Monday, July 3, 2017

Meaning of Law

law

The word ‘Law’ has been derived from the Teutonic word ‘Lag, which means ‘definite’. On this basis Law can be defined as a definite rule of conduct and human relations. It also means a uniform rule of conduct which is applicable equally to all the people of the State. Law prescribes and regulates general conditions of human activity in the state.

· Law is a collection of rules imposed by authority. It is a relation of individual with one  another.
· This relation affects the social and economic order.
· It is a body of rule of conduct. This is the way that a court uses to make a    decision.
· It is a regulation established by a community, society or nation by some      authority and   applicable to all people living under it.
· It influences the political, economic and social system of every civilized society.
· It affects every person directly or indirectly and regulates practically for every known    human activity.
· It is those rules and principles that govern and regulate social conduct which can be  enforced in the court.
· It operates to regulate the action of a person. It is enforced for maintaining  peace, security, and justice in the state. Law is correlated with justice.
· It is not static, it is dynamic in nature and will be changed as per the  requirement of      the state.

Law can be either public or private. Public law is concerned with the public or it looks public as a whole and this is divided into three class such as constitution law, administrative law, and criminal law. Similarly, private law concerns to the individual. It is separated into such special fields as a contract of agencies, sales, negotiable instruments, etc. These areas generally pertain to the business sector.
According to Hooker, "Law refers to any kind of rule or cannon(gun) whereby actions are framed."
According to Salmond, "Law is the body of principles recognized and applied by the state in the administration justice."
According to Austin, "Law is a rule of conduct imposed and enforced by the state."
Black’s Law Dictionary: A rule or method according to which phenomena or actions co-exist or follow each other.
According to Justinian, "Law is the king of all mortal and immortal affairs..“
Ulpian defined law as “the art of science of what is equitable and good."
Black Stone says, "Law in its most general and comprehensive sense, signifies a rule of action, and is applied indiscriminately to all kind of actions whether animate or inanimate, rational or irrational"

Nature of law

Law is the result of continuous effort through a workable set of rules in the society. It is not pure science based upon unchanging and universal truth. It affects every activity of the individual. The nature of law are as follows:

·  Justice is an aim of Law- Justice is always provided through law. The law means to provide justice to people.
·  Create a peaceful and harmonious relation between people living under society-Law is made for keeping peace and harmonious relation by providing security.
· The law is pervasive (spreading or spread throughout)- Every person is presumed to know it.
· It regulates human activities- It regulates human behavior in three ways: Prohibitory, mandatory and permissive.
·     Ignorance of law is not excused.
·     It is a set of rules which is set by the state.
·     It regulates the human conduct.
·     It is created and maintained by the state.
·     It has the certain amount of stability, fixity and uniformity.
·     It is backed by coercive authority.
·     Its violation leads to punishment.
·    It is the expression of the will of the people and is generally written down to give it definiteness.
·    It is related to the concept of 'sovereignty' which is the most important element of the state.


Characteristics of Law

1) It is a set of rules.
2) It regulates the human conduct
3) It is created and maintained by the state.
4) It has certain amount of stability, fixity and uniformity.
5) It is backed by coercive authority.
6) Its violation leads to punishment.
7) It is the expression of the will of the people and is generally written down to give it definiteness.
8) It is related to the concept of 'sovereignty' which is the most important element of state.

Purpose of Law

(i) To maintain Order
(ii) To protect rights.
(iii) To preserve freedom.
(iv) To bring about peaceful change (Change with stability)
(v) To secure Justice.
(vi) To resolve conflicts.
vii) To maximize the happiness of the greatest number with minimum of friction.
viii) To define relationship among the members of Society.
(ix) To satisfy the interests of the community and its members.
(x) To set and strengthen values.

Types of Law:

Broadly speaking there are two main kinds of Law:

(i) National Law i.e. the body of rules which regulates the actions of the people in society and it is backed by the coercive power of the State.
(ii) International Law i.e. the body of rules which guides and directs the behaviour of the states in international relations. It is backed by their willingness and consent that the states obey rules of International Law. It is a law among nations and is not backed by any coercive power.
National Law is the law by which the people are governed by the state. It stands classified into several kinds:
1. Constitutional Law
2. Ordinary Law:
It is stands classified into two sub types:
2 (a) Private Law
2(b) Public Law:
It stands again sub-divided into two parts:
2(b) (i) General Public Law
2(b) (ii) Administrative Law
1. Constitutional Law:
Constitutional Law is the supreme law of the country. It stands written in the Constitution of the State. The Constitutional Law lays down the organisation, powers, functions and inter-relationship of the three organs of government. It also lays down the relationship between the people and the government as well as the rights, freedoms (fundamental rights) and duties of the citizens. It can be called the Law of the laws in the sense all law-making in the State is done on the basis of powers granted by the Constitutional Law i.e. the Constitution.

