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“Law Master’s” Publication

“Nature of Law”

Prof. S.D. Bhosale

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Nature of Law

QUESTION BANK

Q.1

Q.2

Define ‘Law’ and state its nature.

Define ‘Law’ and explain its kinds.

SHORT NOTES

Q.1

Q.2

Nature and definition of law.

Law and morality.

SYNOPSIS

I Definition of ‘Law’

II Kinds of Law-

A] Salmond’s Classification

B] Classification of Laws by Austin

C] Classification of Laws by Holland

III. Sources of Law

A) According to Salmond

B) According to Keeton

Law and Morality

The subject matter of Jurisprudence is ‘law’. Therefore, it is necessary to study the

concept of law in detail.

I.

Definition of ‘Law’ -

Different jurists have defined the term ‘Law’ differently. There is no single accepted

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“Law Master’s” Publication

“Nature of Law”

Prof. S.D. Bhosale

definition of law as such. We will discuss, therefore, some of the definitions of law.

According to John ‘Salmond’ –

“A Law is the body of principles recognized and applied by the State in the

administration of justice”.

According to Blackstone-

“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. Thus we say the laws of motion, of gravitation, of optics or mechanics, as

well as the laws of nature and of nations”.

Thus, observing uniformity of action seems to be the law's main goal.

According to Hobbes –

“Law is the command of him or them that have coercive power”.

Thus, rules or principles recognized by the State and applied by the State in the

administration of justice are ‘Law’.

1. ‘The Law’ and ‘a Law’ / the nature of ‘Law’ –

The term ‘Law’ is sometimes used as ‘a Law’ and sometimes as ‘the Law’ or simply as

‘Law’. When the term is used as ‘a Law,’ it is used in a concrete sense referring to one

particular statute or a law, e.g. The Indian Penal Code, The Indian Contract Act, etc. Thus,

in a concrete sense, the term ‘law’ refers to a specific statute, ordinance, decree or an Act

of Parliament.

Whereas, the term ‘The Law’ or simply ‘Law’ is used in the abstract sense. It refers

to the entire system of rules and regulations that governs the society. In this sense it refers to the

whole system. So, we may say, "The law is important for maintaining order in society." referring

to an entire body of legal principles prevailing in a particular system. Thus, the Law of

India, the Criminal Law, the Civil Law, the Law of Evidence, the Law of Libel, etc., cover

the entire range of laws covered under the topic.

Thus, the difference between referring to different meanings to ‘the law’ and ‘a law’

states somehow the nature of law.

II.

Kinds of Laws-

The term ‘Law’ in its ‘general’ sense includes different kinds viz-

A] Salmond’s Classification-

Salmond has classified laws in their widest sense in the following different

categories viz-

1. Imperative Law –

Austin is the main exponent of Imperative Law. According to him, law is a command

of a sovereign that obliges a person or persons to take a course of conduct. Imperative Law

is a rule that prescribes a general course of action imposed upon men by some authority

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“Law Master’s” Publication

“Nature of Law”

Prof. S.D. Bhosale

that enforces obedience to it by some superior power, either by physical force or any other

form of compulsion.

According to Austin, to be a law, the command must be issued by a determinate person

or group of persons who are sovereign in the State. The state or sovereign enforces the

command with its physical force or in any other form.

In other words, Imperative Law has two essential characteristics, viz. –

(i)

The command of the sovereign,

(ii)

Enforcement of a command either by physical force or in any other form.

2. Physical or Scientific Law-

‘Physical law’ or the ‘laws of science’ are uniform laws of nature. There is perfect

uniformity and regularity in these laws. They are not subject to change. Some examples

include the law of gravity, the law of magnetic force, and the law of air pressure.

3. Natural or Moral Law -

‘Natural Law’ is also known as ‘Divine Law’, ‘Moral Law’, ‘Law of God’, ‘universal

‘eternal Law’, ‘Law of Reason’, etc. Natural law signifies the principles of right and wrong.

In other words, natural Law lays down the ideal conception of justice.

Natural Law is based on religious or moral grounds. The concept of Natural Law is

very ancient. We may find germs of Natural Law lying in all ancient thoughts. According

to natural law, there is a close nexus between morality and law.

1. Conventional Laws-

Conventional Law refers to those rules or sets of rules that are the outcome of an

agreement between persons or groups of persons. Parties to an agreement have to observe

these rules for the regulation of their conduct towards each other. Such agreement is the

Law for the parties interested in it. Conventional Law is a form of special Law for the

parties entered into it. Thus, the rules of the club, the rules of a cooperative society, and

International Law is the outcome of agreement (i.e. conventions) between the states.

