Definitions of law
Here are some definitions of law given by eminent writers Aristotle defined law as “whatsoever the ruling party of the State shall enact” Austin defines law as thus: “Positive laws consist of commands set as rules of conduct by a sovereign to the member or members of the independent political society wherein the author of law is supreme’ Or. briefly, “Law is a command issued by a superior to an inferior”. T.H. Green defines law as “the system of rights and obligations which the State enforces” President Wood row Wilson gives a more comprehensive definition in these words: “Law is that portion of established thought and habit which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of the government.”. Holland, an English jurist, says, “Law is a general rule of action, taking cognizance only of external acts, enforced by a determinate authority, which authority is human, and among human authorities is that which is paramount in a political society”, or, briefly, “Law is a general rule of external action enforced by a sovereign political authority” J.C. Carter in his book: Law, Its Origin, Growth and Function, says: “Law always has been, still is, and will for ever continue to be the custom”. Salmond, another jurist, says: Law is “the body of principles recognised and applied by the State in the administration of justice.
We may define law simply thus: Law is a general rule of human conduct, taking cognizance only of external acts, recognised or framed by the State and enforced by its coercive authority.
Analysis of Law.
If we analyze the nature of the positive law, we find that it consists of six characteristics: viz., uniformity, universality, externalness, content, formulation and enforcement or sanction.
Uniformity. Law is a general or uniform rule of human conduct. It requires that an individual will always do or refrain from doing something. It means that whatever the circumstances or situation, the individual will always perform a particular act as defined by the law or refrain from doing it as prohibited by it. Thus, law is, first of all, a Statement of “Do’s” or “Do’nts”.
Universality. Law is applied to the whole civic community. It is meant for all individuals who live in the State. Law is universal, because no persons or group of persons can claim exemption from its obedience. Law knows no exception. It covers all persons and associations equally. This is one of the important principles of law, known as the principle of equality before law.
Externality. Positive law or the law of the State deals only with the external acts and not with inner thoughts or intentions of an individual, as the moral rules do. It is because the State is unable to go into the motives and intentions of the individuals. It cannot enforce thoughts. It cannot compel the people to think honestly or truthfully. The courts also cannot take notice of the motives or intentions of the persons, because as the medieval lawyers said, devil himself does not know what is in their minds. These are the reasons why law takes cognizance only of external acts.
Content. Most of the laws are the Statements of rights and duties. This is their real purpose and content. They define the necessary relations between two or more individuals or groups of individuals or between the individuals and State or public body. These relations impose a duty or an obligation on some other individual or individuals, on one side, and confer a right on some individual or individuals, on the other. There are, however, certain laws which do not describe rights and duties. They may better be called acts rather than laws. For instance, a law to build a particular hydel dam, say Tarbela Dam, is not a law, but an act of the State. Similarly, a law to set up a particular department, e.g., a university or a military unit, is not a law in the real sense, but an act of the State. Such laws do not grant rights to any person and strictly speaking are not laws.
Formulation. The law must be recognised as such when framed by the State, that is, by its legislative organ. Unless a custom or a moral rule or any social relation and interest is not formulated or legislated upon by the State, it will not become a law, nor will it be enforced by the courts. A mere custom is not binding on the citizens.
Sanction. Law is enforced by the State, if need be, by its coercive power or by its power to reward. It punishes those who violate it by fine, confiscation of property, imprisonment and, in the last resort, by execution or exile. This force or threat of punishment or giving of reward by the State is called its sanction. Other kinds of laws, such as moral rules and social conventions and customs, afe not supported or sanctioned by the coercive authority of the State. Thus alone life in a society can be made comfortable and predictable for the well-being and happiness of its people.
Three Schools of Jurisprudence
Since the days of John Austin a controversy is waged on two questions concerning law, viz., the nature of law and its source. Generally speaking, there are three views regarding the nature and origin of law. First, there are the views of the analytical school, which emphasize authority and compulsion of the formal rules of society. Second, there are those of the historical school, which emphasizes the development of habit and custom. Third, there are those of the sociological school which emphasizes the needs and conditions of the society and its individuals, which needs be ^protected by its necessary rules. We shall now describe each school here.
Analytical or Positivist School
It owes its origin to John Austin who was its leading exponent in the nineteenth century. It is also called the ‘positive’ school, because it considers law as it is and not as it ought to be. As it was the first modem school of law, it is also called the classical, orthodox, or conventional school. The analytical or positivist theory of law is based on two principles, Firstly, as regards the source, law is the command of the sovereign, “the determinate human superior” as Austin said. In other words, law is made only by the sovereign authority of the State. Legislation is its only source. Secondly, force is the essence of law. What cannot or is not enforced or sanctioned by the coercive power of the State is not law. Law compels obedience: if it cannot, it is no law. As Holland puts it, “the most obvious characteristic of law is that it is coercive.”
