LEGAL METHODS NOTES

Certainly! Here's a detailed breakdown of the meaning, definitions, scope, and

development of law that you can use as notes for Legal Methods.

1. Meaning of Law
Law is a system of rules created and enforced by social or governmental
institutions to regulate behavior. It ensures order in society by providing
guidelines on what individuals and groups are legally allowed or not allowed to
do. Law helps in resolving disputes, protecting rights, maintaining public order,
and ensuring justice.

Key points:

Law is a social norm enforced by authority.

Laws regulate both public (society-state relations) and private

(individual-individual relations) matters.

The law can be written (statutes, codes) or unwritten (common law,

customs).

2. Definitions of Law
There are various definitions of law by different scholars. Here are a few
notable ones:

John Austin (Positivist Definition):

"Law is the command of the sovereign, backed by sanctions."

Austin viewed law as commands issued by a recognized authority (the

sovereign), with punishments for non-compliance.

Henry Maine (Evolutionary Theory):

"Law is the body of principles recognized and applied by the state in the
administration of justice."

Maine suggested that laws evolve from societies based on status

(tribal, feudal) to societies based on contract (modern legal systems).

Roscoe Pound (Sociological Jurisprudence):

LEGAL METHODS NOTES 1

 "Law is a social institution that must serve the needs of society and adapt
to social changes."

Pound argued that law should be seen as a social science that balances
individual freedom with public good.

Salmond (Classical Definition):

"Law is the body of principles recognized and applied by the state in the
administration of justice."

This is a traditional definition that emphasizes the state's role in

applying legal principles.

Blackstone (Legal Positivist):

"Law is a rule of civil conduct prescribed by the supreme power in a state,
commanding what is right and prohibiting what is wrong."

3. Scope of Law
The scope of law refers to the areas and subjects that law covers and regulates
within society. It includes:

A. Public Law
Governs the relationship between individuals and the state, as well as the
structure of the state itself.

Constitutional Law: Governs the framework of the state and the

distribution of power between different organs (executive, legislature,
judiciary).

Criminal Law: Regulates actions that are harmful to society and

prescribes punishment for offenders.

Administrative Law: Deals with the rules governing government

agencies and their functions.

International Law: Governs the relations between states and

international organizations.

B. Private Law
Governs relationships between private individuals or entities.

Contract Law: Governs agreements between individuals or parties.

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 Tort Law: Deals with civil wrongs that cause harm to individuals or
property.

Property Law: Concerns ownership and use of property.

Family Law: Governs family-related issues like marriage, divorce, and

child custody.

C. Procedural Law
Outlines the methods and procedures used in legal matters, such as how
cases are brought to court.

Civil Procedure: Rules governing lawsuits in civil cases.

Criminal Procedure: Governs the procedures for criminal trials and the
enforcement of criminal laws.

D. Substantive Law
Defines the legal rights and duties of individuals and entities. This is
contrasted with procedural law, which focuses on how these rights and
duties are enforced.

4. Development of Law
The development of law is a complex process shaped by various historical,
cultural, philosophical, and societal influences. Below is an outline of the key
stages in the evolution of law:

A. Ancient Legal Systems

Code of Ur-Nammu (2100–2050 BCE): One of the oldest known written
legal codes from Mesopotamia, which dealt with civil matters such as
marriage and property rights.

Code of Hammurabi (1754 BCE): An early Babylonian code that was based
on lex talionis (the law of retaliation), i.e., "an eye for an eye." It covered a
broad range of civil and criminal matters.

Roman Law: The Corpus Juris Civilis (Body of Civil Law) compiled under
Emperor Justinian laid the foundation for modern civil law systems,
especially in Europe.

B. Medieval Legal Systems

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 Canon Law: In medieval Europe, religious law (Canon Law) significantly
influenced the legal system, especially within Christian communities.

Feudal Law: Based on the landholding system, where the king's

sovereignty was recognized, but most legal issues were settled locally or by
feudal lords.

Common Law: Developed in England after the Norman Conquest (1066),

where legal precedents set by judges in court decisions became binding for
future cases.

