MEANING & DEFINITION OF

LAW
Abhijeet Vasmatkar
&
Anu Solanki Kamble
The need to provide a definition of law springs from the necessity of
clarifying the most basic of all legal concepts, the concept of law itself.
Lawyers use legal concepts like ‘consideration’, ‘possession’, etc. to draw
conclusions and solve legal problems, but the concept of law itself is not
one that figures in legal argument or gives rise to conclusions of practical
significance: no judgment ever hinges on the definition of law.
What is law is a theoretical question, not a question of law but about law.
Therefore the standard procedure used to define a legal concept,
mapping out its boundaries by references to statutes and judicial
decisions, will not apply to the problem of defining law itself.

THE CONCEPT OF LAW*

The desire to define law also springs from a desire for
generalisation.
What else?

NEED TO DEFINE LAW*

“the system of rules which a particular country or community
recognizes as regulating the actions of its members and which
it may enforce by the imposition of penalties.”
It is possible to describe law as the body of official rules and
regulations, generally found in constitutions, legislation,
judicial opinions, and the like, that is used to govern a society
and to control the behaviour of its members, so Law is a
formal mechanism of social control.
Legal systems are particular ways of establishing and
maintaining social order.

Definition of ‘Law’*
 NATURE OF LAW* (jurists)

Natural law Realist law

Positive law

Law as a Law as practice of

dictate of Law as command of the Court
reason the sovereign
Natural law (Latin: ius naturale, lex naturalis) is a philosophy
asserting that certain rights are inherent by virtue of human nature,
endowed by nature—traditionally by God or a transcendent source—
and that these can be understood universally through human reason.
The term 'natural law' is derived from the belief that human
morality comes from nature. Everything in nature has a purpose,
including humans. ... In short, any law that is good is moral, and any
moral law is good.
Law contrary to principles of natural law cannot be obligatory.
Human law which is different from natural law is not really law but a
mere abuse of it.

Naturalist Approach to Law*

 God

Eternal law – law governing the whole creation & eternally

existing and source or true law on earth

Divine law – revealed truth like the Ten Commandments that

correct human fallibility and frailty

Natural law – practical reflection of god’s law that is

incorporated into human nature

Human law – law derived from natural law

Plato : A body of binding prepositions.
Aristotle: Strongly believes that law and justice are moral in nature and
derive from a divine source…it was the unwritten law but it may lie in the
hearts of men.
Stoics: Reasons govern all parts of the Universe, and man is a part of
this Universe which is governed by reason…it was divine law-command of
god imposed upon men.
Cicero: natural law was the law of reasons…Law is a right reason in
agreement with nature.
Hobbes: a precept, or general rule, found out by reason, by which a
man is forbidden to do that which is destructive of his life and property.
John Locke: State was designed to guarantee and protect natural rights
of the individual… he propounded the theory of social contract.
St Thomas Aquinas- “Nothing else than an ordinance of reason for the
common good, made by him who has care of the community, and
promulgated"
What is Law?
An Introduction
Definition By Eminent Jurists*:

Ulpian: A celebrated Roman Jurist (170 AD - 228 AD)

“the art and science of what is equitable and good.”

h The first formal definition of law.

h In the contemporaneous socio-political setups he had given the best
definition.
h Criticism: Being meta-physical in nature its value cannot be evaluated.
1 - 10
Man should live according to nature and that since the distinctive
feature of man’s nature was his endowment with reason, this
meant that he should live according to the dictate of reason.
Natural Law is an Unwritten Law
Law is related to justice as it is related to rule of reason, human
nature and ethics.
Nature is an order of things and demands equality for all men.
Natural law is based on values as it comes from absolute source
such as god or Nature.
Justice and Morality are two pillars of Natural Law.

Characterisitics of Natural Law

Reason and Common Sense is the basis of
the natural law.
Natural law is common to all states.
Natural law propositions are self evident
and eternally valid.
Unjust law is no law. (LEX INJUSTA NON
EST LEX)
This theory was formulated as a defiance to the natural
law theory- It is said to be diametrically opposite to
Natural Law Theory
This theory seeks to distinguish law by its formal criteria
and not by its contents- distinguishes legal rule from
other rules such as morals and etiquette
Distinguishes the question whether it is a legal rule from
the question whether it is a just rule

Positivist approach to Law*

 
"A body of rules fixed and enforced by a
sovereign political authority."

Professor Hart _ “law as a system of

rules, a union of primary and secondary
rules”

Marxist theories of law generally define

law as a tool of oppression used by
capitalists to control the proletariat.
 Austin’s classification of law
Law*

Law of God Human Laws

Laws properly so-

Laws improperly so-
called
called

Laws set by •Laws of fashion

Laws set by private
political superior •Rules of clubs
persons in pursuance
to political •Laws of natural
of legal rights
subordinates science
granted to them
•Rules of
international law
What is Law ?
An Introduction
Definition By Eminent Jurists:

Bentham: (1748-1832)

“Law or the law, taken indefinitely, is an abstract or collective term,

which when it means anything, can mean neither more nor less than
the sum total of a number of individual laws taken together.”

h Bentham view of law as a “set” of rules

h He sees “the law” as a hollistic legal framework as every rule is
related to another
1 - 16
What is Law?
An Introduction
Definition By Eminent Jurists*:

John Austin: (1790 AD - 1859 AD)

“Command of the sovereign backed by a

sanction.”

h He lived in circumstances when Europe was witnessing changes especially

in Politics.
h He separated the meta-physical controversy from legal enterprise

h Criticism: The terms ‘Philosophy’ and ‘Positive Law’ are misleading

1 - 17
What is Law?
An Introduction
Definition By Eminent Jurists:

Salmond: (1862 AD-1924 AD)

“the body of principles recognised and applied by the State

in the administration of justice.”

