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Nature of Law[1]

Table of Contents

QUESTION BANK

Q.1 Define ‘Law’ and state its nature.

Q.2 Define ‘Law’ and explain its kinds.

SHORT NOTES

Q.1 Nature and definition of law.

Q.2 Law and morality.

SYNOPSIS

I Definition of ‘Law’

II Kinds of Law-

A] Salmond’s Classification

B] Classification of Laws by Austin

C] Classification of Laws by Holland

III. Sources of Law

A) According to Salmond
B) According to Keeton

Law and Morality

The subject matter of Jurisprudence is ‘law’. Therefore, it is necessary to study the concept of law in detail.

I. Definition of ‘Law’ –

Different jurists have defined the term ‘Law’ differently. There is no single accepted definition of law as such. We will discuss, therefore, some of the definitions of law.

According to John ‘Salmond’ –

“A Law is the body of principles recognized and applied by the State in the administration of justice”[2].

According to Blackstone- “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”.

Thus, observing uniformity of action seems to be the law’s main goal.

According to Hobbes –

“Law is the command of him or them that have coercive power”[3].

Thus, rules or principles recognized by the State and applied by the State in the administration of justice are ‘Law’.

1. ‘The Law’ and ‘a Law’ / the nature of ‘Law’[4] –

The term ‘Law’ is sometimes used as ‘a Law’ and sometimes as ‘the Law’ or simply as ‘Law’. When the term is used as ‘a Law,’ it is used in a concrete sense[5] referring to one particular statute or a law, e.g. The Indian Penal Code, The Indian Contract Act, etc. Thus, in a concrete sense, the term ‘law’ refers to a specific statute, ordinance, decree or an Act of Parliament.

Whereas, the term ‘The Law’ or simply ‘Law’ is used in the abstract sense[6]. It refers to the entire system of rules and regulations that governs the society. In this sense it refers to the whole system. So, we may say, “The law is important for maintaining order in society.” referring to an entire body of legal principles prevailing in a particular system. Thus, the Law of India, the Criminal Law, the Civil Law, the Law of Evidence, the Law of Libel, etc., cover the entire range of laws covered under the topic.

Thus, the difference between referring to different meanings to ‘the law’ and ‘a law’ states somehow the nature of law.

II. Kinds of Laws-

The term ‘Law’ in its ‘general’ sense includes different kinds viz-

A] Salmond’s Classification-

Salmond has classified laws in their widest sense in the following different categories viz-

Imperative Law[7] –

Austin is the main exponent of Imperative Law. According to him, law is a command of a sovereign that obliges a person or persons to take a course of conduct. Imperative Law is a rule that prescribes a general course of action imposed upon men by some authority that enforces obedience to it by some superior power, either by physical force or any other form of compulsion.

According to Austin, to be a law, the command must be issued by a determinate person or group of persons who are sovereign in the State. The state or sovereign enforces the command with its physical force or in any other form.

In other words, Imperative Law has two essential characteristics, viz. –

The command of the sovereign,
Enforcement of a command either by physical force or in any other form.

2. Physical or Scientific Law[8]–

‘Physical law’ or the ‘laws of science’ are uniform laws of nature. There is perfect uniformity and regularity in these laws. They are not subject to change. Some examples include the law of gravity, the law of magnetic force, and the law of air pressure.

3. Natural or Moral Law[9] –

‘Natural Law’ is also known as ‘Divine Law’, ‘Moral Law’, ‘Law of God’, ‘universal ‘eternal Law’, ‘Law of Reason’, etc. Natural law signifies the principles of right and wrong. In other words, natural Law lays down the ideal conception of justice.

Natural Law is based on religious or moral grounds. The concept of Natural Law is very ancient. We may find germs of Natural Law lying in all ancient thoughts. According to natural law, there is a close nexus between morality and law.

1. Conventional Laws[10]–

Conventional Law refers to those rules or sets of rules that are the outcome of an agreement between persons or groups of persons. Parties to an agreement have to observe these rules for the regulation of their conduct towards each other. Such agreement is the Law for the parties interested in it. Conventional Law is a form of special Law for the parties entered into it. Thus, the rules of the club, the rules of a cooperative society, and International Law is the outcome of agreement (i.e. conventions) between the states.

2. Customary Law[11] –

Customary Law means those rules and principles that have been observed in a particular community for a long time. In fact, there are many customs in every society. These customs have prevailed in societies since time immemorial. These customs assume the force of Law over time. Many personal laws, like Hindu Law, Christian law, etc., are customary. They were recently codified into statutory laws.

3. Practical or Technical Law[12] –

Practical or Technical Law means those rules which are necessary for the attainment of certain ends. Thus, the Laws of sanction and health, Laws of building construction, architecture etc., are some examples of technical laws.

4. International Law[13] –

It is an aggregate of the rules recognised and accepted by the civilised states in their dealings with each other.

‘International Law’ is a very important branch of Law in modern times. It is based largely on conventions[14] between the states. Therefore, international law is divided into two parts. The first part consists of rules that are uniform and universal in their applicability, i.e., they apply to all states equally. This part is called ‘Public International Law’, whereas the other part consists of those rules which are operative only between two or more nations by their agreement in themselves; this part is called ‘Private International Law’.

