Definition of Law and classification PDF

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Definition of Law, its kinds and Classifications

1. Introduction: The term ‘law’ denotes different kinds of rules and principles. Law is an instrument which regulates human conduct or behaviour. Law means Statutes, Acts, Rules, Regulations, Orders and Ordinances from point of view of 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.

2. Meaning of Law: The term law has been derived from the Latin term ‘Legam’ which means the body of rules. In Hindu religion or jurisprudence, law implies ‘Dharma’, in Islamic religion it is ‘Hukum’, in Romans it is ‘Jus’ and in France it is ‘Droit’, and in Germany it is ‘Richt’. All these words convey different meaning. Thus, the term law has different meanings in different places/societies at different times as it is not static and it continues to grow. For example:- Law varies from place to place in the sense that while adultery is an offence in India under Section 497 of IPC, it is not an offence in America. Further, law differs from religion to religion in the sense of personal laws, e.g. a muslim man can have four wives at a time, but a hindu can have only one wife living at a time. If a hindu marries during the lifetime of first wife he is declared guilty of the offence of bigamy under section 494 of IPC. Generally, the term law is used to mean three things: (i)

Legal Order: Firstly, it is used to mean ‘legal order’. It represents the regime of adjusting relations, and ordering conduct by the systematic application of the force of organized political society.

(ii)

Legal Precepts: Secondly, law means the whole body of legal precepts which exists in an organised political society.

(iii)

Official Control: Thirdly, law is used to mean all official control in an organised political society.

3. Definitions of Law: It is very difficult to define the term law. Various jurists have attempted to define this term. Some of the definitions given by jurists in different periods are categorised as follows: (i)

Idealistic Definitions: Romans and other ancient jurists defined law in its idealistic nature. (a) Salmond: According to Salmond, “the law may be defined as body of principles, recognised and applied by the State in the administration of justice”. (b)Gray, “According to 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.”

(ii)

Definitions of Positivists: (a) Austin: Austin defined law as a command of sovereign backed by sanction. According to him there are three elements of law, i.e. (a) command, (b) duty (c) sanction. Thus, every law have a command and due to this command we have a duty to obey this command and if don’t obey this command, then there is a sanction.

(b)H.L.A. Hart: He defined law as a system of rules- the primary and secondary rules. The primary rules are duty imposing while the secondary rules are power conferring. (iii)

Definition of Historical School of Law: The chief exponent of the Historical school is Van Savigny. Historical jurisprudence examines the manner or growth of a legal system. He says that the law is not the product of direct legislation but is due to the silent growth of custom. He says that law is found in the society, it is found in the custom.

(iv)

Definition of Sociological School of Law: This school defines the law on the basis of its effect on law and society and vice versa. (a) Ihering definition of law: He says that law is a means to an end and the end of law is to serve its purpose which is social and not individual.

(b)Roscoe Pound’s definition of law: He defines law as a social institution to satisfy social wants. He says that law is a social engineering, which means that law is an instrument to balance between the competing or conflicting interests. (v)

Realistic definition of Law: It studies law as it is in its actual working and effects. (a) Holmes J. considered the law to be part of judicial process. He says, “the prophesies of what the courts will do, in fact and nothing more pretentions, are what I mean by law”.

It would thus be seen that no single definition of law can be treated as satisfactory because law is ever changing in the dynamic fibre of its inherent element.

4. Difference/Distinction between ‘the law’ and ‘a law’ The subject matter of jurisprudence being the study of law, it is necessary to understand the distinction between the terms ‘the law’ and ‘a law’. The term ‘the law’ or law cannotes the whole legal system in its totality. It has been termed ‘jus droit’ in Latin. According to Roscoe Pound, “The expression ‘the law’ or law means the legal system operating in a country. On the other hand, the term ‘a law’ is termed as lex loci in Latin which means a particular statute in its isolated form.” According to Jeremy Bentham, the term ‘the law’ means – “neither more or less than the total of a number of individual laws taken together.” Thus every Act or Statute of Parliament is called “a law” whereas the aggregate of Acts comprising legal systems are known as ‘the law’ or ‘law’ of the country.

5. Nature or Basic Features of Law: 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. The concept of law may be understood by analysing the features common to all laws. Among these features, the ones considered as essential or basic include:(i) (ii) (iii)

Generality Normativity Sanction

(i)

Generality:Law is a general rule of conduct. It does not specific the names of specific persons or behaviours. Its generality is both in terms of individuals governed and in terms of the social behaviour controlled. The extent of the generality depends upon on whom the law is made to be applicable.

