Program LLB – Semester(1)

Course (LB 102)

Session No ( 1 )
Nature and sources of law
By
Ms.- Akriti Gupta

Disclaimer: This PPT is the property of the ICFAI University, Jharkhand and can be used only for the educational purpose of the students of the University
Law:

• What is Law?
• Keeton- “An attempt to establish a satisfactory definition of law is to seek to confine
jurisprudence within a straight jacket from which it is continually trying to escape”

• Ulpian- “An art or science of what is equitable and good”

• “Law is the aggregate of rules set by men as politically superior or sovereign to men as
politically subject” -Austin
• “Law maybe defined as the ”- Salmon
• Kelson defines Law as “depsychologised command”.
• Hegel- “...general will..”
• Savigny- “A rule whereby an invisible borderline is fixed within which the activity of
each individual obtains a secure and free space”
• Lord Moulton- “Law is the crystallized common sense of the community”
Definition:

• Hindu law- welfare of people and salvation after

death.
• Muslim law- discipline of soul, improvement of morals,
preservation of life, property and morals.
• Roscoe pound- max welfare-less friction- smooth
functioning of the interest of the society- social
engineering theory.
Imperative theory of Law/Austin’s theory of law:

• Basically three elements in law:

-it is a type of command
-it is laid down by political superior
-enforced by a sanction.(penalty)
Law is a general command given from a political superior to political inferior.
He defines sovereign as “..a person or body whom a bulk of politically organized
society habitually obeys..”
Superior has the formal power over the inferior- punishment for disobedience.
It is only law when obeyed by the public.
Types of law: Austin

A. Divine Law- Given by God to men

B. Human Law- Given by men to men.
I. Positive Laws-Statutory Laws or set by political superiors
II. Non Positive Laws- Non- Statutory Laws, Customs, Traditions
etc.
POSITIVE LAWS- “laws strictly so called”
Criticism:

• Gunman law- no distinction between command of the sovereign or command of the

robber in a superior position-situational.
• Jurist from Historical and sociological school has contended that there were laws in
existence before the concept of State evolved- laws then also- customs, religion,
public opinion-fear of abandonment by community-law is a prior to the concept of
political sovereign.
- Salmon differs- those were substitute of law-not really law-resembled law- such laws –
not recognized by Austin-imperative theory-loses its essence. Eg- Apes resemble
humans-they are not a part of –definition of human beings.
• Paton: it is not applicable on international law because it is obeyed without any
sanction.
• It is not applicable on the family law as it came into existence long before the
legislative functions.
• Not applicable to Constitution- not a command of a sovereign
• According to Salmon, it lacks moral and ethics as it ignores the most important
element called justice- purpose of law.
Purpose and function:
• Law is not static. It changes with the society.
• One school of thinkers- function-maintain law and order-police functions.
• Plato- “ Mankind must either give themselves law and regulate their lives or live no better
lives than the wildest of the wild beast”
• Hobbes- “……..limit natural liberty of a particular man---not hurt but assist each other”
• Locke- “ End of law is not to abolish or restrain but to preserve and enlarge freedom”
• Kant- “…… adjustment of ones freedom to that of every other member of the community”
• Bentham- “…..maximization of the happiness of the greatest number of the members of the
community In question”
• Holland- more than police function-more than rights and duties-well being of the individuals
and the state.
• Roscoe pound gives four purposes of law:
1. Maintain law and order within a given society.
2. Maintain status quo in society.(manage state of affair)
3. Freedom of individuals to defend themselves.
4. Max satisfaction of the need of the people.
Advantages of law:

• Laws are fixed principles, by statute.

Advantages:
1. Uniformity and certainty to the administration of Justice
2. It avoids the danger of arbitrary, biased and dishonest decisions. Departure
from rule of law is visible to all.
3. Protection from the errors of individual judgments.
4. More reliable than individual judgments.
Disadvantages:
1. Rigidity- keep changing-society
2. Static law-harmful
3. Complicted.
Question of law and fact:

• Question of law?
- question which a court is bound to answer in
accordance with the Rule of law.
- Ambigous statutory provision
- Uncertainty of law
1. Whether the Sabrimala temple is a separate
religious denomination?
2. Can constitution declare such an
established customary law against FR?
3. Exclusion of woman is an essential religious
practice in accordance with Art 25 of the
Consti or not?
Question of fact:

• All the other question apart from the question of law.

• An evidence can prove or disprove a question of
Fact.
• If a person stays in a particular place or not is a
question of fact.
• It Is not a matter of opinion.
• Eg- Why are woman not allowed in the sabrimala
temple?
• What is the customary practice in relation to Lord
Ayappa?