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jurisprudence:general-and-special-law

General Law and Special Law

The whole body of the law; the entire corpus juris; may be conveniently regarded as divided into two parts which may be suitably distinguished as general law and special law. The former consists of the general or ordinary law of the land . The latter consists of certain other bodies of legal rules which are so special and exceptional in their nature, sources, or application that it is convenient to treat them as standing outside the general and ordinary law, as derogating from or supplementing it in special cases but not forming a constituent part of it. The distinction so drawn is probably not one which will stand the test of minute logical analysis, and its application has been to some extent perverted by the accidents of legal history and has varied from time to time in the course of legal development. It is to some extent a matter of merely arbitrary classification whether we regard certain rules as falling within the scope of the general law of the land, though exceptional in their nature, source, or application, or whether on the contrary we classify them as forming a special body of law having an independent existence, and operating within its own sphere of application as derogating from or supplementing the general law. Considerations of practical convenience, however, in respect of legal classification, exposition, and nomenclature justify the recognition of this distinction between the central or principal portion of the corpus juris, and the various bodies of legal doctrine that are merely subsidiary and accessory to it.

The chief forms of special law which may be thus recognised as standing outside the general law of the land are the following, which we shall consider in their order:

  1. Local law
  2. Foreign law
  3. Conventional law
  4. Autonomic law
  5. Martial law
  6. International law as administered in prize courts.

Local law

In the first place, the general law is the law of the whole realm. It is in force throughout the entire territory of the English courts. Standing apart from this system of general territorial application are divers bodies of local law in force in particular portions of the realm only. Such local law is of two kinds, being either local customary law or local enacted law. Local customary law has its source in those immemorial customs which prevail in particular parts of England and have there the force of law in derogation of the general law of the land. Local enacted law, on the other hand, has its source in the local legislative authority of boroughs and other self-governing communities empowered to govern their own districts by by-laws supplementary to the general law. All such local customs and local laws are part of English law, since they are recognised and enforced in English courts, but they are not part of the general territorial law of England.

Indian aspect: Section 42 of the Indian Penal Code : “Local law”- A “local law” is a law applicable only to a particular part of India.

Foreign law

Another form of special law consists of those rules of foreign law which are on occasion applied, even in Indian courts, to the exclusion of the general law of India. Justice cannot be efficiently administered by tribunals which refuse on all occasions to recognise any law but their own. It is essential in many cases to take account of some system of foreign law and to measure the rights and liabilities of litigants by it, rather than by the indigenous and territorial law of the tribunal itself. If, for example, two men make a contract in France and one of them sues on it in an Indian court, justice demands that in many respects the validity and effect of the contract shall be determined by French rather than by Indian law. French, instead of Indian, law will therefore be applied in such a case in Indian courts, in derogation of the general law. The principles which determine and regulate such substitution of foreign law for the law of India in Indian courts constitute the body of legal doctrine known as private international law.

Foreign law, so far as it is thus recognised in English courts, becomes by virtue of this recognition and application English law pro re nata, for English law is nothing but the body of principles recognised and applied by English courts in the administration of justice. But it is not part of the general law of England. It is, on the contrary, the territorial law of another country, substituted for the territorial law of England in special cases and on special considerations.

Conventional law

A third form of special law contrasted with and distinct from the general law of the land is that which may be suitably distinguished as conventional law. This is the law which has its source in the agreement of those who are subject to it. Agreement is a juristic fact having two aspects and capable of being looked at from two points of view. It is both a source of rights and a source of law. The former of those aspects is the more familiar, but on occasion and for some purposes it is convenient to have regard to the latter. General rules laid down in a contract, for the determination of the rights, duties, and liabilities of the parties inter se , may rightly be regarded as rules of law which those parties have agreed to substitute for or add to the rules of the general law. Agreement is a law for those who make it, which pro tanto supersedes, supplements, or derogates from the ordinary law of the land. Modus et conventio vincunt legem. To a large extent the general law is not peremptory and absolute, but consists of rules whose force is conditional on the absence of any other rules agreed upon by the parties interested. These conventional rules are just as truly law as the general rules which they have superseded or supplemented. The articles of association of a company, for example, are just as much true rules of law, for the members of that company, as are the provisions of the Companies Act, or those statutory regulations which apply in the absence of any articles specially agreed upon. Similarly, articles of partnership fall within the definition of law, no less than the provisions of the Partnership Act which they supplement or modify, for both sets of rules are authoritative principles which the courts will apply in all litigation affecting the affairs of the partnership. But although such conventional law is true law inter parties , it is not a portion of the general law of the land Like local law and foreign law, it stands outside the general system, for it is destitute of general application.

