Concept of Law

Broadly speaking, ‘Law’ is a notional pattern of conduct to which actions do or ought to conform. However, there is no simple definition of law. The definition is as complex as the complex social interactions in a society. Further, every person defines law according to his own perception of it. For example, an ordinary citizen may think that it is something which he must obey, a policeman or an administrator may define law in terms of power-conferring rules, and a lawyer may think that it is something which is applied to settle the disputes.

Further, law being a social science, it grows and develops with the society. Thus, a social change in society brings about a change in the definition, scope and functions of law. For example, what is a prohibited behaviour today may become a permissible conduct tomorrow and vice versa. Thus, abortion which was considered to be heinous crime because of the immorality involved in it is no longer an offence after the enactment of law legalising abortion. As such it is difficult to give a definition at a particular time which may remain valid for all times to come. The concept of law depends largely on the social values, accepted norms and behavioural patterns of a particular society at a given time.

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There are many who would like to achieve an object through the instrumentality of law and therefore they would like to define law in terms of its purpose. Others might define law in terms of what it does in the form of actual court decisions. Law has been defined from different approaches like: (i) its basis in reason, religion, or ethics (natural law approach); (ii) by its source in custom, precedent or legislation; (iii) by its effects on the life of society; (iv) by the method of its formal expression or authoritative application, and; (v) by the ends that it seeks to achieve.

Thus failure to provide an authoritative definition of law can be ascribed to the fact that practical application of law does not depend on definition of law.

Utility of a definition of law

(i) A definition of law helps in attaining clarity and avoiding unnecessary and futile disputes.

(ii) It clearly helps in understanding the legal phenomena in so far as it may provide an overall picture and lay down key criteria for its testing.

(iii) A discussion on definition creates a bridge between the theory and practice and helps practising lawyers to think upon the jurisprudential questions in their day to day dealings with law.

(iv) A discussion of the meaning and structure of law would remain incomplete without reference to it, i.e. without a definition of law.

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Requirements of a definition of law

According to Lloyd, the requirements of a “good” definition of law should (a) include what is generally accepted as properly within this sphere; (b) exclude which is universally regarded as not being “law” (e.g., the rules of a gang of dacoits); and (c) include or exclude borderline cases.

Julius Stone attempted a definition of law; he finds that the various definitions of law converge on the following seven steps-

 (i) Law is a complex whole of many phenomena. The meaning of this whole can only be elaborated and not defined.

(ii) These phenomena includes norms regulating human behavior i.e. prescribing what the behaviour ought to be, forbidding what it ought not to be.

(iii) The norms are social norms i.e. they generally regulate behavior of a member of a society vis-a-vis others.

(iv) These social norms are systematically arranged; it is in short a “legal order”.

(v) Law consists of social norms which are coercive i.e. authority of law is supported by acts of external compulsions such as deprivation of life, liberty or property.

(vi) The coercion operates according to established norms.

(vii) This institutionalised coercive order should be effective i.e. people must by and large obey the law.

(A possible eight step emphasised by kantorowicz is that the judiciary must recognize this coercive order.)

It seems that no definition of law can be complete if it ignores any of these matters. Therefore any definition of law must take account of all these elements. The elements are fairly represented in the following definition of law given by Paton:

“Law may shortly be described in terms of a legal order tacitly or formally accepted by a community. It consists of the body of rules which are seen to operate as binding rules in that community, backed by some mechanism accepted by the community by means of which sufficient compliance with the rules may be secured to enable the system or set of
rules to continue to be seen as binding in nature.”

Gray defined law as the rules which the courts lay down for the determination of rights and duties. According to Holland, laws are propositions commanding the doing, or abstaining from, certain classes of action; disobedience to which is followed by some penalty or inconvenience.

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Salmond defined law in terms of judicial process. According to him: the law may be defined as the body of principles recognized and applied by the State in the administration of justice. In other words, the law consists of rules recognized and acted on by courts of justice. However, Salmond’s definition criticised on various grounds- (i) The term justice has not been properly defined; (ii) Courts recognize a statute because it is law. It is notlaw because the courts recognize it. A statute is law as soon as it is passed;(iii) The purpose of law is not only justice.

Positive Law Approach

Positive approach to law concentrates on things as they are not as they ought to be. The main concern of the positivists is ‘law that is actually found’, positum, and not the ideal law.

