AN ANALYSIS OF CONCEPT OF LAW
Author: Rushaan Raana Samuel, I year of B.A., LL.B.(Hons.) from GITAM School of Law, Visakhapatnam
We all are fortunate enough to live in a society that is peace-loving and has some laws in place that are responsible for maintaining the peace and order of the society that we live in. Laws can be understood as rules that are in place for regulating human conduct which strives to the higher virtues of human life. The concept of law can be easily understood when we imagine a society where there are no laws.[i] It is quite evident that when laws are not present, there would be utter chaos and with the passage of time, a place will come into existence which will have no value for human life and morals is quite disappointing to see that even today when the technology is progressing in leaps and bounds, the common man is still ignorant and not aware[ii] about the various duties and rights that he has.
What is the law?
Law in simple terms is defined as the discipline and profession concerned with the customs, practices, and rules of conduct of a community that are recognized as binding by the community and their enforcement is through a controlling authority.[iii] Apart from this definition, there have been many legal scholars who have given various definitions for law and they are equally thought-provoking and accurate.
Salmond defined law as, “the law may be defined as the body of principles recognized and applied by the state in the administration of justice.”[iv]
According to John Chipman Gray, “the Law of the State or of any organised body of men is composed of the rules which the courts, that is the judicial organ of the body lays down for the determination of legal rights and duties.”[v]
Duhaime's Law Dictionary[vi]“All the rules of conduct that have been approved by the government and which are in force over a certain territory and which must be obeyed by all persons on that territory
Oxford Professor of jurisprudence Professor Hart in his book “The Concept of Law” (1961) defined law as a system of rules, a union of primary and secondary rules,[vii]
It is also very important that we acknowledge the fact that lawyers are very complex and if we were to define it in a single word, that task would be near to impossible. Law acts as an invisible and powerful force that regulates all the human beings in the society and it connects the various natural elements with humans which clearly highlights the fact that law is universal[viii]in nature and not just limited to some geographical boundary.
Historical Background of Law
The law did not come into existence as such as it is today; the law, in general, has evolved through many phases throughout the history undergoing major and minor modification and it still remains a dynamic area of study even today. Therefore it is imperative that we look into its history and how the concept of law changed with the sweeping and continuous changes in the society.
In 3000 BCE, the Babylonian king Hammurabi was the first one to codify the laws and engrave them on stones.[ix]Although at that time it was also believed that gods created the laws[x] and this was predominantly believed by people who practised Christianity at that time.
The Ancient Indian and Chinese society for a long time had independent schools of legal theory and laws and they had a distinct culture for legal studies.
During the middle ages, the Islamic jurisprudence[xi] stood out clearly and this was the major legal system that evolved during this time. In other parts after the fall of the Roman Empire[xii], the law was centralized to power the royal courts of Charlemagne.
In modern society especially in the context of India, the modern law started developing after the Constitution of India [xiii] came into force on 26th January 1950[xiv]. This constitution serves as the symbol of human rights and laws are made according to the provisions laid down by the Indian constitution. Over the years, many concepts have evolved in the Indian legal system through legislation and the judgments of various courts present in India. Many long legal disputes have also found a solution in the last few years which has increased the scope of laws and their study in the largest democracy in the world.[xv]
Looking at the International perspective the United Nations came into existence in the year 1945[xvi] which is the organisation primarily responsible for safeguard international rights and international laws.
Types of Law
The concept of law and its scope is very dynamic and complex to comprehend, but many legal scholars have done remarkable work in differentiating the different types of law that are there presently. The great legal scholar Sir John Salmond [xvii]mentioned that there are eight kinds of laws.
1) Imperative Laws
Imperative law means a rule of action imposed upon by some authority which enforces obedience to it. In other words, it is a command enforced by some superior power either physically or in any other form of compulsion.
There are two kinds of imperative law, Divine or human
Divine laws consist of the commands imposed by God upon men either by threats of Punishment or by the hope of his blessings.
Human laws are the laws by analogy
2. Physical or scientific laws
Physical laws are the expressions of the
Uniformities of nature and General Principles Expressing the regularity, and
2. observable in the activities and operations of the universe
They are not made by humans and therefore man can never change these laws and he has no control over them.
