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Module I
Conceptual
Analysis of
Law
Legal Methods

Dr. Nidhi Buch

Introduction

Conceptual Analysis of Law

A law student at the outset is faced with the question what is law this is a complex question and
has no simple answer there is no single answer as to what law is and where it come from where
can it be located so every time 1 looks for law in a particular context to locate the law
functionally law works as a system it is a set of rules which regulate human conduct in a society
and as such from a citizen's point of view law must be obeyed the obedience could be for many
reasons it is accompanied by sanction some inner moral force may persuade one to bellow or one
may simply obey law because it is convenient to do so a citizen what a person meet also invoke
law to establish the validity of one’s claim it also includes decisions taken by official's law
making bodies and the judges sometimes these can be located in culture and customs too. One
must look at law from various perspectives lock pervades the human life from all perspectives.
From the above discussion it is obvious that different people have different ideas about law this
is because they look at law from different perspectives all together each of these versions is
correct yet they are partial descriptions of law it is possible to understand law by looking at its
sources we will get a clearer picture of law if we look at the nature and functions of law once the
functions of low have been identified it to may be pertinent to ask whether the loss actually
performed Those functions effectively. If the answer isn't negative a further question as to why it
is so and what could be done about it arises we have started the discussion with the question
what is law just to show that there are several approaches to law and that there are several
methods to understand the idea of law a student of law must necessarily have a clearer idea of
law because that will help the student in a proper understanding of any particular branch of law
and also in understanding the manner in which the legal system works. In order to understand the
meaning of law we need to get into the analysis of concept of law there have been many jurist
many scholars many learned people who have tried to define law as a turd however as has been
mention law as a concept is very broad and that is why it cannot be put in a few lines of concise
definition. We need to discuss the idea of law. The idea of law which we begin to understand

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needs more elaboration. Whenever we want to understand the concept our usual method is to
turn to the definition or definitions of that concept.

(Please refer to Class Presentation 1 ‘What is Law’)

Legal Theory
(Please refer to Class presentation on Schools of Thought)

Legal theory reveals the way people in different countries at different times have speculated
about some of the problems concerning law. Speculations about law by past and present thinkers
should be a part of intellectual culture. Even where legal theories are open to criticism, they
possess value and later theories can be better understood in the light of them. It is not enough for
a lawyer to understand what law is today, but he should also study how people have been
thinking about law in the past. That is the only way to stimulate thinking on law. Hence the
importance of legal theory for students of law. Legal theory reflects the struggle of law between
tradition and progress, stability and change, certainty and flexibility. Legal theories and lawyers
are inclined to put more emphasis on stability than change. Kelsen suspects all-natural law
theories as devices for strengthening the existing authorities and suppressing change. Max Weber
emphasizes the revolutionary aspect of certain natural law ideologies.

CONCEPT OF LAW & SCHOOLS OF JURISPRUDENCE

The schools of jurisprudence have defined law in various aspects. Many jurists have attempted to
define the concept of law in clear aspects. The concept of law shall be mentioned in detail under
the following schools of jurisprudence. They are as follows:

 Natural Law Theory

 Analytical/Positive School of Jurisprudence
 Historical School of Jurisprudence
 Sociological School of Jurisprudence
 Realist Theory of Law

NATURAL LAW THEORY

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There is no consensus about the definition and exact meaning of Natural Law. The term Natural
Law in jurisprudence implies those standards and standards which should have started from
some preeminent source other than any political or common specialist. It symbolizes Physical
Law of Nature-dependent on moral standards which has all-inclusive relevance at all places and
terms. It has regularly been utilized either to safeguard a change or to keep up business as usual
as indicated by necessities and prerequisite of the time. For instance, Locke utilized Natural Law
as an instrument of progress, however Hobbes utilized it to keep up the present state of affairs in
the public arena. The ideas of ‘Rule of Law’ in Britain and India and ‘due process’ in USA are
built up dependent on Natural Law.

Natural Law is eternal and unchangeable, as having existed from the commencement of the
world. Man does not make natural Law; he only discovers it. Any external agency cannot not
enforce natural law. Natural Law is a law which does not have legislation backing. Basically, it
is an outcome of preaching of the philosophers, prophets, saints etc. and thus it is a higher form
of law. Natural Law is also known as Divine Law, Law of Nature, and Law of God. Divine Law
implies the order of God forced upon men. Natural Law is likewise the Law of Reason, as being
built up by that reason by which the world’s governed, and furthermore as being routed to and
seen by the sensible idea of man. It is additionally the widespread or Custom-based Law as being
of universal validity, the equivalent in all spots and authoritative on all people groups, and not
one thing at Athens.

