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jurisprudence:general-and-special-law [2021/06/15 10:41] LawPage created |
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+ | ====== General Law and Special Law ====== | ||
+ | The whole body of the [[jurisprudence: | ||
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+ | 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: | ||
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+ | - Local law | ||
+ | - Foreign law | ||
+ | - Conventional law | ||
+ | - Autonomic law | ||
+ | - Martial law | ||
+ | - 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. | ||
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+ | **Indian aspect**: __[[ipc: | ||
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+ | ===== 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. | ||
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+ | 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. | ||
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+ | ===== 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, | ||
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+ | ===== 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 [[jurisprudence: | ||
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+ | ===== 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. | ||
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+ | 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, | ||
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+ | Martial law is of three kinds. It is either | ||
+ | - the law for the discipline and government of the army itself; or | ||
+ | - the law by which the army in time of war governs foreign territory in its military occupation outside the realm , or | ||
+ | - 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, | ||
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+ | 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, | ||
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+ | 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. | ||
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+ | ===== 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 [[jurisprudence: | ||
+ | ==== Prize Courts ==== | ||
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+ | 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**. | ||
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+ | 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, | ||
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+ | 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. | ||
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+ | 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, | ||
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+ | === Establishment of Prize Courts in Inida === | ||
+ | __Section 3 of the Naval and Aircraft Prize Act, 1971__. | ||
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+ | - 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. | ||
+ | - 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. | ||
+ | - 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. | ||
+ | - 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. | ||