LEGAL SYSTEM OF PAKISTAN
LEGAL SYSTEM OF PAKISTAN
We know that every body around talks about law according to one’s own perception. Before studying the statutory provisions of law, interpretation and significance of law, it is important to know what law is all about. Law in general sense is defined as under:
“The law consists of rules that regulate the conduct of individuals, businesses, and other organizations within society”
Significance of law
Law is to maintain rights, uphold justice and redress wrongs. Law ensures public order, balance, harmony, peace among the persons within the state and inter-states. We can easily conceive that in the absence of law and legal system there would have been disorder, unrest and chaos all around us.
For understanding law, we must have preliminary understanding of jurisprudence.
The legal experts term civil law as science of jurisprudence. Some concepts of jurisprudence are given below:
“Jurisprudence means the knowledge of law, or knowledge of just and unjust”
It deals with laws that are enforceable by the courts.
Kinds of Jurisprudence
The jurisprudence has been classified as under:
- Analytical Jurisprudence
- Historical Jurisprudence
- Ethical Jurisprudence
It covers the following areas:
It analyses the prevalent law that is the principles of law as exist now. It also studies theory of legislation, precedent and customs and study of different legal concepts such as property, possession, trust, contract, negligence etc
Scope of Analytical jurisprudence
It analyses the basic principles of civil law, it does not pay any attention to the evolutionary process and their ethical aspects that is whether they are good piece of law or otherwise. We can say that analytical jurisprudence does not consider the historical and ethical aspects.
Its scope can be underlined as given below:
- An analysis of the law
- Treatment of a complex idea or concept in its elementary sub-divisions
- Examination of the relations between civil law and other forms of law
- A study of the legal source of law
- An investigation of the theory of legislation, precedent and custom
- Classification of the entire body of law with reasons thereof.
- A treatment of rights, their kinds and classes, their creation, transfer and extinction
- Dealing with legal liability, its kinds, extent and incidence
- To investigate such legal concepts as property, possession, trust, contracts, persons, acts, intention, motive, negligence. etc.
It studies history of law and evolution of law over a period of time and also amendments, introduction of new principles of law.
Scope of Historical Jurisprudence:
It studies the principles of law in their origin and developments that take place over a period of time.
This branch is not the same thing as legal history.
It deals with the law that should be in an ideal state. It lays down the different purposes which should be fulfilled in an ideal state. It studies the modifications in the existing law in order to achieve these purposes and objects. The main object of ethical jurisprudence is the attainment of justice.
Scope of Ethical Jurisprudence:
Ethical jurisprudence deals with the law in the ideal state with law as it should be. Law exists to fulfill certain purposes. It is for this branch of jurisprudence to lay down what those purposes are and whether they are fulfilled by the law existing at any given time. It considers the modifications necessary in the existing law so that it may fulfill the objects for which it exists. The other two branches are concerned with an analysis of the law as it is or as has been without being concerned with its adequacy or inadequacy. Ethical jurisprudence has as its object the attainment of justice.
Advantages of study of jurisprudence
The following are the advantages of studying this science:
Jurisprudence is the “grammar of law” and teaches the lawyers and the legislator's proper use of legal terms. It ensures homogeneity and accuracy in legal phraseology.
A person who has studies jurisprudence will be able to study foreign laws intelligently if need be,
Concepts/ Definition of Law
Some of the definitions/concepts from the writings of eminent jurists are given below:
According to Blackstone:--
“Law signifies a rule of action, and is applied indiscriminately to all kinds of action”.
According to Holland:--
“Law refers to a general rule of action, taking cognizance only of external acts enforced by a determinate authority, which authority is human, and among human authorities is that which is permanent in a political society”.
According to Hobbs
“The commands of him and them that have coercive power”
According to Austin
“A law is a rule of conduct imposed and enforced by the sovereign”
According to Salmond
“Law is the body of principles recognized and applied by the State in the administration of justice”
According to John Erskine
“Law is the command of a sovereign, containing a common rule of life for his subjects and obliging them to obedience”.
According to De Montmorency
“Coercion is a weapon of law which law has forged, but it is not the basis of law.”
According to Pound
“Law is the body of principles recognized or enforced by public and regular tribunals in the administration of justice”
According to Wilson
“Law is that portion of the established thought and habit which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of Government.”
According to Green
“Law is the system of rights and obligations which the state enforces.”
