Law is, generally, a system of rules which are  enforced through social intuitions  to govern behavior. Laws can be made by legislatures through legislation (resulting in statutes), the executive through decrees and regulations, or judges through binding precedents (normally in common law jurisdictions). Private individuals can create legally binding contracts, including (in some jurisdictions) arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution (written or unwritten) and the rights encoded therein. The law shapes politics, economics, and society  in various ways and serves as a mediator of relations between people.

What is law

Numerous definitions of law have been put forward over the centuries. The Third New International Dictionary from Merriam-Webster defines law as: "Law is a binding custom or practice of a community; a rule or mode of conduct or action that is prescribed or formally recognized as binding by a supreme controlling authority or is made obligatory by a sanction (as an edict, decree, rescript, order, ordinance, statute, resolution, rule, judicial decision, or usage) made, recognized, or enforced by the controlling authority.“

The Dictionary of the History of Ideas published by Scribner's in 1973 defined the concept of law accordingly as: "A legal system is the most explicit, institutionalized, and complex mode of regulating human conduct. At the same time it plays only one part in the congeries of rules which influence behavior, for social and moral rules of a less institutionalized kind are also of great importance."

Law as defined by different Jurist

We all know that law is very important in the society. It is a must in order for a society to be peaceful and problem-free. 

Law is man-made therefore it is in you if you will follow it or not.

The law is something that the human has created to modulate the society by introducing justice

If a society won’t have a system of law on it that will control how the people operates their lives, then there would not be a society to live in. 

people will be able to make decisions that will solely be based on their principles, then they would be able to do crimes if they want to, steal, murder, damage, bully, rape, trespass, and even terrorize what and whom when they wanted want to, and nothing would be done about it at all.

If there won’t be law, nothing will stop the people on doing things that they want, with that, they will be free to do revenge and it will be vice-versa for they know that they could totally get away into anything they do, even if it is bad and unlawful. 

 Eventually, the society will be full of crimes, murders and illegal actions. If there won’t be no rules in a society, then even a simple waste disposal will be a big problem that could affect the whole world. 

Importance of law

The law serves many purposes and functions in society. Four principal purposes and functions are establishing standards, maintaining order, resolving disputes, and protecting liberties and rights.         3.1     Establishing Standards The law is a guidepost for minimally acceptable behavior in society. Some activities, for instance, are crimes because society (through a legislative body) has determined that it will not tolerate certain behaviors that injure or damage persons or their property. For example, under a typical state law, it is a crime to cause physical injury to another person without justification—doing so generally constitutes the crime of assault.

Functions and purpose of law

3.2     Maintaining Order This is an offshoot of establishing standards. Some semblance of order is necessary in a civil society and is therefore reflected in the law. The law—when enforced—provides order consistent with society’s guidelines. 

3.3     Resolving Disputes Disputes are unavoidable in a society made of persons with different needs, wants, values, and views. The law provides a formal means for resolving disputes—the court system. There is a federal court system and each state has its own separate court system. There are also various less formal means for resolving disputes—collectively called alternative dispute resolution (ADR). 

3.4     Protecting Liberties and Rights The constitutions and statutes of the United States and its constituent states provide for various liberties and rights. A purpose and function of the law is to protect these various liberties and rights from violations or unreasonable intrusions by persons, organizations, or government. For example, subject to certain exceptions, the First Amendment to the Constitution prohibits the government from making a law that prohibits the freedom of speech. Someone who believes that his free speech rights have been prohibited by the government may pursue a remedy by bringing a case in the courts.         You have probably realized that laws may serve more than one principal function and there are obviously more principal functions than the four that we have identified.

There are many ways to classify laws. We will discuss two of them. To classify means to put types of law into distinct categories (or buckets). Envision two buckets side by side. A law may be the type that goes in the first bucket or the second. Let’s look at some classification buckets.

Substantive Law or Procedural Law 

Classification of law

The first way to classify law is substantive or procedural. That is, a law belongs in the substantive bucket (because it is a substantive law) or in the procedural bucket (because it is a procedural law). A substantive law is a law that creates and controls the rights and duties of parties. General examples include the laws regarding torts , contracts, and real property . A specific example of a substantive law is a law prohibiting trespassing on another’s property. Why? Because such a law creates and defines trespassing and puts would-be trespassers on notice regarding the liability (if it is civil trespassing) or punishment (if it is criminal trespassing) that they face for violating the law. 

