JURISPRUDENCE

SUBMITTED TO - SUBMITTED BY-

Topic LAW AND SOCIETY

JURISPRUDENCE DURING ACADEMIC YEAR 2017-2018

(SEMESTER-3)

CHANAKYA NATIONAL LAW

UNIVERSITY, PATNA
 Acknowledgements

I feel myself highly exhilarated to work on this project involving LAW AND SOCIETY.
I take this opportunity to thank who had played the role of a central character and
always given me the courage and wisdom to shape my ideas in right direction. Special thanks to
the I.T. staff and library staff who have devoted their valuable time to give me all sorts of
suggestions, ideas and facilities regarding this topic.
Last but not the least I thank all the members of the CNLU and all others who have helped me in
the completion of this work.

Kumar Abhishek
 CHAPTERISATION

Introduction..

Objectives..

Research Methodology.
 RESEARCH METHODOLOGY

The researcher has followed the non-doctrinal method for research design. The research is based
on both primary and secondary sources. Literature review has been done extensively in order to
make a comprehensive presentation. Books from the universitys library have been used.
Internet, provided by the university, has been used for the purpose of secondary research and is
the main source of project.

Kumar Abhishek
Roll No -1334
 Differences between the current legal system and former legal
system

In order to differentiate between the current legal system and the former legal system, there are
4 categories that must be consider which are sources of the law, structures of the legal system,
legal actors within the system and the enforcement of the law.
The basis and foundation of law is basically the sources of the law itself. The origins of the
law determine the validity and the acceptance of that law by the society. Nowadays, law are
made in a formal procedure and by formal bodies created by the state1. Most states have a
body known as legislatures that are elected by the people in order to enact laws. These
legislatures enact laws under a formal and strict procedure in order to make sure it is valid and
acceptable by the people. Moreover, laws made nowadays are in the form of codified and
known as written laws. For example, Malaysia has a legislature which known as Parliament that
contain 2 house which are the House of Representatives and Senate. The members of the
Parliament are either elected by the people or appointed by the Yang di-Pertuan Agong. In
order to enact any laws, the Parliament must follows the procedures that are contain within the
Constitution of Malaysia. Laws then must be gazette by the government in order to make sure
the people aware of it and thus making the laws as valid. The current sources of law are
different from the former ones. Before this, the laws made are not made by formal bodies. Most
of the laws were made by the leader of a community or the head of tribe. It was also based on
customs, traditions and also values that are inherit from their ancestors2. The laws were not
codified and made by informal procedures, therefore were not considered as written laws.
Secondly, the differences of the former and current legal systems are based on the
structures. The judicial systems or the courts currently are more formalize and systematic
compared to the former legal system. There is level of hierarchy in court and there are clear
guidelines on the responsibilities and power of judges. Moreover, the legal systems are not only
compromise laws and judiciary but it also involves the government and the authority that

1
Vago, Steven. (1998). Law and Society. 2nd ed. Pretice Hall.

2
Husin, Iza. (2007). "The Pursuit of Perak Regalia: Islam, Law and the Politics of Authority in Colonial
State". Law and Social Inquiry 32:3.
governs the state. Therefore, the governmental system or executive are also one part of legal
system. The current governmental systems are more systematic and formal. The leaders are
elected by the people through election under what is called as democracy. This is difference
from the former system where before this, there were no systematic judicial system and the
members of the government were choosen by the leader. The leadership in former
governmental system was inherited through bloodline or family3.
The next difference that can be seen is the legal actors within the systems. Legal actors are
mostly people that involve directly with the laws such as lawyers and judge4. Before this, there
are no specific roles on these legal actors. There were no formal judges or lawyers. The judges
usually were the leaders of the tribe. Nowadays, the judges are formally appointed based on
their experiences and credibility in the legal aspects.
Lastly, the fourth category is the enforcement of laws. Enforcement is an important part in
legal system as it making sure that the people obeys and follows the laws made by authorities.
In the current legal system, there are many formal agencies created to enforce laws. These
formal agencies did not exist before as it was not important by the leaders during that periods.

3
He, Weifang. "The Judicial System and Governance in Traditional China". The Rule of Law: Perspective
from the Pacific Rim. pp. 93.
4
"Comparative Legal Systems". Encyclopedia of Law & Society: American and Global Perspective
(2007). pp 226.
 Are the differences parallel with the changes in society?

Law and society are very connected. Since the laws are made to control and at the same
time to provide benefits for the society, therefore laws must be flexible towards the changes
within the society. Good laws are when it is fully beneficial towards the current society.
Therefore, it is very important for the laws to be parallel as the changes in the society. In my
point of view, the current legal system does parallel with the society as it change due to the
changes in society. There are 3 reasons where the legal systems are seen to evolve due to the
changes in society which are the complexity of society, the population and also development in
knowledge and technology.
In the terms of complexity, it is very important for the laws and the legal system to evolve
and changes in order to provide solutions and guidelines to the society on conducting their daily
life as to prevent any disputes between the members of society. Since the society become more
complex, a more formal and systematic legal systems that compromise the judicial system, the
legislative and the executive are needed. Law enforcement become an important part and must
be created. For that reasons, the legal systems had changed and evolve nowadays in order to
provide a better guideline for the society.
Secondly is in the terms of populations. Recent research stated that the current world
population are 7 billion and keep increasing every single day. In order to administer a society
that consist for thousands and even millions of people, a more systematic and formal legal
system are needed. Moreover, more specific roles or legal actors needed to be created in order
to provide a better systematic legal system. Therefore, due to the increase in populations, more
specific roles of legal actors are creates such as lawyers, court officials and number of judges
are also increasing over the time.
Thirdly are in the forms of knowledge and technology. The development of knowledge within
human civilization had allowed the laws to be divided more specifically into different types.
Moreover, due to the creations of new technology, new laws are required to control the
technology in order to prevent any dispute that may arise in the future5.

