NATURE AND DEVELOPMENT OF LAW

 Will of the political parties in power.

 The law is a set of rules that people are
made to follow by the state.
 The courts and police enforce this system of
rules
 and punish people who break the laws,
 by making them pay a fine or other penalty
or sending them to jail.
 Law: Any system of regulations
 to govern the conduct of the people of a
community, society or nation,
 in response to the need for regularity,
consistency and justice based upon collective
human experience.
 authoritative body.
 legal commands.
 an imposed duty or obedience.
 enforcement through penalties.
 The law is reason, free from passion.
{Aristotle Greek Philosopher (384-322 BC)}

 Law is the embodiment of the moral

sentiment of the people.
William Blackstone,
English jurist and professor
(1723-1780).

 Moralitycannot be legislated, but behaviour

can be regulated.
Martin Luther King Jr.
 Jurists at various times and places have
made their approaches to study law.
 The systematic thought about law is termed
as legal theory or legal philosophy.
 Roman thought: Roman Law is starting point
for the study of western legal system.
Modern analytical approach developed by
Romans. But they confused law with justice
and morals.
 Greek Thought: Like Homer, Socrates, Plato
and Aristotle – much discussion on
Government and law.
A paradigm (a typical example) that posits
(put forward as basis of arguments) the
existence of a law whose content is set by
nature and that therefore has validity
everywhere.
International Encyclopaedia of the Social Sciences
 Natural law means:
1. the law which is unwritten and
2. consists of the principles of ought as
revealed by the nature of man or reason or
derived from God etc.
3. It is known to be the higher law.
4. The term morality, justice, ethic, right
reason, good conduct, equality, liberty,
freedom, social justice, democracy etc. are
included under the natural law.
 Civilized peoples, nations, or cultures of
antiquity, as the Greeks, Romans, Hebrews,
and Egyptians.
 The writers, artists, and philosophers of
ancient times, especially those of Greece
and Rome.
 Heractlitus (530-470 B.C.):
1. Law based on the rhythm of events.
2. termed as destiny order and reason of the world.
3. Nature is not just substance but a relation of order
of things.

 Socrates (470-399 B.C.):

1. like natural physical law, there is a natural moral
law.
2. Man possesses insight and this insight" reveals to
him the goodness and badness of things and makes
him know the absolute and eternal moral rules.
3. This human insight is the basis to judge the law.
 Plato (427-347 B.C.):
1. justice is harmony of man’s inner life,
2. harmony is the quality of justice and it is achieved
by reason and wisdom over desire.
3. Law should reflect certain universal, absolute or
eternal truths… even though humans could never
fully achieve these truths.

 Aristotle (384-322 B.C.):

1. Aristotle, a student of Plato, is often said to be the
father of natural law.
2. law is reason unaffected by desires and embodied
the basic principles of justice and morality.
3. These principles were of universal validity and
independent of time and place.
 Cicero (106-43 B.C.): “Law is the mind and
reason of intelligent man, the standard by
which justice and injustice are measured.”
 However, civil or human laws should be set
aside if, in the minds of wise men, they
contradict the laws of nature.
 Thus, it would be permissible for citizens to
withdraw their support from a government
that enacted “evil” laws.
 Referring to the Middle Ages. It emphasizes the
demographic, cultural and economic
deterioration that supposedly occurred in
Western Europe following the decline of the
Roman Empire, and the relative scarcity of
written records from the period.

 St. Augustine, expressed that:

1. The union with divine is the end of law.
2. To attain this end the physical instincts of the
body should be suppressed.
3. If human laws are contrary to the law of God,
they are to be disregarded.
 TheMiddle Ages or Medieval Period lasted
from the 5th to the 15th century. It began
with the fall of the Western Roman Empire
and merged into the Renaissance and the
Age of Discovery.
 Thomas Acquinas (1225 -1274 AD): He
divided law into four categories –
1. Law of God.
2. Natural Law, which is revealed thought the
reason of man,
3. Law of Scriptures or Divine Law and
4. Human Law.
 Natural law is a part of divine law. This part
is applied by human beings to govern their
affairs and relations.
 Therenaissance began in Italy during the
14th century and reached its height in the
15th. In the 16th and 17th centuries it
spread to the rest of Europe.
 Grotius (1583-1645):
1. His view is based on Social Contract.
2. It is the duty of sovereign to safeguard the citizen
because the former was given power only for that
purpose.
3. The sovereign is bound by natural law.
4. The law of the nature is discoverable by man's reason.

