Statutory and Customary Law

LECTURE ONE

* STATUTORY AND CUSTOMARY LAW:

Statutory Law: Law developed and imposed from above by some coercive authority, such as a king, a legislature, or a supreme court

Customary Law: law developed "from the ground" with the evolution of customs and practices and requires widespread acceptance.

* A set of rules is made by the sovereign. These are non optional and their violation is punishable.

Their objective: to maintain order in the society

Law reflects societal values, they change when values change, for example, laws related to caste system, gay rights, sati, dowry, RTI etc.

'Sovereign' could be a king, dictator, chief of a tribe or an elected leader

In contemporary times, in India, sovereign is the government (The parliament) which is the main source of laws. The act of making laws is called legislating and what comes out of it is called a legislation (or a statute/ act).

* Just like customs made by society lead to customary law, Parliament of the Legislature forms the Statute (Acts).

Customary law is based on customs, traditions and rituals that come from certain segments of the society (when something has been uniformly followed by everyone over a long period of time).

* Steps for Bill to become an Act

1. Bill introduced

2. Discussed

3. Passed

4. Signed by President (Presidential Assent)

5. Notified by the government to be an Act

* Terminology in an ACT

1. Long title- always begins with 'an Act to...'

2. Enacting Formula- 'Be it enacted/Enacted...'

3. Preamble- 'Where as...' Long title is followed by preamble and then the enacting formula.

4. Head note- Tells that what a section is about

5. Marginal note- sometimes given in the margin

6. Section- An act is made up of sections. Denoted by Arabic number without brackets.

7. Chapter-Too many closely related sections form a chapter.

8. Sub-section- Each section has parts called sub-sections. Denoted by Arabic number with brackets.

* Points to note-

1. Head note and marginal note are not a part of the section.

2. Connectors used are- of, or, by, for

3. Place and time denoting words like where and when are employed.

4. Restraining words used could be- subjected to etc.

5. Usually Section 2 defines special vocabulary used in the Act.

* Repeal or Cancel an Act

This takes place when a new act pertaining to that same area is put into effect. Then the older act is no longer in place and is repealed, that is, it is no longer in effect.

* Bare Act

Any act in raw form without commentary or with minimal notes is called Bare Act.

LECTURE TWO

Legislative (makes the law)

Executive (implements it)

Judiciary (upholds it, evaluates whether it is properly implemented or not, ensuring law is properly enforced)

3rd source of law: Judge made law (interpretation of law by judge)

Two types of laws

1. Civil law- outcome is compensation to the person whose rights have been violated. Covered under Civil Judiciary.

2. Criminal law- outcome is punishment or imprisonment. Covered under Criminal Judiciary.

The difference in the two types of laws is established based on the outcome of the two as explained above.

Difference between fine and compensation

1. Fine- paid to system

2. Compensation- paid to 'sufferer'

Criminal judicial hierarchy

1. Supreme court- it is the apex court

2. High court

3. Sessions court

4. Metropolitan court

5. Magistrate court

Civil judicial hierarchy

1. Supreme court- it is the apex court

2. High court

3. Metropolitan civil court

4. Senior civil division

5. Junior civil division

Article 141

Under article 141 of the Constitution, whatever decisions the Supreme Court takes become laws by default.

Evidence

In the lowest level of judiciary, the trial takes place based on evidence.

(The mechanism through which trial takes place to establish the guilt/innocence of the accused)

There are 2 mechanisms of seeking evidence-

1. Oral evidence through witness- the one who witnesses an event through sensory perception (touch, smell, hear, taste, see) is called Witness of facts.

2. Documentary evidence through documents- the one who gives expert opinions based on perception of facts in the past is called Witness of opinion or an expert witness.

Doctrine of presumed innocence

Responsibility of proving