Lucknow College of Architecture, Lucknow Final Year B. Arch.
AR 1003 - Development Legislation UNIT–1 JURISPRUDENCE
Lecture 2 -
Nature of Law - Mukul Singh *
Various school of law have defined law from different angles. Some have defined it on the basis of its nature. Some concentrate mainly on its sources. Some define it in terms of its effect on society. There are others who define law in terms of the end or purpose of law. A definition which does not cover various aspects of law is bound to be imperfect. According to Justinian : “Law is the King of all mortal and immortal affairs, which ought to be the chief, the ruler and the Leader. Ulpain defined law as “the art of science of what is equitable and good” Demosthenes wrote: “ Every law is a gift of God and a decision of sagaes.” Hobbies: Law is the speech of him who by right commands somewhat to do, do or omitted.” Again, Blackstone writes: “Law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of actions, whether animate or inanimate, rational or irrational” Justice Homles says: “Law is a statement of the circumstances in which the public force will be brought to bear upon men through courts”. “The prophecies what the court will do in fact and nothing more pretentious, are what I mean by law.” According to Lord Mouton: “Law is the crystallized commonsense of the community.” Prof. M.J. Sethna writes: “law in its widest sense means and involves a uniformity of behaviour, a constancy of happenings or a course of events, rules of action, whether in the phenomena of nature or in the ways of rational human beings. ” Austin’s Theory of Law Austin’s theory of law is also known as the imperative theory. According to Austin, positive law has three main features. It is a type of command. It is laid down by a political sovereign. It is enforceable by a sanction. A typical example would be the Road Traffic as a command laid down by the sovereign under the down certain rules which has to be followed. Its violations are met with penalties (section). According to Austin, requests, wishes etc. are expressions of desire, while commands are expressions of desire given by superiors of inferiors. Relationship of superior to inferior consists for Austin in the power which the former enjoys over the other, i.e., his ability to punish him for disobedience.
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Principal at Lucknow College of Architecture
There are commands which are laws and there are commands which are not law. Austin Laws are general commands. Laws are not like the transitory commands given on the parade grounds. To Austin, a sovereign is any person or body of persons whom the bulk of a political society habitually obeys and who does not himself habitually obey some other person or persons. According to Austin, law is law only if it is effective and it must be generally obeyed. To Austin, laws are of two kinds, Divine law and human law. Divine law was given by God to men. Human laws are of two kinds there are certain human laws which are set by political superiors and are called positive laws. To the second category belong the rules of a club or any other voluntary association. Law is law because it is made by the sovereign and sovereign is sovereign because it makes the law. The relation between the sovereign and law is the relation between the centre and the circumstance. Salmond considers it to be a virtue of the imperative theory of law that is excludes those rules which resemble law but are not laws. Salmond supports. Lord Not applicable to International Law Austin’s definition of law cannot be applied to international law. Although international law is not the command of any sovereign, yet it is considered to be law by all concerned. Not applicable to Constitutional law Austin’s definition of law does not apply to constitutional law which cannot be called a command of any sovereign. As a matter of fact, the constitutional law of a country defines the powers of the various organs of the State. To command himself. Even if one makes a command to bind one’s self, it cannot have much force. Salmond’s Definition of Law “Law may be defined as the body of principles recognized and applied by the state in the administration of justice.” In other words- law consists of the rules recognized and acted upon by the courts of justice. Its legal character becomes patent when it is recognized and applied by a court of law in administration of justice. Courts may misconstrue a statute or reject a custom. It is only the ruling of the court that has binding force as law. The true test of law is enforceability in the courts of law. Legal Sanctions The term “sanction” is derived from Roman law. Sanction was originally that part of a statute which established a penalty or made other provisions for its enforcement. Ordinary sense, the term sanction means mere penalty. Territorial Nature of Law The enforcement of law is territorial in the same way as a state is territorial.
Purpose and Function of law According to one school of though, the object of law is to maintain law and order in the country. Plato says: “Mankind must either given themselves” According to Hobbes : “The 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.” Kant: The aim of law is freedom and, the fundamental process of law is the adjustment of one’s freedom with respect of every other member of the community.