Ultimately in present day times we think that it’s named as “moral law” just like the declaration
of the principles of morality. The Natural Law prevents the probability from claiming any
inflexible partition of the ‘is’ and ‘ought’ part of law and accepts that such a detachment is
pointlessly causing confusion in the field of law. The supporters of Natural Law contend that the
thoughts of ‘justice’, ‘right’ or ‘reason’ have started from the idea of man and the Law of Nature
and, hence this perspective can’t be disposed of from the domain of law.

ANALYTICAL SCHOOL
The analytical school is known by different names. It is called the Positive School because the
exponents of this school are concerned neither with the past nor with the future of law but with

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law as it exists, i.e., with law “as it is” (Positum). The school was dominant in England and is
popularly known as the English School. Its founder was John Austin and hence it is also called
the Austinian School. This school takes for granted the developed legal system and proceeds
logically to analyse its basic concepts and to classify them in order to bring out their relation to
one another. This concentration on the systematic analysis of legal concepts has given this school
the name of Analytical Jurisprudence. The first concern of the jurists is to understand the
structural nature of a legal system and for this purpose, discussions of justice are not only
irrelevant but also dangerously confusing. Such an approach to law is commonly termed
analytical and such writers are often styled Analytical Positivists. The term positivism was
invented by Auguste Comte, a French thinker. The purpose of analytical jurisprudence is to
analyse, without reference either to their historical origin or development or their ethical
significance or validity, the first principles of law. According to Salmond, a book of analytical
jurisprudence will deal with such subjects as an analysis of the concept of law, an examination of
the relation between civil law and other forms of law, an analysis of the various constituent ideas
of which the complex idea of law is made up such as the State, sovereignty and administration of
justice, an account of the legal sources from which law proceeds, together with an investigation
of the theory of legislation, judicial precedents and customary law, an inquiry into the scientific
arrangement of law into distinct departments along with an analysis of distinctions on which the
division is based, an analysis of the concept of legal rights along with the general theory of the
creation and transfer of rights, an investigation of the theory of legal liability in civil and
criminal cases and an examination of other relevant legal concepts. The main task of the
Analytical School is the lucid and systematic exposition of the legal ideas pertinent to ampler
and mature system of law. It starts from the actual facts of law as it sees them today. It endeavors
to define those terms, to explain their connotation and show their relations to one another. One
purpose of the Analytical School is to 440 gain an accurate and intimate understanding of the
fundamental working concepts of all legal reasoning. The Analytical School takes law as the
command of the sovereign. It puts emphasis on legislation as the source of law. The whole
system is based on its concept of law. Analytical jurisprudence does not create its premises: these
premises are furnished by law itself. It is the function of Analytical Jurisprudence to accept these
premises and to decompose them into their final atomic elements in an organised juristic system.
This school regards law as a closed system of pure facts from which all norms and values are

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excluded. Friedmann writes: “The analytical lawyer is a positivist. He is not concerned with
ideals; he takes the law as a given matter created by the State whose authority he does not
question. On this material he works, by means of a system of rules of a legal logic, apparently
complete and self-contained. In order to be able to work on this assumption, be must attempt to
prove to his own satisfaction that thinking about the law can be excluded from the lawyer’s
province. Therefore, the legal system is made watertight against all ideological intrusions and all
problems are concluded in terms of legal logic.”1 The importance of analytical jurisprudence lies
in the fact that it brought about precision in legal thinking. It provided us with clear, definite and
scientific terminology. It fulfilled the object of “clearing the heads and untying knots” as
envisaged by Austin. It deliberately excluded all external considerations which fall outside the
scope of law. Prof. Gray writes: “Especi-ally valuable is the negative side of analytical study.
Most of us hold in our minds a lot of propositions and distinctions, which are in fact absurd, and
which we believe, or pretend to ourselves to believe, and which we impart to others, as true and
valuable. If our minds and speech can be cleared of these, there is no small gain.” Julius Stone
observes: “Analytical jurisprudence as the study of logical relations within the law serves,
therefore, a useful purpose. Its main tasks are to deter and define the terms actually employed, to
state the axioms actually employed, to examine whether legal propositions ostensibly deduced
from them do follow in logic and to inquire what definitions and axioms might yield a maximum
of self-consistency in the body of legal propositions.”2 The chief exponents of the Positivist or
Analytical School in England are Bentham, Austin, Si William Markby (1829-1914), Sheldon
Amos (1835-1886), Holland (1835-1926), Salmond (1862-1924) and Prof.  441 H.L.A. Hart
(1907). This school received encouragement in the United States from Gray and Hohfeld and on
the continent of Europe from Kelsen, Korkunov and others.