2. Customary Law -

Customary Law means those rules and principles that have been observed in a particular

community for a long time. In fact, there are many customs in every society. These customs

have prevailed in societies since time immemorial. These customs assume the force of Law

over time. Many personal laws, like Hindu Law, Christian law, etc., are customary. They

were recently codified into statutory laws.

3. Practical or Technical Law –

Practical or Technical Law means those rules which are necessary for the attainment of

certain ends. Thus, the Laws of sanction and health, Laws of building construction,

architecture etc., are some examples of technical laws.

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“Law Master’s” Publication

“Nature of Law”

Prof. S.D. Bhosale

4. International Law –

It is an aggregate of the rules recognised and accepted by the civilised states in their

dealings with each other.

‘International Law’ is a very important branch of Law in modern times. It is based

largely on conventions between the states. Therefore, international law is divided into two

parts. The first part consists of rules that are uniform and universal in their applicability,

i.e., they apply to all states equally. This part is called ‘Public International Law’, whereas

the other part consists of those rules which are operative only between two or more nations

by their agreement in themselves; this part is called ‘Private International Law’.

5. Civil Law –

According to Salmon, ‘Civil Law’ is the ‘Law of the state’, the ‘Law of the land’,

and the ‘Law of the lawyers and of Law courts’. Civil Law is also called ‘Municipal Law’,

‘Positive Law’ or ‘National Law’. In other words, it is the law which the courts enforce.

We have discussed so far the law in its general sense nowhere ‘civil law’ in its strict sense

is the subject matter of Law students and is applied and enforced by the courts. Civil Law

is the subject matter of study in Jurisprudence.

B] Classification of Laws by Austin –

Austin classified Law into- (1) Laws properly so-called (2) Laws improperly so-called.

He has further classified ‘Laws properly so-called’ into ‘divine Law’ (Law of God)

and ‘human Laws’. He further classified ‘Laws improperly so-called’ into Law of ‘positive

morality’ and ‘Law metaphorically’ so-called”-

C] Classification of Laws by Holland -

According to Holland, Laws can be classified into -

(i)

Private Law

(ii)

(iii)

Public Law

International Law

Thus, Holland has classified ‘Civil or Municipal Law’ into ‘private’ and ‘public’ laws.

III.

A)

Sources of Law -

According to Salmond –

According to Salmond following are the sources of Law –

Enacted Law- Which has its source in legislation.

Case Law – Which has its source in precedent.

(i)

(ii)

(iii)

(iv)

Customary Law – which has its source in custom.

Conventional Law – which has its source in agreement.

B)

According to Keeton -

Sources of Law, according to Keeton, are as follows –

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“Law Master’s” Publication

“Nature of Law”

Prof. S.D. Bhosale

(i) Custom, (ii) Legislation, (iii) Judicial Precedents.

These three sources have binding forces. Two more sources, viz. (iv) principles of

morality or equity and (v) Professional opinion have persuasive value but no binding force

as such. These two sources or laws cannot be enforced by the physical force of the state

but depend upon moral principles for their enforcement, i.e., to be followed or not to be

followed.

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SHORT NOTES

LAW AND MORALITY

In ancient times, there was no distinction between ‘law’ and ‘morality'. However,

in later stages, lawmakers and courts made some distinctions between ‘law’ and

‘morals’.

In ancient times, morality was considered a part of ‘natural law’. There was no

distinction between ‘law’ and ‘morality’. According to Hindu mythology and Christian

jurists, natural law was based on moral principles. However, after reforms in Europe and

in India, ‘law’ and ‘morality’ started to be considered differently. During the 17^thand

18^thCenturies, the theories of natural law had a moral foundation and law was linked

with morals. However, during the 19^thCentury, positive law theory emerged, which

propounded that “law had nothing to do with morality”. According to the Positive Law

School, ‘law’ is ‘the law’ which is declared by ‘the state’ and enforced by sanction

(physical force) of the State. Austin was supported by a number of other jurists.

However, in modern times, ‘sociological school’ also considers the relationship between

law and morality.

In modern times, the distinction between ‘law’ and ‘morals’ is well defined and

considered. According to Duguit, “law has its basis in social conduct. Morals go with

the intrinsic value of conduct”. According to Vinogradoff, “the object of law is the

submission of the individual to the will of organised society.

Thus, even though wearing a burkha/veil by women is moral but non- wearing

it is not illegal though immoral. Similarly, the present concept of staying together as a

man and a woman without marriage (Live in a relationship) though immoral, is not illegal

(Payal Sharma’s Case). Similarly, gay marriages or marriages between same-sex though

immoral, are legal in many countries.

Thus, in today’s time, law and morality are different and not one and the same.

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