2. Statute Law or Ordinary Law:
It is also called the national law or the municipal law. It is made by the government (legislature) and it determines and regulates the conduct and behaviour of the people. It lays down the relations among the people and their associations, organisations, groups and institutions. The legislature makes laws, the executive implements these and judiciary interprets and applies these to specific cases.
Ordinary Law is classified into two parts:
2 (a) Private Law and
2 (b) Public Law
2 (a) Private Law:
Private Law regulates the relations among individuals. It lays down rules regarding the conduct of the individual in society and his relations with other persons. It guarantees the enjoyment of his rights. It is through this law that the State acts as the arbiter of disputes between any two individuals or their groups.
2 (b) Public Law:
The law which regulates the relations between the individual and the State is Public Law. It is made and enforced by the State on behalf of the community.
Public Law stands sub divided into two categories:
2(b) (i) General Law:
It lays down the relations between the private citizens (Non-officials or who are not members of the civil service) and the State. General Public Law applies to all the citizens in their relations with the State.
2(b) (ii) Administrative Law:
It lays down the rules governing the exercise of the constitutional authority which stands delegated by the Constitution of the State to all the organs of government. It also governs the relations between the civil servants and the public and lays down the relations between the civil servants and the State.
Business law

British was the first nation to development market economy business rules and regulations in the world. All the countries started to follow British business transaction. There is direct of British impact of business rules in the world. It means our business rules are influenced by British rules. There is an important role of British business rule to develop our business law. So it is taken as an important source of Nepalese business law.
Business comprises all profit seeking activities that provide goods and services necessary to an economic system. Business refers to the economic activities in which goods and service are supplied in exchange for some payment. It includes buying and selling, manufacturing products, extracting natural resources.
Law refers to the principles and regulations established by a government applicable to people.
Thus Business law is that portion of legal system which guarantees an orderly conduct of business affairs and settlement of legitimate dispute. It establishes a set of rules and prescribes conduct to order to avoid misunderstandings in business relationship.
Business law, also called commercial law or mercantile law, the body of rules, whether by convention, agreement, or national or international legislation, governing the dealings between persons in commercial matters.
Business law falls into two distinctive areas: (1) the regulation of commercial entities by the laws of company, partnership, agency, and bankruptcy and (2) the regulation of commercial transactions by the laws of contract and related fields
Features of Business Law
· Regulates industry, trade and commerce
· Regulates every business activity
· Promotes rights and interest of business activity
· It is the law of commerce or commercial law as it deals with all the aspects of entering into        selling and purchasing agreements. 
· It includes the study of the law of contract which is important in agreements or contracts that    involve two or more parties buying and selling things in exchange for a consideration or purchase  price. 
· Business law clearly explains the rights, duties, liabilities and legal obligations of the parties  involved in a contract of sales, purchase or any other kind of contract or agreement entered into in  relation to any kind of business or commercial activity. 
· It includes intellectual property law (patents, trademarks, copyrights, etc.) and consumer protection    law. 
· Business law will also apply to anyone who plans on opening or starting a business of their own. 
· Business law also deals with banking law, finance law and other important civil laws. 

Importance of Business law
· Protection of economic right
· Regulation and systematization of business
· Commencement and development of business
· Enforcement

Purpose of Business Law

Enforcement: Provide enforcement that allows contractual relationships to stay intact.
Predictability Allow people in business to enter into multiple transactions with certain protection.
Uniformity When business owners rely on the same laws to conduct business, they need to know that State Agencies and Courts apply the laws in a uniform fashion.

Sources of law/ Business Law

A source means an origin or resources or cause or place from where law emanates. The term source of law denotes two meaning. Firstly the place or point from where the law begins and secondly the place from where the rules get legal authority. The main sources of business law are discussed below:

a)  Custom and Usage: 
                                    The custom is known as particular way of life or behavior. If such behavior is followed continuously by the people in the society, it becomes a customs or usages which are important sources of law. When there were no business rules in the world the earlier business cultural and tradition to manage and regulate business transaction.  A large part of our business rules our business rules are influenced by that culture and tradition. Before making business rules our law makers follow that business culture and tradition. It means it helps us to make good business rules. This types of custom should not oppose to statutory law, mortality and public welfare. If there is no legislation, no precedents the matter is to be decided by the custom or usage of that particular.

b) Statutes/ Legislation: 
                                     The legislatory law come from parliament or law making body of the nation. This types of law is the outcome of demand of people and need of the time. It is made after fulfilling a series of discussion by lawmakers. Now a day's most of business activities are regulated by the law made by parliament.

c) Judicial Decision: 
                                Judicial decision are known as precedent. Precedent is a judicial decision which contains in itself a principle. In other words it is the earlier decision of supreme court which is taken as a rule while deciding the later cases. Where there is no law to deal the problems in such cases the court can make decision in the light of justice and equity such decision are treated as law for that matter. It is the one of the major sources of modern business law.

d) English Mercantile law: 
                                          Business law was developed in England. It is the pioneer of business law in the world. Nepal is conjoined influenced by the British rule since year.

e) Professional Opinion of experts:
                                                       Lawyers and critics may play significant role creating good legal environment. The opinion and explanation made by such professional may give proper instruction and better contribution to the development of law.

f) Business Agreement, Conventions: 
                                                            Conventional law refers to any rule or system of rule agreed upon by the parties to regulate their business conduct. International business organization are more active in national, region and world business nowdays. Examples: ( WTO, SAFTA) . And bilateral agreement between the nations and conventions of business communities are the main sources of national and international business law.





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