(From, Dr V.D. Mahajan, Jurisprudence and Legal Theory | 22. Analytical Legal Positivism)

HISTORICAL SCHOOL
In the words of Salmond: “That branch of legal philosophy which is termed historical
jurisprudence is the general portion of legal history. It bears the same relation to legal history at
large as analytical jurisprudence bears to the systematic exposition of the legal system. It deals,
in the first place, with the gene-ral principles governing the origin and development of law, and
with the influences that affect the law. It deals, in the second place, with the origin and

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development of those legal conceptions and principles which are so essential in their nature as to
deserve a place in the philosophy of law—the same conceptions and principles, that is to say,
which are dealt with in another manner and from another point of view by analytical
jurisprudence. Historical jurisprudence is the history of the first principles and conceptions of
legal system.”

Historical approach to law derived its inspiration from the study of Roman law on the continent.
Post Glossators commenta-tors of Roman law attempted to relate Roman law to the problems of
law. That accelerated the growth of many branches of law. The study of Roman law in this form
was received in Germany in the 15th and 16th centuries. That contained the historical approach
in its embryonic form.

The Historical School was a reaction against a priori notion of natural philosophy. Natural law
thinkers had thought of law which was always the same (unchangeable). They failed to see that
law had grown and developed from the past. The natural law philosophers believed in ideal
principles of law as revealed by reason and did not look to history, traditions, customs, habits
and religions as true basis of law.

Prof. Dias points out that the Historical School arose more or less contemporaneously with the
Analytical School at the beginning of the 19th century and should be regarded as a manifestation
of the reaction against natural law theories. It did not emerge as something novel in European
thought as it had been germinating long before then. The reaction against natural law theories
provided a rich bed in which the seeds of historical scholarship took root and spread.

About the nature and functions of the Historical School of Law, G. G. Lee writes: “Historical
Jurisprudence deals with law as it appears in its various forms at its several stages of
development. It holds fast the thread which binds together the modern and the primitive
conception of law, and seeks to trace through all the tangled mazes which separate the two, the
line of connection between them. It takes up custom as enforced by the community and traces its
development. It seeks to discover the first emergence of those legal conceptions which have
become a part of the world’s common store of law, to show the conditions that gave rise to them,
to trace their spread and development, and to point out those conditions and influences which
modified them in the varying course of their existence. But historical jurisprudence is not a mere
branch of anthropology, except insofar as any science which deals with human life may be

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regarded as a department of these studies. It does not attempt to set forth all law and customs
which may  484 be found in ancient and modern savage tribes, as well as in civilized nations of
every clime. If such were its object, it would not be a science, nor would it be possible for it to be
complete. It would be a mere collection of laws and customs having no necessary order or
system. Its attainment or lack of perfection would depend upon the degree of completeness with
which its collection had been made.”

(From, Dr V.D. Mahajan, Jurisprudence and Legal Theory | 22. Analytical Legal Positivism)

SOCIOLOGICAL SCHOOL
The relations between the individual, society and the State have been changing and various
theories regarding them have been propounded from time to time. In the beginning, society was
governed by customs which had only a social sanction. Then came the supremacy of priests.
After that, the secular State emerged and dominated all institutions. As a reaction, the importance
of the individual was asserted by thinkers and philoso-phers. There were revolutions and political
changes. There was the Industrial Revolution. The necessity of balancing the wel-fare of the
society and individual was realised. There was a tendency towards socialisation. Then came the
view that the importance of the society should be considered in the light of the individuals and
vice-versa. The approaches made from this point of view are called sociological approaches. The
sociological school gained ascendancy in the first decade of the 20th century. The sociological
school devotes its attention not to the ethical content and aim of law but to the actual
circumstances which give rise to legal institutions and which condition their scope and operation.
This is the functional view of law, regarded as one and only one of the many factors in the
morphology of society. It is essentially concerned not with man as an individual but with man-in-
association. The whole theory of the sociological school is a protest against the orthodox concept
of law as an emanation from a single authority in the State, or as a complete body of explicit and
comprehensive propositions applicable by accurate interpretations, to all claims, relationships
and conflicts of interests. The sociological jurists look upon law as a phenomenon. Law is a
social function, an expression of human society concerning the external relations of its individual
members. The jurist should concentrate his attention not so much on individuals and abstract
right as “willing agent” as on the social purposes and interests served by law.