C. Modern Legal Developments

Enlightenment Influence: The 17th and 18th centuries brought ideas of
natural law (law based on reason and morality) and social contract theory
(e.g., Hobbes, Locke, Rousseau), which contributed to the rise of
democratic principles and human rights.

Codification: Napoleonic Code (1804) and other codifications in Europe

and around the world replaced customary laws and created uniform,
accessible legal systems.

International Law: In the 20th century, the establishment of international

organizations (e.g., United Nations, International Criminal Court) marked the
development of global legal principles and treaties.

Modern Legal Theories: The rise of legal realism, critical legal studies,
and feminist legal theory challenged traditional legal ideas and stressed
the importance of context, politics, and social factors in shaping the law.

D. Contemporary Legal System

Globalization: Modern legal systems now reflect international treaties and
conventions. National legal systems are influenced by international human
rights law, environmental law, trade law, and transnational legal principles.

Technological and Social Change: The digital age, advancements in

biotechnology, and changing social norms continue to reshape law. For
example, new branches of law like cyberlaw and data protection law have
emerged.

5. Conclusion

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 The study of legal methods involves understanding how laws are created,
interpreted, and applied, and how legal principles evolve in response to
changing societal needs. Law serves as a tool for regulating behavior, ensuring
justice, and resolving disputes. It evolves through a combination of legislative
enactments, judicial decisions, societal values, and international influences.

Key Takeaways:
Law is both a rule of conduct and a system for maintaining order and
ensuring justice in society.

The scope of law covers both public and private matters and is essential in
addressing issues ranging from criminal justice to property rights.

The development of law has been shaped by historical, cultural, and

political changes, from ancient codes to modern democratic systems and
international norms.

Certainly! Below is a breakdown of the functions of law, which include

regulation of conduct, remedies, policies, and social engineering.

1. Functions of Law
The functions of law refer to the various roles law plays in society. Law is not
just about imposing sanctions; it serves a broader set of purposes that are
essential for maintaining order, protecting rights, and achieving justice. The key
functions of law include the regulation of conduct, providing remedies,
guiding policies, and facilitating social engineering.

A. Regulation of Conduct
One of the primary functions of law is to regulate conduct by prescribing
certain behaviors and prohibiting others. Through legal rules, law sets the
standards for how individuals and institutions should behave, promoting order
and preventing chaos.

Prescribing Behavior: Law defines what is permissible and what is not. It

sets out norms that dictate acceptable behavior in various spheres (e.g.,
criminal law, family law, contract law).

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 Example: In criminal law, certain actions (e.g., theft, assault) are
prohibited, while others (e.g., contracts, property ownership) are
protected.

Social Order: By regulating conduct, law helps to maintain social stability

and prevent conflicts. It encourages individuals to act within the boundaries
of agreed norms and legal standards.

Preventive Role: Law also serves as a deterrent by threatening penalties for

unlawful actions. The fear of legal consequences can prevent harmful
behavior and promote law-abiding conduct.

Example: Traffic laws aim to prevent accidents and ensure public safety
by regulating drivers' behavior.

Deterrence and Control: Effective law enforcement ensures that unlawful

actions are penalized, which dissuades individuals from engaging in
harmful activities. For example, criminal law functions as a deterrent against
crimes like murder, theft, and fraud.

B. Remedies
Law provides remedies to individuals who have been wronged or harmed.
Remedies are legal solutions provided to rectify a wrong, compensate for
damages, or enforce rights.

Civil Remedies: In civil law, when an individual's rights are violated, the law
offers remedies like damages (monetary compensation) or specific
performance (requiring a party to fulfill a contract).

Example: A person whose property is damaged by another may receive

monetary compensation (compensatory damages) for repair or
replacement costs.

Criminal Remedies: In criminal law, the primary remedy is punishment,

which may include fines, imprisonment, or even the death penalty in
extreme cases. The aim is both to punish the wrongdoer and to deter others
from committing similar crimes.

Example: A person convicted of theft may be sentenced to prison or

required to pay restitution to the victim.

Equitable Remedies: Courts may also issue equitable remedies such as

injunctions (orders to stop or do a particular act) or declaratory judgments

LEGAL METHODS NOTES 6

 (statements of legal rights). These remedies are used in situations where
monetary compensation is insufficient or inappropriate.

