Jurisprudence Notes- The Nature of Law

Introduction

We know that Law cannot be static. In order to remain relevant, Law has to grow with the development of the society. In the same manner, the scope of law also cannot be kept static. The result is that the definition of law is ever changing with the change in society. The definition of law considered satisfactory today might be considered a narrow definition tomorrow. This view has been put forward by Professor Keeton. He said that an attempt to establish a satisfactory definition of law is to seek, to confine jurisprudence within a Straight Jacket from which it is continually trying to escape.

Let us study the views of Austin and Salmon on the Nature of Law.

Austin said that law is the aggregate of the rules set by men as political superior or sovereign to men as politically subject. In short, Law is the command of sovereign. It imposes a duty and duty is backed by a sanction. He further said that there exists three elements in law:

a. Command

b. Duty

c. Sanction

However, Salmond defined law as the body of principles recognized and applied by the state in the administration of justice.

Let us comeback to Austin’s definition now.

Austin’s Theory of Law or Imperative Theory of Law

As we know, according to Austin, there are three elements in law:

a. It is a type of command

b. It is laid down by a political superior

c. It is enforced by a sanction

He goes on to elaborate this theory. For him, Requests, wishes etc. are expressions of desire. Command is also an expression of desire which is given by a political superior to a political inferior. The relationship of superior and inferior consists in the power which the superior enjoys over the inferior because the superior has ability to punish the inferior for its disobedience.

He further said that there are certain commands that are laws and there are certain commands that are not laws. Commands that are laws are general in nature. Therefore, laws are general commands. Laws are like standing order in a military station which is to be obeyed by everybody.

He goes on to define who is a sovereign. According to him, Sovereign is a person or a body or persons whom a bulk of politically organized society habitually obeys and who does not himself habitually obey some other person or persons. Perfect obedience is not a requirement.

He further goes on to classify the types of laws:

1. Divine Law- Given by god to men

2. Human Law- Given by men to men

   a. Positive Laws- Statutory Laws

   b. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc.

Criticism of Austin’s Theory of Law

1. Laws before state- It is not necessary for the law to exist if the sovereign exists. There were societies prior to existence of sovereign and there were rules that were in prevalence. At that point of time, there was no political superior. Law had its origin in custom, religion and public opinion. All these so called ‘laws’ were later enforced by the political superior. Thus, the belief that sovereign is a requirement for law has received criticism by the Historical and Sociological School of Thought.

However, the above mentioned criticism is not supported by Salmond. Salmond said that the laws which were in existence prior to the existence of state were something like primitive substitutes of law and not law. They only resembled law. Salmond gave an example. He said that apes resemble human beings but it is not necessary to include apes if we define human beings.

2. Generality of Law- The laws are also particular in nature. Sometimes, a Law is applicable only to a particular domain. There are laws which are not universally applicable. Thus, laws are not always general in nature.

3. Promulgation- It is not necessary for the existence of the law that the subjects need to be communicated. But, Austin thought otherwise.

4. Law as Command- According to Austin, law is the command of the sovereign. But, all laws cannot be expressed as commands. Greater part of law in the system is not in the nature of command. There are customs, traditions, and unspoken practices etc. that are equally effective.

5. Sanction- The phrase ‘sanction’ might be correct for a Monarchical state. But for a Democratic state, laws exist not because of the force of the state but due to willing of the people. Hence, the phrase ‘sanction’ is not appropriate in such situations. Also, there exists no sanction in Civil Laws unlike Criminal Laws.

6. Not applicable to International Law- Austin’s definition is not applicable to International Law. International Law represents law between sovereigns. According to Austin, International Law is simply Positive Morality i.e. Soft Laws.

7. Not applicable to Constitutional Law- Constitutional Law defines powers of the various organs of the state. It comprises of various doctrines such as separation of power, division of power etc. Thus, no individual body of a state can act as sovereign or command itself. Therefore, it is not applicable to constitutional law.

8. Not applicable to Hindu Law or Mohameddan Law or Cannon Law- Personal Laws have their origin in religion, customs and traditions. Austin’s definition strictly excludes religion. Therefore, it is not applicable to personal laws.

9. Disregard of Ethical elements- The moment law is devoid of ethics, the law loses it colour and essence. Justice is considered an end of law or law is considered a means to achieve Justice. However, Austin’s theory is silent about this special relationship of Justice and Law. Salmond said that any definition of law which is without reference to justice is imperfect in nature. He further said ‘Law is not right alone, it is not might alone, it a perfect union of the two’ and Law is justice speaking to men by the voice of the State. According to Salmond, whatever Austin spoke about is ‘a law’ and not ‘the law’. By calling ‘the law’ we are referring to justice, social welfare and law in the abstract sense. Austin’s definition lacked this abstract sense. A perfect definition should include both ‘a law’ and ‘the law’.

