DEFINITION OF LAW

Law, as it is, is the command of the Sovereign. It means, law has its source in sovereign authority,

law is accompanied by sanctions, and the command to be a law should compel a course of conduct. Being a command the law must flow from a
determinate person or group of persons with the threat of displeasure if it is not obeyed.

Sovereignty is, however, only a part of the state. So, in ultimate sense, law emanates from the state. Thus the term Law is used to denote rules
of conduct organized society have to follow certain common rules, otherwise peaceful living is impossible. It is the function of the State to
enforce these rules.

Holland : Law is, "a rule of external human action enforced by the sovereign political authority". Law is a rule relating to the actions of human
beings. Law attempts to regulate the external actions of human beings. Law is enforced by the State

Anson : Rules regarding  human conduct necessary for peaceful living as well as  for  progress and  development. Anson observes as follows: The
object of Law is Order, and the result of Order is that men are enabled to look ahead with some sort of security as to the future. Although
human action cannot be reduced to the uniformities of nature, men have yet endeavored to reproduce by Law something approaching to this
uniformity’.

CONSTITUTION

 The concept of constitution is concerned with the role and powers of the institutions within the state and the relationship between
the citizen and the state.

 Constitution is something which giving legitimacy to the government and defining the powers under which a government may act.

 Prof. KC defines constitution of a state as: (constitution) the whole system of government of a country, the collection of rules which
establish and regulate or govern the Govt.”

 Thomas Paine reveals a more complex set of idea: A constitution is not the act of a government , but of a people constituting a
government , and a government without a constitution is power without right … A constitution is a thing antecedent to a
government; and a government is only the creature of a constitution.

Fundentamal Constitutional Concept.

 The rule of law insists that every person- irrespective of rank and status in society- be subject to the law.For the citizen, the rule of law is
both prescriptive - dictating the conduct required by law - and protective of citizens-demanding that government acts according to law.
The emphasis on the rule of law as a yardstick for measuring both the extent to which government acts under the law and the extent to
which individual rights are recognized and protected by the law.

What is the “Rule of law”?

 Ultimate justification for the existence of a legitimate political system. It is a necessary ingredient to provide a governmental system with
a moral justification of its laws.

 Hilaire Barnett-The rule of law represents a challenge to state authority and power, demanding that powers both be granted legitimately
and that their exercise is according to law.

 The rule of law demands that power is to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, or
arbitrary manner leaving room for discrimination.

 In the most basic sense, the rule of law is a system that attempts to protect the rights of citizens from arbitrary and abusive use of
government power. 

Elements of the Rule of Law:

 I The Morality of Law, American legal scholar Lon Fuller identified eight elements of law which have been recognized as necessary for a
society aspiring to institute the rule of law. Fuller stated the following:

 1.    Laws must exist and those laws should be obeyed by all, including government officials.

 2.    Laws must be published. 

 3.    Laws must be prospective in nature so that the effect of the law may only take place after the law has been passed. For example, the
court cannot convict a person of a crime committed before a criminal statute prohibiting the conduct was passed. 

 4.    Laws should be written with reasonable clarity to avoid unfair enforcement.

 5.    Law must avoid contradictions.  

 6.    Law must not command the impossible. 

 7.    Law must stay constant through time to allow the formalization of rules; however, law also must allow for timely revision when the
underlying social and political circumstances have changed. 

8.    Official action should be consistent with the declared rule.

The Concept - “Rule of Law”

 The concept rule of law has gradually developed through different philosophers like –Aristotle, Cicero, Karl Marx, Joseph Raz and A.V.
Dicey

 Greek Philosopher Aristotle Stated in his book ‘The Politics’ that ‘the rule of law is preferable to that of any individual’.
 Instructs that the power of man is not absolute, but is rather controlled and limited by the requirements of a higher law (natural law).
Natural Law: Moral or legal Duty, Ex, Mankind to reproduce itself.

Cicero True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting: it summons to duty by its
commands, and averts from wrongdoing by its prohibitions. We cannot be freed from its obligations by Senate or People, and we need not
look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws
now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master
anone ruler, that is, God, over us all, for He is the author of this law, its circulator, and its enforcing judge.