Example: A court may issue an injunction to stop a company from

polluting a river if it is causing irreparable environmental damage.

Restorative Justice: This approach focuses on repairing the harm caused

by crime through dialogue between the offender and the victim, often
emphasizing reconciliation over punishment.

Example: Victims of a crime may choose to meet with offenders in a

restorative justice setting to discuss the harm and work towards
compensation or a resolution.

C. Policies and Social Policy

Law functions as an instrument for implementing public policy and addressing
social needs. This function focuses on guiding social behavior and making
social changes through legal means.

Policy Implementation: Through legislation and judicial decisions, law

reflects society's policies on various issues such as public health, welfare,
education, and the environment. Laws are created to achieve certain policy
goals, such as improving public health or reducing crime.

Example: Laws governing healthcare (e.g., Affordable Care Act in the

U.S.) aim to improve access to medical services for underserved
populations.

Social Goals: Law helps to achieve broader social policy objectives, such
as reducing inequality, protecting vulnerable groups, and ensuring that
economic systems are fair and efficient.

Example: Anti-discrimination laws, like the Civil Rights Act of 1964, are
designed to reduce racial discrimination in employment, education, and
public accommodations.

Economic Regulation: Law also serves as a tool for regulating economic

activity, ensuring competition, protecting consumers, and preventing
monopolies. For instance, antitrust laws prevent monopolistic practices and
promote fair competition.

Example: The Sherman Antitrust Act in the U.S. prevents businesses

from engaging in practices that would restrict competition, such as

LEGAL METHODS NOTES 7

 price-fixing or creating monopolies.

Public Welfare: Laws related to social welfare programs (e.g.,

unemployment insurance, pensions, social security) ensure that citizens'
basic needs are met, particularly in times of hardship.

Example: Welfare laws support low-income families by providing

financial assistance and promoting social equity.

D. Social Engineering
Law functions as a tool for social engineering, which refers to the process of
shaping or influencing society’s norms, behaviors, and structures in a way that
aligns with specific goals or values.

Shaping Society’s Norms: Law plays a role in influencing or changing

public attitudes and behaviors. Through legislation, governments can
introduce new norms or discourage harmful practices.

Example: The legalization of same-sex marriage in many countries was

not only a legal change but also a reflection of shifting societal views on
marriage and equality.

Behavioral Modification: Laws can be used as a behavioral tool to guide or

change people's behavior in areas such as family planning, environmental
protection, and public health.

Example: Environmental laws that regulate pollution can change the

behavior of industries by imposing strict emission standards and
penalties for non-compliance.

Encouraging Certain Practices: Law can encourage socially desirable

behavior through incentives (e.g., tax breaks, subsidies) and disincentives
(e.g., fines, criminal penalties).

Example: Tax incentives for renewable energy projects encourage

businesses and individuals to adopt environmentally friendly practices.

Cultural and Moral Engineering: Laws often reflect and enforce the moral
and ethical values of a society. Over time, they can drive social change by
shifting collective attitudes and behaviors.

Example: Prohibition laws in the U.S. (1920-1933) were an attempt to

reduce alcohol consumption, reflecting the moral values of the time.

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 Similarly, modern laws against smoking in public places seek to reduce
harm and promote healthier living.

Legal Reforms for Justice: Laws can be crafted to address past injustices
and create a more equitable society. These legal reforms are aimed at
improving societal outcomes.

Example: Affirmative action laws and policies in the U.S. are aimed at
correcting historical inequalities in education and employment.

Conclusion
The functions of law are crucial in maintaining order, justice, and fairness in
society. They encompass a wide range of roles, from regulating conduct to
offering remedies for wrongs, guiding social policy, and facilitating social
engineering to align society's values with the law. Law is not just a set of rules
but a powerful tool for shaping societal behavior, promoting public good, and
ensuring that individuals and institutions operate within a framework of shared
principles.

By understanding these functions, one can better appreciate how law serves
not only as a system of control but also as a means for progress and reform in
society.