Autonomic law

Similar considerations apply to that form of special law which will be more fully dealt with in a subsequent chapter under the designation of autonomic law. By this is meant that species of enacted law which has its source in various forms of subordinate and restricted legislative authority possessed by private persons and bodies of persons. A railway company, for example, may make bye-laws for the regulation of its undertaking. A university may make statutes for the government of its members. An incorporated company can, by altering its articles, impose new rules and regulations upon dissentient shareholders. All rules so constituted by the exercise of autonomous powers of private legislation are true rules of law, for they will be recognised and applied as law in the courts of justice. But they are not incorporated as part of the general law of India.

Martial law

Yet another form of jus speciale standing apart from the general lex terrae is that which is known as martial law. This is the law which is applied to courts martial in the administration of military justice. Courts martial are the courts of the army. All other courts of justice are distinguished as civil, and the law applied by these civil courts in the administration of civil justice is distinguished from martial law as being civil law, in one of the senses of that term.

When in a later chapter we come to consider the nature of the state, we shall see that its primary and essential functions are war and the administration of justice. The army is that organ of the state by which it fulfils the first of these functions, while the courts of law, acting in conjunction with the appointed instruments for the execution of their judgments (such as the officers of police and of prisons) are the organs through which the state normally and in ordinary cases exercises its second function. Nevertheless, the division of these two functions between two distinct organs of the body politic is not complete. For the army itself exercises in certain cases the function of administering justice. The courts established within the army for this purpose are courts martial, and the law which these courts administer is martial law. To the extent therefore to which, in this abnormal fashion, the army assumes and exercises the functions of the civil judicature, we find military courts, military justice, and military law, standing side by side with civil courts, civil justice, and civil law.

Martial law is of three kinds. It is either

  1. the law for the discipline and government of the army itself; or
  2. the law by which the army in time of war governs foreign territory in its military occupation outside the realm , or
  3. the law by which in time of war the army governs the realm itself in derogation of the civil law, so far as required by military necessity and the public safety.

The first form, that by which the army itself is disciplined and controlled, is commonly known by the specific title of military law, the two other forms being distinguished from it as being martial law in a narrow and specific sense. Historically and generically, however, the term martial law is properly applied to all three kinds. Military law is distinguished in three respects from the other forms of martial law. In the first place, it is in force in time of peace no less than in time of war, whereas the other forms are in force only in time of war. In the second place, military law applies only to the army itself, whereas the other forms of martial law apply to the civilian population also In the third place, military law is of statutory authority, being contained in the Army Act and the rules and regulations made thereunder, whereas the other forms of martial law have their source in the royal prerogative, except so far as Parliament may from time to time, in view of the emergencies created by public or civil war, see fit to make special statutory provision in that behalf.

The second form of martial law is that by which the army, when it goes beyond the realm in time of war, governs any foreign territory of which it is in military occupation for the time being. Territory so held by the forces is governed autocratically by the royal prerogative, which is commonly exercised through the military commanders of the army of occupation. Save so far as the ordinary civil courts of the territory are permitted to continue their functions and to administer civil justice there in accordance with the ordinary territorial law, the justice administered in that territory is military justice administered by courts martial, and the martial law administered by these courts consists of the rules established by the good pleasure of the military authorities.

The third and last kind of martial law is that which is established and administered within the realm itself in derogation of the civil law, when a state of war exists within the realm, whether by way of invasion or by way of rebellion. The legality of such substitution of military for civil justice within the realm itself in time of war has been the subject of much difference of opinion. It is held by some that it is never lawful, unless expressly authorised by Act of Parliament, and that the authority of the civil courts and the civil law is absolute in time of war no less than in time of peace. According to this view the exercise of military authority within the realm in time of war in derogation of the civil law is always illegal, whatever justification for it may exist in considerations of military necessity and the public safety, in the absence of statutory sanction, either precedent, or subsequent by way of Acts of indemnity and ratification. This is not the place in which this question can be adequately discussed. It is sufficient to say that the better opinion would seem to be, that even within the realm itself the existence of a state of war and of national danger justifies in law the temporary establishment of a system of military government and military justice in derogation of the ordinary law of the land, in so far as this is reasonably deemed necessary for the public safety. To this extent and in this sense it is true that inter arma leges silent. The formal establishment of such a system of military government and justice in time of internal war or rebellion is commonly known as the proclamation of martial law. With the acts of military authorities done in pursuance of such a system the civil courts of law will not concern themselves in time of war, and even after peace has come again, the acts so done in time of war may be justified in the civil courts, so far as done in good faith and with reasonable cause in view of the real or apparent necessity which gave occasion to them.