10. Purpose of law ignored- One of basic purposes of Law is to promote Social Welfare. If we devoid law of ethics, the social welfare part is lost. Again, this part has been ignored by Austin.

 Merit in Austin’s Definition

Not everything is faulty about Austin’s theory of law. He gave a clear and simple definition of law because he has excluded ethics and religion from the ambit law. Thus, he gave a paramount truth that law is created and enforced by the state.

Salmond’s Definition of Law

According to Salmond ‘Law may be defined as the body of principles recognized and applied by the state in the administration of justice’. In other words, law consists of rules recognized and acted upon by the Courts of Justice.

Salmond believed that law may arise out of popular practices and its legal character becomes patent when it is recognized and applied by a Court in the Administration of Justice. Courts may misconstrue a statute or reject a custom; it is only the Ruling of the Court that has the Binding Force of Law.

He further said that laws are laws because courts enforce them. He drew a lot of emphasis on Administration of Justice by the Courts. He was of firm belief that the true test of law is enforceability in the courts of law.

Thus, we see that Salmond has defined law in the abstract sense. His definition brings out the ethical purpose of law. In his definition, law is merely an instrument of Justice.

Criticism by Vinogradoff

Vinogradoff heavily criticized Salmond’s definition. He said that the definition of law with reference to Administration of Justice inverts the logical order of ideas. The formulation of law is necessary precedent to the administration of justice. Law has to be formulated before it can be applied by a court of justice.

He further said that the definition given by Salmond is defective because he thinks law is logically subsequent to administration of justice. Existence of a Rule of Law because Courts of Justice could apply it and enforce it while deciding cases, vitiates the definition of law.

Natural Law or Moral Law

Natural Law refers to the Principles of Natural right and wrong and the Principle of Natural Justice. Here, we must use the term ‘justice’ in the widest sense to include to all forms of rightful action. Natural Law is also called Divine Law or Law of Reason or The Universal Law and Eternal Law. This law is a Command of the God imposed on Men.

Natural Law is established by reason by which the world is governed, it is an unwritten law and it has existed since the beginning of the world and hence, is also called Eternal Law. This law is called Natural Law as its principles are supposed to be laid down by god for the guidance of man. It is called Rational Thought because it is based on reason. Natural Law is unwritten as we do not find it in any type of Code. Therefore, Natural law exists only in ideal state and differs from law of a State. Philosophy of Natural law has inspired legislation and the use of reason in formulating a System of law.

Purpose and function of law

Society is dynamic and not static in nature. Laws made for the people are also not static in nature. Thus, purpose and function of law also cannot remain static. There is no unanimity among theorists as to purpose and function of law. Thus, we will study purpose and function of law in the context of advantages and disadvantages.

1. Advantages of law-

a. Fixed principles of law

i. Laws provide uniformity and certainty of administration of justice.

ii. Law is no respecter of personality and it has certain amount of certainty attached to it.

iii. Law avoids the dangers of arbitrary, biased and dishonest decisions because law is certain and it is           known. It is not enough that justice should be done but it is also important that it is seen to be         done.

 iv. Law protects the Administration of Justice from the errors of individual judgments. Individual whims         and fancies are not reflected in the judgment of the court that follow the Rule of Law.

    b. Legislature represents the wisdom of the people and therefore a law made by the legislature is much           safer because collective decision making is better and more reliable than individual decision making.

2. Disadvantages of law-

a. Rigidity of Law- An ideal legal system keeps on changing according to the changing needs of the people. Therefore, law must adjust to the needs of the people and it cannot isolate itself from them. However, in practice, law is not usually changed to adjust itself to the needs of the people. Therefore, the lack of flexibility results into hardship in several cases.

b. Conservative nature of law- Both lawyers and judges favour in continuation of the existing laws. This creates a situation where very often laws become static and they do not respond to the progressive society because of the conservative nature of law.

c. Formalism of law- Most of the times, people are concerned with the technical operation of law and not the merits of every individual case. It creates delay in the Justice Delivery system. It also leads to injustice in certain cases.

d. Complexity of law- Sometimes, the laws are immensely intricate and complex. This causes difficulty in Interpretation of Statutes.

3. Therefore, advantages of law are many but disadvantages are too much- Salmond.

Complete List of Jurisprudence Notes 

1. Jurisprudence- Nature and Scope of Jurisprudence

2. Jurisprudence- The Nature of Law

3. Jurisprudence- Administration of Justice

4. Jurisprudence- The Sources of Law

5. Jurisprudence- Legal Concepts

6. Jurisprudence- School of Thoughts