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NATURE OF LAW
QUESTION BANK
Q.1 Define âLawâ and state its nature.
Q.2 Define âLawâ and explain its kinds.
SHORT NOTES
Q.1 Nature and definition of law.
Q.2 Law and morality.
SYNOPSIS
I. Definition and Conceptual Dimension of "Law"
- 1. Seminal Formulations of Law
a. John Salmond:
b. Sir William Blackstone:
c. Thomas Hobbes:
The Jurisprudential Distinction Between "The Law" and "A Law"
- a. Concrete Sense ("A Law")
- b. Abstract Sense ("The Law" or "Law")
II. Comprehensive Classification and Kinds of Laws
A. Salmondâs Comprehensive Classification
- 1. Imperative Law
- 2. Physical or Scientific Law
- 3. Natural or Moral Law
- 4. Conventional Law
- 5. Customary Law
- 6. Practical or Technical Law
- 7. International Law
Public International Law
Private International Law (Conflict of Laws)
- 8. Civil Law
- B. Austinâs Classification of Law
- 1. Laws Properly So-Called
a. Divine Law:
b. Human Laws:
2. Laws Improperly So-Called
a. Positive Morality:
b. Metaphorical Laws:
C. Hollandâs Structural Classification
- 1. Private Law
- 2. Public Law
- 3. International Law
III. Authoritative Sources of Law
- A. Salmondâs Analysis of Sources
a. Enacted Law (Legislation):
b. Case Law (Judicial Precedent):
c. Customary Law (Custom):
d. Conventional Law (Agreement):
B. Keetonâs Dual Classification
- 1. Direct Binding Sources
- 2. Persuasive Sources
Law and Morality
Contemporary Intersections in Indian Jurisprudence
a. The Validity of Live-in Relationships:
b. The Decriminalization of Adult Consensual Same-Sex Relations:
c. The Abolition of the Crime of Adultery
IV. Conclusion
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I. Definition and Conceptual Dimension of "Law"
Defining the term "Law" with absolute, universal finality represents a classic challenge in Jurisprudence. Because law functions dynamically across varying social matrices, different legal schools have framed its definition to suit their respective ideological perspectives.
Seminal Formulations of Law
a. John Salmond: Approaching law from the perspective of the courts, Salmond posits that "Law is the body of principles recognized and applied by the State in the administration of justice." In his view, a rule cannot be classified as true law until it is tested and enforced by a judicial tribunal.
b. Sir William Blackstone: Writing from a broad, naturalistic perspective, Blackstone states that "Law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of actions whether animate or inanimate, rational or irrational. Thus we say the laws of motion, of gravitation, of optics or mechanics, as well as the laws of nature and of nations." Under this comprehensive view, the primary objective of law is the maintenance of uniformity and regularity of action.
c. Thomas Hobbes: Anticipating the positivist school, Hobbes defines law through the lens of sovereign authority, stating that "Law is the command of him or them that have coercive power."
In summary, across these varying definitions, law represents the structured body of rules, regulations, and principles recognized, codified, and enforced by the sovereign machinery of the state to administer justice and regulate human behavior.
The Jurisprudential Distinction Between "The Law" and "A Law"
To understand the inherent nature of law, jurists draw a vital distinction between its concrete and abstract configurations:
- a. Concrete Sense ("A Law")
When the term is used as "a law," it is applied in a concrete, localized sense to denote a specific, individual piece of legislation, statute, ordinance, or parliamentary act. Examples include the BhÄratÄ«ya NyÄya SanhitÄ, 2023 (BNS), the Indian Contract Act, 1872, or the Information Technology Act, 2000. It represents an isolated, codified rule of action enacted by a determinate legislative body.
- b. Abstract Sense ("The Law" or "Law")
Conversely, when the term is used as "the law" or simply "law," it is applied in an abstract, holistic sense to denote the entire legal system, the collective body of legal principles, and the philosophy of justice prevailing within a sovereign state. For instance, when we state that "the law is essential to preserve public order," we are referring to the total legal architecture of a society. This abstract sense encompasses broad fields of study, such as the Criminal Law of India, Civil Law, the Law of Precedents, and Constitutional Law.