The relationship between law and society is multifaceted and deeply

interconnected. Law influences society by regulating behavior, maintaining
order, and enforcing justice, while society shapes law through cultural values,
political systems, economic conditions, and social norms. In legal studies, it's
essential to explore the social, political, and economic aspects of law to
understand how laws evolve and affect various sectors of society. Here's an
outline of the social, political, and economic aspects of law:

1. Law and Society

Law is often viewed as a reflection of societal values, beliefs, and norms. In
turn, society can shape the law through cultural changes, political movements,
and economic forces.

Law as a Social Institution: Law is a social institution that is designed to

maintain order, resolve disputes, and promote justice within a society. The

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 legal system is shaped by the values, traditions, and customs of the people
it governs.

Social Order and Stability: One of the primary functions of law is to

maintain social order and stability by regulating behavior, resolving
conflicts, and providing mechanisms for dispute resolution.

Social Change and Law: Law is also a tool for promoting social change.
New laws can challenge outdated social norms, drive reforms, and address
emerging issues in society, such as civil rights, gender equality, or
environmental protection.

The Interaction Between Law and Social Values: Law both reflects and
shapes societal values. For example, laws regarding same-sex marriage,
abortion, or drug legalization can change as societal attitudes evolve.
Conversely, laws can also influence societal norms by setting legal
standards for behavior (e.g., laws against discrimination).

2. The Social Aspects of Law

The social aspects of law refer to how law interacts with and impacts various
social structures, relationships, and institutions within society. Some of the key
social aspects of law include:

A. Law and Social Order

Law as Social Control: Law acts as a tool of social control, regulating
individual and group behavior to prevent harm and promote collective well-
being. By setting boundaries for acceptable behavior, law helps create a
sense of order and predictability in society.

Criminal Law: Criminal law seeks to deter harmful behaviors such as

violence, theft, or fraud. It also aims to protect public safety and establish
the consequences for violating societal rules.

Civil Law: Civil law regulates private relationships and ensures the
resolution of disputes between individuals or organizations, such as
contract disputes or family issues (e.g., divorce, custody).

B. Law and Inequality

Legal Protection of Rights: Law plays a key role in protecting individual
rights and promoting equality. However, it can also reinforce social

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 inequalities if laws are biased or discriminatory.

Social Justice: Legal systems often grapple with issues of social justice,
such as addressing systemic discrimination, promoting racial equality, and
advancing gender equality. Laws like anti-discrimination laws, affirmative
action, and anti-slavery laws have been pivotal in advancing social justice.

Access to Justice: Not all individuals have equal access to legal

protections. Social class, race, and economic status can affect one's ability
to access legal remedies, leading to disparities in how justice is
administered.

C. Law and Social Movements

Law and Social Change: Laws often evolve as a result of social movements
that advocate for change. Social movements, such as the Civil Rights
Movement in the U.S., the Women's Liberation Movement, or the LGBTQ+
Rights Movement, have sought to change laws in order to address social
inequalities and injustices.

Legal Reform: When societal values shift, law often follows. For example,
laws relating to marriage equality or reproductive rights have changed
due to evolving social attitudes.

3. The Political Aspects of Law

The political aspects of law focus on the role of law within the political system,
including the interaction between law, governance, and political institutions.
The relationship between law and politics is complex and involves both the
creation and application of laws.

A. Law and the State

Law as a Tool of the State: Law is used by the state to exercise its power
and authority. The state is responsible for enacting laws, enforcing them,
and resolving disputes through the judicial system.

Separation of Powers: The political framework of a state often includes a

separation of powers between the executive, legislative, and judicial
branches, each of which has a role in the creation, interpretation, and
enforcement of law.

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 Constitutional Law: Constitutional law governs the fundamental principles
of a state's political structure and protects the rights of individuals. It
defines the relationship between the state and its citizens, including the
limits of government power.

B. Law and Political Power

Political Influence on Law: Political leaders and institutions often influence
the development and interpretation of laws. Political ideologies, party
platforms, and governmental priorities shape which laws are passed and
how they are implemented.

Law and Policy: Laws are often a reflection of government policy. For
instance, policies related to healthcare, education, or national security often
result in new laws. The enactment of economic policy (e.g., fiscal or
monetary policy) is closely tied to the law, especially in regulating financial
markets, trade, and business.