For example:(a) Everyone has the right to life, liberty and security of a person under Article 3 of the Universal Declaration of Human Right (UNDHR). This law is made applicable to everyone on this world, therefore, it is universal. (b) The State shall not deny to any person equality before law or the equal protection of laws within the territory of India (Article 14 of the Constitution). This law is applicable to every person residing in India, therefore, it is national in character. (ii)

Normativity:Law does not simply describe or express the human conduct it is made to control, but it is created with the intention to create some norms in the society. Law creates norms by allowing, ordering or prohibiting the social behaviour. Under this heading, law can be classified as follows:(a) Permissive Law:It allows or permits subjects to do the act they provide. E.g., every person who is arrested has a right to be produced before the nearest Magistrate within a period of 24hr. of his arrest. The term “has the right” used in this provision shows that subject is given the right. So it is permissive law. (b)Directive Law:It orders, directs, or commands the subjects to do the act provided in the law. It is not optional. E.g., if there is a contract between the parties that any particular act must be performed by the parties themselves, then they must perform it personally. This is a directive law. (c) Prohibitive Law:It discourages the subject from doing the act required not to be done. All criminal laws are usually prohibitive laws. E.g., no one should enter the property of another person against the will of that person.

(iii)

Sanction:Each and every member of society is required to follow the laws. Where there is a violation of law, sanction should follow. The term sanction is derived from the Roman word “Sanctio” which means that part of the statute which imposes a penalty or has made some other provision for its enforcement. In general sanction means ‘penalty’. Definitions of Sanction:(a) Salmond defined sanction as an instrument of coercion by which any system of imperative law is enforced. The state uses its physical force as a sanction for the administration of justice. (b) According to Friedrick Pollock, sanction is modern sense means constant readiness of the state to use its force for ensuring justice to be done to both i.e., for law abiding person as also to the evil doer. Kinds of Legal Sanction:Hibbert has classified legal sanctions under two broad headings:-

(a) Criminal Sanction (7 types) i. ii. iii. iv. v. vi. vii.

Capital punishment Imprisonment Corporal punishment Fine Deprivation of civil and political rights Forfeiture of property Deportation/transportation

(b)Civil Sanction (5 types) i. Damages ii. Costs iii. Restitution of property iv. Specific performance v. Injunctions

Whether Sanction is an Essential element of Law? Legal thinkers or jurists are not unanimous on this point whether sanction is an essential element of law. Some believe that it is an essential element while others believe that it is not essential. Essential element of law

Not essential element of law

Some jurists believe that sanction is There are other jurists who don’t consider sanction absolutely necessary indispensable element of law. for law. Austin is the supporter of this view as his definition of law also asserts that According to them, sanction is not the sanction is an essential element of law. only thing which induces people to obey the law. There are another Another jurist Ihering also supported things too which sufficiently provokes this view. He said that – “a law the people to obey law. E.g., habit of without sanction is like a fire that obedience, sense of duty, social does not burn and light that does not necessity etc. glow.” They even went to saying that if whole society decides to disobey the law, no amount of sanction can enforce it.

6. Functions/Purposes of Law The law serves many purposes and function in society. Many jurists have expressed different views about the purpose and function of law. For example: According to Holland: “the function of law is to ensure well being of the society.” Thus it is something more than an institution for the protection of individual’s rights. According to Roscoe Pound: there are mainly four functions to law, i.e. (a) maintenance of law and order in the society; (b) to maintain status quo in society;

(c) to ensure maximum freedom of individuals; and (d) to satisfy the basic needs of the people. According to Salmond, “the object of law is to ensure justice. This justice may be distributive or corrective. Distributive justice seeks to ensure fair distribution of social benefits among the members of the community and corrective justice seeks to remedy the wrong”. After studying various views of jurists regarding function or purpose of law, it can be said that the following are the major functions or purposes of law. ( It can be summarised as follows): (a) Establishing Standards: The law is a guidepost for minimally acceptable behaviour in society. Some acts, e.g., are crimes because society (through legislative body) has determined that it will not tolerate certain behaviours that injure or damage persons or their property. (for example, it is a crime to cause physical injury to another person without justification, as it is generally constitutes the crime of assault). (b) Maintaining Order: Some semblance of order is necessary in a civil society and is therefore reflected in law. (c) Resolving Disputes: Disputes are unavoidable in a society made of persons with different needs, wants, values and views. The law provides a formal means for resolving disputes – the court system. (d)Protecting Freedoms and Rights: Every person has some fundamental freedoms and rights and it is the function of law to protect these freedoms and rights from violations by persons, organisations or government. (For example, subject to certain exception, there is a fundamental right of equality before law, i.e. every person is equal in the eyes of law and if any person feels that his fundamental right is violated may approach the court for remedy.)

7. Advantages and Disadvantages of Law: As law is a dynamic concept and is instrument of bringing about desired social change in the society. Its advantages are many but there are certain disadvantages as well.

Advantages 1. It provides uniformity and certainty to the justice system. It is applicable to all equally. Everyone is equal in the eyes of law. 2. Law as fixed principles of justice, avoids the danger of arbitrary and biased decision. Thus, it eliminates the chances of bias.

3. It provides adequate safeguards against error of judgement. 4. Another advantage of law is its reliability. It is certainly more reliable than the individual judgement of the courts.