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Sociological jurisprudence has pointed law towards social justice and has assumed that law must
seek to attain certain ends. What it needs is “(a) philosophy which will explain its method and
furnish it with a rationale; and (b) one which will provide the sociological jurist with tools and
show him how to use them by furnishing him with some scale of values by which he can hew
and weigh through the experimental flux of the same legal order”. Dean Roscoe Pound writes:
“The sociological movement in jurisprudence is a movement for pragmatism as a philosophy of
law ... for putting the human factor in the central place and relegating logic to its true position as
an instrument.” It is a movement that does not disparage the force of logic, or of custom or of
history. It is always busy in combating the exclusive consideration of any one of these factors
and of a purely logical completeness of the law in particular and emphasising the final task of the
balancing of interests. Ehrlich has written thus: “At the present as well as at any other time, the
centre of gravity of legal development lies not in legislation, nor in juristic science, nor in
judicial decision, but in society itself. This sentence, perhaps, contains the substance of every
attempt to state the fundamental principles of the sociology of law.” The sociological approach
to jurisprudence which resulted out of the change in the political shift from doctrine of laissez
faire, the industrial and technological revolution and finally the histo-rical school bringing into
focus the relationship between law and social welfare State of the modern century, has attempted
to study law as seeking social origin of law and legal institutions, testing law as a given social
phenomenon and lastly judging law by its social utility.

The relationship between law and social interests can be studied by jurisprudence for three
reasons. The first reason is that it enables us to understand the evolution of law in a better
manner. What is required is not a dogmatic assumption that economic self-interest or some such
force has determined the volition of law but an analysis of the interaction between a tradition
which has sanctified the structure of law and the immediate pressure of social demands. The
second reason is that 560 although the views of man on ethics and his social needs have changed,
yet the element of human interest provides a greater substratum of identity than the logical
structure of the law. Comparative law shows that while the legal theories of two systems may be
very much different, each may be forced for reasons of convenience to modify itself in
application so that ultimately the practical results are not far removed. The third reason is that a
study of the social interest is essential to the lawyer to enable him to understand the legal system.

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(From, Dr V.D. Mahajan, Jurisprudence and Legal Theory | 22. Analytical Legal Positivism)

LEGAL REALISM
The realist movement is a part of the sociological approach and it is sometimes called the “left
wing of the functional school”. It differs from the sociological school as it is little concerned
with the ends of law. It concentrates on a scientific observation of law in its making and
working. The movement is called “realist” as it studies law in its actual working and rejects the
traditional definition of law that it is a body of rules and principles which are enforced by the
courts. The advocates of the realist move-ment concentrate on the decisions given by law courts.
They not only study the judgments given by the judges but also the human factor in the judges
and lawyers. They study the forces which influence judges in reaching their decisions. The
American realist movement is a combination of the analytical positivist and sociological
approaches. It is positivist in the sense that it regards law as it is and not as it ought to be. The
ultimate aim is to reform the law, but that cannot be done without understanding it. Law is the
product of many factors and therefore the realists are interested in those sociological factors
which influence law. They share with the sociologists an interest in the effects of social
conditions of law as well as the effect of law on society. They put too much emphasis on judges.
To them law is what judges decide. That is partly due to the fact that judges have played a very
important part in the growth of the American Constitution and law. The approach of the realists
is essentially empirical. Their view is that the decisions of the judges are brought about by
ascertainable facts. Some of them are the personalities of the individual judges, their social
environments, the economic conditions in which they have been brought up, business interests,
trends and movements of thought, emotions, psychology etc

Principal Features of Realist Approach. —Llewellyn outlines the principal features of the realist
approach as follows: (i) There has to be a conception of law in flux and of the judicial creation of
law. (ii) Law is a means to social ends and every part of it has constantly to be examined for its
purpose and efforts and judged in the light of both and their relation to each other. (iii)  573 
Society changes faster than law and so there is a con-stant need to examine how law meets
contemporary social problems. (iv) There has to be a temporary divorce of “is” and “ought” for
purposes of study. This does not mean that the ideas of justice and teleology are to be expelled
altogether, but they are to be put on one side while investigating what the law is and how it

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works. By this divorce, both the processes will be improved. The realists are vitally interested in
the aims and ends of the law and it was with a desire to improve law that the realist movement
was started. Adequate reform has to be preceded by an examination of how the law operates in
actual practice. Such an investigation will be defective if the ideas of justice are also mixed up
during the investigation of facts. (v) The realists distrust the sufficiency of legal rules and
concepts as descriptive of what courts do. (vi) The realists do not have trust in the traditional
theory that the rules of law are the principal factors in decid-ing cases. They have drawn
attention to many other influences which play a decisive role. It is absurd to define law solely in
terms of legal rules. (vii) The realists believe in studying the law in narrower categories than has
been the practice in the past. They feel that part of the distortion produced by viewing the law in
terms of legal rules is that rules cover hosts of dissimilar situations where in practice utterly
different considerations apply. (viii) The realists insist on the “evaluation of any part of the law
in terms of its effects” and on “the worthwhileness of try trying to find these effects.” (ix) There
must be a sustained and programmatic attack on the problems of the law along the lines indicated
above.

