Municipal law

Municipal law is the law enforced within  a state. It can be classified into two classes , public law and private law. Public law determines and regulates the organization and operating of the state and determines the relationship of the state with its subjects.

Public law is divided into three classes : constitutional law, administrative law and criminal law. Constitutional law determines the type of the state and the structure of the government. It is superordinate to the ordinary law of the land. Constitutional law is written in Bangladesh , India and  USA but unwritten in England, The modern tendency is to have written constitutions.

Administrative law treats with the structure, power and functions of the organization of administration, the limits of their powers, the principles and procedures followed by them and the principles by which their powers are controlled including the legal remedies usable to persons whose ruights havee been infringed.

Criminal law determines offences and prescribes penalties for them. It not only prevents crimes but also punish the offenders. Criminal law is essential for the maintenance of the law and order and peace within the State. In criminal cases, it is the State which starts proceedings against the wrongdoers. The State is always a party in criminal cases. Private law regulates and govern the relations  of citizens with one another. The parties are private individuals and the state determines the disputes among the people. There is great trouble in classifying private law. A general sorting of private law is the law of persons, the law of property, the law  of obligations, the conflict of laws, contracts , quasi contracts and tort.

Critics point out many defects in the above classification of laws. Many of the classes of the laws do mot survive in many legal system in the world. Those branches of law which have recently been developed can not but put under any sorting, The result is that the classification given above is neither universal nor exhaustive. Many jurists have attempted classifications on different precepts New branches of law are growing and developing quickly in different parts of the world and provision has to be made for them in any classification of laws. Industrial law and commercial law are such subjects.

Civil Laws

The view of Salmond, civil law is “the law of the state or of the land, the law of lawyers and the law of the courts”,. Civil law is the positive law of the land or the law as it exists. Like any other law, it is uniform and that uniformity is established by judicial precedence. It is noted for its stability because its without that, it would be nothing but the law of the jungle. 

It is enjoyed by the person who inhabit a particular State which commands obedience through the judicial processes. It is backed by the force and might of the state for intentions of enforcement. Civil law has an imperative character and has legal sanction behind it. It is essentially of territorial nature. It applies within the territory of the state concerned. It is not universal but general. It creates legal rights, whether fundamental or primary. It also creates secondary rights. 

 Any infringement of law is always attendants with attachments, fine or imprisonment, or some, other form of punishments which the society inflicts on the wrong-doer in order to show its displeasure against the person who violates the law. The term Civil law is derived from jus civile or civil law of the Romans. It s not so popular today today as it used to be. The term positive law has become more popular than civil law. Sometimes the term municipal law is used in place of civil law .

Holland prefers to use the term positive law and writes thus , “A law in the sense in which that term is applied in jurisprudence, is implemented by a sovereign political authority. It is thus distinguished not only from other rules which , like the precepts of morality and the so called laws of honour and of fashion are enforced by an undetermined authority,, but also from all rules enforced by a definitive authority which s either , on the one hand , godlike or on the other hand , politically dependant. In order to stress the fact that laws, in the strict view of the term, are thus authoritatively imposed, they are described a positive law.

However, Salmond prefer to use the term civil law instead of positive law and detects “the term civil law, as indicating the law of the land, has been particularly superseded in recent times by the improper replace, positive law ….... It is not permissible , therefore to limit positive law to the law of the land. All law is positive that is not natural ….”

Public Rights

A public right is owned by every member of the public. When one of the persons associated with the right is the state and the other is a private person, the right is called is a public right A private right is connected only with individuals . 

 Both the parties associated with the right are private persons. Private right are of infinite variety and are enjoyed by individuals who happens to own certain property, who run a certain office, who enter into a contract. Public and private right differ in the same way as public and private rights are differ. 

According to Blackstone “ Wrongs are divisible into two shorts or species , private wrongs and private wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals and are thereupon frequently termed civil injuries , thee latter are a breach and violation of public rights and duties which affect the whole community considered as a community and are distinguished by the harsher appellation of crimes misdemeanours .” 

However Salmond indicated that all public wrongs are not crimes. The breach of a public trust is a public wrong but the method of redress is a civil one . Moreover, all crimes are not public wrongs. Many minor offences can be punished at the instance of private person.

Proprietary and personal Rights

The proprietary rights of a person include his estate , his assets and his property in various forms. Proprietary rights have some economic or monetary value. Examples of proprietary rights are the rights to debt, thee right to goodwill, the right to patent,etc. 

Proprietary rights are valuable but personal rights are not valuable. Proprietary rights are the element of the wealth of a man. Personal rights are merely elements in his well-being. Proprietary rights possess not merely judicial but also economic importance. Personal rights possess merely judicial importance. The distinction between proprietary and personal rights is not confined to rights in the strict sense of the term but applies to other classes of rights as well . 

The estate of a person is made up not merely of his valuable claims against other person but also of such of his powers and liberties as are either valuable in themselves or are accessory to other rights which are valuable. A general power of appointment is proprietary but the making a will or a contract personal. A liability to be sued for a debt is proprietary but a liability to be prosecuted for a crime is personal. 

The duty of fulfilling a contract for the purchase of goods is proprietary , but the duty of fulfilling a contract to marry is personal. The status of a person is made up of his personal rights , duties , liabilities, and disabilities. The same person may have at the same time the status of a free man., a citizen, a husband, a father, etc. 

