Meaning, Nature, and Functions of Law

Meaning, Nature, and Functions of Law

• Law denotes various rules and principles regulating human conduct.
• It embodies justice, morality, reason, order, and righteousness from a societal perspective.
• From a legislative standpoint, law includes statutes, acts, rules, regulations, orders, and ordinances.
• From the judiciary's perspective, it encompasses rules of court, decrees, judgments, and injunctions.
• Law is a broad concept encompassing acts, statutes, rules, regulations, justice, morality, reason, and more.

Meaning of Law

• The term "law" has origins in old English ("Lagu") and Norse languages, signifying order and regulation.
• Hindu religion equates law with "Dharma", while Islam refers to it as "Hokum".
• Across different cultures, law is known as "Jus" (Roman), "Droit" (French), "Legam" (Latin), and others.
• Legal definitions vary across places and societies, subject to amendments.
• Adultery is an offense in India but not in America, showcasing geographical legal differences.
• Personal laws differ across religions, such as variations in marriage practices between Muslims and Hindus.
• Law is subject to societal changes and governmental amendments.

General Usages of the Term "Law"

• "Legal order" refers to systematic regulation and conduct enforcement in an organized society.
• Law signifies the complete set of legal precepts in a politically organized society.
• It also denotes official control in a politically organized society, leading to the administration of justice.
• In a narrow sense, law refers to civil law or the law of the land.

Definitions of Law

• Defining law is complex, with many jurists attempting it over time.

Idealistic Definitions of Law

• Ancient Roman jurists defined law with an idealistic nature.

Salmond's Definition

• Law is the body of principles recognized and applied by the state in administering justice.

Criticisms of Salmond's Definition

• Salmond's definition lacks a definition of "justice".
• Keeton notes that concepts of justice evolve over time.
• Dean Roscoe Pound argues it reduces law to isolated decisions and applies only to "lax law," not statutes.
• Despite criticism, Salmond's definition remains a workable one.

John Chipman Gray's Definition

• Law comprises rules set by courts for determining legal rights and duties.

Criticisms of Gray's Definition

• It focuses on the nature of law over its purposes and doesn't account for statute law.

Positivist Definitions

Austin's Definition

• John Austin viewed law as a sovereign's command backed by sanction.
• Austin's structure of law excluded values, morality, idealism, and justice.
• Law is a general command from a sovereign to subjects, enforced by the state's power.
• A law is a command obliging specific actions or conduct.

Criticisms of Austin's Definition

• Austin's definition is criticized for ignoring moral and ethical aspects, overemphasizing law's imperative nature.

Holland's Definition

• Thomas Erskine Holland defined law as a general rule of external human action enforced by a political sovereign.
• Holland's definition favors sovereign power devoid of moral or ethical elements.

John Erskine's Definition

• Law is the command of a sovereign, providing a common rule of life for subjects, compelling obedience.

Hans Kelsen's Definition

• Legal order is a hierarchy of norms, each deriving validity from a superior norm, with the highest norm being the grundnorm.

H.L.A. Hart's Definition

• Law combines primary rules of obligation and secondary rules of recognition.

Definition of Historical School of Law

• Von Savigny is the main proponent of the Historical school, examining legal system growth.
• Historical jurisprudence studies the origin and development of law and legal principles.

Savigny's Definition

• Law stems from custom's silent growth and unformulated public opinion, not direct legislation.
• Law consists partly of social habits and experiences, found in society and custom.

Sociological School of Law

• The sociological school began in the mid-19th century.
• The common study field is the effect of law and society on each other.
• This approach considers law an instrument of social progress.

Ihering's Definition

• Law guarantees societal life conditions, assured by state power.
• Law serves a social, not individual, purpose.

Dean Roscoe Pound's Definition

• Law is a social institution satisfying social wants, acting as social engineering to balance conflicting interests.

Dias's Definition

• Law consists of normative propositions prescribing behavior, dictated by social, moral, economic, and political purposes.

Realist Definition

• It's a branch of the sociological school, studying law in practice, described by K. Llewellyn as "ferment".
• Georges Guroitch sees neo-realism as a reaction against theological and moralizing "sociological jurisprudence".
• Holmes J states, law is based on the realistic prophesies of what the courts will do".

Origin of Law

• Ancient Egyptian law (3000 BC) had a civil code based on Ma'at, emphasizing tradition, equality, and impartiality.
• Ur-Nammu (22nd century BC) created the first law code of casuistic statements.
• King Hammurabi (1960 BC) developed Babylonian law by codifying and inscribing it on stone.
• The Codex Hammurabi was displayed publicly throughout Babylon.
• Ancient India and China had distinct legal traditions and independent legal theory schools.
• The Arthashastra (400 BC) and Manusmriti (100 BCE) were influential in India until common law replaced Hindu and Islamic law under British rule.
• Malaysia, Brunei, Singapore, and Hongkong also adopted common law.
• Japan modernized by adopting elements of French and German Civil Codes.
• Traditional Chinese law gave way to Westernization with private law codes based on the Japanese model.
• Islamic law and jurisprudence developed during the Middle Ages.
• The Hawala system emerged as an informal transfer system in Islamic jurisprudence (8th century).
• Hawala influenced the "Aval" in French civil law and Avallo in Italian law.
• Roman law was heavily influenced by Greek teachings.