II. Comprehensive Classification and Kinds of Laws
To map the vast domain of legal rules, prominent jurists have developed structured taxonomies based on enforcement mechanisms, historical origins, and target jurisdictions.
A. Salmondâs Comprehensive Classification
Salmond classified law in its widest sense into eight distinct operational categories:
- 1. Imperative Law
John Austin stands as the principal exponent of Imperative Law, formulating his classic dictum that "Law is the command of a sovereign enforced by a sanction." Imperative law connotes a general course of action imposed upon mankind by a determinate, supreme political superior who enforces absolute obedience through physical coercion, institutional punishments, or state sanctions. It demands two mandatory components:
a. An explicit command issued by a sovereign authority.
b. Enforceability backed by the coercive physical force of the state.
- 2. Physical or Scientific Law
Physical or scientific laws are the expression of the uniformities and regularities of nature. These laws observe the mechanical processes of the universe, such as the law of universal gravitation, the laws of planetary motion, or the laws of air pressure. They are characterized by perfect regularity, universal invariance, and are completely beyond human modification or legislative amendment.
- 3. Natural or Moral Law
Universally known as Divine Law, the Law of God, the Universal Eternal Law, or the Law of Reason, Natural Law embodies the core principles of immutable right and wrong. It unmasks the ideal conception of justice, independent of human codification.
Natural law asserts that true human law must be anchored in morality, ethics, and reason. It has influenced legal development across different historical eras, serving as the foundational justification for fundamental human rights and constitutional liberties.
- 4. Conventional Law
Conventional law comprises those rules or sets of regulations that originate from a valid, voluntary agreement between individuals, corporate bodies, or sovereign groups. The contracting parties bind themselves to observe these self-imposed rules to regulate their professional or personal conduct toward each other.
Conventional law functions as a specialized form of private law for the participating parties. Classic examples include the internal rules of a private sports club, the articles of association of a cooperative society, and International Treaties and Conventions executed between sovereign nations.
- 5. Customary Law
Customary law encompasses those rules of conduct, social behaviors, and ancestral principles that have been continuously observed by a particular community or joint family over a long duration. When a custom has prevailed since time immemorial, is reasonable, continuous, and peaceful, it assumes the binding force of law.
In the Indian context, major personal legal systemsâsuch as classical Hindu Law and Islamic Lawâoriginated largely as customary practices before they were systematically codified into contemporary statutory acts.
- 6. Practical or Technical Law
Practical or technical law consists of those specific rules, guidelines, and structural parameters that are technically necessary to achieve a particular artistic, architectural, or scientific end. Examples include the standardized laws of sanitation and public health, building construction codes, structural engineering parameters, and musical composition rules.
- 7. International Law
International law represents the aggregate body of rules, customary principles, and treaty mandates recognized and accepted by civilized sovereign states to govern their diplomatic conduct, commercial dealings, and disputes with one another. It is divided into two operational branches:
Public International Law
The body of universal rules and customary principles that apply equally to all sovereign states in their collective diplomatic relations, maritime navigation, and geopolitical interactions.
Private International Law (Conflict of Laws)
The specialized system of regional rules applied by municipal courts to resolve disputes involving a foreign element, determining which nation's domestic laws apply when a contract, marriage, or tort involves citizens across multiple borders.
- 8. Civil Law
Civil Law is the law of the state, the law of the land, and the primary field of application for lawyers and judicial courts. Frequently termed Municipal Law, Positive Law, or National Law, it represents the enforceable statutory code enacted by a sovereign state for its citizens. Civil law in this comprehensive sense constitutes the primary subject matter of study within Jurisprudence and is vigorously enforced through the state's judicial machinery.
