What is Law?
- Rules of conduct approved and enforced by the government of and over a certain territory is called a law. (eg. the ‘laws’ of India).
Blackstone’s Definition:
- According to Sir William Blackstone (an English jurist and judge of the eighteenth century) ‘Law, in general consists of the rules recognized and acted upon in the court of justice.” In its commentaries, Blackstone said that law, in its most general and comprehensive sense, “is that rule of action which is prescribed by some superior and which the inferior is bound to obey.”
- Thus Blackstone’s definition has two main concepts: a) the concept of a “superior,” and b) the concept of a “command”. Thus the law is something set, or given, by a superior to an inferior, or by a sovereign to a person in a state of subjection.
- This concept of Blackstone would exclude all international laws and constitutional laws. Hence this definition was criticized.
- In a country like India which is a democratic republic, there is no concept of superior or inferior, all are equal. In a democratic republic sense, the law is a jurisdiction adopted by the sovereign people for their own control, not by some superiors for other inferiors.
Other Definitions:
- Holland says that law in the proper sense of the term is a general rule of the action, taking cognizance only of external acts, enforced by a determinate authority, which authority is human, and among the human authorities, is that which is paramount in society.
- Hobbes define law as the commands of him or them that have coercive power.
- According to Austin ”Law is the command of the sovereign”.
- Salmond defined law as the body of principles recognized and ap[plied by the State in the administration of Justice. Law consists of rules recognized and acted upon by the courts of justice.
- Demosthenes said that “Every law is a gift of God and decision of sages”.
‘The Law’ and ‘a Law’
- ‘The law’ means all the laws of the land. Criminal, civil, constitutional, etc. It is a generic description of a large class or body of laws that make up the entire legal framework of a country. Here the term is used in an abstract sense.
- ‘A law’ means a specific law. It is the subset of the set of all laws. For example ‘Indian Contract Act’, ‘Consumer Protection Act”, etc.
Characteristics of Law (w.r.t. Indian Legal System):
- Rule of law, equality before the law and equal protection of the law for all without any discrimination.
- Laws are general rules of human behaviour in the state. It applies to all people of the state. All are equally subject to the laws of their State. Aliens living in the territory of the State are also bound by the laws of the state.
- Law is a definite command of the sovereign. The sovereignty of the State is the basis of law and its binding character. The state always acts through Law. Laws are made and enforced by the government of the State.
- Law creates binding and authoritative values or decisions or rules for all the people of the state.
- Violations of laws are always punished. Thus the Law is backed by the coercive power of the State.
- The Law is formulated by the representatives of the people who constitute the legislature of the State. The government and its machinery execute and implement the law and the Judiciary interprets the law when any dispute arises. The courts settle all disputes among the people on the basis of law. The courts settle all disputes among the people on the basis of law.
- The law provides protection to the rights and freedoms of the people. And provide an environment of growth.
Law and Ethics:
| Law | Ethics |
| The law refers to a systematic body of rules that governs the whole society and the actions of its individual members. | Ethics is a branch of moral philosophy that guides people about basic human conduct. |
| Law consists of rules recognized and acted on by the court of justice. | It is the function of ethics to evolve those principles which should be followed because they are good in themselves. |
| Set of rules and regulations which are legally binding | Set of guidelines which don’t have a binding nature. |
| Government | Individual, Religious, Legal and Professional Norms |
| Expressed and published in writing. | They are abstract. |
| Violation of the law is not permissible which may result in a punishment like imprisonment or fine or both. | There is no punishment for a violation of ethics. |
| Law is created with an intent to maintain social order and peace in society and provide protection to all the citizens. | Ethics are made to help people to decide what is right or wrong and how to act. |
Imperative Theory of Law:
- Imperative theory of law was proposed by Austin. According to Austin, positive law has three main features: (i) it is a type of command, (ii) It is laid down by a political sovereign, and (iii) It is enforceable to sanction. Thus every law is a species of command and prescribes a course of conduct.
- According to Austin the relationship of superior to inferior is due to the power which the superior enjoy over the inferior. i.e. the ability of the superior to punish the inferior for disobedience. A command is a wish/desire to another so that he/she shall do a particular thing or refrain from doing a particular thing. In case of non-compliance with command, he/she has to for evil consequences .the sanction behind the law is the evil which is to be influenced in the case of disobedience.
- All positive laws are commands of the sovereign either directly or indirectly. They are set by political superiors. Some laws are not set up political superiors and covers laws of voluntary association and clubs.
- Austin proposed that there are commands which are laws and there are commands which are not law. Austin distinguishes law from other commands by their generality. laws are general commands. However, there can be exceptions. There can exist laws such as acts of attainder which lack the character of generality.
- According to Austin, the law is law only if it is effective and it must be generally obeyed. General obedience is sufficient. What is sufficient for a legal theorist is that obedience exists.
- According to Austin laws are of two kinds –divine law and human law. Divine law was given by God to men and human laws are prepared by men for men.
- According to Austin, every law should have a sanction of the physical force of the State.
Merits of Imperative Theory:
- Austin gave a clear and simple definition of law.
- Austin tried to avoid a lot of confusion by separating law from morality.
- His theory has an important and universal truth – Law is created and enforced by the state.
Challenges to Imperative Theory of Law:
- Austin’s definition cannot be applied to a Morden democratic country whose machinery is employed for the result of the people. In a democratic country, the sanction behind the law is not the force of the state but the willingness of the people to obey the same.
- It is not applicable in International and Constitutional law. International law is not the command of any sovereign, yet it is considered to be law by all conserved. The Constitutional law of the country defines the power of various organs of the state. Nobody can be said to command himself.
- The definition cannot be applied for Hindu, Mohammedan and the Canon law because these laws came into existence long before the state began to perform legislative functions.
- According to Salmond Austin’s definition of law refers to “a law” and not “the law”. The term “a law” is used in a concrete sense to denote a statute while the term “the law” is used in an abstract sense to denote legal principles. A good definition of law must deal with both aspects of the law.
- The main criticism of Salmond is that the theory disregards the moral or ethical elements of the law. The end of law is justice. Any definition of law without reference to justice is inadequate.
Salmond’s Theory of Law:
- According to Salmond Austin’s definition of law refers to “a law” and not “the law”. The term “a law” is used in a concrete sense to denote a statute while the term “the law” is used in an abstract sense to denote legal principles. A good definition of law must deal with both aspects of the law.
- Salmond quoted that “The central idea of the juridical theory is not lex but Jus, in gestez and recht”.
- The main criticism of Salmond is that the theory is one-sided and inadequate and disregards the moral or ethical elements of the law. The main purpose of the law is justice. Any definition of law without reference to justice is inadequate.
- According to Salmond, “All legal principles are not commands of the state and those which are at the same thing and in their essential nature, something more, of which the imperative theory takes no account”.