C. Law and Democracy

Rule of Law: In democratic systems, the rule of law ensures that all
individuals, including government officials, are subject to the law. This is a
cornerstone of democratic governance, ensuring accountability, fairness,
and transparency.

Judicial Independence: In a democracy, the judiciary is expected to be

independent from political influence. Judicial review allows courts to
evaluate the constitutionality of laws and protect individual rights against
potential abuses of power by the state.

D. Law and Political Rights

Protection of Political Rights: Law guarantees certain political rights such
as freedom of speech, freedom of assembly, and the right to vote. These
rights are essential for democratic participation.

Human Rights Law: National and international human rights laws are
designed to protect individuals from state oppression and political
repression. Human rights conventions like the Universal Declaration of
Human Rights aim to safeguard basic freedoms for all people.

4. The Economic Aspects of Law

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 The economic aspects of law deal with how law interacts with and regulates
economic activity, including business transactions, labor markets, property
rights, and international trade.

A. Law and Property

Property Law: Property law defines the ownership, use, and transfer of
assets. It protects property rights, ensures legal recognition of ownership,
and facilitates transactions in both real and intellectual property.

Intellectual Property: Laws governing patents, copyrights, and trademarks

protect creators and inventors, encouraging innovation and ensuring fair
competition in the marketplace.

B. Law and Business

Contract Law: Contract law governs agreements between parties and
ensures that promises are enforceable. This is fundamental to the
functioning of the modern economy, particularly in business transactions.

Corporate Law: Corporate law governs the creation, operation, and

dissolution of corporations, as well as the rights of shareholders, managers,
and employees.

Antitrust Law: Antitrust or competition law ensures that markets remain

competitive by prohibiting monopolistic practices and anti-competitive
behavior. It aims to prevent market dominance by a single entity and
promote consumer choice and fair pricing.

C. Law and Employment

Labor Law: Labor law regulates the relationship between employers and
employees, including wages, working conditions, collective bargaining, and
workers' rights. It protects employees from exploitation and ensures fair
treatment in the workplace.

Employment Rights: Laws that protect workers’ rights, including minimum

wage laws, health and safety regulations, and protections against
discrimination, play a key role in ensuring fair and equitable treatment in the
workplace.

D. Law and International Trade

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 International Economic Law: International trade law regulates commerce
between nations, addressing issues such as tariffs, trade agreements, and
the regulation of multinational corporations.

Globalization and Law: As economies become increasingly interconnected,

international legal frameworks like the World Trade Organization (WTO),
International Monetary Fund (IMF), and World Bank influence national
economic policies and legal systems.

Conclusion
The relationship between law and society is dynamic and evolving, with law
playing a central role in regulating social behavior, facilitating economic
transactions, and governing political processes. By understanding the social,
political, and economic aspects of law, we gain insight into how laws are
created, enforced, and modified over time to address societal needs and
challenges. Law both shapes and is shaped by society, and it reflects the
values, priorities, and aspirations of the people it governs.
classification of law,

1. Public Law vs. Private Law

A. Public Law
Public law governs the relationship between the state (or government) and
individuals or other entities. It regulates matters that affect the general public or
society as a whole, and it is primarily concerned with ensuring public order,
justice, and the protection of collective interests.

Key Areas of Public Law:

Constitutional Law: Governs the structure and operation of the

government, the distribution of powers among government organs
(executive, legislature, judiciary), and the fundamental rights of citizens.

Example: The U.S. Constitution or the Indian Constitution.

Administrative Law: Regulates the actions and decisions of

government agencies, ensuring they operate within the law and that
citizens have access to justice in disputes with the state.

Example: The Freedom of Information Act (U.S.), which regulates

how public agencies must provide information to the public.

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 Criminal Law: Governs conduct that is harmful to society and
prescribes punishment for violations. It involves the prosecution of
offenders by the state.

Example: Laws against murder, theft, or fraud.

International Law: Deals with the relations between sovereign states

and international organizations, governing issues like treaties, human
rights, trade, and conflict resolution.

Example: Geneva Conventions (international humanitarian law) or

UN Charter.

B. Private Law
Private law regulates the relationships between private individuals or entities,
such as individuals, companies, or organizations. It is concerned with the
protection of private interests and resolving disputes between private parties.