- B. Austinâs Classification of Law
John Austin organized his taxonomy by separating laws based on their authoritative source into two core divisions:
- 1. Laws Properly So-Called
Rules set by an intelligent being to another intelligent being. This category is further split into:
a. Divine Law: The laws set by God to his human creatures.
b. Human Laws: Rules set by humans for other humans, which includes Positive Law established by political superiors.
- 2. Laws Improperly So-Called
Rules that lack a determinate sovereign command and are linked only by analogy. This encompasses:
a. Positive Morality: Rules set by informal public opinion, fashion trends, or international honor codes (e.g., the laws of honor or rules of etiquette).
b. Metaphorical Laws: Expressions of uniformity in inanimate objects, such as the laws of nature or mechanics.
C. Hollandâs Structural Classification
Professor Thomas Erskine Holland classified Civil or Municipal Law based on the relationship between the parties and the state, dividing it into three structural arenas:
Private Law
The body of rules that regulates the private interactions, commercial contracts, property deals, and domestic relations of individual citizens with one another, where the state functions as an independent arbitrator (e.g., the Law of Torts or the Law of Contracts).
Public Law
The specialized branch of law where the state is an active participant, regulating the structure of government and managing the direct relationship between the sovereign administration and individual citizens. This field encompasses Constitutional Law, Administrative Law, and Criminal Law (now governed under the BNS, 2023).
International Law
The structural extension of legal principles to regulate the interactions between sovereign states, balancing global public law with municipal interests.
III. Authoritative Sources of Law
To understand how legal rules acquire valid, binding force, jurists categorize their authoritative sources into formal, historical, and material divisions.
- A. Salmondâs Analysis of Sources
Salmond identified four distinct material sources from which a legal system extracts its binding rules:
a. Enacted Law (Legislation): Rules that have their direct source in formal legislative enactments passed by Parliament or State Assemblies.
b. Case Law (Judicial Precedent): Principles and rules of action formulated, developed, and applied by superior courts of record while adjudicating concrete cases, operating via the doctrine of stare decisis.
c. Customary Law (Custom): Long-standing, ancestral customs that have gradually secured judicial recognition and statutory validation due to their continuous observance since time immemorial.
d. Conventional Law (Agreement): Private legal rules created by parties through valid commercial contracts or international treaties, serving as a specialized law between the participants.
- B. Keetonâs Dual Classification
Professor George Williams Keeton organized the sources of law based on their level of enforceability into two distinct categories:
- 1. Direct Binding Sources
Sources that possess an absolute, mandatory force of law, requiring judges to follow them blindly. This includes:
a. Legislation: Direct parliamentary statutes.
b. Judicial Precedents: Authoritative rulings issued by superior courts of record.
c. Custom: Ancient, continuous, and legally verified customs.
- 2. Persuasive Sources
Sources that do not possess an absolute binding force, but serve as guides to assist the judicial mind in resolving statutory lacunae or complex legal crises. This includes Principles of Natural Equity or Morality and Professional Juristic Opinions published in academic treatises. These sources cannot be mechanically enforced through the physical force of the state, but depend on moral reasoning and judicial adoption to find expression within a judgment.
Law and Morality
The evolutionary relationship between "Law" and "Morality" represents a central theme in legal theory. In ancient legal structures and classical customary codes, there was no structural distinction between law and morals. Both were treated as parts of natural law, and natural law was rooted in religious principles and divine ethics. In classical Indian history, the overarching concept of Dharma combined legal obligations, moral duties, and personal righteousness into a single, unified code of conduct.
During the seventeenth and eighteenth centuries, natural law theories retained this strong moral foundation, asserting that any human statute that directly violated an ethical principle was invalid. However, the nineteenth century witnessed the rise of the Analytical Positive School, pioneered by John Austin and Jeremy Bentham. The Positivists introduced a sharp separation between law and morals, formulating the Separation Thesis, which states that law as it is must be strictly separated from law as it ought to be. They argued that a rule constitutes valid law if it is declared by a sovereign political superior and backed by a legal sanction, regardless of its moral status.