When we speak of the status of a wife , we refer to all her personal benefits and burden arising out of marriage. In the same way , when we speak of the status of a alien , a lunatic or an infant. The true test of a proprietary right is not whether it can be alienated but whether it is equivalent to money. It may be equivalent to money although it may not be possible to sell if for a price. 

A right to receive money or something which can itself be turned into money , is a proprietary right and is to be counted as a part of the estate of the possessor although the same way not be alienable.

Possessory remedies

Possessory remedy are those which exists for the protection of possession even against ownership. Propriety remedies are those which are available for the protection of ownership. In various legal systems possession is provisional or temporary title even against the true owner. Even a wrongful possessor who is deprived of his possession can retrieve it from any person whatsoever on the ground of his possession. Even the true owner who recaptures his own , must first repair possession to the wrongdoer and then proceed to ensure possession on the ground of his ownership. There are many grounds why possessory remedies are recognized.

1. Possession often amounts to evidence of ownership. A finder of goods becomes the owner against the whole world excluding the true owner. This is on the ground that he is in possession of it. If a person in adverse possession of a property for 12 or more years , he becomes the legal owner of the property and the right of the original owner extinguished.
   
   
2. The iniquities of violent self help are very serious and in all civilized countries, those are forbidden . Experience shows that there can be better conditions in society if the role of force is avoided by the real owners. Lawful methods are always to be favored and no one should take the into his own hands .
   
   
3. Another reason of possessory remedies is to be available in the serious imperfection of early proprietary remedies. Those were cumbersome, dilatory and inefficient . Every claimant had to undergo many hardships. The attitude of the plaintiff was a very difficult one and no persons to be allowed to occupy the advantages position of the defendant. It was under these circumstances that it provided that the original state of affairs must be restored first. Possession must be given to him who had it first and then it alone the claims of the various persons could be settled. Under the old legal systems, it was extremely hard to prove one's ownership and regain the property on the ground of title. Very often, small technicalities led to the defeat of one's title to property.
   
   
4. Another reason for possessory remedies is that it is always more hard to establish ownership than to prove possession. Hence it is not just that a person who has taken possession of property by means of violent activities should not be allowed to transfer the big burden of proof from his own shoulders to that of his opponent. He who takes a things by force must restore it and he is free to prove that he is the owner.

Ownerless rights

There is no any unanimity of opinion as to whether every right have an object or not. According to Salmond , an ownerless right is an impossibility. There can not be a right without a subject to whom it inheres any more than there can be weight without a heavy body ; for rights are merely attributes of persons and can have no independent existence. 

The object of law is to protect the person in the exercise and enjoyment of a particular right and not to protect a right in itself . A right can not exists in vacuum . A right may be held of a determinate individual or by the public at large. Although every right has an owner , it need not have a vested and certain owner. The fee example of a land may be left by will to a person who is unborn to at the time of the death of the testator. The ownership of the land is contingent on the birth of the child. Sometimes the question arises as to who is the owner of a debt in the interval between the death of the creditor intestate and the vesting of his estate in an administrator. 

According to Roman law , the right contingently belong to the heir but they are for the time being vested in the inheritance by virtue of its fictitious personalty. The fictitious personality was that of the deceased and not of the future heir . At present neither the Roman or the English fiction is necessary. There is no difficulty in saying that the estate of the intestate is presently own by a incentra prsona or by the person who is subsequently appointed its administrator. 

There are some writer who are in the opinion that there are rights without objects. According to them , the objects of a rights means some material things to which it relates. In this sense , an object is not an essential part of a right as in the case of a husband having a right in respect of his wife or a father having a right in respect of this children. They deny that the right of reputation or personal liberty or the right of a patent of copyright has any object at all.

Kinds of legal persons

There are three kinds of legal persons .

1. A corporation is an artificial or fictitious person constituted by the personification of a group or a series of individuals. The individuals making the corpus of the corporation are called its members. A corporation is either a corporation aggregate or a corporation sole. Three definitions are necessary for the existence of a corporation. There must be a group or body of human beings linked for certain purposes. There must be organs through which the body or the group acts. A will is attributed to a corporation by a legal fiction. The corporation is distinguished from the individuals from the individuals who constitute the corporation. A corporation has a personality of its own which is different from the personalities of the individuals. A corporation can sue and be sued. Even if a members of the corporation dies , the corporation continues. A corporation is accepted by law as permanent and continuous legal entity. It is not affected by the deaths of its members. A corporation can enter into contracts with its members as it has a personality distinct from that of the members. A corporation can have property , rights and duties. Unlike natural persons , a corporation can act only through its agents. It does not die in the way natural person die. Law provides special procedure for the winding up of a corporation.
   
   
2. In some cases, the corpus or the object personified is not a group or succession of individuals but an institution itself. Examples of institution are a college, church , library, mosque , hospital , an idol etc.
   
   
3. In some cases, the corpus and the object personified is some fund or state reserved for a particular purpose . Examples of this kind of legal persons are property of a dead man , the estate of an insolvent, a fund for charity, an estate under a trust , etc. According to Roman law, the estate of a dead person was regarded has having a legal personality by the notion of hereditas jecents till it was vested in the legal heirs . Likewise the Stiftung, an uncorporated fund for the charitable functions, was vested with rights and duties and was itself personified.