Key Areas of Private Law:

Contract Law: Governs agreements between parties and ensures that

contractual obligations are honored.

Example: Sales contracts, employment contracts, and lease

agreements.

Tort Law: Deals with civil wrongs that cause harm or injury to
individuals or their property, usually leading to compensation or
remedy.

Example: Negligence, defamation, personal injury.

Property Law: Concerns ownership, use, and transfer of property,

whether real (land, buildings) or personal (goods, intellectual property).

Example: Real estate transactions, intellectual property rights

(patents, copyrights).

Family Law: Deals with matters related to family relationships, such as

marriage, divorce, child custody, and inheritance.

Example: Divorce, adoption, and child support laws.

2. Criminal Law vs. Civil Law

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 A. Criminal Law
Criminal law focuses on offenses that are harmful to society or public order,
and it involves the prosecution of individuals or entities accused of violating
legal norms. Criminal law aims to punish offenders and deter crime.

Key Features:

Public Prosecution: Criminal cases are brought by the state

(government) on behalf of society.

Punishment: Sanctions for criminal conduct can include imprisonment,

fines, community service, or capital punishment.

Burden of Proof: The prosecution must prove the defendant's guilt

beyond a reasonable doubt.

Examples of Criminal Offenses:

Theft, murder, rape, fraud, drug trafficking.

B. Civil Law
Civil law deals with disputes between private individuals or entities. It is
concerned with the protection of individual rights and providing remedies such
as damages or injunctions for harm or injury caused by one party to another.

Key Features:

Private Parties: Civil cases are typically initiated by the injured party
(the plaintiff) against the alleged wrongdoer (the defendant).

Compensation: The primary aim is to provide compensation (usually

monetary) for harm or loss suffered by the plaintiff.

Burden of Proof: The plaintiff must prove their case by a

preponderance of the evidence, which is a lower standard than in
criminal cases.

Examples of Civil Cases:

Breach of contract, personal injury (e.g., car accidents), divorce,

property disputes.

3. Substantive Law vs. Procedural Law

A. Substantive Law

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 Substantive law defines the rights and duties of individuals or entities, and it
governs the actual content of legal matters. It tells people what they can or
cannot do, and it specifies the legal rights they have in various situations.

Key Features:

Defines Rights: Substantive law creates, defines, and regulates rights

and obligations.

Examples: Criminal law (what constitutes a crime), contract law (what

constitutes a valid contract), property law (who owns what).

Examples of Substantive Law:

Criminal Code: What acts are considered crimes, and what

punishments they carry.

Contract Law: Legal rules about the formation and enforcement of

contracts.

B. Procedural Law
Procedural law deals with the mechanics of enforcing substantive laws. It
specifies the processes, rules, and procedures that must be followed in legal
matters, such as how a case should be conducted in court.

Key Features:

Establishes Procedures: Procedural law dictates the method by which

a legal case is processed, how trials are conducted, how evidence is
presented, and how judgments are enforced.

Examples: Civil procedure (how to file a lawsuit), criminal procedure

(rules for arrest, investigation, trial).

Examples of Procedural Law:

Civil Procedure Rules: How a lawsuit should be initiated, how to file

complaints, deadlines for responses, and how hearings are conducted.

Criminal Procedure: Rules about police investigations, arrest

procedures, the rights of the accused, trial procedures, and sentencing.

4. Municipal Law vs. International Law

A. Municipal Law

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 Municipal law (or domestic law) refers to the body of law that governs a
specific country or state. It applies within the borders of a particular jurisdiction
and is concerned with regulating relationships among individuals, private
entities, and government authorities.

Key Features:

Jurisdiction: Municipal law is specific to a country or state, and only

applies within that jurisdiction.

Sources: It includes national legislation, constitutional law, case law

(judicial decisions), and administrative regulations.

Examples:

Criminal laws of a country, such as those governing murder or theft.

Labor laws in a particular jurisdiction that govern employment contracts

and workplace conditions.

B. International Law
International law governs the relationships between sovereign states and
international organizations. It regulates conduct on a global scale and is
concerned with issues like human rights, international trade, war, and
environmental protection.