(From, Dr V.D. Mahajan, Jurisprudence and Legal Theory | 22. Analytical Legal Positivism)

PURPOSE AND FUNCTION OF LAW

There has been a lot of speculation about the purpose and function of law. There is nothing
dogmatic about it. Law changes from time to time and from country to country. Law is not static.
It must change with changes in society. That is the reason why there is no unanimity about the
purpose and function of law. According to one school of thought, the object of law is to maintain
law and order in the country. It has to perform police functions. Plato says: “Mankind must either
give themselves a law and regulate their lives by it or live no better than the wildest of the wild
beasts.” According to Hobbes: “Law was brought into the world for nothing else but to limit
natural liberty of particular men in such a manner as they might not hurt but assist one another
and join together against a common enemy”.  Locke says that “the end of law is not to abolish or
restrain but to preserve or enlarge freedom”. According to Kant: “The aim of law is freedom and
the fundamental process of law is the adjustment of one’s freedom to that of every other member
of the community.”

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According to Bentham: “Of the substantive branch of the law, the only defensible object or end
in view is the maximisation of the happiness of the greatest number of the members of the
community in question.” Holland says: “Law is something more than police. Its ultimate object
is no doubt nothing less than the highest well-being of society; and the State from which law
derives its force, is something more than an institution for the protection of rights.” Roscoe
Pound says that there are four purposes of law. The first purpose of law is to maintain law and
order within a given society and that has to be done at any cost. The second purpose of law is to
maintain the status quo in society. The third purpose is to enable individuals to have the
maximum of freedom to assert themselves. The fourth purpose of law is the maximum
satisfaction of the needs of the people. According to Justice Holmes: “The object of law is not
the punishment of sins but to prevent certain external results.” According to Savigny, law is “the
rule which determines the sphere within which the existence and activity of each individual may
obtain secure and free play”.

A school of jurists of which Krause and Ahrens are representatives demand that law should be
conceived of as harmonising the conditions under which human race accomplishes its destiny by
realising the highest good of which he is capable. The pursuit of this highest good of the
individual and of society needs a con-trolling power, which is law, and an organisation for the
applica-tion of its control, which is the State. The Hindu view regarding the purpose of law is
that it should aim at the welfare of the people in this world and also from salvation after death.
According to the Mohammedan law, the purpose of law is the discipline of the soul, the
improvement of morals and the preservation of life, property and reputation. Sir Abdur Rahim
writes: “The end of law is to promote the welfare of man both individually and socially, not
merely in respect of life on this earth but also of future life.”

According to Salmond, the object of law is justice. To Salmond, law is those principles which
are applied by the State in the administration of justice.  45 Justice can be used in a wider or a
more restricted sense. In the wider sense, justice appears to be roughly synonymous with
morality. In the narrower sense, as in the expressions “courts of justice”, “natural justice” and
“denial of justice”, the term refers to but one area of morality.

In conclusion, it can be said that the function of law is to achieve stability and peaceful change in
society.

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(From, Dr V.D. Mahajan, Jurisprudence and Legal Theory | 2. The Nature of Law)

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ADVANTAGES AND DISADVANTAGES OF LAW
(1) There are many advantages of the fixed principles of law. They provide, uniformity and
certainty to the administration of justice. The same law has to be applied in all cases. There can
be no distinction between one case and another case if the facts are the same. Law is no respector
of personality. Not only this, law is also certain. The legal system of a country is put down in
black and white and it is possible for all the people to know the law of the land. The uniformity
and certainty of law add to the convenience and happiness of the people. The rules of the road
make it possible for millions of people to drive with relative safety. Without these rules, it would
have been impossible for them to attend their offices daily in time. Society is becoming more and
more complicated everyday and without the existence of an elaborate system of laws, it is not
possible to live in safety.

(2) The existence of fixed principles of law avoids the dangers of arbitrary, biased and dishonest
decisions. Law is certain and known. Therefore, a departure from a rule of law by a judge is
visible to all. It is not enough that justice should be done, but it is also necessary that it should be
seen to be done. If the administration of justice is left completely to the individual discretion of a
judge, improper motives and dishonest opinions could affect the distri-bution of justice. Salmond
writes: “It is to its impartiality, far more than its wisdom (for this latter virtue it too often lacks)
that are due the influence and reputation which the law has possessed at all times; wise or
foolish, it is the same for all.” Locke writes: “The legislative or supreme authority cannot assume
to itself a power to rule by extemporary, arbitrary decrees, but is bound to dispense justice and to
decide the rights of the subjects by promulgating standing law and known, authorised judges.”
According to Cicero: “We are the slaves of the law that we may be free.”