 Karl Marx: Marxism insists that law represents the interests of the powerful within society. Class: Bourgeoisie & Proletariat the rule of
law represents no more than a false idealization of law designed to reinforce the political structure and economic status quo in society.
Although the rule of law appears to be “objective,” meaning that it is fairly applied to all people, it is actually subjective and unfairly
applied.

 Professor Joseph Raz: The rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree. It is
also to be insisted that the rule of law is just one of the qualities which a legal system may possess and by which it is to be judged. It is
not to be confused with democracy, justice, equality, human rights of any kind or respect for persons or for the dignity of man.

 A.V. Dicey Dicey suggested that the rule of law has three meanings: No punishment may be inflicted other than for a breach of the law.
Irrespective of rank and status all are equal under the law. Rights and freedoms are best protected under the common law.

1. No punishment may be inflicted other than for a breach of the law : Individuals should not be subject to wide discretionary
powers. (Ministers, Executives) A system of government based on laws (rules) and not men (discretion). Retrospective
legislation.
2. Irrespective of Rank and Status all are Equal under the law: Equality before the law Not arguing that all persons have equal powers and
rights. There are obvious exceptions to it in practice. Diplomatic immunity, High Court judges, Parliamentary privilege,Special powers,
Homosexuality.

3. Rights and Freedoms are best protected under the common law: The rights to liberty and to assembly are determined by the
courts.Citizens are free to do whatever the law does not prohibit.

LAW

In short The law is the servant of ‘the sense of rightness’ in the community, and whilst the rule of law places law above every individuals;
irrespective of rank and station, it remains, paradoxically, subject to the ultimate judgment of the people.

SOURCES OF ENGLISH LAW

The term 'sources of law' is used in several different senses. Historical sources – Common law ,Equity.

( b) Legal sources -There are four legal sources:

judicial precedent, legislation, EC law, and custom. (c) Subsidiary sources – not currently responsible for the direct creation of law. They
include, for example, Law Merchant, Roman Law and Canon Law.

HISTORICAL SOURCES OF LAW

Common law: The Norman Conquest in 1066-no system of law which was common to the whole country. Rules of local custom were applied by
local courts. To improve the system, the King sent royal commissioners on tour of different parts of the realm to deal with crimes and civil
disputes.

Equity: The development of equity was based on a number of 'equitable maxims', or principles. he who comes to equity must come with clean
hands. Equality is equity. He who seeks equity must do equity. Equity looks at the intent, not the form.

LEGAL SOURCES OF LAW

Judicial precedent is based on three elements. There must be adequate and reliable reports of earlier decisions.there must be rules for
extracting from each earlier decision on a particular set of facts the legal principle to be applied in reaching a decision on a different set of facts.
Precedents must be classified into those which are binding and those which are merely persuasive.

Statute law
Statute law is made by Parliament. The UK joined with the European Community in 1973 since then the UK Parliament’s sovereignty of its law-
making powers were restricted.

European Community law

Free movement of goods, workers, capital and serviceTwo types of sources which are primary and secondary

Primary:

The treaties such as the Treaty of Rome

Secondary:

(a) Regulations (b) Directives and (c) Decisions

Custom
In early mediaeval times the courts created law by enforcing selected customs. Custom is now of little importance as a source of law, but it is still
classified as a legal source of law. A custom becomes legally recognized when it is accepted by a court and incorporated in a judicial decision. In
disputes over claims to customary rights, such as to use the land of another or to remove things from it, the alleged custom may be established .
 COMMERCIAL LAW
 The term Commercial Law, rules relating to industry, trade and commerce.

 Particularly, laws relating to contract, partnership, negotiable instruments, sale of goods, companies etc.

 There is no fixed line of division between commercial law and other branches of law, nor is there any conflict or contradiction between
them. is applicable not only to merchants and bankers but also to other persons.

LEGAL PERSONALITY
1. The Individual: all individuals are natural person in the eyes of law, although some have limited capacity.(minors, insame)

I. Domicile

 Domicile is the country which a person regards as his permanent home. The significance of domicile is that, it connects the
person concerned with the law of country in which he has his domicile.

 Corporation have a domicile in the country in which they are legally incorporated.