3. Practical or Technical law
It consists of Principles and rules for the attainment of certain ends e.g. laws of health, laws of architecture. These rules guide us as to what we ought to do in order to attain certain ends.
4. Natural or Moral law
It has various other names such as, “the Moral law” “Divine law” “God Law” ‘universal or eternal law and “law of reason” etc. “by natural law is meant the principles of natural right and wrong (the Principles of Natural Justice)”.
Natural laws have been called
1. Divine law: - commands of God imposed upon men.
2. Law of Reason i.e. being established by that reason by which the world is governed.
3. Unwritten law: - (as being written not a brazen table or a pillar of stone but by the finger of nature in the hearts of people.
4. Universal or common law (being of universal validity)
5. Eternal law (being uncreated and invariable)
6. The moral law (being the expression of the Principles of morality)
5. Conventional law
It is the body of rules agreed upon and followed by the concerned parties to regulate their mutual conduct. It is a form of special law and law for the parties which can be made valid or enforced through an agreement.
6. Customary law
According to Salmond[xviii], customary law means “any rules of action which are actually observed by men (any rule which is the expression of some actual uniformity of voluntary action) “when a custom is firmly established it is enforced by the authority of the State.
7. International law
According to Salmond, it is considered of these rules which the sovereign States have agreed to observe in their dealings with one another.[xix]
International law is of two kinds:
· Public International law
· Private International Law
8. Civil Law
According to the Salmond[xx], Civil law is a positive law or law of the land which means the law as it exists. It is backed by the force and might of the State for purposes of enforcement
Sources of Law
The term ‘sources of law’ has a very relative meaning, because for different people it means different things[xxi]. For some, it talks about the code of conduct and for some, it means the origin of law. These sources not only tell us about how our laws should be made but also highlight the various features that good law should have. Broadly there are as follows:-
Salmond defined legislation as the process of lawmaking by a competent and able authority.[xxii] It generally denotes the laying down of laws by a sovereign authority that is not based on any disputes but regulates the future code of conducts.
Types of Legislature[xxiii]
This source is considered a very vital source of law throughout legal systems all around the world, especially in common law countries. There is an umpteen number of legal scholars who are strong supporters of this source because it has some amount of authority attached to it.
Judicial Precedents are classified as:-[xxiv]
1. Authoritative and Persuasive
2. Absolute and Conditional
3. Declaratory and Original
Customs can be defined in the context of the society and can be referred to as practices and habits that a common group of people follow which are uniform all throughout society. Although legal theorists like Salmond believed that the custom as a source of law loses its relevance and value as the legal system grows.[xxv]Nevertheless it is important to have some basic understanding of how customs play a vital role in law-making. According to Roscoe Pound[xxvi], customary regulation comprises:-[xxvii]
Justice, Equity and Good conscious
There are certain cases and certain circumstances where the judges feel that the law is inadequate or outdated or that the present law does not provide true justice to the victim[xxviii], in those cases this principle is used when the judges use his/her good conscious and morals to arrive at a decision.
This type of sources of law generally includes international treaties, agreements and conventions.[xxix] In today’s context the world is interconnected and there are international organizations such as the United Nations which have the responsibility to solve the conflict between countries and also uphold international law.
Professional opinions and Juristic Writings
This mainly comprises obiter dicta of judges, writings of great legal scholars and other thinkers. It is not a very popular source of law but can be utilized to find the original precedents and help in further study.
As the citizens of modern society, it is of utmost importance that we abide by the law and at the same time have at least some basic knowledge about the laws that govern us. The subject of law is dynamic in nature which changes as society changes, yet it is very important to stay rooted in the past. The concept of law has travelled a long journey and is still travelling and will continue to travel providing each and every one of us just and fair treatment and would continue to regulate human conduct. There is a diversity when it comes to law in general where different countries have different ideas of what exactly is the concept of law. This is of immense importance to all of us as it provides an opportunity to truly understand its essence and how it is implemented in our day to day life.
[i]YashPrabha,’ The Purpose of Law and its Functions ‘ (Cronus Law PLCC) < https://www.cronuslaw.com/the-purpose-of-law-and-its-functions-in-society> accessed 10th January 2021.
