Law | ISC Class 11 Political Science Notes

This note covers the meaning of law, its sources (customs, usages, religion, judicial decisions, scientific commentaries, equity and legislation), and the kinds of law (municipal, national, constitutional and international law, statute law and ordinances), with examples and comparisons.

What is the meaning of law?

Law is the body of rules that a state recognises and enforces to regulate the conduct of people living under it.

A rule becomes law when it is made or accepted by the authority that has the power to make it, and when it is backed by the power of the state to punish those who break it.

This is what separates a legal rule from a moral rule or a social custom: a custom may be broken without any penalty from the state, but a law carries a sanction.

Several features follow from this definition. Law is general, because it applies to everyone in the same situation rather than to named individuals. It is binding, because people must obey it whether or not they agree with it.

It is enforceable, because courts and the police exist to apply it. And it is dynamic, because legislatures amend it as society changes.

Definition: law. Law is a set of rules, recognised and enforced by the state, which governs the conduct of persons and provides remedies and punishments through the courts.

Jurists have described law in different ways. The analytical school treats law as the command of the sovereign backed by sanction. The historical school treats law as something that grows out of the customs and habits of a people.

The sociological school treats law as an instrument of social order and social change. For a student of politics, the practical point is that law both limits power and organises it: it tells the government what it may do and tells citizens what they may expect.

What are the sources of law?

A source of law is the place from which a legal rule draws its authority. Some sources are formal, meaning the rule is made by an authorised body such as a legislature or a court.

Others are material, meaning the rule grows out of custom, morality or scholarly writing. The main sources are customs, usages, religion, judicial decisions, scientific commentaries, equity and legislation.

Customs and usages

Custom is a long-standing practice that a community follows as if it were obligatory. When a custom is followed continuously, openly and without interruption for a long period, and is accepted as binding, courts may treat it as a source of law.

Usage is a similar practice, but it usually governs trade and commerce, for example the way merchants in a market settle their accounts.

The difference is one of strength: a custom is generally treated as more firmly binding than a mere usage, which must be proved in each case.

Religion

Religion has been a major source of law in most civilisations. Rules about marriage, inheritance, diet and worship were originally religious rules, and in many countries personal law still draws on religious texts.

In India, matters of marriage, divorce and succession for different communities are governed by personal laws that have religious roots, though they are now applied and interpreted by the courts.

Judicial decisions

Judicial decisions are the judgments of courts. Under the doctrine of precedent, a decision of a higher court binds lower courts in similar later cases. This body of judge-made law is called case law or common law. Precedent gives certainty and consistency, because like cases are decided alike. In India, Article 141 makes the law declared by the Supreme Court binding on all courts in the country.

Scientific commentaries

Scientific commentaries are the writings of jurists and legal scholars who explain, systematise and criticise the law. They are not law by themselves, but judges and legislators rely on them heavily, and a well-argued commentary can shape how a statute is understood or how a new law is drafted.

Equity

Equity means fairness and good conscience applied to fill the gaps left by strict law. Where the strict application of a rule would produce an unjust result, equity supplies a remedy.

It grew up in England as a separate body of principles administered by the Chancellor, and it later merged with the ordinary courts.

Legislation

Legislation is law deliberately made by a body with law-making power, such as Parliament or a state legislature. It is today the most important and the most prolific source of law, because it is written, published, precise and easy to change when circumstances change.

How does a custom become a source of law?

Not every habit becomes law. Courts apply a set of tests before accepting a custom as a legal source, and the same tests are used in most legal systems that recognise custom.

1. Antiquity: the practice must have existed for a long time, so that people have come to rely on it.
2. Continuity: it must have been followed without interruption, not started and stopped.
3. Certainty: its content must be clear and definite, so that a court can state what it requires.
4. Reasonableness: it must not be absurd, oppressive or contrary to public policy.
5. Observance as of right: people must follow it because they believe they are bound to, not out of mere courtesy.
6. Consistency with statute: a custom that conflicts with a valid law made by the legislature cannot prevail.

Note: custom versus usage. A custom is generally treated as law once the tests above are met, while a usage is a practice that must be proved in the particular case and binds only those who knew of it or are taken to have accepted it.

What are the kinds of law?

Law is classified in several ways. One classification looks at territory: municipal law applies inside a state, while international law governs relations between states. Another looks at rank: constitutional law stands above ordinary statute law.