International law

The last kind of special law which it is necessary to distinguish from the general law of the land is that portion of the law of nations which is administered in the prize courts of the state in time of war. In a former chapter we saw that international law, or the law of nations, consists of a body of rules established by the express or implied agreement of sovereign states for the regulation of their conduct towards each other. The rules of international law are not as such, and in general, recognised and administered by courts of justice as being also rules of civil law. The remedy for breaches of international law is not in general to be found in the law courts of the state. A treaty or other international agreement is not in general a contract which creates legal rights and obligations of which the courts of justice will take notice. It is true that to some extent civil law and international law deal with the same subject-matters, and that when this is so, identical or similar rules tend to be established concurrently in both systems. Both civil and international law, for example, find it necessary to determine the limits of jurisdiction and state authority on the high seas; and it is obviously expedient that these rules should be determined in the same way by both systems. But this tendency of the civil law to conform more or less accurately to the international law on the same matter is a very different thing from the recognition of international law as having, per se or proprio vigore, the force and authority of civil law in the state's courts of justice. As a general rule it possesses no such force or authority. Nevertheless, there is one particular portion of the law of nations which is thus recognised by courts of justice as having in itself the force and nature of civil law also. It is that portion which regulates the practice of the capture of ships and cargoes at sea in time of war, and which is known as prize law.

Prize Courts

By a rule of international law, all states which desire to exercise this right of capture are under an obligation, while at war, to establish and maintain within their dominions certain courts called prize courts, whose function is to investigate the legality of all captures of ships or cargoes, and to administer justice as between the captors and all persons interested in the property seized. If the seizure is lawful, the property is condemned by those courts as lawful prize of war, and if unlawful, decrees are made for such restitution or redress as the law requires. Now a prize court is not an international tribunal; it is a court established by and belonging exclusively to the individual state by which the ships or cargoes have been taken. See Naval and Aircraft Prize Act, 1971.

The prize court of England was formerly the Court of Admiralty, and is now the Probate, Divorce and Admiralty Division of the High Court of Justice. Nevertheless, the law which it is the duty and function of these courts to administer is the law of nations It has its source in the agreement of sovereign states among themselves, and not in the legislative authority of the individual state to which the court belongs. But because of the fact that this portion of international law is thus recognised and applied by prize courts in the administration of the justice of those courts, it is also civil law; inasmuch as civil law includes all rules, whatever their source, which are recognised and applied by the courts of justice of a state. Prize law, therefore, has a two-fold nature and aspect. It is international law, because made by international agreement; and it is at the same time civil law, because governs the administration of justice in civil courts.

Yet although prize law possesses the true nature of civil law, and is therefore to be considered as part of the entire body of English law, it is not part of the general law of the land. Its exceptional source and nature justify its separate classification as a form of jus speciale along with local law, foreign law, martial law, and the other forms that we have already dealt with.

The true nature of prize law as being essentially the law of nations, entitled proprio vigore, to be recognised and applied as civil law, was authoritatively established by the decision of the Privy Council in the case of the Zamora during the war with Germany. It was unsuccessfully contended in that case that prize law as administered in English courts has its source in the royal prerogative, and that Orders in Council can establish for the prize courts such law as is thought proper in derogation of, or in substitution for, the established rules of international law Lord Parker, delivering the judgment of the court, speaks as follows : “ The law which the Prize Court is to administer is not the national law or, as it is sometimes called, the municipal law, but the law of nations; in other words, international law … Of course the Prize Court is a municipal court, and its decrees and orders owe their validity to municipal law. The law it enforces may therefore in one sense be considered a branch of municipal law. Nevertheless the distinction between municipal and international law is well defined. A court which administers municipal law is bound by and gives effect to the law as laid down by the sovereign state which calls it into being. It need inquire only what that law is, but a court which administers international law must ascertain and give effect to a law which is not laid down by any particular state, but originates in the practice and usage long observed by civilised nations in their relations towards each other, or in express international agreement … It cannot, of course, be disputed that a prize court, like any other court, is bound by the legislative enactments of its own sovereign state. A British prize court would certainly be bound by Acts of the Imperial Legislature. But it is none the less true that if the Imperial Legislature passed an Act the provisions of which were inconsistent with the law of nations, the Prize Court in giving effect to such provisions would no longer be administering international law. It would, in the field covered by such provisions, be deprived of its proper function as a prize court.

Establishment of Prize Courts in Inida

Section 3 of the Naval and Aircraft Prize Act, 1971.

  1. The Central Government may, by notification in the Official Gazette, constitute from time to time as many Prize Courts as the Central Government may determine to exercise the powers and discharge the functions conferred on a Prize Court by this Act and every such Prize Court shall exercise jurisdiction within the local limits of such area or areas as may be specified by the Central Government in the said notification.
  2. Every Prize Court shall consist of such one or more than one member as the Central Government may from time to time deem it necessary to appoint.
  3. A person shall not be qualified for appointment as a member of a Prize Court unless he is a citizen of India and has been or is qualified to be appointed as a Judge of a High Court.
  4. Subject to the provisions of section 18, the conditions of service of a member of a Prize Court shall be such as the Central Government may by order determine.


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