CS EXECUTIVE – NEW SYLLABUS
JURISPRUDENCE, INTERPRETATION AND
GENERAL LAWS
CHAPTERS:
1. SOURCES OF LAW
2. CONSTITUTION OF INDIA
3. CIVIL PROCEDURE
4. CRIMINAL PROCEDURE CODE
5. EVIDENCE ACT
6. LIMITATION ACT
7. INDIAN STAMP ACT,1899
8. REGISTRATION ACT,1908
9. ARBITRATION AND CONCILIATION
ACT,1996
LESSON 1: SOURCES OF LAW
INTRODUCTION –
, There is no universal or uniform definition of law, since jurists at various
times and places have made their approaches to the study of law from different
angles. They have defined law, determined its sources and nature and discussed its
purpose and ends. This systematic thought about law is termed ‘legal theory’ or
‘jurisprudence’ (knowledge of law).
Jurisprudence teaches the fundamentals of law and trains the mind into legal
way of thought. since there is no specific definition of law, for the purpose of
clarity and better understanding of the nature and meaning of law, it has been
classified into 5 broad classifications:
I) NATURAL SCHOOL
The Greek and Roman thinkers developed the idea of natural law. This school
considered law to have emanated from some supreme source (other than any
political or worldly authority). Various definitions from the propounders of this
school reflects a perpetual quest for absolute justice. The idea of justice has
always been present in the Hindu concept of law – Dharma.
II) POSITIVIST SCHOOL
The chief exponent of this school was the English Jurist, John Austin. It
considers law as it is and not as it ought to be. This viewpoint is based on two
principles:
a. law Is the command of the sovereign
b. such command imposes a duty and is backed by sanction (punishment)
Kelson proposed a ‘pure theory of law’ i.e a theory that is free from social,
historical, political, etc. influences. According to him, law is a ‘normative science’
and all the norms derive their powers from the ultimate norm- Grundnorm
e.g In Indian context, laws need to be evaluated on the touchstone of the
Constitution in order to be declared as a valid law. Therefore, it is widely believed
that Constitution of India qualifies as the grundnorm in India.
III) HISTORICAL SCHOOL
The founder of this school was Savigny according to whom ‘law is the spirit of
the people (Volkgeist)’ i.e custom. He strongly opined that custom is superior to
legislation. Henry Maine introduced comparative and anthropological approaches
to study law. According to him ‘The word ‘law’ has come down to us in close
association with two notions, the notion of order and the notion of force.’
IV) SOCIOLOGICAL SCHOOL
Roscoe Pound’s sociological jurisprudence placed a lot of importance on the
study of law in its direct relationship to the society. According to him law was a
tool to harmonize social interest that may be in conflict. Social engineering
1
,through law, therefore, could be used to harmonize these conflicting interest so as
to satisfy maximum wants.
V) REALIST SCHOOL
Realist school is a fine amalgam of positivist school and sociological school of
law. Oliver Holmes was a great jurist who laid the foundation of ‘Legal Realism’.
As per this school, law is not a species of rules but, law is what the courts do.
Courts put life in the dead words of statue which mean nothing until the court
illuminates it.
Following are the main characteristics of law and a definition to become
universal one, must incorporate all these elements:
– Law pre-supposes a State
– The State makes or authorizes to make, or recognizes or sanctions rules which
are called law
– For the rules to be effective, there are sanctions behind them
–These rules (called laws) are made to serve some social purpose.
Such laws may be :
a. Mandatory – such laws call for an affirmative act. E.g payment of taxes
b. Prohibitive – it calls for a prohibitive conduct. E.g prohibition on
carrying of a concealed weapon
c. Permissive – it allows certain conduct on the part of the individual.
SIGNIFICANCE OF LAW –
Law is must in order for a society to be peaceful and problem-free. Law is
something that the human has created to modulate the socirty by introduction of
justice, fairness and equality that is set by the courts and the governments and is
applied to everyone within their jurisdiction. The object of law is order which in
turn provides hope of security for the future. Law is expected to provide socio-
economic justice and remove the existing imbalances in the socio-economic
structure and to play special role in the task of achieving various socio-economic
goals enshrined in our Constitution. It has to serve as a vehicle of social change
and as a harbinger of social justice.
