 established the general ways of using these rights, the areas in which these rights of the individual can not
be applied.

Legal Effect of UDHR

 The Universal Declaration of Human Rights is a fundamental constitutive document of the United Nations.
 The Declaration forms a part of customary international law and is a powerful tool in applying diplomatic and moral
pressure to governments that violate any of its articles.
 The 1968 United Nations International Conference on Human Rights advised that the “Declaration constitutes an
obligation for the members of the international community to all persons”.
 The Declaration has served as the foundation for two binding UN human rights covenants i.e. The International Covenant
on Civil and Political Rights and The International Covenant on Economic, Social and Cultural Rights.
 The principles of the Declaration are elaborated in other international treaties such as:
 The International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the
Elimination of Discrimination Against Women, the United Nations Convention on the Rights of the Child, the United Nations
Convention Against Torture, and many more.

The International Bill of Human Rights

 It was the name given to UN General Assembly Resolution 217 (III) and two international treaties established by the
United Nations.
 It consists of the Universal Declaration of Human Rights (adopted in 1948), the International Covenant on Civil and
Political Rights (ICCPR, 1966) with its two Optional Protocols and the International Covenant on Economic, Social and
Cultural Rights (ICESCR, 1966).
 The two covenants entered into force in 1976.

Other Global Human Rights Instruments

 United Nations Charter
 Universal Declaration of Human Rights
 The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR), 1966.
 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (adopted 1979, entry into force:
1981)
 Convention on the Elimination of All Forms of Racial Discrimination (CERD) (adopted 1966, entry into force: 1969)
 Convention on the Rights of Persons with Disabilities (CRPD) (adopted 2006, entry into force: 2008)
 Convention on the Rights of the Child (CRC) (adopted 1989, entry into force: 1989)
 United Nations Convention Against Torture (CAT) (adopted 1984, entry into force: 1987)
 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW or
more often MWC) (adopted 1990, entry into force: 2003)