A third looks at the form in which a rule is made: a statute is passed by a legislature, while an ordinance is made by the executive under powers given by the constitution.

The kinds named in this unit are municipal, national, constitutional and international law, statute law and ordinances.

What is municipal law and how does it differ from national law?

Municipal law is the law that a state makes for itself and applies to persons and events within its own territory. It is also called internal law or domestic law. For example, the Bharatiya Nyaya Sanhita, 2023, which replaced the Indian Penal Code, 1860, from 1 July 2024, applies to every person who commits an offence in India.

It covers both public law, which deals with the state and its organs, and private law, which deals with relations between individuals such as contracts, property and family matters.

National law is the whole legal order of a country taken together: its constitution, its statutes, its delegated legislation and its case law. Every municipal law is part of national law, but national law also includes rules that organise the state itself.

What is constitutional law?

Constitutional law is the body of rules that creates the main organs of government, distributes powers among them, and limits those powers.

It is the fundamental law of the state: every other law must conform to it, and a law that conflicts with it can be struck down by the courts.

Constitutional law has two parts. The written constitution contains the formal text, such as the Constitution of India.

Conventions are unwritten rules of practice that the organs follow, for example the convention that the President invites the leader of the majority party or coalition in the Lok Sabha to become Prime Minister. The rule that the President acts on the advice of the Council of Ministers began as a convention but is now written into Article 74. Both are studied as constitutional law because both shape how government actually works.

Definition: constitutional law. Constitutional law is the set of rules that establishes the organs of the state, distributes and limits their powers, and regulates the relationship between the government and the citizen.

Constitutional law is enforced through judicial review, the power of courts to examine whether a law or an executive action is consistent with the constitution.

In India this power flows from the Constitution. Article 13 declares void any law that takes away or abridges the fundamental rights, and Article 32 and Article 226 let citizens approach the Supreme Court and the High Courts. The Supreme Court laid down the basic structure doctrine in Kesavananda Bharati v. State of Kerala (1973), and in Minerva Mills v. Union of India (1980) it held that judicial review is part of that basic structure.

What is international law?

International law is the body of rules that governs the relations between states and other international actors. It is also called the law of nations. Its main sources are treaties and conventions, international custom, general principles of law recognised by civilised nations, and the writings of jurists.

International law differs from municipal law in important ways. There is no world legislature to make it, no world police to enforce it, and the International Court of Justice can decide a case only when the states concerned accept its jurisdiction.

It is therefore often described as a weak law, though it is real law: states justify their conduct by it, and a state that breaks it faces political and economic consequences.

In India, Article 51 directs the state to foster respect for international law and treaty obligations, and Article 253 allows Parliament to make laws to put a treaty into effect.

What is statute law and how is it made?

Statute law is law made in writing by a legislature acting under the powers given to it by the constitution. It is also called enacted law or legislation.

Because it is written and published, it is the clearest and most certain form of law, and it prevails over custom and usage.

A statute normally passes through the following stages.

1. Introduction of a bill: a draft law is placed before the legislature, by a minister as a government bill or by a member as a private member's bill.
2. Debate and amendment: the house discusses the bill clause by clause and may amend it.
3. Passage by both houses: in a bicameral legislature the bill must be agreed to by both chambers.
4. Assent of the head of state: the bill becomes an Act only when the President (Article 111) or the Governor (Article 200) gives assent.
5. Commencement: the Act comes into force on the date it or a notification appoints.

Note: delegated legislation. A statute often authorises the executive to make detailed rules under it. These rules are called delegated or subordinate legislation, and they are valid only so long as they stay within the powers given by the parent Act.

What is an ordinance and how does it differ from a statute?

An ordinance is a temporary law made by the executive when the legislature is not in session and a matter needs immediate action.

In India the President may promulgate an ordinance under Article 123 at any time except when both Houses of Parliament are in session, and a Governor may do so for a state under Article 213.

An ordinance has the same force as an Act of the legislature, but it must be laid before the legislature when it reassembles. Under Article 123(2) it ceases to operate six weeks after Parliament reassembles unless it is replaced by an Act, or earlier if both Houses pass resolutions disapproving it.

The Supreme Court has guarded against misuse. In D.C. Wadhwa v. State of Bihar (1987) it held that re-promulgating ordinances again and again without placing them before the legislature was a fraud on the Constitution, and in Krishna Kumar Singh v. State of Bihar (2017) it held that ordinances are open to judicial review.

