File Name: law and social justice in india creator.zip
- India : legal resources: Legal system
- ICTs as a catalyst for social justice? A Capabilities Perspective
- Rule of Law and Democracy: Addressing the Gap Between Policies and Practices
The following texts provide an introduction in English to Indian Law and can be found in the Law Library:. India became an independent democratic republic in and its constitution , which came into force on 26 th November , is the supreme law.
A little incursion into law-making interstitially, as Holmes put it, may be permissible. The traditional role of the Judge has been envisaged as that of an impartial arbiter who hears the forensic debate before him and renders judgment without ever stepping into the arena of debate. The legitimacy of such actions needs critical appraisement at the hands of the legal fraternity, even at the risk of unpopularity by swimming against the tide. Judges making positive law. Although, the underlying debate on judicial activism has been around since the days of Blackstone and Bentham, 3 the credit belongs to a non-lawyer Arthur Schlesinger Jr.
India : legal resources: Legal system
Law is a system of rules created and enforced through social or governmental institutions to regulate behavior,  with its precise definition a matter of longstanding debate. Private individuals may create legally binding contracts , including arbitration agreements that adopt alternative ways of resolving disputes to standard court litigation.
The creation of laws themselves may be influenced by a constitution , written or tacit, and the rights encoded therein. The law shapes politics , economics , history and society in various ways and serves as a mediator of relations between people.
Legal systems vary between countries, with their differences analysed in comparative law. In civil law jurisdictions , a legislature or other central body codifies and consolidates the law.
In common law systems, judges make binding case law through precedent ,  although on occasion this may be overturned by a higher court or the legislature. Law's scope can be divided into two domains.
Public law concerns government and society, including constitutional law , administrative law , and criminal law. Law provides a source of scholarly inquiry into legal history ,  philosophy ,  economic analysis  and sociology. The philosophy of law is commonly known as jurisprudence. Normative jurisprudence asks "what should law be? There have been several attempts to produce "a universally acceptable definition of law".
In , Baron Hampstead suggested that no such definition could be produced. He said that, for example, " early customary law " and " municipal law " were contexts where the word "law" had two different and irreconcilable meanings.
One definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour. Definitions of law often raise the question of the extent to which law incorporates morality. The concept of "natural law" emerged in ancient Greek philosophy concurrently and in connection with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas , notably his Treatise on Law.
Hugo Grotius , the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason.
Bentham and Austin argued for law's positivism ; that real law is entirely separate from "morality". While laws are positive "is" statements e. Thus, each legal system can be hypothesised to have a basic norm Grundnorm instructing us to obey. Kelsen's major opponent, Carl Schmitt , rejected both positivism and the idea of the rule of law because he did not accept the primacy of abstract normative principles over concrete political positions and decisions.
Later in the 20th century, H. Secondary rules are further divided into rules of adjudication to resolve legal disputes , rules of change allowing laws to be varied and the rule of recognition allowing laws to be identified as valid. Two of Hart's students continued the debate: In his book Law's Empire , Ronald Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an " interpretive concept",  that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions.
Joseph Raz , on the other hand, defended the positivist outlook and criticised Hart's "soft social thesis" approach in The Authority of Law. In his view, any categorisation of rules beyond their role as authoritative instruments in mediation are best left to sociology , rather than jurisprudence. The history of law links closely to the development of civilization.
Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae , for the entire public to see; this became known as the Codex Hammurabi. The most intact copy of these stelae was discovered in the 19th century by British Assyriologists , and has since been fully transliterated and translated into various languages, including English, Italian, German, and French. The small Greek city-state, ancient Athens , from about the 8th century BC was the first society to be based on broad inclusion of its citizenry, excluding women and the slave class.
Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists and were highly sophisticated. Latin legal maxims called brocards were compiled for guidance. In medieval England, royal courts developed a body of precedent which later became the common law. A Europe-wide Law Merchant was formed so that merchants could trade with common standards of practice rather than with the many splintered facets of local laws.
The Law Merchant, a precursor to modern commercial law, emphasised the freedom to contract and alienability of property. The Napoleonic and German Codes became the most influential. In contrast to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and easy for judges to apply. However, today there are signs that civil and common law are converging.
Ancient India and China represent distinct traditions of law, and have historically had independent schools of legal theory and practice. The eastern Asia legal tradition reflects a unique blend of secular and religious influences. Similarly, traditional Chinese law gave way to westernisation 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 , which essentially inflates administrative law at the expense of private law rights. A new contract code in represented a move away from administrative domination.
In general, legal systems can be split between civil law and common law systems. The third type of legal system—accepted by some countries without separation of church and state —is religious law, based on scriptures. The specific system that a country is ruled by is often determined by its history, connections with other countries, or its adherence to international standards.
The sources that jurisdictions adopt as authoritatively binding are the defining features of any legal system. Yet classification is a matter of form rather than substance since similar rules often prevail. Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation—especially codifications in constitutions or statutes passed by government—and custom.
