The Nature of Law

LAW
• Dharma in Hindu Jurisprudence..

• Hukum in Islamic System..

• Jus –Romans,

• Richt in Germany and

• Droit in France
• Divine ordained set of rules of human action, Divine origin..

• The art of science of what is equitable and good..

• Law to be king of kings, nothing can be mightier than law..

• Law as an instrument of social change….

• Regulating human conduct..

• Jurists have defined law from different angles..

• Some have defined in terms of nature, some concentrate on

sources, others effect on society, end /purpose !!
• Law is the command of the sovereign.. John Austin

• Salmond defines it as

• “the body of principles recognized and applied by the State for the
administration of justice”

• Justice as objective !!
• Roscoe Pound..

• “Social control through systematic application of force in politically

organized society”
Jeremy Bentham’s Views on Law:

• the "fundamental axiom" of his

philosophy the principle that "it
is the greatest happiness of the
greatest number that is the
measure of right and wrong"
• “as assemblage of signs declarative of a volition conceived or
adopted by the sovereign in a state, concerning the conduct to be
observed in a certain case by a certain person or class of persons,
who in the case in question are or are supposed to be subject to his
power: such volition trusting for its accomplishment to the
expectation of certain events which it is intended such declaration
should upon occasion be a means of bringing to pass, and the
prospect of which it is intended should act as a motive upon those
whose conduct is in question” (Bentham)
Views on Justice..

• “Absolute justice is an irrational ideal, an illusion-one of the greatest

illusions of mankind “
Criticism against Bentham:

• Needs of individual discretion underestimated

• Fails to Balance individual interests with the interests of the society
• Pleasure and pain alone cannot be final test !!

• Might lead to more inequality..

Imperative Theory of Law…
Father of English Jurisprudence..

Laws properly so called

Laws improperly so called
(as distinguished from morals
which lack force or sanction)
• Austin described positive law as the aggregate of rules set by man
as politically superior to men as politically inferior subjects..

• Law is the command of the sovereign..

• Command
• Sanction
• Duty
• Sovereignty
• Law threatens the subjects with physical coercion unmindful of the
legitimate moral cum social obligation of sovereign towards his
subjects..

• Subject to obey, even when unfair !!

• Law to be effective must be reasonable, ethical..

• Hitler’s dictatorial regime: subjects had no rights, liberties, freedoms.

Criticisms…
• Customs overlooked, command overemphasized

• Permissive character of law ignored

• No place for Judge made law

• Sanction alone not enough

• Indivisibility of sovereignty !!
Kelson’s Pure Theory of Law..

• Separation of Law from politics,

sociology, metaphysics and
other extra legal disciplines..

• Created a pure science of law

devoid of all moral and
sociological considerations
• Rejected Austin’s definition as command introduces subjective
considerations.. He wanted legal theory to be objective…

• Discarded notion of justice !!

• Law as a Normative science..

• Natural science (Based on cause and effect..)
• Normative science (what law Ought to be..)
• Positive Law because it is concerned with actual law and not ideal
law..

• The Grundnorm:
• Pure Theory of law is based on pyramidical structure of hierarchy of
norms deriving their validity from the basic norm –Grundnorm..

• Meta-legal question.. cant be objectively tested !!

• Knowledge of what law is, and not concerned with what law ought
to be..

• Law as a normative science and not a natural science..

• Pyramid of Norms: Grundnorm..

Criticisms..

• Without sociological foundation

• Grundnorm itself questionable
• Based on hypothetical considerations
• Rejects element of justice
• While analytical school pre supposes the existence of a well
developed legal system, the historical school concentrates on
evolution of law from primitive legal institutions of ancient
communities….
Savigny

• Law is the product of general

consciousness of the people and
a manifestation of their spirit.
• Volksgeist as a Source of Law
• Law made without taking into consideration the past historical
culture and tradition of community is likely to create more confusion
rather than solving the problem because Law is not an artificial
lifeless mechanical devise.

• The origin of popular spirit of the people which Savigny termed as

Volksgesit..
• Law develops like language:
• Law grows with growth of the society, gains its strength from
society itself and finally withers away as the nation loses its
nationality. Law, language, customs and government have no
separate existence from people who follow them..
• Early development of law is spontaneous, than jusrits develop it:

• Savigny was opposed to codification of German Law:

• Law is a continuous and unbreakable process:
• Codification may hamper its continuous growth and therefore,
should be resorted to when fully developed…
Main Features…
• Law has an unconscious organic growth, it is neither found nor
made
• Basis of law is Volksgeist
• Law isn’t universal in nature but like language varies with people,
time and needs of society
• Custom not only precedes legislation but is also superior to it.
• Lawyers and Jurists are more important than legislators in
development of legal process.
Criticisms :
• Codification is the most accepted forms of progressive legislation
• Volksgeist overlooks the impact of other sources of law- legislation,
precedent etc..
• Customs always based on popular consciousness isn’t acceptable
• Hindered legal reforms and modernization in the name of
Volksgeist.
• Volksgeist helped many nations pervert it from promoting their own
ideologies.
• No legal system would stick to the prevalent abuses and baneful
customs only because people are accustomed to them..

• Overlooked creative role of law

• What is national and what is universal….
Sir Henry Maine

• Social and Legal factors cannot

be reduced to water tight
compartments..

• Factual Material that comes to

light may transcend exclusive
legal field..
Evolution of early primitive societies..
• Individual..
• Family Group
• Union of Families
• Gens-Formation of Tribes
• Collection of Tribes-Commonwealth

• Relationships mostly regulated by Law of status…

• Movement of Progressive Societies from Status Contract
• Disintegration of family system and emergence of contractual
relations..

• Movement of progressive societies….hitherto !!

• Reversal of trend from contract to status…

• Law is the creation of State.
• Without a sovereign, there can
be no law.
• Law based on politically
organized society.
• Typical law is statute.
• Judges should confine
themselves to interpreting law.
• Law is found no made, self
existent.
• Law is antecedent to State, pre
existing.
• Law based on social pressure.
• Typical law is custom.
• Judges should consider history
of legislation in question.