This theory of law was vehemently attacked by Maine and other historical jurists in the 19th century and is today severely criticised by the political pluralists and the sociological jurists. It is declared to be too rigid, abstract and unprogressive. It docs not take into view the historical conditions in the growth of law and the social needs and interests. In spite of these shortcomings, the jurists of the Analytical School have contributed much to the theory of Law and Political Science. First of all, they have laid emphasis on clear definitions and logical distinctions. In this way, the analytical method has removed uncertain and ambiguous elements from the conception of law.
It can no longer be confused with the “law of nature” or the law of God, as it was done before the 19th century. Secondly, this school has given us the juristic or legal theory of sovereignty. Lastly, as the analytical theory has been closely associated with the utilitarian theory, it has upheld the principle of the greatest good of the greatest number in legislation. Thus this school has advocated that Laws must be made by the State in the interest of general welfare. This school derives its political philosophy from Bodin, Hobbes and Bentham.
Historical School
It propounds a historical theory of law. It rejects the contention that the command of the sovereign and the coercive force of the State are necessary characteristics of law. Instead of being a deliberate enactment by the sovereign, it believes that law is a result of a long historical growth in the society, because it evolves from social customs, conventions, religious precepts and principles and economic needs mid relations of the people.
In other words, this school looks behind the lovereign into the history of the people or society in order to discover the real sources of law. It regards legislation as a formal source, and the customs, traditions and popular consent, as the material sources of law. It uludies the origin and growth of laws. It views the law as the product of the forces and influences of the past. Law is not ‘made’ by the sovereign but is ‘pmggested’ to him, as Woodrow Wilson says, “by the circumstances and opinions of the nation for whom he acts”. The State does not create law it but merely formulates and enforces it.
The chief exponents of this historical theory were Savigny in Germany, and Maine, Maitland and Pollock in England. This school has one defect. It is conservative in its attitude and looks too much to the past. It emphasizes legal history, but not legal philosophy. It has one merit. It shows that law has its roots deep in the history and will of the people, without which it will not be really obeyed, no matter how powerful the law¬making authority may be. It shows that law is first a custom and then a code. Thus it corrected the narrow, formal and rigid view of the Analytical School.
Sociological School
Iris a modern school of Jurisprudence, and is influenced by modern psychology and sociology. But the jurists of this school do not hold common principles and views. The chief exponents of this school were Duguit, Krabbe and Laski. All of them severely criticised the analytical theory of law. They find the source and sanction of law in social need and necessity. According to Duguit, man lives in a society in which his needs and interests can be realised. Society has unity or solidarity based on the social rules by which alone social needs and interests can be realised. Every individual observes these social rules because both self- interest and experience tell him that by doing so he can satisfy his needs and interests and live happily. The knowledge or awareness of the social needs and rules is the real source and sanction of laws.
The State does not create them but merely formulates them, so that social solidarity may be preserved and social purposes of the individuals may be realised. The social rules one the laws. They come from the society and not from the State. The sanction of the law is not the force of the State, but the psychological awareness of the individual that his obedience of the law will meet with social approval and his disobedience with the disapproval of his society. Laws, as Duguit defines, are, in the fundamental sense, the rules of conduct which normal men know they must observe in order to preserve and promote the benefits derived from life and society.
“They are the necessary relations of social living”. According to Krabbe, another sociological jurist, the source and sanction of laws lie in man’s sense of right, in his value judgement of what is right and wrong, just and unjust. He defines law as “the expression of one of the many judgements of value which we human beings make, by virtue of our disposition and nature”. We obey law, not because we are afraid of the punishment or power of the State, but because it is just and good. Law is above the State. Krabbe upholds, as he puts it, the sovereignty of law and rejects the sovereignty of the State. According to Laski, the source of law is in the consenting mind of the individual. We obey it because it enables us to satisfy our desire, and not because of the policeman, i.e., the State.
Conclusion
We have considered three theories of law. None of them fully explains the nature of law, yet each of them contains some amount of truth. Let us now see, in the light of these theories, what a law is and should be. First of all, we may describe the negative features of law. Law should not be static and unprogressive. It should not be based on mere force. Law is not entirely a command of a determinate human superior, as the analytical jurists say. The positive features of law are: – Law must be progressive. It has this quality when it adjusts itself to the social, moral, religious and economic changes and developments in our life and society. All jurists agree that law is an instrument of human welfare, but the sociological jurists have laid particular stress on it.
Law must not be a mere order of the State. It must embody social needs, interests and purposes. It must have the consenting will of the individuals. The root of obedience is not coercion but the will to obey. Lastly, law is a universal rule; it must be applied to all citizens equally. Exceptions would kill it, because people readily disobey a law if they see that it is not enforced upon some persons or sections of society. Lastly, law must be sanctioned by force behind it. But this force must be both physical and moral. The State must rely more on moral force than on physical compulsion to enforce its laws.