Austin, Hart and Kelsen – These three legal positivists defined law in terms of criterion of validity. The law or the legal system of a country is valid only if it conforms with an ultimate criterion of validity, which may be a command of sovereign (Austin), basic norm or grundnorm e.g. Constitution (Kelsen), or, union of primary and secondary rules (Hart).

According to Austin, law is the command of a sovereign, requiring his subjects to do or forbear from doing certain acts. There is an implied threat of a sanction if the command is not obeyed. The sovereign is not bound by any legal limitation or by his own laws. Austin’s theory is criticised as the sanction is not the only means to induce obedience. Law is obeyed because of its acceptance by the community. Further, customs and conventions of the Constitution, though not enforceable by law, regulates the conduct of the people and the State. Still further, judicial decisions (i.e.. precedents) become binding laws, while no body has commanded these. Law do not always commands, but confers privileges also e.g. right to make a will. Thus, Austin’s concept of law is clearly inapplicable in a modern democratic welfare State.

According to Hart, there are two types of rules. Primary rule lays down standards of behaviour or impose duties while the secondary rule are those by which the primary rules may be ascertained, introduced, eliminated or varied. The secondary rules are power-conferring rules e.g. Statutes, Constitution, etc. The union of the primary and secondary rules constitutes the core of a legal system. The legal order must be an effective legal order i.e. people generally must obey primary rules, and the officials must observe secondary rules.

Kelsen proposed a pure theory of law, i.e. a theory which is free from social, historical, political, psychological, etc., influences. The law is a normative (law as a coercive order) and not a natural science. The law is a system of behavioural norms which can be traced back to some grund norm from which they derive their existence. The grundnorm (e.g. Constitution) must be efficacious, i.e. people must believe in it, otherwise there will be a revolution. In every legal system, grundnorm of some kind there will always be, whether in the form of a Constitution or the will of a dictator. While, grund norm accounts for validity of norms emanating from it, one cannot account for its own validity by pointing to other norm. It looks for its own validity in factors outside law. It should, however, secure for itself a ‘minimum of effectiveness’ and when it ceases to derive minimum of support of people it is replaced by some other grund norm.

The Kelsen’s theory is criticised, as according to Kelsen a legal order is valid when it is effective, it does not matter whether it is an illegitimate rule brought about by unconstitutional means. This means law is a system of external compulsion i.e., people are forced to comply with laws. Kelsen does not give any criterion by which the minimum effectiveness of grundnorm is to be measured.

The coercive elements dominate the theories of Austin, Kelsen and Hart. Thus, if certain formal criteria are satisfied, any social norm is law irrespective of its intrinsic worth or quality. Essence of law lies not in its form but its function. All three excludes morality from law, though they admit that morals play an important role in the formation of law, but once a law is made morals play no more role.

Natural Law Approach

Natural law appeals to the reason of man and there is no element of compulsion in it. It embodies the principles of morality and natural justice and as such it differs from positive law and legal justice. It is law in an ideal state and it differs from man made law. Its principles are common to all States and thus it differs from “jus civile‘, the civil law or the law of the land.

The naturalists insist that no social norm can be called law unless it satisfies a criterion of intrinsic worth, which may be either religion or ethics or morals or social good. Otherwise there will be no difference between the kind of social norms which a tyrant like Hitler may lay down and the rest. Therefore, satisfaction of a criterion which goes to the quality of law is inherent in the idea of law.

According to Aristotle, ‘perfect law’ is inherent in the nature of man and is immutable, universal and capable of growth.

According to Fuller, good law is a precondition of law and there are eight sine qua non of a legal system: the law must be promulgated, intelligible, prospective, non-contradictory, general, avoid impossible demands and frequent change, and official action must be congruent with promulgated rules.

According to John Locke, man entered into a social contract by which he yielded to the sovereign not all his rights but only the power to preserve order and enforce the law of nature. The individual retained his inalienable right to life, liberty and estate. The moment sovereign encroached upon the ‘natural rights’, laws lose their validity and the government may be overthrown.

Evaluation of natural law – Natural law approach is not a realistic and practical approach. Natural law theories shared the common feature of turning away from the realities of actual law and to discover principles of universal validity in external source. Naturalists bid to introduce moral element into the criterion of identification of laws has the effect of founding law on value judgments. If each individual is permitted to determine law according to his own conscience, it will invite chaos and disorder in the society.