 Hobbes (1588-1673):
1. law of the nature can be discovered by reason which
says what a man should do and what he should not do.
2. Man has natural desire for security and order.
3. This can be achieved only by establishing superior
authority which must command obedience.
 Lock (1632-1704):
1. the purpose of government and law is to upheld and protect
the natural right (freedom, equality, liberty etc.) of the
subjects.
2. So long as the government fulfills this purpose, the laws given
by it are valid and binding.
3. but when it ceases to do that its laws have no validity and the
Government may be overthrown.

 Rousseau (1712-1778):
1. by the social contract, men united for the preservation of
their rights of freedom and equality.
2. For this they surrendered their rights not to a single
individual sovereign but to a community to which Rousseau
given the name of general will.
3. If the Government and laws do not conform to the general will,
they are to be overthrown.
4. Thus his natural law theory stands for the freedom and
equality of men.
 The early modern period began
approximately in the early 16th century;
notable historical milestones included the
European Renaissance and the Age of
Discovery.

 Kohler:
Defines law as the standard of conduct
which is consequence of the inner impulse
that urges towards a reasonable form of
life, emanates from the whole, and is forced
upon the individual.
 Hobbs defined Law - As the commands of him or
them that have coercive power.
 Jeremy Bentham (1748-1832): the purpose of
law is to bring pleasure and avoid pain.
 Pleasure and pain are the ultimate standards on
which a law should be judged.
 He rejected Natural law.
 His keen desire for law reform based on the
doctrine or utility,
 his ambition based for codification based on
complete dislike for judge made law
 Pleaded for codification.
 Greatest happiness of the greatest number.
 Jeremy Bentham (1748-1832 AD)
Utilitarianism: Humans are motivated to seek
pleasure and avoid pain. Thus, law should
seek to produce the greatest happiness for
the greatest number of people.
A system of law has the following
requirements:
i) authoritative body,
ii) legal commands,
iii) an imposed duty or obedience,
iv) enforcement through penalties.
 John Austin (1790-1859 AD) (father of English
Jurisprudence)
1. His main work is "The province of
jurisprudence determined”.
2. Defined Law as a rule laid down for the
guidance of an intelligent being by an
intelligent being having the power over him".
3. He determines and characterises the notion of
law, i.e. law properly so called which is
distinct from morals and other law that are
described as laws improperly so called.
4. "A Law is a rule of conduct imposed and
enforced by the sovereign”.
 The school of thought found by him known as
‘analytical’, ‘positivism’, “analytical
positivism”.
 According to him, two types of law
1. Law of God and
2. Human Laws
a. Positive Law: set by political superiors as
such.
b. Other laws: not set by political superiors.
 Law is divided into two parts
 1. law properly so called:
a. Law of God
b. Human Laws: 1. Positive law are the laws
strictly so called(set by political superior to
political inferior or by private persons in
pursuance of a legal right) 2. Laws not set by
men as political superior that includes positive
morality
 2. law improperly so called:
a. Laws by analogy (comparison), as law of
fashion.
b. Laws by metaphor i.e. laws of gravity.
 Austin’s answer to what is law was three fold namely,
1. Laws are commands issued by the sovereign.
2. Such commands are enforced by sanctions.
3. A sovereign is one who is obeyed by the majority.
According to Austin, the law is a command from the
sovereign which is enforced by the threat of
sanction.
In his view, positive law (Positive law is the belief that
law is established by the state, for the benefit of
the state as a whole. Positive law is a reaction
against particularly that aspect of Natural law
theory) has three characteristic features:
1. a command,
2. by a political sovereign
3. enforceable by a sanction.
 Law, according to Austin, is a social fact and
reflects relations of power and obedience.
 The twofold view, that (1) law and morality are
separate and (2) that all human-made
("positive") laws can be traced back to human
lawmakers, is known as legal positivism.
 More precisely, laws are general commands
issued by a sovereign to members of an
independent political society, and backed up by
credible threats of punishment or other adverse
consequences ("sanctions") in the event of non-
compliance. The sovereign in any legal system is
that person, or group of persons, habitually
obeyed by the bulk of the population, which
does not habitually obey anyone else.
 Hart (1907-1992)
1. describes Austin theory of law as triology of
command, sanction and sovereign.
2. His theory has been criticized that his
command theory produces a gun man
situation: law is obeyed due to motive,
fear and reason also.
3. The term sovereign has not been defined.
4. Customs ignored, judge made law ignored.
 Savigny (1779-1861):
1. To him law like language, grows with the growth
and strengthens with the strength of people and
finally dies away as the nation loses its nationality.
2. Law is henceforth more artificial and complex,
since it has a twofold life as a part of the
aggregate existence of the community which it
