Jurisprudence Module -II

International law

International law is a set of rules, agreements and treaties that are binding countries. Countries
come together to make binding rules that they believe will benefit the citizens. It is an
independent system of law existing outside the legal framework of a particular state.

Aim of International law

The existence of international law is the result of increased interstate engagement. It mainly
aims to maintain international peace and security among different states. It also helps in:

1. promotion of friendly relations among the member states (members of the

international community, for example, United Nations),

2. providing for basic humanitarian rights,

3. to solve international problems through international cooperation,

4. to refrain the state from using threat or force over the territory of any other state to
provide for the right to self-determination to people, and

5. to use peaceful methods to settle international disputes are few of its functions.

Subjects of International Lawv

It is referred to as entities who have a legal personality, with certain rights and duties under the
international legal system.

The state is considered to be the primary and original subject of international law. However, it
also regulates the actions of other entities:

Individuals – Common people of any state are also believed to be the subject of international
law.
International Organizations – It is an association of states, established by a treaty between two
or more states. International Organizations too have a legal personality and are considered to
be the subject of international law. For example, the United Nations.

Multinational Companies – They own and operate their corporate entities in at least one other
country aside from the place where it was incorporated, therefore it is established in more than
one nation.

Is International Law really a law?

It is one of the most controversial questions that has been debated and on which jurist’s
opinions hugely differ. One view considers International law not a true law, rather, a code of
rule of conduct backed by morality. On the other hand, International law is considered to be a
true law and is regarded as a law, similar to that of ordinary laws of a state, binding upon the
citizens.

Austin’s View – International law is not a true law

• According to Austin, law is the command of the sovereign punished by sanctions if the
command is violated by the individual. There must be a legislative authority enacting
the rule of conduct and enforcing physical sanction. So based on what he said, it can be
concluded that any rule which is not enacted by any superior or legislative
authority, cannot be regarded as a law and moreover, if laws are violated, sanctions
must be imposed.
• Based on that, it can be said that rules are only morally and ethically valid if they aren’t
issued by any sovereign authority. If we apply this theory to International law, we can
see there is no legislative power over the society, based on which Austin concluded that
International laws are merely based on ethics and morality and are not true law.

Constitutional Law

The term “constitution” is a French term and refers to the set of fundamental rules and
regulations that govern the functioning of a nation-state or any other organization. A state’s
constitution is the supreme law of the land and thus requires higher standards of legitimacy
 and integrity. It outlines a state’s fundamental principles, administrative structures,
procedures, and fundamental rights of individuals while defining the directions for a state’s
development.

“Constitutional law” is concerned with the interpretation and implementation of the

Constitution and its underlying principles. It forms the basis for individuals’ access to
particular fundamental rights, inter alia the right to life, the right to privacy, the freedom
to move, and the right to vote. It lays down procedural conditions that must be met before
a governmental entity can intervene with an individual’s rights, liberties, or property.
Constitutional law also deals with subjects such as judicial review, fundamental duties, and
the power to make laws, among other things.

Scope of Constitutional Law

The function and authority of the institutions within the state as well as the interactions between
citizens and the state come under the scope of constitutional law. The law of the constitution
must thus be understood within the socio-political atmosphere in which it functions, since a
constitution will symbolize the political and ethical ideals of the individuals it regulates.

Nature of Constitutional Law

Constitutional laws can be both written and unwritten. Written constitutions, such as
the Indian Constitution, act as the supreme law of the land. They are superior to all laws
in force in a country at any point of time, so much so that a law which is in derogation
of the constitution would be repealed. In the case of unwritten and flexible constitutions,
the hierarchy between the constitution and ordinary laws ceases to exist.

Need for the Constitution and Constitutional Law

Constitutions around the world ensure “the fair and impartial exercise of authority,” as
well as “a harmonious and stable society; protection of individual and community
rights; and promotion of appropriate resource management and economic growth.”
Simply put, a constitution empowers lawful authorities to function in the public interest
through the administration of key problems and the prevention of arbitrary power of
leaders who otherwise would abuse their position. This is based on the principle
 of constitutionalism, which governs the legitimacy of government actions and requires
the government to abide by the law of the land.

