LawPage

Notes and Articles for Law students

User Tools

Site Tools


jurisprudence:general-and-special-law

Differences

This shows you the differences between two versions of the page.

Link to this comparison view

jurisprudence:general-and-special-law [2021/06/15 10:41]
LawPage created
jurisprudence:general-and-special-law [2021/06/23 18:51]
LawPage
Line 13: Line 13:
 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.  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.+**Indian aspect**: __[[ipc:part:special-and-local-law|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 ===== ===== Foreign law =====
Line 27: Line 27:
  
 ===== Martial law ===== ===== 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 the administration of civil justice is distinguished from martial law as being civil law, in one of the senses of that term. +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. 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.
Line 34: Line 34:
   - the law for the discipline and government of the army itself; or   - 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 the army in time of war governs foreign territory in its military occupation outside the realm , or
-  - the law by which 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 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 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 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 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.+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 ===== ===== International law =====
Line 47: Line 47:
 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**.  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 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. +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.  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 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.// ” +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 === === Establishment of Prize Courts in Inida ===