II. Nationality: to determine a person’s relationship with the state, his right to vote etc.

III. Residence: important for tax purpose

2. Natural Persons:

The rules of domicile, nationality and residence may affect the legal rights of an individual. His status may also depend on other factors such as
age, matrimony, mental capacity etc.

a). Guardianship:

Parents share basic powers of guardianship in relation to a minor child

b). Minors:

Minors (under the age of 18) are a special case of natural person. The position of minors is follows, for example:

i. They cannot vote at general or local elections.

ii. They usually take the nationality and domicile of their father.

iii. They can marry when they are 16, but they must have the consent of their parents.

iv. They have limited contractual-capacity.

d). Mental incapacity:

 A person is presumed to be sane until the contrary is proved - that he either did not know what he was doing or did not know that it was
wrong. Insanity is mainly significant as a defense of mitigating factor in trials on criminal charges. It may also restrict capacity to enter
into binding contract.

4. Limited Companies:

 A corporation is a legal entity separate from the natural persons connected with it, for example as members.

 It can make contracts, sue and be sued in its own name

 It can own property.

 It has perpetual succession- its existence is not affected by the death of some or even all of its members.

5.Trade Unions:

 Trade unions enjoy a special status governed by the Trade Union and Labor Relations Acts.

 They are not corporate bodies but they may make contracts on their own behalf and can sue or be sued in their own name.

6.The Crown:

The entire executive branch of government, ministers and civil service departments are described as `The Crown
1. What is law of contract?

An agreement enforceable by law is a contract.

In a contract there must be -

 an agreement and

 the agreement must be enforceable by law.

We have to understand first what is ‘agreement’.

 Every promise and every set of promises, forming the consideration for each other, is an agreement.

 Some agreements cannot be enforced through the courts of law.

According to Salmond a contract is

 "an agreement creating and defining obligations between the parties"

According to Sir William Anson,

 “A contract is-an agreement enforceable at law made between two or more persons, by which rights are acquired by one or more to acts
or forbearances on the part of the other or others“

Anson observes that, “ the law of contract is intended to ensure that what a man has been led to expect shall come to pass; and what has been
promised to him shall be performed”.

2. Classification of the law of contract:

a. The rules on formation of contract

Offer and Acceptance, Intention to create Legal Relationship

lawful Consideration, Capacity of Parties, Certainty

b. The rules on discharge of contract;

• Performance

• Frustration

• Breach

• Agreement

c. The remedies for breach of contract.

Damages

Action for an agreed sum

Specific performance

Injunction

3. Method of Formation:

a. Express Contract

Expressed in words spoken or written.

b. Implied Contract

Understood from the acts, the conduct of the parties and/or the course of dealing between them.

c. Quasi Contract

There are certain dealings which are not contracts strictly, though the parties act as if there is a contract.

4. Steps involved in contract:

An agreement becomes enforceable by law when it fulfils certain conditions. These conditions, which may be called the Essential Elements of a
Contract, are explained below.

A). Offer and Acceptance:

• A lawful offer by one party and a lawful acceptance by the other party or parties.

An offer may be express or may be implied from the circumstances

An offer may be made to a definite person

legal relationship is required

The terms of the offer must be certain, definite, unambiguous and not vague

A mere statement of intention is not an offer

 Offer must be communicated to the offeree

B). Intention to create Legal Relationship:

• An agreement to dine at a friend' house is not an agreement intended to create legal relations and is not a contract.

• An agreement to buy and sell goods or an agreement to marry, are agreements intended to create legal relationship and are therefore
contract.

C). Lawful Consideration:

• An agreement is legally enforceable only when each of the parties [gives something and gets something in return-is called
consideration].

• An agreement to do something for nothing is usually not enforceable by law.

• The consideration may be an act (doing something or not) or a promise to do or not to do.

• Consideration may be past, present or future. But only valid considerations are "lawful consideration”

D). Capacity of Parties:

• Legally capable of entering into an agreement otherwise not enforceable by a court of law.

• The agreement is not enforceable by law, If any of the parties suffers from minority, lunacy, idiocy, drunkenness, and similar other
factors.

E). Free Consent:

• An agreement must be based on the free consent of the parties.

• Absence of genuine consent if the agreement is induced by coercion, undue influence, mistake, misrepresentation, and fraud.

F). Legality of the Object:

• Object not to be illegal, immoral or opposed to public policy.

G). Certainty:

• Terms Must not be vague.