does not cease to be and secondly as a district
branch of knowledge in the hands of jurists.
3. According to him the nature of any particular
system of law was reflection of the spirit of the
people who evolved it. This was later
characterized as volksgeist by putchta, a disciple of
saviginy.
 Early development of law is spontaneous
later on it is developed by jurists.
 Law is a matter of unconscious and organic
growth, therefore law is found and not
made.
 Law is not universal in its nature, like
language, it varies with people and age.
 Custom precedes legislation and is superior
to it.
 His theory a reaction against natural law
theories.
 Putchta (1798-1846) :
1. To him the idea of law came due to conflict
of interest between the individual will
and general will.
2. That automatically formed the state which
delimits the sphere of the individual and
develops into a tangible and workable
system.
3. The contribution of putcha is that he gave
two fold aspect of human will and origin of
state.
 SIR HENRY MAINE (1822-1888): Maine made a
comparative study of law of the various legal system
and traced the course of their evolution, though he
gave no definition of Law. As per Maine the law
developed through the following stages-
1. At first the law was made by the commands of the
rules believed to be acting under the divine
inspiration.
2. In the second stage the command crystallise in to
customary law.
3. In the third stage the knowledge and administration
of customs goes into the hands of a minority usually
of a religious of a religious nature, due to the
weakening of the power of original law makers.
4. Then under fourth stage, comes the era of codes.
 DUGUIT (1859-1928)-
1. All human activities and organizations should
be directed to the end of ensuring the
harmonious working of man with man.
2. Calls it the "Principle of social solidarity”.
3. the essence of law is to reconcile, resolve and
comprise the interest of the individuals in
the interest protecting and promoting the
larger social good.
4. Law according to him consists of duties without
corresponding rights.
5. Thus the soul of the law is duty.
 Rudolf Von Ihering: (1818-1892)(father of modern
sociological jurisprudence)
1. It is a process to achieve a proper balance
between social and individual interests.
2. It is through two impulses viz coercion and reward
that society compels individuals to subordinate
selfish individual interest to social purposes and
general interests.
3. Thus his insistence on the need to reconcile
competing individuals and social interest made him
"the father of modern sociological jurisprudence
that inspired jurists like Roscoe Pound and others.
4. Law is the result of constant struggle.
5. Law is to serve social purpose rather than an
individual interest.
 EUGEN EHRLICH (1862-1922):
1. He says at present as well as at any other time,
the centre of gravity of legal development
lies not in legislation not in juristic science,
nor in judicial decisions but in society itself.
2. Further he says, in order to study the living
law one must turn to marriage contracts,
leases, contracts of purchase, wills,
succession, partnership.
3. To him codes may be technically in force in the
sense that a court may apply their provisions if
they are called in questions, but frequently a
community ignores the codes and lives
according to the rules created by consent.
4. Living law is the fact that governs social life
 CARDOZO: BENJAMIN NATHAN (1870-1938)
1. judge of U.S. Supreme Court (1932-38).
2. To him law is nothing but what is
expounded in concrete situations in the
form of Judgment by court In consonance
with custom, history, traditions and needs
of people.
3. He remarked that logic, history, custom,
utility and the accepted standards of right
conduct are forces which singly or in
combination shape the process of law.
 ROSCOE POUND (1870-1964):
1. formulated also a new concept of law popularly known
as social Engineering" when he conceives law as a part
of much wider process of social ordering, functioning
through courts and administrative agencies with the aid
of legal precepts serving as partial guides.
2. If law is viewed as social engineering, the end is
conceived to be the satisfaction of all demands and
securing of all interest with a minimum of conflict so
that the means of satisfaction have the widest
possible construction.
3. Social engineering means a balance between the
competing interests in society.
 Sincethe society is always changing, the
law should be adopted and readopted to
the needs of individuals and society. He
therefore stresses the need of paramount
coordination and co-operation between
the legislators administrators, judges
and jurists to work towards the
realization and effectual
implementation of law for security,
social harmony and social Justice.
 A branch of sociological approach
 They concentrated on decisions.
 Jerome Frank: Law is what the court has decided
in respect of any particular set of facts prior to
such a decision, the opinion of lawyers is only a
guess as to what the courts will decide and this
cannot be treated as law unless the court so
decides by its judicial pronouncements.
 According to him law is uncertain and certainty
of law is a legal myth.
 He speaks of the importance and necessity of
law making by evaluating the facts of every
individual case under the changed social
conditions.