How do the kinds of law compare with one another?

The kinds of law overlap, and a single rule may belong to more than one kind. A statute on elections is statute law, municipal law and national law at the same time.

What changes is the question being asked: is the rule internal or international, is it fundamental or ordinary, is it made by the legislature or by the executive?

Draw two columns. On the left, list the seven sources: customs, usages, religion, judicial decisions, scientific commentaries, equity, legislation. On the right, list the six kinds: municipal, national, constitutional, international, statute, ordinance.

Draw arrows from legislation to statute and ordinance, and from constitutional law to the top of the right column to show its higher rank.

Going beyond the syllabus

These ideas extend the unit and are not needed for the questions on it.

The distinction between law and morality is worth a moment. Many moral rules, such as the duty to help a stranger, are not enforced by the state, while some legal rules, such as a rule about which side of the road to drive on, carry no moral weight.

Law and morality overlap but neither contains the other. A second useful idea is the rule of law, the principle that no one, including the government, is above the law and that the law applies equally to all.

It explains why constitutional law is placed above ordinary statute: a government that could change the rules at will would not be governing under law.

Glossary

• Law: A body of rules recognised and enforced by the state, governing conduct and providing remedies and punishments.
• Custom: A long, continuous and binding practice of a community that courts may treat as a source of law.
• Usage: A settled practice, usually in trade, that binds only where it is established and known.
• Precedent: The rule that a decision of a higher court binds lower courts in similar later cases.
• Equity: Fairness and good conscience applied to supply remedies where strict law is silent or harsh.
• Legislation: Law deliberately made by a body with law-making power, such as a legislature.
• Municipal law: The internal or domestic law of a state, applying to persons and events within its territory.
• Constitutional law: Rules that create, distribute and limit the powers of the organs of government.
• International law: Rules governing relations between states and other international actors.
• Statute law: Written law enacted by a legislature under powers given by the constitution.
• Ordinance: A temporary law made by the executive when the legislature is not in session.
• Judicial review: The power of courts to examine whether a law or action is consistent with the constitution.

Common errors and misconceptions

• Misconception: Every custom is law. Correct: A custom becomes a source of law only if it is ancient, continuous, certain, reasonable and consistent with statute.
• Misconception: Municipal law and international law are the same because both are law. Correct: Municipal law applies inside a state and is enforced by its courts, while international law governs relations between states and depends largely on consent.
• Misconception: An ordinance is a permanent law. Correct: An ordinance is temporary and lapses six weeks after the legislature reassembles unless it is replaced by an Act.
• Misconception: Statute law and constitutional law have the same rank. Correct: Constitutional law is fundamental; a statute that conflicts with the constitution can be struck down.
• Misconception: Scientific commentaries are binding law. Correct: They are persuasive writings of jurists that guide judges and legislators but do not bind by themselves.
• Misconception: Equity means the judge's personal opinion. Correct: Equity is a body of settled principles of fairness applied to fill gaps in strict law.
• Misconception: National law and municipal law are opposites. Correct: Municipal law is a part of national law, which is the whole legal order of the country.

Exam-style questions with model answers

Q1. State the meaning of law and give one example of a law that applies to everyone in India. [2 marks]

1. Law is a body of rules recognised and enforced by the state to regulate conduct, backed by the power to punish breaches.
2. Example: the Bharatiya Nyaya Sanhita, 2023, which replaced the Indian Penal Code in 2024, applies to all persons in India and punishes offences such as theft.

Q2. Name any four sources of law. [2 marks]

1. Customs and usages: long-standing practices accepted as binding.
2. Religion: rules drawn from religious texts, as in personal law.
3. Judicial decisions: judgments of higher courts that bind lower courts.
4. Legislation: law made by Parliament or a state legislature.

Q3. Distinguish between municipal law and international law on any three points, giving one example of each. [4 marks]

1. Who it governs: municipal law governs individuals and bodies inside a state, while international law governs states and international organisations.
2. Who makes it: municipal law is made by a legislature with authority over the whole territory, while international law is made by states through treaties and long practice.
3. Enforcement: municipal law is enforced by courts and the police, while international law has no central police and depends on consent, sanctions and pressure.
4. Example: the Bharatiya Nyaya Sanhita, 2023, is municipal law; the Charter of the United Nations, 1945, is international law.