(3) The fixed principles of law protect the administration of justice from the errors of individual
judgment. In most cases, the law on the subject is clear and judges are not expected to twist the
same. They are not expected to substitute their own opinion for the law of the country.
Experience shows that people have lived happier lives when they are ruled by the fixed
principles of law than when there are no laws as such. There is greater mischief if judges are
allowed to decide every case according to what seems to them to be the best. Aristotle writes:
“To seek to be wiser than the law is the very thing

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which is by good laws forbidden.” Salmond observes: “The establishment of the law is the
substitution of the opinion and conscience of the community at large for those of the individuals
to whom the judicial functions are entrusted. The law is not always wise, but on the whole and in
the long run, it is wiser than those who administer it.” (4) Another advantage of law is that it is
more reliable than individual judgment. Human mind is fallible and judges are no exception. The
wisdom of the legislature which represents the wisdom of the people is a safer and more reliable
means of protection than the momentary fancy of the individual judge.

Disadvantages of Law

(1) Law has not only advantages but also disadvantages. One disadvantage is the rigidity of law.
An ideal legal system keeps on changing according to the changing needs of the people. Law
must adjust itself to the needs of the people and cannot isolate itself from them. However, law is
not usually changed to adjust itself to the needs of the people. There is always a gap between the
advancement of the people and the legal system of the country. The lack of flexibility in law
results in hardship and injustice in several cases. (2) Another disadvantage of law is its
conservative nature. Both the lawyers and judges favour the continuation of the existing law. The
result is that very often law is static. This is not desirable for a progressive society. (3) Another
defect of law is formalism. More emphasis is put on the form of law than its substance. A lot of
time is wasted in raising technical objections of law which have nothing to do with the merits of
the case in dispute. While insisting on the formalities of law, injustice may be done in very many
cases. While an innocent person may suffer, the clever and the crooked may profit thereby.

(4) Another defect of law is its undue and needless complexity. It is true that every effort is
made to make law as simple as possible but it is not possible to make every law simple. That is
due to the complex  48 nature of modern society. Lawyers also insist on drawing fine distinctions
on the various points of law. There is a lot of hair-splitting. This does not bring justice nearer but
merely helps the clever and the crooked. It is true that some of the defects can be removed by
codification but the difficulty with codification is that within a few years, so much of case law
comes into existence that the real law of the country cannot be understood by a reference to the
code alone. Law must change with the changing condition but codes cannot be changed
frequently. The conclusion of Salmond is that if the benefits of law are great, the evils of too
much law are also not small.

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(From, Dr V.D. Mahajan, Jurisprudence and Legal Theory | 2. The Nature of Law)

Law and Morality

The relation between law and morality has also been the subject matter of much debate and
discussion. It is closely related to the questions we have been considering. Morality aims at
increasing social harmony by diminishing the incidents of excessive selfishness, noxious conduct
towards others, internal struggles, and other potentially disintegrative forces in social life. The
classical distinction which characterizes law as concerned with external conduct and morality as
concerned with internal conduct was first made by Kant it was strengthened by the support of
jurists like Paton and Stammler. In this view law requires external compliance with existing rules
regardless of underlying motive. Morality appeals to the conscience of men, his intentions, sense
of ethical duty, and the concern for good for its own sake. Law is heteronomous i.e., imposed on
men from outside while morality is autonomous i.e., coming from within persons inner self.

In ancient times, there was no distinction between law and morals. The Hindu jurists in ancient
India did not make any distinction between law and morals. However, later on, some distinction
came to be made in actual practice. The Mimansa made a distinction between obligatory and
recommendatory rules. By the time the commentaries were written, the distinction was clearly
established in theory also. The commentators not only pointed out the distinction but also
dropped in actual practice those rules which were based purely on morals. The doctrine of
“factum valet” was recognised. That doctrine means that an act which is in contravention of
some moral injunction should be considered valid if accomplished in fact. In its decisions, the
Privy Council made a distinction between legal and moral injunc-tions. The same is the case with
the Supreme Court of India.

The same was the condition in Europe. In the name of the doctrine of natural rights, the Greeks
formulated a theoretical moral foundation of law. Likewise, the Roman jurists recognised, in the
name of natural law, certain moral principles as the basis of law. During the Middle Ages,
Christian morals were considered as the basis of law. After the Reformation in Europe, it was
contended that law and morals were distinct and separate, and law derived its authority not from
morals but from the State. Morals had their source in religion or conscience. During the 17th and
18th centuries, the theories of natural law had a moral foundation and law was linked with
morals. During the nineteenth century, John Austin maintained that law had nothing to do with

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morals and he defined law as the command of the sovereign. Law alone was the subject-matter
of jurisprudence.