[ii]TahirQureshi, ‘Know Your Rights: People still not aware of their rights after 70 years, introspection required’ (News Nation,11th December 2017) <https://english.newsnationtv.com/campaign/know-your-rights/know-your-rights-people-still-not-aware-of-their-rights-after-70-years-introspection-required-un-general-assembly-national-human-rights-commission-188034.html> accessed 12th January 2021.
[iii] The Editors of Britannica Encyclopedia, ‘Law’ (Britannica) <https://www.britannica.com/topic/law> accessed 14th January 2021.
[iv]SuyashVerma, ‘Jurisprudence Notes – The Nature of Law’ (DesiKanoon,14th August 2012) <http://www.desikanoon.co.in/2012/08/the-nature
Oflaw.html#:~:text=According%20to%20Salmond%20'Law%20may,by%20the%20Courts%20of%20Justice.&text=He%20further%20said%20that%20laws%20are%20laws%20because%20courts%20enforce%20them.> accessed 14th January 2021.
[v] Neil MacCormick, ‘Political Frontier of Jurisprudence: John Chipman Gray on the State’ 1981 Volume 66 Issue 5 Cornel Law review < https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4249&context=clr#:~:text=Gray's,down%20for%20the%20determination%20of> accessed 14th January 2021.
[vi] Infra 17
[vii]Matthew H. Kramer, ‘H.L.A. Hart’ (Encyclopedia Britannica, 15th December 2020) <https://www.britannica.com/biography/H-L-A-Hart> accessed 14th January 2021.
[viii]SimranSabharwal, ‘What is law’ (IPleaders, 13th October 2018) < https://blog.ipleaders.in/what-is-law/> accessed 16th January 2021
[ix] ‘The History of Law’ (Van Norman Law) < https://www.vannormanlaw.com/the-history-of-law/> accessed 16th January 2021
[x] Supra 14
[xi] ‘Jurisprudence NOTE 1’ (Oxford) < http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/jurisprudence-Unit-I.pdf> accessed 16th January 2021.
[xii] Supra 15
[xiii] The Constitution of India < https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf> accessed 17th January 2021.
[xiv] Ibid 19
[xv]Baijayant Jay Panda, ‘HTLS 2019: The evolution of the world’s largest democracy’ (Hindustan Times,26th November 2019) <https://www.hindustantimes.com/india-news/htls-2019-the-evolution-of-the-world-s-largest-democracy/story-9Ok3FbGUDKFQfmYcVRugAP.html> accessed 17th January 2021
[xvi] History of the United Nations’ (United Nations) < https://www.un.org/en/sections/history/history-united-nations/index.html> accessed 17th January 2021.
[xvii] Ibid 5
[xviii] Supra 17
[xix] Supra 17
[xx] Supra 17
[xxi]Mayank Shekhar, ‘Sources of Law’ (Legal Bites – Law and Beyond, 13th August 2019 ) < https://www.legalbites.in/sources-of-law-2/>
accessed 17th January 2021.
[xxii]Mayank Shekhar, ‘Legislation and it types’ (Legal Bites – Law and Beyond, 8th October 2018) < https://www.legalbites.in/law-notes-administrative-law-legislation-types/> accessed 17th January 2021.
[xxiii] Ibid 29
[xxiv] Ibid 30
[xxv]John W. Salmond, ‘Jurisprudence or the theory of Law’ (Steven & Hayes, 1902) 135.
[xxvi]The Editors of Encyclopedia. "Roscoe Pound". (Encyclopedia Britannica, 23 Oct. 2020) <https://www.britannica.com/biography/Roscoe-Pound> accessed 17th January 2021.
[xxvii] Associate Ashwini Ramesh, ‘What are the sources of law” (Lawyered, 8th July 2019) <https://www.lawyered.in/legal-disrupt/articles/what-are-sources-law/> accessed 17th January 2021.
Rushaan Raana Samuel, 1st Year BALLB (Hons) Student at GITAM School of Law, GITAM University, Visakhapatnam. He is a State Level Debator and a blogger for the last 3 years who likes writing and poetry.