Nature of Law

• The nature of law has been a central question in jurisprudence and the philosophy of law.
• Historically, answers to "what is law" fall into competing views.
• Natural law theory asserts an essential relationship between law, morality, and justice.
• Legal positivism, as developed by John Austin, defines law as a sovereign's command backed by punishment.
• Contemporary debates focus on revised viewpoints of legal positivism, such as those by H.L.A Hart and Jules Coleman.
• The natural law tradition is defined by John Punis, and interpretivism by Ronald Dworkin.
• Perspectives on law's functions focus on its role.
• The sociological tradition includes work by Max Weber and Niklas Luhmann.
• The lexicon entry maps the "what is law" controversy.

Functions of Law

• Laws set societal standards and rules to promote freedom and justice and protect citizens from the government.
• Law provides dispute resolution mechanisms and allows enforcement of promises in court.
• Law is a body of rules prescribed by controlling authority with legal binding forces.
• Laws prevent chaos in business and society.
• Business law establishes guidelines for employment, regulatory compliance, and internal regulations.

Role of Law in Business

• The rule of law determines the type and structure of a business.
• Law establishes reasonable expectations for business operations, protecting owners' and customers' interests.
• It sets rules for business dealings and transactions.
• It protects workers by setting guidelines for employee treatment, equal opportunities, and compensation.
• Business laws create honest environments, protect interests, and provide dispute resolution methods.
• Violations of business laws result in guidelines for punishment.

Role of Law in Society

• Without law, society would descend into chaos and anarchy.
• Law establishes norms of conduct, protects citizens, and ensures equal opportunity regardless of background.
• Laws promote the common good and provide guidelines for society.

Kinds of Law

Introduction

• "Law" is used in different senses, denoting various rules and principles with different meanings.
• Blackstone says law is a rule of action applicable to all actions, animate, rational or irrational.

Kinds of Law by Sir John Salmond

• Imperative Law
• Physical or Scientific Law
• Natural or Moral Law
• Conventional Law
• Customary Law
• Practical or Technical Law
• International Law
• Civil Law

Imperative Law

• It is a rule of action enforced by an authority, a command enforced by superior power, physically or otherwise.

Kinds of Imperative Law

• Divine Laws: Commands imposed by God, enforced by punishment or blessings.
• Human Laws.

Sir John Salmond classifies Human Laws

• Civil Law: Imperative law enforced by the State.
• Moral Law: Imperative law enforced by society members.
• Autonomic Law: Enforced by institutions like universities or companies.
• International Law: Imposed upon States by the society of States.

Physical or Scientific Law

• Expressions of nature's uniformities and general principles.
• Consists of regularity and harmony observable in the activities and operations of the universe
• Its invariable and uniform action of human beings such as psychology of human beings.

Practical or Technical Law

• Principles for attaining certain ends like health or architecture laws guide actions to attain specific goals.

Natural or Moral Law

• Also known as "Moral Law," "Divine Law," or "Law of Reason."
• It is the Principles of natural right and wrong based on Justice.
• Divine Law : Commands of God imposed upon men
• Law of Reason : being established by that reason by which the world is Governed.
• Unwritten Law : universal or common law
• Eternal Law : (being uncreated and invariable)
• Moral Law : (being the expression of the Principles of morality)

Conventional Law

• Rules agreed upon by parties to regulate mutual conduct.
• It is a special law that’s valid or enforced through agreement.
• International law, sports rules, and club rules exemplify conventional law.
• Rules enforced the parties but not recognized the State like the rules of hokey
• Rules which are recognized and enforced by the State, e.g. contract etc

Customary Law

• Rules habitually followed by the majority with a belief of binding nature. – custom is firmly established it is enforced by the authority of the State.
• It depends on those customs which is recognized by the courts.

International Law

• Principles considered binding by civilized States in mutual relations.
• It is the agreement to observe in their dealings with one another.
• Two Types : Expressed and Implied.
• Express - contained in treaties and conventions. lmplied - custom or practice of the States.
• It is of two types: Public and Private.
• Public International Law prevails universally. Private enforced only some States.

Civil Law

• States' law regarding the land, positive law enforced by the State.
• It is the backing of the force and might of the State for purposes of enforcement.
• Municipal Law and national law.

Classification of Law

Introduction

• Classification is the process of putting something into category
• It elicits interrelation of rules and effects.

Original and Meaning of the Classification of Law

• First made by Roman Jurists
• Ancient Hindu also laid down eighteen titles or heads of "Vyavahara" civil law.
• Distinguished civil and criminal law

Limitations

• Any classification has relative value, not universal. Old rules change and new principle base rules come into existence.
• A classification based on a particular community's law isn't applicable elsewhere.

Classification

• International Law
• Municipal or National law
• International law the process that concerns legal relations among nations.
• It is a law of recent origin

International Law

• Involves legal relations among nations, dating back to the Roman Empire.
• The United Nations articulates and creates international law.
• Sources are multilateral Treaties, international custom, and General Principles recognized by nations.
• Divided into Public and Private.
• Public international law governs states. Private international law governs international cases with foreign elements, also called "Conflict of laws".

Municipal Law

• The Municipal law, Law of land, Civil law, or law applied within a State
• Two classes : Public and Private
• Public Law regulates state activities such as Constitutional, Administrative, and Criminal law.
• Constitutional law determines the nature and structure of the government.
• Administrative law deals with the powers and procedures of administrative organs.
• Criminal law defines offences and prescribes punishments, maintaining order. A wrong against the society.
• Private Law regulates relations between citizens, adjudicated by the State,
• Public laws form the maior part of society in Totalitarian states.
• Categories includes Law of Persons, Property, Obligations, and Conflict of Laws

Conclusion

• Above classification is defective with many defects.
• It is neither universal nor exhaustive.
• New legal branches, like commercial and industrial law, have grown out of the changes of it.