1 - 18
What is Law?
An Introduction
Definition By Eminent Jurists:

Thomas Erskine Holland: (1835 AD - 1926 AD)

“Law is general rule of eternal human action enforced by a

sovereign political authority.”

h Laid emphasis on what law ‘is’

1 - 19
Distinguishes law from other commands by their generality;
meaning that laws are general commands.
Law to be effective has to be generally obeyed (out of respect,
fear, wisdom, habit, etc.)
It expelled all ethical notions while considering the nature of
law.
It is a direct or circuitous command of a monarch or sovereign
in the character of political superior.
According to positivists, law is something for the citizen to
obey, not as he pleases but whether he likes it or not.

Characterisitics of Positive Law

This was an exchange between Lon L. Fuller and H. L. A.
Hart published in the Harvard Law Review in 1958 on morality
and law, which demonstrated the divide between
the positivist and natural law philosophy.
The debate was on how post-Nazi German legal system
should respond to heinous acts committed during the Nazi
period and purportedly authorized by Nazi law.
The issue on which the debate arose pertained to acts
committed under Nazi regime which were authorised by Nazi
law.

HART – FULLER DEBATE

By Semanti Choudhury
 According to Hart, the only way to punish the acts committed under Nazi rule was through a
retrospective criminal legislation
 He was not in favour of a reasoning suggesting that Nazi laws were not valid laws because they were
morally odious as such reasoning would confuse between what law is and what law ought to be.
 Hart uses the problem of "the core and the penumbra" to illustrate the idea that laws must be
related to the meaning of the words, not any natural or moral belief.
◦ A "core" case would be one that the statute is intended to cover. In the classic example, a statute
that bans vehicles from a park is obviously intended to cover cars.
◦ A "penumbra" case would be one not considered by the creators of the law, such as a skateboard
in the example above. A judge interpreting such a law from a positivist viewpoint would look to a
definition of the words in the statute.
 According to Hart, legal rights and moral rights are not related, beyond mere coincidence. A legal
system can function effectively even though it is not just or moral. For e.g.– in the Nazi regime
under Hitler, individuals were discriminated on the basis of their race, as Nazis considered that racial
distinctions were necessary and relevant to reflect the morality in their society. Hence, they
considered themselves justified in discriminating so.

H.L.A. HART (POSITIVISM)

By Semanti Choudhury
Fuller's reply argued for morality as the source of law's binding
power.
Fuller argued that certain Nazi laws were not legal because they
did not adhere to the principles of inner morality such as: publicly
proclaimed, clear, non-contradictory, proscriptive, reliable, possible
to comply with, and applied as articulated. According to him, these
are essential features of legal systems that allows human beings to
govern their interactions with one another with reference to rules.
On this basis, Fuller argued that courts set up by ICC were
empowered to hold that Nazi rule was not a valid legal system.

LON L. FULLER (NATURALISM)

By Semanti Choudhury
“Nay, whoever hath an absolute authority to interpret any written or spoken laws it
is he who is the law giver to all intents and purposes and not the person who first
wrote or spake them.” - Bishop Benjamin Hoadly

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.
Studies the human factor in the judges and the lawyers- the forces which
influence judges to reach a specific decision.
A judge’s temperament decides the application of law.
Eg. – law provides for contributory negligence as a complete defense to a tort
claim in road accidents; but the sympathy of the judge for the plaintiff and
antipathy towards the defendant’s insurers can lead him to negate the application
of such negligence.

Realist approach to Law*

Oliver Wendell Holmes- "The
prophecies of what the courts will do ...
are what I mean by the law"
Karl Llewellyn- "What officials do about
disputes”
Lord Browne-Wilkinson- “The sum of
the influences that determine decisions in
courts of justice.”
What is Law?
An Introduction
Definition By Eminent Jurists*:

Gray: (1828AD- 1902 AD)

“The law of the State or of any organized body of men is
composed of the rules which the courts- that is, the judicial
organ of that body- lay down for the determination of legal
rights and duties.”

“Law is what the Judges declare.”

1 - 26
“Life of law is not logic but experience.”
Termed as real law as it is the actual application by courts
of a bare law laid down by the Parliament.
A statement of law is nothing more than a prediction of
what the Courts will decide.
Object of study of law is prediction of the incidence of the
public force through the instrumentality of the Courts.
Law is not only the statute but its interpretation as well.
It separates the “is” (reality) from the “ought” (perception)

Characterisitics of Real Law

Max Weber_ “Law…exist if it is externally guaranteed by the
probability of coercion (physical or psychological) to bring about
conformity or avenge violation, and is applied by a staff of people
holding themselves specially ready for that purpose."
Thomas Hobbes_ "Law is the formal glue that holds fundamentally
disorganized societies together."
Glanville Williams_ "Law is the cement of society and also an
essential medium of change. Knowledge of law increases one’s
understanding of public affairs. Its study promotes accuracy of
expression, facility in argument and skill in interpreting the written
word, as well as some understanding of social values.”

Sociological approach to Law

What is Law?
An Introduction
Definition By Eminent Jurists:

Dean Roscoe Pound: (1870 AD- 1964 AD)

“The science of social engineering”

h An idea of giving the most complete security and effect to the whole
scheme of human demands and desire which are pressing for recognition,
with the least sacrifice, least friction and least waste.

1 - 29