Disadvantages 1. Rigidity of law, because of this, it is unable to keep pace with the fast changing society. This sometimes causes hardship and injustice to the people. 2. Law is conserving in its approach. This is not conducive to a progressive community.

3. The law suffers from excessive formalism. Greater emphasis is laid on the form of law rather than its substance. 4. Law is generally complex in nature rather than being simple. This makes it beyond the reach of a man or ordinary understanding.

8. Kinds/Classification of Law As stated earlier, the term ‘law’ is used in different senses. It denotes different kinds of rules and principles. The jurists have classified law according to their own legal perception.

1. Salmond’s Classification of Law: Salmond has referred to eight kinds of laws. These are:(1) Imperative Law: It means ‘a rule which prescribes a general course of action imposed by some authority which enforces it by superior power either by physical force or any other form of compulsion.

He further divided imperative law into two types: (i) Divine law: It consists of the commands imposed by God upon men either by threats of punishment or by hope of his blessings. (ii) Human law: Human laws are the laws by analogy. It is further divided into four different kinds:Civil law: imperative law imposed and enforced by State is called civil law. Moral Law: imperative law imposed and enforced by members of society is moral law. Autonomic law: those enforced and enforced by different institutions or autonomous bodies, like universities, airline companies etc. International law: those imposed upon State by the society of States and enforced partly by international option and partly by the threat of war.

(2) Physical or Scientific Law: Physical laws are laws of science which are expression of the uniformities of nature. They are not created by human and can’t be changed by human. They are invariable forever. The examples of physical law are the law of gravity, law of air pressure etc. (3) Natural or Moral Law: Natural law is based on the principles of right and wrong. It also called universal or eternal law, rational law. It embodies the principles of morality and is devoid of any physical compulsion. Many laws of the modern time are founded on the basis of natural law. E.g. law of quasi contract, the conflict of law, law of trust etc. are founded on natural justice. (4) Conventional law: It is the body of rules or system of rules agreed upon by persons for their conduct towards each other. E.g., international law and rules of club or cooperative societies, rules of game or sport are best examples of conventional law. (5) Customary law: There are many customs which have been prevalent in the community from time immemorial even before the States came into existence. They have assumed the force of law in course of time. (e.g. under hindu personal law, a man can’t marry his brother’s widow, however, if there is any custom which allows the same then the marriage will be valid). According to Salmond, “any rule of action which is actually observed by men when a custom is firmly established, it is enforced by State as law because of its general approval by the people. (6) Practical or Technical Law: Practical laws are the rules meant for a particular sphere by human activity, e.g. laws of health, laws of architecture. (7) International law:

It also knows as law of nations as it applies to States rather than individuals. It consists of rules which regulate relations between the States inter-se. (8) Civil Law: The law enforced by the State is called civil law and it contains sanction behind it. Civil law is territorial in nature as it applies within the territory of the State concerned. Civil law differs from special law as the latter applies only in special circumstances. 2. Austin’s Classification of Law John Austin has classified law into following categories: (1) Divine Law (2) Human Law (3) Positive Morality He treats only divine law and human law as law in real sense of the term and does not consider positive morality as law since it lacks sanction or binding force. 3. Holland’s Classification of Law: He classified law according to their functions. He classified law into following five categories. (1) Private and Public law: Private law determines relationship between person and person where as public law deals with relationship between person and the State. In private law, State is only the enforcing authority while in public law, State is an interested and enforcing party. Examples of private law: laws of property, contracts, torts, trusts etc. are instances of private law. Example of public law: law of crimes, Public law is further divided into two parts: (a) Constitutional law: constitutional law includes all rules which directly or indirectly affect the distribution or exercise of the sovereign power of the State. It is the body of those legal principles which determines the Constitution of State.

(b) Administrative law: it describes in detail the manner in which the government shall exercise those powers that were outlined in the constitutional law.

(2) General and Special Law: The territorial law of a country is called General Law. For example, Indian Penal Code, Indian Contract Act are the general laws of the country because they have general application throughout the territory of India. Besides the general law, there are certain kinds of special laws. E.g. laws applicable to particular locality (the Punjab Police Act etc.). (3) Substantive and procedural law: Substantive law is that law which defines a right while procedural law determines the remedies. Substantive law is concerned with ends which administration of justice seeks to achieve while procedural law deals with the means by which those ends can be achieved. (E.g. law of contract, transfer of property, law of crimes etc. are substantive law whereas the Civil Procedure Code or Criminal Procedure Code are procedural laws. (4) Antecedent and Remedial Law: Antecedent law relates to independent specific enforcement without any resort to any remedial law. (e.g., law relating to specific performance of a contract is the best example of antecedent law). The remedial law provides for the remedy. (e.g. Law of torts, writs etc. come within the category of this law) (5) Law in Rem and Law in Personam: Law in rem relates to enforcement of rights which a person has against the whole world or against the people in general where as law in personam deals with enforcement of rights available against a definite person or persons. (E.g. law of inheritance, succession, ownership etc. are subject matter of law in rem, while the law of contract, trust etc. are examples of law in personam).

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