Some jurists draw a line of distinction between ethics and positive morality. While ethics deal
with an absolute idea of positive morality is made up of the actual standards which are adopted
in the life of any particular community. In some respects, positive morality is similar to law.
Positive morality, like law, emphasizes conduct, rather than state of mind. It has imposed and
individuals externally and has behind it the effective though unorganized sanction of public
opinion. However public morality differs from law in following respects.

1 a rule of law is imposed by the state whereas positive morality is imposed by the community. 2
sanction behind positive morality is not applied by organized machinery nor is it determined in
advance as the case law. Three the content of law is different from that of positive morality. 4
another difference lies in the method of expression

Austin was supported by many jurists. Kelsen maintained that only the legal norms were the
subject-matter of jurisprudence. He excluded from the study of law all other considerations,
including morals. There is again a new trend in modern times. The sociological approach to law
indirectly studies morals also although a distinction is made between law and morals and law
alone is considered as the proper subject-matter of study. However, they study other forces also
including morals while tracing the origin, development, functions and ends of law.

(Please refer to Class presentation on Law and Morality)

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CONCLUSION

Law: A social phenomenon: Law is a social phenomenon. When human beings associate
themselves in various forms of activity, they constitute a society. For the cohesion of this society
and the peaceable resolution of internal conflicts norms or rules of conduct become necessary
and are gradually evolved. Even in the most primitive form of society these rules exist. They are
sometimes differentiated from law strictu sensu by being labelled as custom. Custom is nothing
but uniformity of conduct in given situations. In a given set of circumstances a particular rule
establishes itself as convenient and expedient. It is accordingly followed. An invariable practice
arises in this way in course of time. It is then called the custom of that society. This custom is
embryonic law or the rudiment of law in its proper sense. When the primitive society becomes
politically organized and evolves into a State the custom emerges as law strictu sensu. Thus, law
is essentially a social phenomenon.

Relativity of law: That law is a social phenomenon is demonstrated by the relativity of law.
While law as such exists in all societies, the particular rules governing a particular social
institution differ from society to society. The institution of Marriage is a universal phenomenon.
But in certain societies marriage is a contract while in certain other societies it is a sacrament.
Some societies insist upon monogamy, while others permit polygamy and polyandry. In certain
societies the breach of the matrimonial bond, for instance by the commission of adultery, is
punished as a crime while in other societies it is treated only as tortious giving rise to a claim for
damages. The social institution of inheritance furnishes another illustration of this relativity. On
the death of the owner some societies give his property to his eldest son. This is the institution of
primogeniture. In other societies the property goes to the youngest son. This is the institution of
ultimogeniture. In yet other societies the property is equally divided among male children only
while some liberal societies admit female children also to a share in the inheritance. These
divergences are explicable only on the basis of law being a social phenomenon. The needs of
society breed law. These needs being divergent different rules of law in respect of the same
social institution make their appearance.

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This relativity of law was first noticed by Greek jurists. That portion of law which did not vary
from society to society was treated by them as part of Natural Law. The rest was relative law,
which differs from society to society. The Roman jurists bore this distinction in mind when they
postulated a jus gentium common to the nations and a jus civile peculiar to civitas or the State.
The German historical school led by Savigny traced law to the Volkgeist or the genius of the
people.

Law lags behind social needs: It is to be observed that law is a conservative force and so is
invariably found to be lagging far behind advancing social needs. In a changing society the needs
of the people change from time to time. This is the peculiarity of an advancing as distinguished
from a stationary culture. In a progressive society law has to keep pace with the changing needs
of society. Law has thus to undergo a progressive change if it is to subserve the needs of the
society which it seeks to govern. An illustration will make this clear. In early English society, on
marriage the property of the wife became that of the husband automatically. This made the
position of a married woman very precarious as economically she was at the mercy of the
husband. The law then was developed to enable property to be given to a woman so that it could
be retained by her even on marriage. It was then found that she could be coerced or persuaded by
the husband to transfer the property to him. Law then stepped in and permitted property to be
given to a married woman so that during marriage she cannot transfer the property to anyone.
This still enabled her to anticipate the income and part with it so that she again fell into a
dependent position. The law rescued her by permitting restraints upon anticipation of income
also during marriage. All these progressive changes have been reflected in English Law. At the
present day the English woman is educated, independent and capable of dealing with her
property by herself and needs no special protection. So, the law removed the fetter upon her
alienatory power during coverture. It would thus be seen that law has to keep pace with the
changing pattern of social needs.