5. Civil Law[15] –

According to Salmon, ‘Civil Law’ is the ‘Law of the state’, the ‘Law of the land’, and the ‘Law of the lawyers and of Law courts’. Civil Law is also called ‘Municipal Law’, ‘Positive Law’ or ‘National Law’. In other words, it is the law which the courts enforce. We have discussed so far the law in its general sense nowhere ‘civil law’ in its strict sense is the subject matter of Law students and is applied and enforced by the courts. Civil Law is the subject matter of study in Jurisprudence.

B] Classification of Laws by Austin –

Austin classified Law into- (1) Laws properly so-called (2) Laws improperly so-called.

He has further classified ‘Laws properly so-called’ into ‘divine Law’ (Law of God) and ‘human Laws’. He further classified ‘Laws improperly so-called’ into Law of ‘positive morality’ and ‘Law metaphorically’ so-called”-

C] Classification of Laws by Holland –

According to Holland, Laws can be classified into –

Private Law
Public Law
International Law

Thus, Holland has classified ‘Civil or Municipal Law’ into ‘private’ and ‘public’ laws.

III. Sources of Law –

A) According to Salmond –

According to Salmond following are the sources of Law –

Enacted Law- Which has its source in
Case Law – Which has its source in precedent[16].
Customary Law – which has its source in custom.
Conventional Law – which has its source in agreement.

B) According to Keeton –

Sources of Law, according to Keeton, are as follows –

(i) Custom, (ii) Legislation, (iii) Judicial Precedents.

These three sources have binding forces. Two more sources, viz. (iv) principles of morality or equity and (v) Professional opinion have persuasive value but no binding force as such. These two sources or laws cannot be enforced by the physical force of the state but depend upon moral principles for their enforcement, i.e., to be followed or not to be followed.

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SHORT NOTES

LAW AND MORALITY[17]

In ancient times, there was no distinction between ‘law’ and ‘morality’. However, in later stages, lawmakers and courts made some distinctions between ‘law’ and ‘morals’.

In ancient times, morality was considered a part of ‘natural law’. There was no distinction between ‘law’ and ‘morality’. According to Hindu mythology and Christian jurists, natural law was based on moral principles. However, after reforms in Europe and in India, ‘law’ and ‘morality’ started to be considered differently. During the 17^th and 18^th Centuries, the theories of natural law had a moral foundation and law was linked with morals. However, during the 19^th Century, positive law theory emerged, which propounded that “law had nothing to do with morality”. According to the Positive Law School, ‘law’ is ‘the law’ which is declared by ‘the state’ and enforced by sanction (physical force) of the State. Austin was supported by a number of other jurists. However, in modern times, ‘sociological school’ also considers the relationship between law and morality.

In modern times, the distinction between ‘law’ and ‘morals’ is well defined and considered. According to Duguit, “law has its basis in social conduct. Morals go with the intrinsic value of conduct”. According to Vinogradoff, “the object of law is the submission of the individual to the will of organised society.

Thus, even though wearing a burkha/veil by women is moral but non- wearing it is not illegal though immoral. Similarly, the present concept of staying together as a man and a woman without marriage (Live in a relationship) though immoral, is not illegal (Payal Sharma’s Case). Similarly, gay marriages or marriages between same-sex though immoral, are legal in many countries.

Thus, in today’s time, law and morality are different and not one and the same.

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[1] कयदा किंवा विधीचे स्वरुप [कानून या अनुष्ठान का रूप ]

[2] कयदा म्हणजे तत्व किंवा नियम की जे राश्ट्राने मान्य करुन न्यायदानाच्या कामात वापरलेले असतात [कानून सिद्धांत या नियम हैं जो राज्य द्वारा स्वीकार किए जाते हैं और न्याय के प्रशासन में उपयोग किए जाते हैं ]

[3] कायदा ही त्याची किंवा त्यांची अज्ञा आहे कि ज्यांचेकडे ती सक्तीने अंमलबजावणी करण्याची ताकद आहे. [कानून उसकी या उन लोगों की आज्ञा है जिनके पास इसे लागू करने की शक्ति है ]

[4] कायदयाचे स्वरुप [कानून का रूप ]

[5] मुर्त किंवा निष्चित कायदा [मूर्त या निश्चित कानून ]

[6] अमुर्त किंवा साधारण [सार या सामान्य ]

[7] अज्ञार्थी कायदा [अज्ञानी कानून ]

[8] भौतिक किंवा शास्त्रीय कायदा [एक भौतिक या वैज्ञानिक कानून ]

[9] नैसर्गिक व नैतिक कयदा [प्राकृतिक और नैतिक कानून ]

[10] राज्यांमधील करार [राज्यों के बीच समझौता ]

[11] प्राचीन चालिरिती किंवा रुढी [प्राचीन रीति-रिवाज या परंपराएँ ]

[12] प्रत्यक्ष किंवा तांत्रिक कायदा [वास्तविक या तकनीकी कानून ]

[13] आंतराष्ट्रीय कायदा [अंतरराष्ट्रीय कानून ]

[14] राज्यातील करार [ राज्य में समझौता ]

[15] नागरी कायदा [सिविल कानून ]

[16] बंधनकारक न्यायनिवाडे [बाध्यकारी निर्णय ]

[17] कायदा आणि नैतिकता [कानून और नैतिकता ]