SOURCES OF LAW –
The various sources of law falls under the following two heads:
I) Principle sources of law
II) Secondary sources of law
PRINCIPLE SOURCES OF LAW –
2
, A. custom or customary law
in the early stages of society, the customs were the most important source of law.
Custom may be defined as a binding rule of conduct, established by a long usage,
which is obligatory to observe on the part of the persons who come within its
spheres.
Features of custom/ Requisites of valid custom –
a. Antiquity: A custom to be recognized as law must be proved to be in existence
from time immemorial. English law fixed the year 1189 to test the antiquity of
custom. Under Hindu Law also immemorial customs are transcendental law.
However, Hindu law does not fix any year to test the antiquity of custom.
b. Certainty: The custom must be certain and definite, and must not be vague and
ambiguous.
c. Reasonableness: A custom must be reasonable. It must be useful and
convenient to the society
d. Compulsory observance: a custom must be practiced without interruption.
Continuity is an essential feature of custom.
e. Conformity with law: A custom must not be opposed to morality or public
policy nor must it conflict with statute law.
f. Unanimity of opinion: The custom must be general or universal. If practice is
left to individual choice, it cannot be termed as custom.
g. Peaceable enjoyment: The custom must have been enjoyed peaceably without
any dispute in a law court or otherwise.
h. Consistency: There must be consistency among the customs. Custom must not
come into conflict with the other established customs.
Classification of customs –
The customs in their wider sense may be divided into :
1. customs without sanction are those customs which are non-obligatory and are
observed due to the pressure of public opinion. These are called as “positive
morality”.
2. Customs having sanction are those customs which are enforced by the State.
These may be divided into two classes:
(i)Legal : These customs operate as a binding rule of law. They have been
recognized and enforced by the courts. Legal customs are again of two kinds:
(a) Local Customs - Local custom is the custom which prevails in some definite
locality and constitutes a source of law for that place only. Local customs may be
divided into two classes:
3
JURISPRUDENCE, INTERPRETATION AND
GENERAL LAWS
CHAPTERS:
1. SOURCES OF LAW
2. CONSTITUTION OF INDIA
3. CIVIL PROCEDURE
4. CRIMINAL PROCEDURE CODE
5. EVIDENCE ACT
6. LIMITATION ACT
7. INDIAN STAMP ACT,1899
8. REGISTRATION ACT,1908
9. ARBITRATION AND CONCILIATION
ACT,1996
LESSON 1: SOURCES OF LAW
INTRODUCTION –
, There is no universal or uniform definition of law, since jurists at various
times and places have made their approaches to the study of law from different
angles. They have defined law, determined its sources and nature and discussed its
purpose and ends. This systematic thought about law is termed ‘legal theory’ or
‘jurisprudence’ (knowledge of law).
Jurisprudence teaches the fundamentals of law and trains the mind into legal
way of thought. since there is no specific definition of law, for the purpose of
clarity and better understanding of the nature and meaning of law, it has been
classified into 5 broad classifications:
I) NATURAL SCHOOL
The Greek and Roman thinkers developed the idea of natural law. This school
considered law to have emanated from some supreme source (other than any
political or worldly authority). Various definitions from the propounders of this
school reflects a perpetual quest for absolute justice. The idea of justice has
always been present in the Hindu concept of law – Dharma.
II) POSITIVIST SCHOOL
The chief exponent of this school was the English Jurist, John Austin. It
considers law as it is and not as it ought to be. This viewpoint is based on two
principles:
a. law Is the command of the sovereign
b. such command imposes a duty and is backed by sanction (punishment)
Kelson proposed a ‘pure theory of law’ i.e a theory that is free from social,
historical, political, etc. influences. According to him, law is a ‘normative science’
and all the norms derive their powers from the ultimate norm- Grundnorm
e.g In Indian context, laws need to be evaluated on the touchstone of the
Constitution in order to be declared as a valid law. Therefore, it is widely believed
that Constitution of India qualifies as the grundnorm in India.
