What Is Law

1.
What is Law
What we do if law did not exist?
Definition
 In the Concept of Law, H.L.A Hart argued that law is a "system of rules"
 John Austin said law was the command of a sovereign, backed by the
threat of a sanction.
 Joseph Raz argues law is an "authority" to mediate people's interests.
 Thomas Aquinas argues that law is a rational ordering of things that is
concerned with common good of people and made by the person incharge
of a community.
2. History of Law
 The history of law links closely to the development of civilization.

 Around 1760 BC, King Hammurabi further developed Babylonian law, by
codifying and inscribing it in stone. Hammurabi placed several copies of his
law code throughout the kingdom of Babylon as stelae, for the entire public
to see; this became known as the Codex Hammurabi.
 The Old Testament dates back to 1280 BC and takes the form of moral
imperatives as recommendations for a good society.
 The small Greek city-state, ancient Athens, from about the 8th century BC
was the first society to be based on broad inclusion of its citizenry,
excluding women and enslaved people.
 Roman law was heavily influenced by Greek philosophy, but its detailed
rules were developed by professional jurists and were highly sophisticated.
 In medieval England, royal courts developed a body of precedent which
later became the English common law.
 The Law Merchant, a precursor to modern commercial law, emphasised
the freedom to contract and alienability of property.
3. Sources of Law
a. Customs
A custom as a law is not in written form, but considerably a rule whereby a

practice can be shown to have existed for a very long time, it becomes the part of
sources of law.
 Customs are the earliest sources of law and form the basis of the English
Common Law system as we see it today.
 They can be described as cultural practices which have become definite
and backed by obligation or sanction just by virtue of widespread practise
and continue presence.
 In primitive societies, there was no external authority over people, yet
people organized themselves in cohesive groups with a mechanism for
fairness and liberty.
 People developed rules and regulations through spontaneous reaction to
their circumstances as well as a coordinated conscious decision to arrive at
them.
 Eventually, people started recognizing traditions, practices, rituals which
were prevalent in a certain territory or group, and saw how they formed a
systematized approach to social regulation.
 The customs were later transformed into law. It is also known as customary
law.
 General Custom – A general custom has the force of law throughout the
territory of a state. For example, the Common Law in England.
 Local Custom – The local custom are those which operate have the force of
law in a particular locality. The authority of a local custom is higher than
that of general custom.
b. Judicial Precedent
 Judicial precedent (aka: case law, or judge-made law) is based on the

doctrine of stare decisis, and mostly associated with jurisdictions based on
the English common law, but the concept has been adopted in part by civil
law systems.
 Precedent is the accumulated principles of law derived from centuries of
decisions. Judgements passed by judges in important cases are recorded
and become significant source of law.
 When there is no legislature on a particular point which arises in changing
conditions, the judges depend on their own sense of right and wrong and
decide the disputes from first principles.
 Authoritative precedent decisions become a guide in subsequent cases of a
similar nature.
 In comparison with other sources of law, precedent has the advantage of
flexibility and adaptability, and may enable a judge to apply "justice" rather
than "the law".
Kinds of Precedents
Authoritative
An authoritative precedent is one which judge must follow whether they approve
of it or not.
Persuasive
A persuasive precedent is one which the judges are under no obligation to follow.
Declaratory
A declaratory precedent is one which is merely the application of an already

existing rule of law.
Original
An original precedent is one which creates and applies a new rule.
Absolute
In the case of authoritative precedents having a conditional authority, the courts

can disregard them under certain situations. Ordinarily, they are binding but
under special circumstances, they can be disregarded.
Conditional
A conditional precedent can be disregarded either by dissenting or by overruling.
C. Legislation
 Legislation means the process of lawmaking. Legis means law and Latum
mean “making”, and as a whole it means lawmaking.
 According to Austin, it means the making of law by a supreme or a
sovereign authority which must be followed by people of every stratum of
the society.
 Salmond defines Legislation as the process of lawmaking by a competent
and able authority.
Supreme Legislation
Constitutional Law
Statutes
Subordinate Legislation
Subordinate legislation will be legislation by some other authority than the

Supreme specialist in the state. (University)
Executive Legislation
Judicial Legislation
Municipal Legislation
Delegated Legislation
d. Agreement
An agreement is also an essential source of law as it gives rise to conventional

law.
4. Types of Law
1. Codified law and Uncodified law
2. Procedural and Substantive Law
3. International Law and Domestic Law
4. Civil and Criminal Law
5. Man Made Law and Divine Law
6. Tazir and Shariah Law
5. Areas of Law
 Jurisprudence
 Commercial Law/Trade Law (WTO Agreements)
 Contract Law (Contract Act)
 Constitutional Law (Constitution of Pakistan)
 Shariah Law Consumer Law (Hadood Laws)
 Banking and Finance Law (Banking Act)
 Corporate Law (Companies Act)
 Administrative Law (General Law) (PEDA)
 Employment Law (Factories Act, 1934
 Family Law (Family Ordinance, Family Courts Ordinance)
 Environmental Law ( Environmental Protection Act)
 Human Rights Law (Constitution of Pakistan) (UDHR)
 Immigration and Asylum Law (Asylum Act)
 Insurance Law, Intellectual Property Law (IP Act)
 Property Law (Transfer of Property Law)
 Taxation Law (Income Tax Ordinance)
 Tort Law (General/Precedent)
 Health Law (General)
Practical Importance of Law
Relationship between State and Law

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1.

What we do if law did not exist?

 The history of law links closely to the development of civilization.

A custom as a law is not in written form, but considerably a rule whereby a

 Judicial precedent (aka: case law, or judge-made law) is based on the

A declaratory precedent is one which is merely the application of an already

An original precedent is one which creates and applies a new rule.

In the case of authoritative precedents having a conditional authority, the courts

A conditional precedent can be disregarded either by dissenting or by overruling.

Subordinate legislation will be legislation by some other authority than the

An agreement is also an essential source of law as it gives rise to conventional

Practical Importance of Law

Relationship between State and Law

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