A procedural law, on the other hand, is a law that creates and controls the process of enforcing the rights and duties under substantive law. General examples include the rules of evidence, jurisdiction, and pleading and practice (which are referred to as either civil procedure or criminal procedure, depending on the type of proceeding). We will discuss civil procedure (i.e., steps in a civil case) . A specific example of a procedural law is a statute of limitations. A statute of limitations is a statute that creates a time limit for bringing a civil case (i.e., filing a lawsuit) or a criminal case (i.e., initiating a prosecution); typically, the time limit is measured from the date of the event giving rise to the lawsuit or prosecution. This means that in personal injury cases, for instance, a lawsuit must be brought within a certain period of time after the injury occurred; otherwise, it will be time-barred. The case could be very strong substantively; but that is immaterial because a court will dismiss the case on procedural grounds.

Civil and Criminal LawA second way to classify law is civil or criminal. That is, a law belongs in the civil bucket (because it is a civil law) or in the criminal bucket (because it is a criminal law). Civil law is the law of private rights and duties. As with substantive law, general examples include the laws regarding torts , contracts , and real property . A specific example of a civil law is a law providing that all contracts for the sale of real property must be in writing. Why is it a civil law? Because it deals with duties between private parties; and any violation of it is a wrong between the parties, not a wrong against the whole community.

Criminal law, on the other hand, is the law of public rights and duties; put another way, it is the law that creates and controls wrongs committed against the whole community. Criminal law violations are called crimes. Specific examples include laws against assault, burglary, and robbery. There are many differences between civil law and criminal law, including concerns, party bringing the case, burdens of proof, and goals. We will spend a lot of space discussing these differences, in part because it is easy to confuse aspects of the civil law and criminal law. And by gaining a firm grasp of the differences, we will be in a better position to understand fully later material in this text. After discussing the differences, we will then cover the overlap between civil law and criminal law.

Concerns. Civil law is concerned with private rights and remedies, that is, the duties that exist among and between persons, organizations, and governments (other than, of course, the duty not to commit crimes). Conversely, criminal law is concerned with public rights and remedies, that is, with wrongs committed against the public or whole community. Party bringing the case. In a civil case, the party bringing the case (i.e., suing) is the plaintiff. The plaintiff is a party who claims to have been injured by the wrongful conduct of the defendant. The plaintiff can be a person, a business or other artificial entity, or a federal, state, or local government entity or agency. The case appears in court documents with the heading Plaintiff v. Defendant; the heading is referred to as a “caption.”

In a criminal case, the party bringing the case (i.e., prosecuting), is the government—local, state or commonwealth, or federal. In a state or commonwealth prosecution, the case is normally captioned State (or Commonwealth) v. Defendant; in a federal prosecution, the case is captioned United States v. Defendant. Burdens of proof. The burdens of proof are also different for civil law and criminal law. A burden of proof is a party’s duty to prove a claim or defense to a certain standard. In a typical civil case, the burden of proof that the plaintiff must satisfy is “preponderance of the evidence.” There are other ways of expressing this standard, including “more likely than not,” “by greater than 50% weight,” and “by the greater weight of the evidence.”If the plaintiff does not satisfy its burden during trial, the fact-finder (i.e., the judge or jury, depending on the case) will decide the case in favor of the defendant.

In a criminal case, the burden of proof that the prosecution must satisfy is “beyond a reasonable doubt.” The defendant is presumed to be not guilty unless the prosecution proves the defendant’s guilt to the reasonable doubt standard. While this standard is impossible to quantify in mathematical terms (unlike in civil law), it does not require the absence of doubt in the minds of the judge or jury. But the judge or jury should find the defendant guilty only if firmly persuaded of the defendant’s guilt based on a fair and full consideration of the evidence presented; there is no reasonable doubt if this is the case. A good way to remember the burdens of proof for civil law and criminal law is by envisioning the scales of justice— 

In a civil case, the plaintiff will satisfy the “preponderance of the evidence” burden by placing just enough weight—that is, evidence or proof—on an arm of the scale to tip the scale slightly in the plaintiff’s favor; that is all the weight needed to obtain a civil judgment against a defendant. In a criminal case, however, the government will need to place enough weight on the arm of the scale to make that arm almost touch bottom—that is, enough to satisfy “beyond a reasonable doubt.” Therefore, much more evidentiary weight is needed to obtain a criminal conviction against a defendant.         Goals. The goals of civil law and criminal law differ greatly. In civil law, the primary goal is to make an injured party whole, or compensate him for the damage done to him. This is accomplished by awarding either a legal remedy or equitable remedy.         

