The Classification of Law

Think of a large library. The same book can be shelved by subject, by author, by language or by date, and each arrangement answers a different need. A book on Indian contract law is at once a law book, an Indian book and a book on private law. Classification of law works the same way. There is no single correct scheme; there are several bases of division, and each produces a pair or set of classes. The skill examiners test is to name the basis behind each division, credit each classical scheme to its author, and show with Indian examples why the division matters in practice, for example in deciding whether a new statute applies to pending cases.

Figure: The main divisions of law, each resting on its own basis: reach, interest, remedy, content, form and origin

1. Austin's Classification

Austin, in The Province of Jurisprudence Determined (1832), began by marking off the 'province' of jurisprudence from everything else called law. Laws properly so called are general commands. They include (i) divine law, set by God to men; (ii) positive law, set by political superiors (the sovereign) to political inferiors, which alone is the subject of jurisprudence; and (iii) positive morality in its proper sense, rules set by men who are not political superiors, such as the rules of a club, which are true commands but not positive law. Laws improperly so called are not commands at all. Laws by analogy are set or imposed by general opinion, such as the laws of honour and fashion and, for Austin, international law; he treated these too as positive morality. Laws by metaphor are the so-called laws of nature, such as the law of gravity, which command nobody and are called laws only by a figure of speech.

2. Salmond's Eight Kinds of Law

Salmond approached the matter differently: he surveyed the many senses of the word 'law' and asked which of them jurisprudence studies. The answer is civil law, the law of the State; the other seven are named to be set aside or compared.

3. Public Law and Private Law

The division rests on the parties and the interests involved. Public law governs the constitution and functions of the State and its relations with persons: constitutional law, administrative law and criminal law. The State appears in it as a sovereign authority. Private law governs the relations of persons with one another, in which the State is only the umpire: contract, tort, property, trusts, family and succession. Criminal law is public law because a crime is treated as a wrong against the community, prosecuted in the name of the State, even though a private person is its immediate victim. The line is not rigid. When the State buys goods it contracts like a private person, and modern private law (consumer protection, labour law) carries public purposes. In India, the distinction decides questions such as whether a writ lies against a body under Art. 226 or whether the claim belongs in a civil suit.

4. Civil Law and Criminal Law

This division rests on the nature of the wrong and the remedy. Civil law gives redress to the injured person by damages, specific performance, injunction or restitution; the injured party sues and may compromise the claim. Criminal law punishes: the State prosecutes, the standard of proof is higher (beyond reasonable doubt against a balance of probabilities), and the victim cannot in general settle the matter privately except where the law allows compounding. The same act may be both: a defamatory statement or an assault can give rise to a civil suit for damages and a criminal prosecution. Remember that 'civil law' has other meanings too: in Salmond it means the law of the State as a whole, and in comparative law it means the Roman-based legal systems of continental Europe.

5. Substantive Law and Procedural Law

This is the division most often examined. Salmond explained that substantive law is concerned with the ends which the administration of justice seeks, while procedural law deals with the means and instruments by which those ends are attained. The law of procedure, in his words, is that branch of the law which 'governs the process of litigation'. Substantive law defines rights, duties and liabilities: what a contract is, what amounts to theft, who inherits. Procedural law (also called adjective law) regulates how those rights are enforced: pleadings, evidence, limitation, appeal and execution. The Bharatiya Nyaya Sanhita, 2023 is substantive; the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Code of Civil Procedure, 1908 are procedural.

The distinction matters most for retrospectivity. A person has no vested right in a particular procedure, so a change in procedure applies to pending cases unless the statute says otherwise. A substantive right, by contrast, is not taken away retrospectively unless the statute says so expressly or by necessary implication. The classification of a given provision is therefore decisive, and it is not always obvious, as the two leading cases show.

6. Municipal Law and International Law

Municipal law (national law) is the law within a State, made and enforced by its own organs. International law governs the relations of States and, increasingly, of international organisations and individuals. Because there is no world sovereign, no world legislature and no court of compulsory jurisdiction, the positivists doubted its status. Austin placed international law among laws set by general opinion: positive morality, not law properly so called. Holland called it 'the vanishing point of jurisprudence', since for him law needs a determinate enforcing authority. Modern writers answer that States do in fact treat international law as binding, argue in its terms and usually comply; Hart saw it as a set of rules that lacks the secondary rules of a developed system but is law nonetheless.

Monism and dualism, and the Indian position

How international law enters municipal law is explained by two theories. Monism (Kelsen is its leading theorist) treats both as parts of a single legal order, so international law applies directly. Dualism (Triepel and Anzilotti) treats them as separate systems, so international law operates in municipal law only when adopted by it. India is broadly dualist for treaties: under Art. 253 Parliament may legislate to implement any treaty or agreement, and a treaty does not by itself alter the rights of citizens. Art. 51(c), a Directive Principle, asks the State to foster respect for international law and treaty obligations. Indian courts, however, treat customary international law as part of the law of the land unless it conflicts with an Act of Parliament, and they read Indian law, where possible, in harmony with India's international obligations (as in Vishaka, 1997).

7. General Law and Special Law

General law applies to all persons, places and matters within its scope; special law applies only to a particular class of persons, place or subject. The Indian Contract Act, 1872 is general; the Sale of Goods Act, 1930 is special for contracts of sale of goods. The rule of interpretation is generalia specialibus non derogant: a general provision does not override a special one on the same subject, and where the two conflict, the special law governs its own field. Local laws (applying to a part of the territory) and personal laws (applying to members of a community in matters such as marriage and succession) are forms of special law.

8. Common Law and Equity

In England the King's courts developed the common law from custom and precedent. By the fourteenth and fifteenth centuries its writ system had become rigid, and petitions went to the King's Chancellor, whose Court of Chancery developed equity: trusts, specific performance, injunctions, relief against fraud and mistake. For centuries the two systems ran in separate courts, sometimes in conflict. The Judicature Acts 1873 to 1875 fused their administration in a single Supreme Court of Judicature, and provided that where the rules of law and equity conflict, equity prevails. Ashburner's image is that the two streams of jurisdiction now run in the same channel but do not mingle their waters: the rules remain distinct though one court applies both. India never had separate courts of equity, but equitable principles were absorbed into statutes such as the Indian Trusts Act, 1882 and the Specific Relief Act, 1963, and courts decide according to justice, equity and good conscience where no rule applies.

9. Further Divisions in Brief

10. The Classifications at a Glance

11. Frequently Asked Questions

Q. What is the difference between substantive and procedural law?
A. Substantive law defines rights, duties and liabilities; procedural law governs how they are enforced. Salmond put it as ends against means: procedure governs the process of litigation. Procedural changes presumptively apply to pending cases; substantive rights are not taken away retrospectively without clear words.

Q. Why is criminal law classed as public law?
A. Because a crime is treated as a wrong against the community as a whole. The State prosecutes in its own name, and the aim is punishment in the public interest, not compensation of the victim.

Q. Is India monist or dualist?
A. Broadly dualist for treaties, which need legislation under Art. 253 to change domestic law (Jolly George Varghese, 1980). But customary international law is treated as part of Indian law unless it conflicts with a statute (Gramophone Co., 1984), and courts read domestic law in harmony with international obligations.

Q. What did the Judicature Acts do?
A. The Judicature Acts 1873 to 1875 fused the administration of common law and equity in a single set of courts and provided that where their rules conflict, equity prevails. The two bodies of rules remain distinct.

See also: Note 7 (meaning of law), Note 11 (Austin and Hart), Note 22 (sources of law), Note 25 (custom), Note 42 (interpretation), Note 54 (positive versus natural law).