Territorial nature of law

Law is territorial in the sense that its operation itself is territorial. Generally, the Laws made by
the State are applied to persons, things and events which are within its territorial jurisdiction.
In other words, the enforcement of Law is confined to the territorial boundaries of the State
enforcing it. However, there may be cases where there can be extra-territorial operation of Law.
Extra-territorial operation of Law means that it also operates outside the limits of the territory
of the state which enacted that particular Law-The propositions that a system of law belongs to
a defined territory means that it applies to all persons, acts things and events within that
territory. It does not apply to persons, things acts or events elsewhere.

Question of Law

1. The question of law is related to interpretation and the judiciary does it. For example,
there are many laws in every country. The judiciary decides which law to apply and
which to exclude. This is question of law. When the judiciary wants to interpret a law
then the question of law comes. So, question of law is related to interpretation.

2. It is answered by fixed rules of law.

3. It is answered by judges.

4. It is called the Point of law.

5. It can’t be converted. It is a constant thing.

6. Example: What is murder, dacoity, theft, etc.

Question of Fact

1. For question of law, the court actually finds the answer with help of rules available
under different laws and legislations. When the court fails to do so, it seeks help from
the higher courts. Sometimes, after judgment, the victim goes to higher courts for better
judgment. But not all the problems can have answered in the law itself. In that time, the
court uses facts or evidence as help. It is called the question of facts. One important
 aspect of question of fact is that it is only bothering about the evidence of proof
available. It doesn’t consider on what kinds of opinion is available. There is only
opportunity for the matter of facts.

2. Questions other than particular law is question of fact.

3. It is answered by the parties.

4. It is called Point of fact.

PURPOSE OF LAW:

Through law, the information is passed to the citizens of the country in several ways. It is
reflected also in various branches of law. For instance, contract law quotes that the agreements
are supposed to exchange services, goods, or something which is of value in the eyes of law.
Therefore, it involves everything i.e. from purchasing a ticket to the trading plans in the market.

In furtherance to that, property law explains the rights and duties of each individual towards
the property. This may involve real estate along with their respective possessions. Additionally,
it involves intangible property like stock, shares and bank accounts. Several offences against
state, or any local community appeared as to be a subject matter of criminal law.

Henceforth, it gives the government a significant system in which offenders can be punished.
There are numerous kinds of purposes which are served by law.

1. Maintaining Order:

The law is said to be an offshoot for the establishment of the standards. The resembling nature
is necessary for a civilized kind of society. Thus, a similar thing is reflected upon the law.
Further, the law when being enforced provides a diligent consistency with the guidelines of the
society. In addition to that, wildlife management laws were passed in lieu of the game to be
conserved and so that it gets protected for future generations in the years to come.

2. Establishing Standards:
The law is a manner in which it shows a way to the minimum accepted behaviour in society.
There are few activities which are a crime for the society to determine whether it will tolerate
behaviours that may damage or injure the person or their respective properties. For instance, it
is a crime to injure an individual without the justification factor being met. Therefore,
committing the same can lead to the constitution of the crime i.e. assault.

3. Resolving Disputes:

Disputes are not supposed to be ignored in a society at large that consists of people with several
kinds of wants, needs, values, etc. Additionally, the law gives a formal means to resolve the
disputes which are under the court system.

4. Protecting Liberties and Rights:

The Constitution and the statutes of India give various rights and liberties in their states. In
addition to that, one of the functions of law is to protect numerous rights and liberties from
unreasonable kind of violations or intrusions by organizations, persons or government.
Henceforth, if an individual believes that the freedom of speech has been forbidden by the
government then the respective individual can pursue the remedy through the platform of
bringing the case in the courts.

Functions of law

Law is a wide subject which has great significance and functions. Some of the functions of law
are as follows:

1. It maintains law and order in the society and guarantees that justice is delivered at every
doorstep.
2. Without law, the society would be a mess and chaos.
3. Law helps in the reduction of crimes. Law has categorised various actions into offences
that have some penalties ranging from simple compensations to grave punishments.
This in turn creates fear in the mind of most of the people which eventually leads to the
reduction of crimes.
4. Laws guarantees fundamental rights to the people. If a person ever feels that his
fundamental rights are been threatened or violated, he/she may go to the courts for the
same.
5. Law even frames guidelines for the government. It in turn ensures that the government
does not practice in a biased way.
6. Law ensures absence of arbitrary powers.
7. Law ensures equality among the people of a country and that nobody is subjected to
discrimination on the basis of caste, colour, creed etc.
8. Law ensures the basic needs of the people.
9. Law improves the status quo in the society
10. It protects each and every individual of the society of the country.