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DEFINITIONS OF LAW

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The Oxford English Dictionary defines”law as a rule of conduct imposed by an authority.”

John Salmond defines: - “Law means the body of principles recognized and applied by the state in the administration of justice”.

According to Erksine: -“Law is the command of a sovereign, containing a common rule of life for his subject‟ and obliging them to obedience”.

FEATURES OF LAW

The above definitions tell us that the concept of law have several dimensions and features. These are as follows: -

1. A Law expresses the will of the state: - Law is considered to be the expression of the absolute sovereignty of the state. Rules and regulation of the state in called law.

2. A law is made by the Government: - Government is the authority which works on behalf of the state. Government has three organs, Legislature, Executive and judiciary. Legislative organ of the Government make the laws. Executive organ of the Government implement and enforce the laws. Judicial organ of the Government interprets the law and grants punishment to those who violate the law. Thus a law is made by the Government and reflects the will of the State.

3. Law regulates the external conduct and actions of the people: - Internal thoughts, feeling sentiments can not be regulated by the laws e.g. gender equality laws can only lay down how men should behave with women, it con not regulate what men think about women. Thus a law can only regulate what members of a society do. It can not regulate what they think and feel.

4. Laws are universal: - It means laws are universally applicable to all. It means the „rules of law‟. A law must apply to all citizens equally and treat them similarly e.g. equality before the laws and equal protection of law to all. e.g. the penalty for committing a narcotic offence - such as carrying prohibited dugs on one‟s person is the same for all Indians from Bollywood actor to common man.

Thus laws are universally applicable without any discrimination.

5. A law must be constitutionally valid: -

Government makes the laws within the framework of constitution.

Laws are precisely written down.

6. There is a coercive authority behind law: -

Violation of law invites punishment by the state e.g. Police force identify a violation of the act and judiciary punish the accused. Thus laws are backed up by a system of coercion and punishment.

7. The supreme purpose of law is welfare of the people.

8. People give obedience to the law as it has the validity and sanction of the state.

9. Laws are compulsory - All individuals and associations are bound by the law of the state. It is not optional. No one can be excused for breaking a law on the grounds of ignorance. Individuals and associations are supposed to know the law of the state.

Conclusion- all these features of laws explain the meaning and nature of law.

Table

Definitions of law and its Nature

Definitions Features and Nature of law

1) Origin 1) Expresses the will of the state 2) Austin‟s 2) Made by the Government 3) Holland‟s 3) Regulates external conduct 4) Oxfored English dictionary 4) Universal

5) Salmond 5) Constitutionally valid

6) Erksine 6) A coercive authority behind law 7) Purpose of law

8) Sanction of the state 9) Compulsory

Check your progress:-

1) What is the importance of laws?

2) Give various definitions of law?

3) Write on important features of law and anlysed its nature?

Sources of Law

Sources of law mean various factors that contribute to determine the content of law.

A law is made by the Government and expresses the will of the State. However, a Government does not take decisions in isolation.

There exist various Non-Governmental factors that influence the creation of law. These factors or sources are as follows:-

1. Customs: - It is the first source of law. It came into existence before the state came into being. Customs are earliest form of regulation of human society. They were obeyed during earlier times because of their social utility and later on due to habit. Customs are valued and respected by the people. Violation of customs leads to public displeasure. After the emergence of the state, customs slowly gave way to laws. The state understood the utilitarian value of customs. The State initially enforced only the customary law.

Customs is not a law unless it is recognized by the state. In England customs form an integral part of the common law.

However the state does not ratify all customs. Some customs are evil which have to be abolished by law. E.g. the customs of sati, child marriage, unsociability are abolished by law.

2. Religion: - In the primitive society customs had religious sanction. Every aspect of life was regulated by religion. People had faith in religion and therefore followed religious practices meticulously. Eventually, religious rules were translated into legal rules for controlling and regulating human behavior e.g. Hindu laws are based on the code of manu and the Muslim law on the Koran.

3. Judicial Decisions: - The primary function of the judges is to interpret and apply law. While doing so, the judges may come across the gap in the law. Under such circumstances, he uses his knowledge and experience and applies the law to specific cases.

Such judgments can be used as precedents in future. It may create a new laws. The power of judicial review in the U.S. and India can become the law making power of the judiciary.

4. Scientific Commentaries: - There are the writings of eminent jurists which contain important legal principles. Jurists collect and compare lot of information. They study the existing legal systems, find out the drawbacks in it and suggest measures to reform it.

Lawyers and judges both use the writings of these experts. When they are accepted by the judge, they become part of a law.

5. Equity:- Use the commonsense by the judges. It means the principle of fairness and justice. When the civil law becomes rigid and unelastic, it gives rise to equity. When the judge finds that justice cannot be achieved with the help of existing law, he decides the case on the basis of fairness. By doing this, precedent is set and it becomes the basis of new law. It is an informal method for making a new law or improving an old law.

6. Legislation: - Legislature is the law making body of the government. Today most of the laws are product of legislature.

Law making is the primary responsibility of the legislature e.g.

Indian parliament works as a law making body.

7. Ordinance: - To meet an, emergency, the government issue ordinance. It is issued when the legislature is not in session. It is as effective as law. Very often, the legislature converts an ordinance into a law.

8. Different thinkers and philosophical schools put forth different views about the nature and sources of law:-

A. The Analytical view:-

Austin, Hobbes and Bentham are the chief exponents of this view.

According to them sovereign authority is the only source of law i.e.

the state.

The sovereign authority creates and enforces law. It is authorized to punish those who disobey law. According to them people obey law because the state has coercive power.

This view is criticized on several grounds____ It is emphasis on a formal source of law. A part from sovereign authority, there are other sources of law like custom, religion. Secondly they neglect the evolutionary character of law. Laws are not made overnight, several historical forces enter into making of laws.

B. The Historical View: -

This school of thought is opposed to the Analytical view, According to them customs; religion, traditions etc are main sources of law.

Useful traditions automatically take the form of law. Hence the law is the result of the process of historical evolution, social development and influences of the past.

C. The Sociological View: -

According to them there is a close relationship between law and society. Law is the product of social forces. The state does not create law but only imparts legal value to the existing social rules.

Laws serve the social needs and interest of the society. People obey law because it promotes social welfare.

D. The Philosophical View: -

According to them law is a result of culture and is also a means of enhancing it, their interest lies in securing an ideal basis for law.

E. Communist or Marxian View: -

According to them state and its laws protect the interest of the privileged class. They dominate the state. So people should change the entire political system.

Conclusion: -

In modern times, legislature is the most important source of law.

But the content of law is determined by several above factors,

Table

Sources of Law

Customs Religion Judicial Scientific Equity Legislation Ordinance Philosophical decisions commentaries view joints

The Analytical The Historical The sociological The philosophical communist view view view view view

Check your progress:-

1) Explain various sources of law.

2) Write on different views about the sources of law.

3) Discuss legislature is the main source of law?