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LAW

Definition of law

“Law is the body of principles recognized and applied by a


state in the administration of justice”.

Another Definition of law

“The law consists of the rules recognized and acted upon by


the courts of justice”.

Illustrations of ‘law’

i. The law of Pakistan is the law of state or of the land


and the law courts of Pakistan. Basically, it is the
body of rules observed in administration of justice.

ii. Natural law: the term law in this case means the
principles of natural right or wrong. It is also called
Divine law i.e. commands of God imposed upon
men.

iii. International law: the term law in this case means the
law of nations. It is the body of rules which govern
the relationship and conduct between states.

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SOURCES OF LAW

Main sources of law

• Formal – A Formal source is that from which a rule of


law derives its force and validity. Formal source of Civil
law is the will and power of state.

• Material – The Material sources are those from which is


derived the matter and not validity of law.

Kinds of Material Sources

a. Legal – are those sources which are recognized by law


itself.

Legal sources is the name given to those sources


which are the instruments or organs of the state by
which legal rules are created i.e. through legislation and
custom.

Legal sources are authoritative (e.g. decisions of


Pakistani courts are authoritative whereas decisions of
courts of other states are un-authoritative in Pakistan).

Legal sources are allowed by law courts as of right.

b. Historical – They are places where rules, subsequently


turns into principles, were first to be found in un
authoritative form.

These sources are not allowed by the law courts as of


right.

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Examples of these are religion, morality, and opinions
of text writers.

These operate indirectly.

KINDS OF LEGAL SOURCES

1. LEGISLATION

It is the making of law by the formal expression by


legislature e.g in Pakistan making of law by National
Assembly and / or Senate of Pakistan. Such legislation is
recognized by the courts of law.

Such law which has its origin in legislature is called


enacted law or statute law.

Legislation can be either Supreme or Subordinate.

Supreme legislation originates from sovereign power


and is from any external control.

Subordinate legislation is that which proceeds from any


authority other than Sovereign power and is therefore,
dependent for its continued existence and validity.

Types of Subordinate legislation:

a. Executive – Legislation done by Government


departments pursuant to authorization given by
Supreme legislation to issue orders to carry out
provisions of law.

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b. Judicial – The Superior courts have the power of
rule making for the regulation of their own
procedures

c. Municipal – Local bodies / governments are


entrusted with power of establishing special law for
the districts under their controls.

d. Automatic – It is specie of enacted law. E.g.


Railways, CAA, Universities etc can make their bye
laws or statutes for governance.

Legislation is superior to other sources of law in that it is


efficient, has abrogative power and is flexible in terms of
future.

Legislation differentiates from Judicature. Duty of


Legislature is to make law whereas, duty of judicature is to
interpret and apply the laws.

2. PRECEDENT

Precedent is establishing of law by recognizing and


applying new rules by the courts themselves in the
administration of justice. While forming and applying rules,
courts observe the following:

(a) Ambiguity: A statute or words of statute may mean


more than one thing. So, courts go behind the letter of
the law to ascertain the true intention of such
legislation.

(b) Inconsistency: Statutory expression can be


inconsistent. A law instead of having one meaning may

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have more than one meaning or even none. In that
case, judges / courts have to ascertain the spirit of the
law and to correct the law accordingly.

(c) Incompleteness: Law may lack in completeness. Text


of the statute may have some gaps or lacunas resulting
in lack of clear understanding. In such a case, the
courts shall have to logically interpret such law to
remove incompleteness.

(d) Principles followed by courts in Pakistan


regarding rules of Precedent:

• Supreme court is the highest authority in the country


• Decision of one high court are not authoritative with
regard to another high court
• In the same high court, the decision of a single judge is
binding on another single judge but not on a court of
appeal.
• A judge of the lower court is bound to follow the rulings
of the High Court of his own domain when there is
conflict of amongst high courts.
• Unreported judgments have as much binding authority
as reported ones.

3. CUSTOM

Law based on customs is called customary law. Lately,


importance of customary source of law has declined.
However, it is much inferior to the above two sources of
law.

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4. AGREEMENT

Conventional law is constituted by agreement as having


the force of special law and it can be between parties in
derogation of, or in addition to the general law of the land.

5. PROFESSIONAL OPINION

This is called juristic law.

DIVISIONS OF LAW

1. National Law

National law can be further subdivide into two categories


namely:

a. Public Law – which includes Constitutional Law;


Administrative Law; Criminal Law; Obligations

b. Civil Law or Private Law – (Property, Contract including


Bailment, Pledge, Contingent, Agency; Partnership;
Company Law; Tort)

Civil Law is called private law whereas Criminal Law is


part of public law.

Commercial law is part of Civil Law and embraces


obligations and property laws.

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Rights of Citizens

Every citizen has certain rights which are well defined in


laws and in case of violation of such rights, citizens can
sue the violator for punishment or enforcement of rights.

Courts find out whether such violation was done with


intent on the part of wrong doer to commit crime.

Following are the rights:

1. Rights over material things

2. Rights in respect of ones’ own person – for example


right to protection of life and not to be killed, right to be
physically protected and safeguarding health safety and
integrity. Another right is right to liberty i.e. not to be
imprisoned save in due course of law.

3. Right of Reputation

4. Rights in respect of domestic relations – security of


family life and members.

5. Right in respect of other rights – assignment of rights,


transfer of rights etc.

6. Rights over immaterial property – Patent rights,


Copyrights, trademarks, Good Will.

7. Right to Services – Right created out of relationship like


that of master-servant, doctor-patient, lawyer-client,
employer-employee. So the right is the right to benefit
from the experience, knowledge and skills of the person
so bound.

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Firstly, intention of the wrong doer is determined; if so
then state may join in as complainant to punish the
wrongdoer. Motive, Magnitude and Character of the
offender does become important in this regard.

Secondly, if liability is of Civil nature then right infringed in


enforced through civil action in courts.

2. Public International Law

3. Private International Law