Modern civil law systems essentially derive from legal codes issued by Byzantine Emperor Justinian I in the 6th century, which were rediscovered by 11th century Italy. Decisions were not published in any systematic way, so any case law that developed was disguised and almost unrecognised. From to AD the Byzantine Emperor Justinian I codified and consolidated Roman law up until that point, so that what remained was one-twentieth of the mass of legal texts from before.
As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before. Western Europe, meanwhile, relied on a mix of the Theodosian Code and Germanic customary law until the Justinian Code was rediscovered in the 11th century, and scholars at the University of Bologna used it to interpret their own laws.
Both these codes influenced heavily not only the law systems of the countries in continental Europe e. Greece , but also the Japanese and Korean legal traditions. Anarchism has been practiced in society in much of the world. Mass anarchist communities , ranging from Syria to the United States, exist and vary from hundreds to millions. Anarchism encompasses a broad range of social political philosophies with different tendencies and implementation. Anarchist law primarily deals with how anarchism is implemented upon a society, the framework based on decentralized organizations and mutual aid , with representation through a form of direct democracy.
Laws being based upon their need. Socialist law is the legal systems in communist states such as the former Soviet Union and the People's Republic of China. In common law legal systems, decisions by courts are explicitly acknowledged as "law" on equal footing with statutes adopted through the legislative process and with regulations issued by the executive branch. The "doctrine of precedent", or stare decisis Latin for "to stand by decisions" means that decisions by higher courts bind lower courts, and future decisions of the same court, to assure that similar cases reach similar results.
In contrast , in " civil law " systems, legislative statutes are typically more detailed, and judicial decisions are shorter and less detailed, because the judge or barrister is only writing to decide the single case, rather than to set out reasoning that will guide future courts.
Common law originated from England and has been inherited by almost every country once tied to the British Empire except Malta, Scotland , the U. In medieval England, the Norman conquest the law varied-shire-to-shire, based on disparate tribal customs.
The concept of a "common law" developed during the reign of Henry II during the late 12th century, when Henry appointed judges that had authority to create an institutionalised and unified system of law "common" to the country. The next major step in the evolution of the common law came when King John was forced by his barons to sign a document limiting his authority to pass laws.
This "great charter" or Magna Carta of also required that the King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country. In , for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five.
However, the system became overly systematised—overly rigid and inflexible. As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the King's behalf the Lord Chancellor gave judgment to do what was equitable in a case. From the time of Sir Thomas More , the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery. At first, equity was often criticised as erratic, that it varied according to the length of the Chancellor's foot.
In developing the common law, academic writings have always played an important part, both to collect overarching principles from dispersed case law, and to argue for change. William Blackstone , from around , was the first scholar to collect, describe, and teach the common law.
Religious law is explicitly based on religious precepts. Examples include the Jewish Halakha and Islamic Sharia —both of which translate as the "path to follow"—while Christian canon law also survives in some church communities. Often the implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments. For instance, the Quran has some law, and it acts as a source of further law through interpretation,  Qiyas reasoning by analogy , Ijma consensus and precedent.
This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively. This contains the basic code of Jewish law, which some Israeli communities choose to use. The Halakha is a code of Jewish law that summarizes some of the Talmud's interpretations. Nevertheless, Israeli law allows litigants to use religious laws only if they choose. Canon law from Greek kanon , a 'straight measuring rod, ruler ' is a set of ordinances and regulations made by ecclesiastical authority Church leadership , for the government of a Christian organisation or church and its members.
It is the internal ecclesiastical law governing the Catholic Church both the Latin Church and the Eastern Catholic Churches , the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion. In all three traditions, a canon was originally  a rule adopted by a church council ; these canons formed the foundation of canon law.
The Catholic Church has the oldest continuously functioning legal system in the western world ,   predating the evolution of modern European civil law and common law systems.
The Eastern Catholic Churches , which developed different disciplines and practices, are governed by the Code of Canons of the Eastern Churches. Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire 's Mecelle code in the 19th century being a first attempt at codifying elements of Sharia law.
Since the mids, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions. The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognise Islam as the religion of the state, obliging legislature to adhere to Sharia.
There are distinguished methods of legal reasoning applying the law and methods of interpreting construing the law. The former are legal syllogism , which holds sway in civil law legal systems, analogy , which is present in common law legal systems, especially in the US, and argumentative theories that occur in both systems.
ICTs as a catalyst for social justice? A Capabilities Perspective
Rule of Law and Democracy: Addressing the Gap Between Policies and Practices
The Declaration adopted on 24 September by the United Nations General Assembly at the High-level Meeting on the Rule of Law at the National and International Levels reaffirmed that "human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations". If considered not solely an instrument of the government but as a rule to which the entire society, including the government, is bound, the rule of law is fundamental in advancing democracy. Strengthening the rule of law has to be approached not only by focusing on the application of norms and procedures.