According to Lord Radcliff
“You will not mistake my meaning or suppose that I depreciate one of the great human studies if I say that we cannot learn Law by learning Law. If it is to be anything more than just a technique it is to be so much more than itself; a part of history and sociology, a part of ethics and a philosophy of life
Classification of Law
The law is classified into the following branches:
- Physical or Scientific Law
- Natural or Moral Law
The three ingredients of imperative law are explained in detail
Imperative law is a general rule
It is a rule of general application as distinguished from particular application. A rule which applies only to one individual or one set of circumstances at a given time but never afterwards will not be a rule of imperative law. The rules of conduct laid down by a father for the guidance of his son; or by a master for his servant, though laid down by a superior and enforced by physical force, are not imperative law, because they are not of general application.
On the other hand, ‘general’ does not mean absolutely general, or applicable to all. Thus traffic rules, though applicable to drivers of vehicles only, are imperative law, for they apply generally to all drivers. The rules requiring ministers or the President to take an oath on entering upon office, though applicable to a few or even one individual form part of imperative law for the oath is to be taken by President after President, Minister after Minister, etc. thus “General” here signifies the fact that wherever a particular set of circumstances comes into existence, the rule should be invariably applicable, with exception –though the one affected may be an individual (the Minister) or to class of persons ( the drivers of vehicles).
Imperative law has some authority behind it:
It is given by some superior, may be human or divine. Every rule of imperative law is given by some authority –whether divine or religious or political.
Imperative law is enforced by superior power:
There must be some punishment on breach of imperative law. Rules of imperative law are enforced by some superior power, and the punishment takes such form as bodily or mental suffering. The superior
enforces it by either physical force or any other form of compulsion, such as ridicule, contempt or censure. Those subject to imperative law are bound to follow it; thus compulsion is necessary. A rule which people may or may not observe cannot form a part of imperative law.
Divine law is imperative law on the following basis:
(i) It is laid down by a superior authority (God);
(ii) It is followed compulsorily;
(iii) Its breach constitutes a sin and is punished with divine wrath.
Civil law (the law of the land) is also a form of imperative law on the following basis; --The superior power is the sovereign
--the compulsion is fear of punishment by the state.
--it is enforced by the physical force of the state. Civil law decides whether an act is innocent or criminal.
International law has been differently defined by different jurists.
Salmond takes it as “those rules which govern sovereign states in their relations and conduct towards each other”. Other definitions are: “ the body of rules which by custom or treaty civilized states regard as binding upon themselves in their relations with one another, and whose violation gives the injured party a legal right to redress”; ( Wheaton), “The aggregate of rules to which nations have agreed to conform in their conduct towards one another”; (Lord Russel).
Sources of law
According to Salmond, following are the main sources:
- Formal sources
- Material sources
Formal sources are comprised of statutes and decision of the courts.
Material sources are comprised of legal sources and historical sources. Legal sources are comprised of the following:
The main instruments under the legal sources are legislation and precedent.
First of all Precedent is explained.
Precedent or Case Law:
The decisions made by superior judiciary contain interpretation of law are called case law or precedents. The decisions can be relied upon/cited as precedents in future at the time of adjudication of the cases.
Principles of binding precedent are underlined below
- The decision relied upon must be based upon the interpretation of law.
-The precedent must have nexus to the central point of the case.
- The facts of the precedent being cited and the case being adjudicated upon must be the similar.
Process of legislation
Parliament: Law/ statutes are made by the parliament.
It is also called legislature and consists of, National Assembly, Senate and President of Pakistan.
Process of legislation—Explained
Parliament/federal legislature has been given powers to make laws by the constitution of Pakistan (1973) 4th schedule in two lists that is:
A bill can be presented in either house whether national assembly or senate and after being passed by simple majority shall be transmitted to other house. When the bill is passed by both houses of the parliament, it is then presented to the president for assent.
If the bill presented to President is not given assent or sent back to the parliament for any amendments, it will be considered in the joint sitting of the both houses of the parliament and if passed shall be again presented to the President for his assent. Now the bill will become the act of parliament and president does not have powers to withhold assent.
The bill when passed by the parliament is called an Act.
Money bill shall originate in the national assembly and after being passed shall be presented to the president for assent. Money bill shall not be presented to the senate. The rest of the procedure is the same as explained above.
Under the constitution of Pakistan, the President can promulgate an ordinance, if any house of parliament is not in session. The ordinance shall stand repealed after one hundred twenty days, if it is not presented or passed by the parliament.