Key Features:

Jurisdiction: International law applies to states and international

organizations rather than individuals.

Sources: It is based on treaties, conventions, international agreements,

and customary law.

Examples:

Human rights treaties such as the Universal Declaration of Human

Rights.

International trade laws governed by the World Trade Organization

(WTO).

International humanitarian law (e.g., the Geneva Conventions).

Summary Table of Law Classifications

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 Classification Description Examples

Constitutional Law,
Regulates relations between the
Public Law Administrative Law, Criminal
state and individuals or entities.
Law, International Law

Regulates relationships between Contract Law, Tort Law, Family

Private Law
private individuals or entities. Law, Property Law

Concerned with acts harmful to

Criminal Law Theft, Murder, Assault, Fraud
society, punishable by the state.

Concerned with disputes between Breach of Contract, Personal

Civil Law private parties, usually seeking Injury, Divorce, Property
compensation. Disputes

Substantive Defines rights, duties, and Criminal Law, Contract Law,

Law obligations of parties. Property Law

Specifies the process for enforcing Civil Procedure, Criminal

Procedural Law
substantive law. Procedure, Rules of Evidence

National or local law that governs a National criminal laws, family

Municipal Law
particular jurisdiction. laws, and civil laws

International Governs relations between states UN Charter, International Trade

Law and international organizations. Agreements, Human Rights Law

Conclusion
The classification of law helps in understanding the vast and intricate legal
landscape. Laws can be categorized based on the parties involved (public vs.
private), the nature of the offense (criminal vs. civil), the type of law
(substantive vs. procedural), and the scope of jurisdiction (municipal vs.
international). These classifications help in studying legal systems and
navigating the legal processes.

The distinction between common law and civil law systems is fundamental to
understanding how legal systems operate in different countries. These two
major types of legal systems have developed over centuries and continue to
influence the way law is applied and interpreted across the world.
Here’s an overview of the common law and civil law systems:

1. Common Law System

LEGAL METHODS NOTES 19

 The common law system is one of the most widespread legal traditions in the
world, particularly in English-speaking countries. It originated in England and
was later adopted by former British colonies, including the United States,
Canada, Australia, and many other countries.

A. Origins and Development

Roots in English Law: The common law system developed in England after
the Norman Conquest of 1066. The English monarchy established a unified
system of law that applied throughout the kingdom.

Case Law: Common law is primarily based on judicial decisions made by

courts in individual cases. These decisions set precedents, which are then
followed in future cases. This process is known as stare decisis (Latin for
"to stand by things decided").

Role of Precedent: In common law systems, past judicial decisions (also

called precedents) are the primary source of law. Courts rely on previous
rulings to guide their decisions in similar cases.

B. Key Features of Common Law

Precedent-Based: The common law system operates on the principle of
stare decisis, meaning that courts are bound to follow the precedents set
by previous decisions. This ensures consistency and predictability in the
law.

Example: If a court ruled in a past case that a certain type of contract is

enforceable, future courts will likely follow that ruling unless there is a
compelling reason to overturn it.

Judicial Interpretation: Judges have a significant role in shaping the law.

Their interpretations of statutes and the Constitution often create new legal
standards and precedents.

Example: In the United States, judicial review (the power of courts to

declare laws unconstitutional) is an important function of the judiciary in
interpreting the Constitution.

Flexibility: Because common law evolves through judicial decisions, it can

adapt to changing societal conditions and new legal issues over time.

Example: Courts have gradually developed privacy law through case

decisions, even though privacy was not explicitly mentioned in earlier

LEGAL METHODS NOTES 20

 statutes or constitutions.

Adversarial System: Common law systems typically operate under an

adversarial system of litigation, where two opposing parties (the
prosecution and defense in criminal cases or plaintiff and defendant in
civil cases) present their cases before an impartial judge or jury.

Example: In a criminal trial in the U.S., the prosecutor represents the

state, while the defendant's attorney defends the accused.

C. Sources of Law in Common Law

1. Judicial Decisions (Case Law): The most important source of law in
common law systems is judicial precedent.

2. Legislation: While legislation (statutory law) is important, it is often

interpreted and applied by judges within the context of common law
principles.

