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MEANING AND NATURE OF LAW
Law is the subject-matter of jurisprudence since the latter deals with the study of law. In its most general and comprehensive sense, it means any rule of action and includes any standards or pattern to which actions are or ought to be confirmed.
Blackstone defines law as “it signifies a rule of action and is applied indiscriminately to all kinds of action whether animate or inanimate or rational or irrational. Bentham said that law is a portion of discourse by which expression is given to an extensively applying and permanently in during act or state of the will of a person or person in relation to others and in relation to whom he is or they are in the state of superiority.
Salmond defines law as the body of principles recognised and applied by the sovereign in the administration of Justice. According to Austin law is a command of the sovereign backed by sanction.
All definitions have been founded on different bases which can mainly be categorised into the following three categories :
- Law is a dictate of reason – given by supporters of the natural theory of law.
- Law is a command of the sovereign – supported by followers of analytical School of Law.
- Law is the practice of court – supported by followers of legal realism.
The word law is in two main forms that is one is concrete and the other is abstract. In its concrete form, the law includes statutes, ordinances, decrees and the act of Legislature.
Law may be described as a normative science that is a science which Lays down norms and Standards for human behaviour in a specified situation or situation enforceable through the sanction of the state.
What distinguishes law from other Social Sciences is its normative character. This fact along with the fact that at stability and certainty of law are desirable goals and social values to be pursued , make the law to be a primary concern for the legal fraternity.
Theoretically speaking judges do not make law they only interpret or declared it but the truth is that even during the period when analytical positivism held its over the common law judges through their judicial creatively developed the common law tosuit the needs of the social change.
The function of law is that of social engineering and this perception has been accepted by all the civilized countries of the world including India. The concern of law as an instrument of enhancing economic and Social Justice has widened to an extent that there has been a growth of a variety of laws touching various facets of human life.
Law, is considered not as an end in itself, but is a means to an end. The end is securing of social justice. Almost all theorists agree that law is an instrument of securing justice.
According to Holland, the function of law is to ensure the well-being of the society. Thus it is for the protection of individuals’ rights.
Roscoe Pound attributed four major functions of law, namely: (1) maintenance of law and order in society; (2) to maintain status quo in society; (3) to ensure maximum freedom of individuals; and (4) to satisfy the basic needs of the people. He treats law as a species of social engineering.
Though law functions to regulate the conduct of men in society, it’s extent of operation has to be restricted to some extent for ensuring certainty and stability in the legal system. Having regard to history of development of law, it would be seen that different approaches through doctrinal theories propagated by jurists from time to time has been to project law as an instrument for balancing the rights and duties of the Subjects to exert social control.
FUNCTION OF LAW
Salmond’s opinion regarding the function of law appears to be sound and logical.
The term “Law’ denotes different kinds of rules and Principles. Law is an instrument which regulates human conduct/behavior. Law means Justice, Morality, Reason, Order, and Righteous from the view point of the society. Law means Statutes, Acts, Rules, Regulations, Orders, and Ordinances from point of view of the legislature. Law means Rules of court, Decrees, Judgment, Orders of courts, and Injunctions from the point of view of Judges. Therefore, Law is a broader term which includes Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice, Morality, Reason, Righteous, Rules of court, Decrees, Judgment, Orders of courts, Injunctions, Tort, Jurisprudence, Legal theory, etc.
Ever since the down of Human civilization, mankind has had some sort of rule or that they used to Govern itself in society laws set the standard in which we should live in if we want to be part of society. Law set up rules and regulations for society so that we can freedom, gives Justice to those who were wronged, and it set up that it protects us from our own Government. Most importantly the law also provides a mechanism to resolve disputes arising from those duties and rights and allows parties to enforce promises in a court of law (Corley and Reed 1986 P.A) According to Corley and Reed (1986) law is a body of rules of action or conduct Prescribed by controlling authority, and having legal binding forces. Laws are created because it helps prevent chaos from happening within the business environment and as well as society. In business, the law sets guide lines regarding employment regulatory, compliance, even inter office regulations.
The Modern History of Common Law
With the decline in the power of the monarchy and the ascendancy of parliament, the English court system stabilized; judicial independence was taken for granted and no longer considered a problem by the English rules. Even Oliver Cromwell and his puritan followers, who overthrew the Stuart kings and established a commonwealth in England between 1648 and 1660, feared the possible destabilizing effects of sweeping changes in the law. Cromwell thus made no major effort to supersede the common law (Prall, 1966). The English legal system remained a complex system of rules and precedents, interpreted with small shades of meaning and requiring a body of legal expects to deal with it. These legal experts had to save long apprenticeships to become familiar with the vast number of cases and precedents that would govern their decisions.
DIVINE LAWS AND HUMAN LAWS
Divine Laws are the laws of God himself and are beyond the scope of jurisprudence, whereas, human laws are framed by men.
PUBLIC LAW AND PRIVATE LAW
The term public implies either State, or sovereign part of it. By private, it means an individual or a group of individuals. In private law, State exists but only as an arbiter of rights which exist between individuals. In public law, State itself is a party involved along with the public at large..
Salmond’s classification of Law
He has referred to eight kind of laws
- Imperative law – the command of the sovereign must be general and the observance of law must be enforced by some authority.
- Physical or scientific law – these are laws of science which are the expression of the uniformities of nature.
- Natural or moral law – Natural law is based on the principles of right and wrong whereas Moral laws are laws based on the principles of morality.
- Conventional law – system of rules agreed upon by persons for the regulation of their conduct towards each other.
- Customary law – any system of rules which are observed by men as a custom and has been in practice since time immemorial.
- Practical or technical law – rules meant for a particular sphere by human activity.
- International law – rules which regulate the relations between various nations of the world.
- Civil law – the law enforced by the State.
AUSTIN’S CLASSIFICATION OF LAWS
John Austin has classified law as follows :
- Divine law – the law of God, beyond the scope of jurisprudence.
- Human Law – Law made by men.
- Positive morality – rules set by the non-political superior.
- Law metaphorically or figuratively so-called.
However, according to him, only divine law and human law are proper laws.
PURPOSE OF LAW
Salmond retains the emphasis on the judicial process but considers that a reference to the purpose of the law is essential. The law may be defined as the body of principles recognised and applied by the state in the administration of Justice. Justice is the end of law and it is only fitting that an instrument should be defined by a delineation of the purpose which is its raison d’être. This raises the question of the relationship of law and Justice in which one theory defines law in terms of justice but from this, it follows that and unjust law cannot exist for if it could then on the promises there would be a fetal cells contradiction.
Many writers have fallen into the simple trap. Earlier theories of natural law put the emphasis on Justice and denied the validity of law if it was opposed to natural justice but slavery condemned by natural law yet existed in the legal systems of the time and thought the Romans recognise this difficulty they never succeeded in solving it. A second means of solving the problem of the relationship of law and justice is to place all the emphasis on law and regard justice as near conformity to law by then we are depriving ourselves of a Criterion which may not be wholly subjective by which we made test the operation of a legal system. The purpose of law is essential to an understanding of its real nature but the pursuit of justice is not the only purpose of law the law of any period so many ants and doors and will vary as the decades roll by and to seek a for one term which may be placed in a definition as the only purpose of law leads to dogmatism the end That seems most nearly Universal is that of securing order but this alone is not an adequate description indeed, Kelson regards it as a pleonasm since law itself is the order of which we speak.
By – Shubhi Pandey
- STUDIES IN JURISPRUDENCE AND LEGAL METHOD BY DR. N.V. PARANJAPE
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