Law as an instrument of social change: In relatively static societies law can be used as a
powerful instrument of social change. Law then induces a new pattern of social behaviour more
conducive to the prosperity of that

1. LAW AND SOCIETY Law: A social phenomenon: Law is a social phenomenon. When
human beings associate themselves in various forms of activity, they constitute a society. For the

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cohesion of this society and the peaceable resolution of internal conflicts norms or rules of
conduct become necessary and are gradually evolved. Even in the most primitive form of society
these rules exist. They are sometimes differentiated from law strictu sensu by being labelled as
custom. Custom is nothing but uniformity of conduct in given situations. In a given set of
circumstances a particular rule establishes itself as convenient and expedient. It is accordingly
followed. An invariable practice arises in this way in course of time. It is then called the custom
of that society. This custom is embryonic law or the rudiment of law in its proper sense. When
the primitive society becomes politically organised and evolves into a State the custom emerges
as law strictu sensu. Thus, law is essentially a social phenomenon. Relativity of law: That law is
a social phenomenon is demonstrated by the relativity of law. While law as such exists in all
societies, the particular rules governing a particular social institution differ from society to
society. The institution of Marriage is a universal phenomenon. But in certain societies marriage
is a contract while in certain other societies it is a sacrament. Some societies insist upon
monogamy, while others permit polygamy and polyandry. In certain societies the breach of the
matrimonial bond, for instance by the commission of adultery, is punished as a crime while in
other societies it is treated only as tortious giving rise to a claim for damages. The social
institution of inheritance furnishes another illustration of this relativity. On the death of the
owner some societies give his property to his eldest son. This is the institution of primogeniture.
In other societies the property goes to the younge

society. In India for instance the baneful institution of Sati was prevalent, and widows were
forced by this custom to immolate themselves on the funeral pyre of the deceased husband. It is
quite possible that this obnoxious custom was nurtured by human cupidity for the widow had a
life estate in her husband’s property and her removal accelerated the reversion of the husband’s
Sapinda relations. This odious custom was put down by law which abolished the custom of Sati
and made it a penal offence to immolate oneself or to instigate another to self-immolation. This
law contributed immensely to the emancipation of women and the improvement of their position
in Hindu society. Again, Hindu society is corroded by the baneful institution of untouchability.

To stigmatise a section of society as untouchable and to deny to them ordinary amenities

available to all others is a revolting phenomenon. It is a crying injustice, a cancer in the body
politic. The Constitution of 1950 did away with this age-old injustice by abolishing

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untouchability with all its attendant degrading consequences. The equality of all citizens is thus
established by the fundamental organic law itself. The Constitution has also vouchsafed
universal adult franchise. Thus, non-propertied classes which were previously not enjoying the
right to vote were given this democratic privilege. In this way Indian democracy has been placed
on a sound and secure footing.

Law as the basis for social engineering: The German sociological jurist Von Ihering was the first
to realise that law is the means for the conscious and deliberate resolution of conflicts in society.
The interests of men in society are very often conflicting. They have to be reconciled and
harmonised by means of law. For this purpose, law creates rights and duties. Rights are legally
protected interests in the view of Ihering. Not all interests can be protected. Some are protected
and become legal rights. When another interest in derogation of this right is protected a new law
is needed for that purpose. At one stage landlord’s interests are protected and the tenants are
allowed to be evicted at the pleasure of the landlord. This excessive protection of the landlords’
interests has its reaction and the law may go to the other extreme of giving tenants permanency
of tenure and deny to landlords the right of eviction altogether. Law may at a given time pursue a
medial course and give security of tenure to tenant’s conditional upon their paying rent promptly.
The rent itself may be controlled by law and a fair rent or standard rate of rent may be fixed by
the law itself.

In this way society deliberates between divergent interests, performs a selective function, picks
up some interests for its protection and denies such protection to certain other interests. In this
way law is designedly made a powerful instrument for moulding social patterns. The American
sociological jurist Dean Pound rightly regarded law as the basic tool of social engineering. The
jurist is not a mere armchair theorist. He has a dynamic role in society for it is he that has to take
up through law the formidable challenges of social engineering. It is in this way that law is
harmonised with the advancing social needs of a fast-developing society. How in India, law and
society are acting and reacting upon each other will be clear from the evolving patterns of the
concept of property under the revolutionary impact of constitutional amending power. This is
reviewed infra.

(From, Prof. G.C. Venkata Subbarao, Jurisprudence and Legal Theory | Chapter XXXII:
Current Developments in India)

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