In the contemporary era, the Sociological and Realist Schools have modified this rigid separation, proving that while law and morality are distinct conceptual entities, they remain deeply interconnected. Morality shapes public opinion, and public opinion directly drives legislative codification. Conversely, law can function as an instrument of social engineering to elevate public morality. As Leon Duguit noted, law finds its objective baseline in social solidarity and human conduct, whereas morals govern the internal, subjective value of that conduct. Paul Vinogradoff observed that the object of law is the submission of the individual to the organized will of society, whereas morality targets the development of an individual's personal conscience.
Contemporary Intersections in Indian Jurisprudence
Modern Indian courts have clearly defined this conceptual boundary, establishing that an act may be morally disapproved of by sections of society, yet remain completely lawful, as the state cannot criminalize conduct solely because it falls short of conservative moral benchmarks.
This evolution is highlighted in three key legal arenas:
a. The Validity of Live-in Relationships: The validity of live-in relationships has been recognised by the Supreme Court in S. Khushboo v. Kanniammal, [AIR 2010 SC 3196] , The Court held that a live-in relationship between consenting adults is neither an offence nor prohibited by law merely because it departs from traditional notions of social morality. It observed that while such relationships may be regarded as unacceptable by certain sections of society, criminal law cannot be employed to penalise private choices that do not violate any statutory provision. The Court further emphasised that constitutional values of personal liberty and individual autonomy must prevail over majoritarian social morality. The civil rights of women in live-in relationships, however, are governed by the Protection of Women from Domestic Violence Act, 2005, and are available only where the relationship qualifies as a "relationship in the nature of marriage",
b. The Decriminalization of Adult Consensual Same-Sex Relations: In the landmark judgment of Navtej Singh Johar v. Union of India, [AIR 2018 SC 4321], a Constitution Bench of the Supreme Court read down Section 377 of the Indian Penal Code, 1860 by declaring that, to the extent it criminalized consensual sexual relations between adults in private, it was unconstitutional. The Court held that such criminalization violated the guarantees of equality, dignity, privacy, freedom of expression and personal liberty under Articles 14, 15, 19(1)(a) and 21 of the Constitution. It further affirmed that constitutional morality must prevail over majoritarian social morality and that the private, consensual choices of competent adults cannot be subjected to criminal sanctions merely because they are viewed with social disapproval. The Bharatiya Nyaya Sanhita, 2023 does not re-enact a provision corresponding to Section 377 IPC insofar as consensual sexual relations between adults are concerned, thereby maintaining the legal position established in Navtej Singh Johar.
c. The Abolition of the Crime of Adultery: In Joseph Shine v. Union of India, [AIR 2019 SC 1676], the Constitution Bench of the Supreme Court declared Section 497 of the Indian Penal Code, 1860 unconstitutional and decriminalized adultery. The Court held that the provision violated Articles 14, 15 and 21 of the Constitution and was founded upon outdated notions of gender inequality and patriarchal control. It clarified, however, that adultery continues to constitute a civil or matrimonial wrong and remains a valid ground for divorce and other matrimonial relief under the applicable personal laws, even though it no longer attracts criminal liability. This position has been maintained under the Bharatiya Nyaya Sanhita, 2023, which does not create adultery as a criminal offence, thereby reflecting the constitutional principle that personal moral transgressions, without more, should not ordinarily be subjected to penal sanctions.
IV. Conclusion
The study of Jurisprudence demonstrates that the concept of law has evolved from un-codified moral codes into a structured system of positive rules. While the Analytical Positivists prioritized the command of the sovereign, modern legal systems recognize that law is the complex product of intersecting parliamentary legislations, judicial precedents, and ancient customs.
By utilizing the specialized classifications developed by Salmond and Holland, and separating personal morality from constitutional law as seen in the Navtej Singh Johar guidelines, the contemporary Indian legal ecosystem balances public security with individual liberty, maintaining human dignity and the rule of law across the nation.
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