The main legal remedy is compensatory damages, which is money. Most plaintiffs bring civil cases seeking money to compensate them for the injury and damage caused by a defendant. For example, in an ordinary auto accident case, an injured driver with a damaged vehicle will sue the other driver who caused the accident. Why? The reason is because the injured driver wants to be made whole. How can the injured driver be made whole? The answer is by obtaining the monies necessary to repair or replace his vehicle, pay his medical bills, and compensate him for lost wages and pain and suffering. In some states, punitive damages are available in rare cases to punish a defendant (which is an occasional goal of civil law). But even in states that allow punitive damages, they are usually limited to certain types of cases or for conduct that involves fraud or malice, or is willful and wanton.

There are occasions, however, where the legal remedy of compensatory damages is considered inadequate under the law. In such a case, a plaintiff may instead obtain an equitable remedy. The general rule is that legal remedies are inadequate when a case involves unique or rare personal property or if it involves real property. In simple terms, personal property is every type of property other than real estate; and real property is real estate, which consists of land and things attached to or growing upon the land (e.g., buildings and plants). Because no two pieces of real estate are exactly the same, the law considers real estate unique.

So if the legal remedy of monetary damages is inadequate under the law, is an equitable remedy available to a plaintiff? An equitable remedy is a non-monetary remedy based (not surprisingly) on the doctrine of equity, which is the principle of crafting a fair and just outcome when a legal remedy is unavailable, inadequate, or where the strict application of the law would produce an unconscionable result. While there are many equitable remedies, two of the more common types are injunction and specific performance. An injunction is a court order requiring a party to do, or not to do, an act. For example, after finding a corporation liable for patent infringement , a judge may issue an order enjoining the corporation from further infringing of the patent. 

In nearly every state today, courts of law and equity have merged. This allows plaintiffs to obtain a legal remedy or equitable remedy in the same court. One notable exception is Delaware, where the Superior Court is the general court of law (with judges) and the Court of Chancery is the general court of equity (with chancellors). One reason that numerous corporations are incorporated in Delaware is because of the Court of Chancery and its well-deserved reputation as the pre-eminent court in the world for the resolution of corporate and other fiduciary matters. The Court of Chancery guards vigilantly its limited equity jurisdiction. It will dismiss or transfer cases where a plaintiff uses “‘magic words’ to dress its complaint in the garb of equity”; in dismissing a case in 2008, the Court stated that “one cannot parade a duck around and call it a swan.”

Unlike civil law, the primary goal of criminal law is to punish the wrongdoer, that is, the defendant. Depending obviously on the level and severity of the crime, this may be accomplished by the death penalty, imprisonment, probation, or fines. Other goals of criminal law include retribution (i.e., to get-even or payback), deterrence, and rehabilitation. These goals also may be accomplished by the same punishments; in addition, the court may order a convicted defendant to pay restitution(i.e., to pay the victim for the injury or damage caused by the defendant) or place the defendant under a restraining order. A restraining order is a type of injunction; in criminal law, it ordinarily is in the nature of precluding a defendant from coming within a certain distance of or attempting to contact or communicate with the victim.

Overlap between civil law and criminal law. You have likely recognized that there is overlap between civil law and criminal law. That is, sometimes a wrongful act can be a violation of civil law and criminal law. Let’s look an example. You may remember or have heard of the O. J. Simpson cases from the 1990s (as opposed to the 2008 case arising out of the infamous Las Vegas hotel-casino room break-in incident). In October 1995, after a lengthy criminal trial, a jury acquitted O. J. Simpson on two charges of murder for causing the deaths of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman. In February 1997 after a civil trial, however, a different jury found O. J. Simpson liable for wrongfully causing the deaths of Ronald Goldman and Nicole Brown Simpson. Based on its findings of wrongful death, the jury awarded $8.5 million in compensatory damages and $25 million in punitive damages to the victims’ families.

How is it possible for O. J. Simpson to be found not guilty in the criminal case, but found liable in the civil case? The reason is because the burdens of proof are different. Recall that the burden in a criminal case is “beyond a reasonable doubt,” while the burden in a civil case is only “preponderance of the evidence.” Also, there is no violation of double jeopardy under the Fifth Amendment to the Constitution, because a civil case following a criminal case is not considered a second prosecution for the same offense.

Prepared by :1 Apekshya Koirala2 Shashank Chaudhary3 Noel Wilson (BBA/LLB) 1st SemesterSharda University School of Law