Since our present legal system and its laws are based on the legal positivists’ tradition, we are used to see law in terms of formal criterion of validity. However, recently our courts have started looking beyond the formal criterion of validity of law. For example, in the area of constitutional amendments, they have developed a concept of “basic structure” to which all constitutional amendments must conform. Right to life under Article 21 of the Constitution has been very liberally interpreted to include right to basic amenities, clean environment, privacy, dignity, etc. The courts are insisting upon the administration to be just, fair and reasonable in their dealings with the citizens.

Functional Approach to Law

Law touches actual life so intimately that it is only natural to view operation of laws in their social setting. The functional approach to law emphasises actual social circumstances as give rise to law and legal institutions, and is concerned with man not as an individual but with man in association.

Historical School

The historical school emphasise that the historical factors influenced the formation and development of laws. Law is found, not made. Laws are not of universal application, as traditions and customs determine the law. Laws are rules consisting partly of social habits and partly of experience. Germany was the cradle of this school and Savigny its main exponent.

Savigny said that the nature of any particular system of law was a reflection of the spirit of the people who evolved it. Law is a product of the people’s life. Law has its source in the general or common consciousness (Volksgeist) of the people. As law is a reflection of people’s spirit, it can only be understood by tracing their history.

Law is the natural manifestation of popular life and by no means product of man’s free will. Law, language, customs and government have no separate existence. There is but one force and power in a people and it underlines all these institutions. The law, like language, develops with the life of people. He wrote: “Law grows with the growth, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality”. Thus, law has a national character.

As law grow into complexity, the common consciousness is represented by lawyers who formulate legal principles. But the lawyers remain only the mouthpiece of popular consciousness and their work is to shape the law accordingly. Legislation is the last stage of law-making and therefore, the lawyer or jurist is more important than the legislator

The crucial weakness of Savigny’s approach was that he venerated past institutions (traditions, customs, etc.) without regard to their suitability to the present. Savigny’s contention was that legislation should conform to existing traditional law, or it is doomed. Thus, Savigny’s theory tended to hang traditions like fetters upon the hands of ‘reformative’ enterprise. It
discouraged creative activity and legal reform. Savigny did grasp a valuable truth about the nature of law, but ruined it by overemphasis.

Savigny’s work was, nevertheless, a salutory corrective to the methods of the naturalists. It provided great stimulus to the historical study of laws and legal institutions. The greatest contribution of historical school lay in positing “social pressure” behind law in place of moral authority or sovereign’s will, paving way, thereby, for smooth transition of juridical
thought to sociological school.

Sociological School

Sociological jurisprudence arose as a reaction to positivism (‘Law as a set of rules enforced by the State’). According to it,  law is not an isolated phenomenon but is a part of the social reality. Hence law can only be correctly understood in its socio-economic background. Roscoe Pound can be said to be the father of sociological jurisprudence in America.

Before Pound, Bentham maintained that the aim of legislation should be to achieve social ends and in order to do this there has to be a balancing of individual interests with communal welfare.  Ihering also propounded the similar views. According to Pound, law is not a set of rules but is a method or technique for harmonizing conflicting social interests. The task of law, in his opinion, is to build as effective a structure of society as possible by satisfying tthe maximum of wants with the minimum of friction and waste. This will involve adjustment of human relations, ordering of human behaviour, and above all balancing of competing interests in the society. To this essential task he gives the name of “social engineering”.

The law, thus, is a means of social control. The aim of social engineering is to build as efficient a structure of society as possible. Thus, for example, if a factory is polluting the environment, and an injunction suit is filed for closing the factory, the court must balance various claims and interests e.g. the claim of the mill owner to do his business, the claims of the workers in the factory to retain their jobs, the claim of local residents to have a clear environment, etc.

In short, Pound’s theory is that the interests are the main subject-matter of law and the task of law is the satisfaction of human wants and desires. It is the duty of law to make a ‘valuation of interests’, in other words, ‘to make a selection of socially most valuable objectives and to secure them’. This all is nothing more than an experiment. Pound, through his ‘experimental jurisprudence’ helped to bring home the vital connection between laws, their administration and the life of society.

Pound’s metaphor of ‘engineering’ has, however, been criticised as suggesting a system of merely mechanical expedients mechanically administered to social exigencies. Secondly, his thesis presupposes an advanced state of society inhibiting wider application of his conclusions. For example, in a mass society, like India, it is difficult to see how the people would articulate their claims, desires, etc., where majority of people lacks means to articulate and are illiterate. Thus, Pound’s theory cannot be accepted too generally. Lastly, his somewhat sterile preoccupation with arrangement of various interests and too little with the means of giving effect to them robbed his work of having any desired practical impact.


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