vustudents
09-06-2011, 10:40 PM
Q. What is meant by the term general law and special law? 1iiusration the kinds of special law that stand outside the domain of the General law. (1996),(1994)
1. Introduction:
In the words of Thurman Arnold “obviously law can never be defined with equal obviousness, however it should be said that the adherents of the institution must never up the struggle to define law.” According to salmond, the whole body of law can be divided into two parts, general and special law. General law consists of the general or ordinary law of the land. Special law consists of certain other bodies of legal rules which are so special and exceptional in their nature, or application that it is convenient to treat them as standing outside the general and ordinary law.
2. Division Or Classification Of Civil Law:
Sir Johr Salmond classified the civil law into two parts:
(a) General Law
(b) Special Law
I. General Law:
The general law of a country is its territorial law, the which applies to all person, things, act legal rules which are taken judicial notice of the Courts whenever there is any occasion for their application.
(i) Shapes of General law:
General law is of three shapes :
(a) Statute law
(b) Equity
(c) Common law
(ii) Examples:
Examples of general law are the law of contract or the Pakistan penal Code.
II. Special Law:
That part of the law which has no general application throughout country, but which is also enforced by the Courts is the special law. It consists of those legal rules which Court will not recognize of apply them as a matter of course but which must be specially proved and brought notice of the Courts by the parties interested in their recognition.
(i) Illustration:
The Court may not and ordinarily it does not Know, what a `particular custom is. The parties have to prove such a custom if they rely upon.
3. Kinds Of Special Law:
Saimond refers to six kinds of special laws which falls outside the general law.
(i) Local law:
Local law is the law of the locality and not the general law of the country. It is of two types:
(a) Local customary law
(b) Enacted law
(a) Local Customary Law:
It is that law, which is derived form immemorial customs prevails in the particular locality of the state.
(b) Enacted law:
It means such law proceeding form local legislative authorities.
(ii) The conflict of laws:
The conflict of laws is also known as Foreign law or private international law. Justice and expediency require sometimes that the municipal Courts apply a rule of foreign law to determine the right and liabilities of the litigants before it.
(iii) Conventional law:
Conventional law arises out of agreement between the parties who are subject to it e.g., rules of a club or Articles of Association of Company.
(iv) Autonomic law:
By autonomic law is that species of law which has its source in various form of subordinate legislative authority possessed by private persons and bodies of person. Such form of law is enforced in the Court but it is not general application e.g., law of universities, railway companies etc.
(v) Martial law:
Martial law is the law administered in the Courts maintained by military authorities. It is of three kinds:
(a) It is the law for the discipline and control of the army itself and is commonly knows as military law.
(b) The law by which the army governs in times governs times of war occupied territory, outside the realm.
(c) The law which in times of war or other emergency, the army governs the realm itself in derogation of the civil law.
(vi) International law as administrated in prize Courts:
It is a special kind of law which is dealt by the prize Courts in the times of war. Prize law is that part of law which regulates the practice of the capture of the ships and cargoes at sea in times of war. Prize law is the branch of civil law. It has two characters.
(a) It is international law because it prevails between nations.
(b) It is civil law as it is administered in civil Courts.
(vii) Mercantile Customs:
Another kind of special law consist of the body of mercantile wage knows as the law merchant. The law relating to Hundis derives its origin form mercantile customs.
4. Conclusion:
To conclude, I can say, that both general and special law are the parts of the law or corpus juris. According to Salomond, the test of distinction is judicial notice. By judicial notice is meant by knowledge which any Court possesses and acts upon as contrasted with any knowledge which a Court is bound to acquire on the strength of evidence produced for the purpose. In General law Gourt is bound to take a judicial notice while in special law it is not necessary.
1. Introduction:
In the words of Thurman Arnold “obviously law can never be defined with equal obviousness, however it should be said that the adherents of the institution must never up the struggle to define law.” According to salmond, the whole body of law can be divided into two parts, general and special law. General law consists of the general or ordinary law of the land. Special law consists of certain other bodies of legal rules which are so special and exceptional in their nature, or application that it is convenient to treat them as standing outside the general and ordinary law.
2. Division Or Classification Of Civil Law:
Sir Johr Salmond classified the civil law into two parts:
(a) General Law
(b) Special Law
I. General Law:
The general law of a country is its territorial law, the which applies to all person, things, act legal rules which are taken judicial notice of the Courts whenever there is any occasion for their application.
(i) Shapes of General law:
General law is of three shapes :
(a) Statute law
(b) Equity
(c) Common law
(ii) Examples:
Examples of general law are the law of contract or the Pakistan penal Code.
II. Special Law:
That part of the law which has no general application throughout country, but which is also enforced by the Courts is the special law. It consists of those legal rules which Court will not recognize of apply them as a matter of course but which must be specially proved and brought notice of the Courts by the parties interested in their recognition.
(i) Illustration:
The Court may not and ordinarily it does not Know, what a `particular custom is. The parties have to prove such a custom if they rely upon.
3. Kinds Of Special Law:
Saimond refers to six kinds of special laws which falls outside the general law.
(i) Local law:
Local law is the law of the locality and not the general law of the country. It is of two types:
(a) Local customary law
(b) Enacted law
(a) Local Customary Law:
It is that law, which is derived form immemorial customs prevails in the particular locality of the state.
(b) Enacted law:
It means such law proceeding form local legislative authorities.
(ii) The conflict of laws:
The conflict of laws is also known as Foreign law or private international law. Justice and expediency require sometimes that the municipal Courts apply a rule of foreign law to determine the right and liabilities of the litigants before it.
(iii) Conventional law:
Conventional law arises out of agreement between the parties who are subject to it e.g., rules of a club or Articles of Association of Company.
(iv) Autonomic law:
By autonomic law is that species of law which has its source in various form of subordinate legislative authority possessed by private persons and bodies of person. Such form of law is enforced in the Court but it is not general application e.g., law of universities, railway companies etc.
(v) Martial law:
Martial law is the law administered in the Courts maintained by military authorities. It is of three kinds:
(a) It is the law for the discipline and control of the army itself and is commonly knows as military law.
(b) The law by which the army governs in times governs times of war occupied territory, outside the realm.
(c) The law which in times of war or other emergency, the army governs the realm itself in derogation of the civil law.
(vi) International law as administrated in prize Courts:
It is a special kind of law which is dealt by the prize Courts in the times of war. Prize law is that part of law which regulates the practice of the capture of the ships and cargoes at sea in times of war. Prize law is the branch of civil law. It has two characters.
(a) It is international law because it prevails between nations.
(b) It is civil law as it is administered in civil Courts.
(vii) Mercantile Customs:
Another kind of special law consist of the body of mercantile wage knows as the law merchant. The law relating to Hundis derives its origin form mercantile customs.
4. Conclusion:
To conclude, I can say, that both general and special law are the parts of the law or corpus juris. According to Salomond, the test of distinction is judicial notice. By judicial notice is meant by knowledge which any Court possesses and acts upon as contrasted with any knowledge which a Court is bound to acquire on the strength of evidence produced for the purpose. In General law Gourt is bound to take a judicial notice while in special law it is not necessary.