5
Tams, Christian J and Tzanakopoulus, Antonios. (2010) "Barcelona Traction at 40: The ICJ as an Agent of
Legal Development". Leiden Journal of International Law 23:4, pp. 782.
 Contrast with the types of law and legal actors before and now.

The types of law are basically the separations of law based on its functions and connection
with the society. Laws nowadays are differentiates specifically based on its function toward the
society. The legal actor on the other hand is the persons involve with the legal system6 such as
court official and judge. In order to show the evolution of the types of law and the legal actors,
the evolution must first be divided into 3 phases of the evolution of legal system which are the
primitive period, transitional period and also the modern period.
The primitive period is during the early period where legal system was beginning to be
created. Laws during this period is not codified and basically based on the tradition and
customs. There was no major separation on the types of law during this period. However, there
were simple distinctions made between procedural and substantive law by the leaders of
community at that period. In terms of legal actors, there are no formal structures on the legal
profession. The judges and the leaders of tribes were usually the same person and laws were
made by the leaders. Moreover, courts were just temporary and assembled only when there
were disputes.7
During the second period which were the transitional period, the legal system starting to
expand and evolve. This was the period where the government began to formed and the society
began to became more complex. There were distinctions between the public and private laws
due to the creation of small and more systematic government. Moreover, criminal laws were
distinguish from torts where this can be seen as the beginning of separation between criminal
and civil laws. Other than that, during these period the government and the leaders started to
put their laws in a more codified method and thus created the civil law system. In terms of the
legal actors, the courts began to be more complex and much systematic during this period.
During this period also, a more formal body to legislate or make the laws began to be created.
The police force was created in order to enforce the laws8.
The current period or phase in the evolution of legal system is the modern legal system. In
the modern legal system, there are proliferations or in other words diffusion of certain part within
public and procedural laws which thus resulted on the creation of administration laws. Moreover,

6
"Comparative Legal Systems". Encyclopedia of Law & Society: American and Global Perspective
(2007). pp 226.

7
Vago, Steven. (1998). Law and Society. 2nd ed. Pretice Hall. pp. 42-43.
8
Vago, Steven. (1998). Law and Society. 2nd ed. Pretice Hall. pp. 43-44.
since the creation of laws that are based on legislatures are increasing, therefore it is said that
there are increasing in the proportion of statutory laws over the common laws within the legal
system. In terms of legal actors, the courts become an important entity within a society and a
part of the society foundation. Moreover, the courts nowadays are more complex, systematic
and formal compared to the other 2 periods. The administrations of judiciary compromise more
legal professions and thus expanded the system to a broader area. In terms of enforcement,
police and other agencies are created in a more formal and systematic procedures in order to
fully implement the laws within the society9.

9
Vago, Steven. (1998). Law and Society. 2nd ed. Pretice Hall. pp. 45
Do these changes or evolution facilitate better governance in the society?

There are many benefits that rise due to the evolution of legal system such as democratic
society, enforcement of law and functions of law to make a better society. As we can see, the
leaders nowadays are elected by the people and thus created a policy known as democracy.
These in contrast with the former legal system where leaders are usually inherit the leadership
by blood line. Moreover, since the laws are made by legislatures that are also elected by the
people, it shows that the basis foundation of laws which is the source is determines by the
people. Therefore, due to the evolution of legal system, the legal system which compromise the
legislature and government are based on the people choice thus implement a better society in
terms of leadership and control10.
Secondly, due to the evolution of legal system, the enforcement of laws become more
systematic and formal. There is more than one agency that is created in order to regulate the
laws and make sure the society obey the laws. This helps to prevent more disputes that may
arise due to the complexity of the society. The agencies also created in order to specialize in
certain laws only and therefore provide grounds for them to focus on the matter where they are
specialize in.
Thirdly is the benefits gain by the society due to the more codified and formal laws. Since
there are more formal and systematic structures of laws within the legal system nowadays, the
society can refer to it in order to conduct their daily life and prevent any disputes. This will then
in the future provide better societies that have broader knowledge in laws.

10
"Comparative Legal Systems". Encyclopedia of Law & Society: American and Global Perspective
(2007). pp 235.
Bibliographies

"Comparative Legal Systems". Encyclopedia of Law & Society: American and Global
Perspective (2007). pp 225-31.

De Groot, Muriel and Vrielink, Mirjan Oude. (1998). "Legal Theory and Sociological
Facts". Law and Philosophy 17:3, 251-70. Springer.

He, Weifang. "The Judicial System and Governance in Traditional China". The Rule of
Law: Perspective from the Pacific Rim. 91-100.

Husin, Iza. (2007). "The Pursuit of Perak Regalia: Islam, Law and the Politics of
Authority in Colonial State". Law and Social Inquiry 32:3, 759-88.

Tams, Christian J and Tzanakopoulus, Antonios. (2010) "Barcelona Traction at 40: The
ICJ as an Agent of Legal Development". Leiden Journal of International Law 23:4, 781-
800.

Vago, Steven. (1998). Law and Society. 2nd ed. Pretice Hall.