What is the idea of law?

In the last post, we talked about the various definitions of law and the various connotations attached to it. In the present post, we shall discuss about the various ideas of law. This post is merely intended to give a broad picture relating to the idea of law. By idea, I mean to say the notions attached to law or how law is being conceived in the society. Basically, there are two ideas of law:

1. Imperative idea – This refers to the statutory law. There is a force behind it. It is quite similar to the Austinian idea of law. Austin firmly believed in the idea of positive laws i.e. laws strictly so called. Such idea also implies that there is nothing good or bad about law meaning thereby that law is nothing but command of the sovereign. Austin’s Imperative Theory of Law states that ‘law’ is:

a.       A type of Command

b.      Laid down by a Political Superior

c.       Enforced by a Sanction

2. Rational and Ethical idea – Such ideas derive their force from rule of law, reasonableness, fairness and justice. This type of law is recognized and not made. This law was developed in order to put a control on the arbitrary exercise of the powers of monarchs. Monarchs never made a law that would circumscribe his own power. Therefore this idea of law got developed to check the exercise of power by monarchs.

In the beginning, it was believed that it is the natural law that is supreme. However, it was contended that nature cannot enforce law and enforcement is an essential component of law. Hence, natural law is not supreme. The concept of god came into picture. It was considered to be the higher law. This law is based on the natural instincts of man that is reasonableness, fairness, liberty etc. In this kind of idea of law, law is inherent in human beings.

In the next, we shall talk about the difference between ‘rule by law’ and ‘rule of law’.

(This short essay was prepared while taking notes in the Class of Professor I.P. Massey)