3. Constitutions: In countries like the U.S. and the UK, constitutions provide
the framework for government and the protection of rights, but their
interpretation evolves through judicial decisions.

2. Civil Law System

The civil law system is based on written codes and statutes, and it is the most
widely used legal system in the world, especially in Europe, Latin America,
Asia, and Africa. The system originated from Roman law, particularly the
Corpus Juris Civilis compiled by Emperor Justinian in the 6th century.

A. Origins and Development

Roman Law: Civil law has its roots in the laws of ancient Rome, which were
codified and later served as the foundation for many European legal
systems.

Codification: Civil law systems rely heavily on written codes and statutes
that are systematically arranged and comprehensive. These codes cover
various areas of law such as contracts, torts, criminal law, and family law.

Example: The Napoleonic Code (1804) in France and the German Civil
Code (Bürgerliches Gesetzbuch, BGB) (1900) are prominent examples
of codified systems in civil law jurisdictions.

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 B. Key Features of Civil Law
Code-Based: In civil law countries, the law is primarily derived from
comprehensive, written codes that explicitly define legal principles. These
codes are designed to cover all possible legal issues.

Example: In France, the Code Civil governs many aspects of civil law,
including contracts, family law, and property law.

Less Emphasis on Precedent: Unlike the common law system, civil law
systems give less weight to judicial precedents. While court decisions are
still important, they are not binding on future cases in the same way they
are in common law jurisdictions.

Example: A decision made by a court in Germany does not have the

same binding effect on future cases as in the United States under the
common law system.

Role of Judges: In civil law systems, judges have a more passive role
compared to common law judges. Judges in civil law systems apply the
written code to the facts of the case, and their main function is to interpret
and apply the law as written, rather than create law through precedents.

Example: In France, judges in civil cases apply the Code Napoléon

(Civil Code), and they typically do not create new legal principles
through their decisions.

Inquisitorial System: Civil law systems often operate under an inquisitorial

system, where the judge plays an active role in investigating the case,
gathering evidence, and questioning witnesses.

Example: In a civil law criminal trial, a judge may lead the questioning of
both the accused and witnesses, as opposed to the more passive role
of a judge in the common law system.

C. Sources of Law in Civil Law

1. Codified Statutes: The most important source of law is the written code or
statutes, which cover all areas of law in a comprehensive manner.

2. Legislation: Laws passed by the legislature (parliament) are a primary

source of law in civil law countries.

3. Judicial Decisions: Although judicial decisions are not as significant as in

common law systems, they still play a role in interpreting statutes and

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 codes. In some countries, court rulings can be influential in shaping legal
understanding, but they do not carry the same precedential weight.

4. Scholarly Writings: In civil law countries, legal scholars and doctrine have
more influence in shaping the law than in common law jurisdictions. The
writings of scholars help interpret and explain legal codes.

3. Key Differences Between Common Law and Civil Law

Aspect Common Law Civil Law

Originated in England, based

Based on Roman law, codified in
Origins on judicial decisions and
written codes.
precedents.

Judges play a creative role in Judges apply written codes and

Role of Judges
law-making through precedent. statutes with less discretion.

Case law (precedents) and Written codes (e.g., civil codes)

Sources of Law
statutory law. and statutes.

Precedents have less binding

Stare decisis: Courts must
Precedent authority, though they still
follow previous decisions.
influence the law.

Based on case-by-case Based on the application of

Legal Reasoning reasoning and judicial general principles in codes and
interpretation. statutes.

Adversarial system with Inquisitorial system where the

Court Procedure opposing parties and a passive judge actively investigates the
judge. case.

More flexible, evolving through More rigid, based on the codes

Flexibility
judicial decisions. and statutes.

Examples of United States, United France, Germany, Japan, Brazil,

Countries Kingdom, Canada, Australia. Mexico.

Conclusion
The common law and civil law systems are the two most predominant legal
traditions worldwide. While common law is based on judicial decisions and
precedents, civil law is built on comprehensive written codes and statutes.
Both systems serve the same core purpose—administering justice and
maintaining order—but they do so in distinct ways. Understanding these

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 differences is essential for legal professionals and anyone interested in
comparative law or international legal practices.

LEGAL METHODS NOTES 24