Q4. Explain how a custom becomes a source of law. [4 marks]

1. Antiquity: the practice must have existed for a long time so that people rely on it.
2. Continuity and certainty: it must have been followed without interruption and its content must be clear.
3. Reasonableness: it must not be absurd, oppressive or contrary to public policy.
4. Observance as of right and consistency with statute: people must follow it as binding, and it cannot prevail against a valid law made by the legislature.

Q5. Explain the difference between statute law and an ordinance, with one example of each. [4 marks]

1. Who makes it: a statute is made by the legislature, while an ordinance is made by the executive, usually the head of state on the advice of the council of ministers.
2. Duration: a statute is permanent until repealed or amended, while an ordinance is temporary and lapses unless approved by the legislature.
3. When it can be made: a statute can be passed whenever the legislature is functioning, while an ordinance can be made only when the legislature is not in session.
4. Examples: the Representation of the People Act, 1951, is a statute; an ordinance promulgated by the President under Article 123 is an ordinance.

Q6. "Legislation is the most important source of law today." Justify this statement with four reasons. [4 marks]

1. It is made deliberately by a body with law-making power, so it reflects the will of the people's representatives.
2. It is written and published, so it is clear and certain and easy for citizens and courts to apply.
3. It can be amended quickly when circumstances change, unlike custom, which changes slowly.
4. It prevails over custom and usage, and it is the source through which constitutions and ordinary statutes are made.

Q7. Explain the meaning of constitutional law and state why it ranks above ordinary statute law. [5 marks]

1. Constitutional law is the body of rules that creates the main organs of government, distributes powers among them and limits those powers.
2. It is the fundamental law of the state, and every other law must conform to it.
3. It has two parts: the written constitution, such as the Constitution of India, and unwritten conventions that the organs follow.
4. It is enforced through judicial review, the power of courts to examine whether a law or executive action is consistent with the constitution.
5. Because a statute that conflicts with the constitution can be struck down, constitutional law stands above ordinary statute law.

Q8. Explain the sources of law under the headings of equity, judicial decisions and scientific commentaries, giving one example of each. [5 marks]

1. Equity means fairness and good conscience applied to fill gaps left by strict law, supplying a remedy where the strict rule would be unjust.
2. Equity grew up in England as a separate body of principles administered by the Chancellor and later merged with the ordinary courts.
3. Judicial decisions are the judgments of courts, and under the doctrine of precedent a decision of a higher court binds lower courts in similar later cases.
4. This judge-made body of case law gives certainty and consistency, because like cases are decided alike.
5. Scientific commentaries are the writings of jurists and scholars that explain and criticise the law; they are persuasive rather than binding, but judges and legislators rely on them heavily.

Key takeaways

• Law is a body of rules recognised and enforced by the state, and it is general, binding, enforceable and dynamic.
• The seven sources are customs, usages, religion, judicial decisions, scientific commentaries, equity and legislation.
• A custom becomes law only if it is ancient, continuous, certain, reasonable, observed as of right and consistent with statute.
• Legislation is the most important source today because it is written, precise, published and easy to amend.
• Municipal law is the internal law of a state; national law is the whole legal order of the country.
• Constitutional law is fundamental law, enforced through judicial review, and ranks above ordinary statute law.
• International law governs relations between states and depends largely on consent for its enforcement.
• Statute law is made by the legislature; an ordinance is a temporary law made by the executive when the legislature is not in session.

Test yourself

What is the difference between a custom and a usage?

A custom is a long, continuous and binding community practice that courts may treat as law once the tests are met, while a usage is a settled practice, usually in trade, that must be proved in the particular case and binds only those who knew of it.

Name the two parts of constitutional law.

The written constitution, such as the Constitution of India, and unwritten conventions that the organs of government follow in practice.

Why is international law described as a weak law?

Because there is no world legislature to make it, no world police to enforce it, and the International Court of Justice can decide a case only when the states concerned accept its jurisdiction.

Under which Article may the President promulgate an ordinance?

Article 123 of the Constitution of India allows the President to promulgate ordinances at any time except when both Houses of Parliament are in session.

What is delegated legislation?

It is the detailed rules made by the executive under powers given by a statute, and it is valid only so long as it stays within the powers given by the parent Act.

Give one example each of municipal law and international law.

The Bharatiya Nyaya Sanhita, 2023, is municipal law, and the Charter of the United Nations, 1945, is international law.

What is judicial review?

It is the power of courts to examine whether a law or an executive action is consistent with the constitution, and to strike it down if it is not.