III) HISTORICAL SCHOOL
The founder of this school was Savigny according to whom ‘law is the spirit of
the people (Volkgeist)’ i.e custom. He strongly opined that custom is superior to
legislation. Henry Maine introduced comparative and anthropological approaches
to study law. According to him ‘The word ‘law’ has come down to us in close
association with two notions, the notion of order and the notion of force.’
IV) SOCIOLOGICAL SCHOOL
Roscoe Pound’s sociological jurisprudence placed a lot of importance on the
study of law in its direct relationship to the society. According to him law was a
tool to harmonize social interest that may be in conflict. Social engineering
1
,through law, therefore, could be used to harmonize these conflicting interest so as
to satisfy maximum wants.
V) REALIST SCHOOL
Realist school is a fine amalgam of positivist school and sociological school of
law. Oliver Holmes was a great jurist who laid the foundation of ‘Legal Realism’.
As per this school, law is not a species of rules but, law is what the courts do.
Courts put life in the dead words of statue which mean nothing until the court
illuminates it.
Following are the main characteristics of law and a definition to become
universal one, must incorporate all these elements:
– Law pre-supposes a State
– The State makes or authorizes to make, or recognizes or sanctions rules which
are called law
– For the rules to be effective, there are sanctions behind them
–These rules (called laws) are made to serve some social purpose.
Such laws may be :
a. Mandatory – such laws call for an affirmative act. E.g payment of taxes
b. Prohibitive – it calls for a prohibitive conduct. E.g prohibition on
carrying of a concealed weapon
c. Permissive – it allows certain conduct on the part of the individual.
SIGNIFICANCE OF LAW –
Law is must in order for a society to be peaceful and problem-free. Law is
something that the human has created to modulate the socirty by introduction of
justice, fairness and equality that is set by the courts and the governments and is
applied to everyone within their jurisdiction. The object of law is order which in
turn provides hope of security for the future. Law is expected to provide socio-
economic justice and remove the existing imbalances in the socio-economic
structure and to play special role in the task of achieving various socio-economic
goals enshrined in our Constitution. It has to serve as a vehicle of social change
and as a harbinger of social justice.
SOURCES OF LAW –
The various sources of law falls under the following two heads:
I) Principle sources of law
II) Secondary sources of law
PRINCIPLE SOURCES OF LAW –
2
, A. custom or customary law
in the early stages of society, the customs were the most important source of law.
Custom may be defined as a binding rule of conduct, established by a long usage,
which is obligatory to observe on the part of the persons who come within its
spheres.
Features of custom/ Requisites of valid custom –
a. Antiquity: A custom to be recognized as law must be proved to be in existence
from time immemorial. English law fixed the year 1189 to test the antiquity of
custom. Under Hindu Law also immemorial customs are transcendental law.
However, Hindu law does not fix any year to test the antiquity of custom.
b. Certainty: The custom must be certain and definite, and must not be vague and
ambiguous.
c. Reasonableness: A custom must be reasonable. It must be useful and
convenient to the society
d. Compulsory observance: a custom must be practiced without interruption.
Continuity is an essential feature of custom.
e. Conformity with law: A custom must not be opposed to morality or public
policy nor must it conflict with statute law.
f. Unanimity of opinion: The custom must be general or universal. If practice is
left to individual choice, it cannot be termed as custom.
g. Peaceable enjoyment: The custom must have been enjoyed peaceably without
any dispute in a law court or otherwise.
h. Consistency: There must be consistency among the customs. Custom must not
come into conflict with the other established customs.
Classification of customs –
The customs in their wider sense may be divided into :
1. customs without sanction are those customs which are non-obligatory and are
observed due to the pressure of public opinion. These are called as “positive
morality”.
2. Customs having sanction are those customs which are enforced by the State.
These may be divided into two classes:
(i)Legal : These customs operate as a binding rule of law. They have been
recognized and enforced by the courts. Legal customs are again of two kinds:
(a) Local Customs - Local custom is the custom which prevails in some definite
locality and constitutes a source of law for that place only. Local customs may be
divided into two classes:
3
