Concept of Law

Concept of Law 

‘Law’ defines the political organisation and structure of society, provides a scheme of individual relationship within it and contributes to the stability of society by offering an objective mechanism for the resolution of disputes and conflicts within the community. All extensive human societies possess law in some form or other. ‘Legal system’ is the totality of the laws of a State or community. 

Broadly speaking, ‘Law’ is a notional pattern of conduct to which actions do or ought to conform. However, there is no simple definition of law. Every person defines law according to his own perception of it. Further, law being a social science, it grows and develops with society. The concept of law depends largely on the social values, accepted norms and behavioural patterns of particular society at a given time. 

There are many who would like to achieve an object through the instrumentality of law and therefore they would like to define law in terms of its purpose. Others might define law in terms of what it does in the form of actual court decisions. Law has been defined from different approaches like: (i) its basis in reason, religion, or ethics (natural law approach); (ii) by its source in custom, precedent or legislation; (iii) by its effects on the life of society; (iv) by the method of its formal expression or authoritative application, and; (v) by the ends that it seeks to achieve. 

Thus, failure to provide an authoritative definition of law can be ascribed to the fact that practical application of law does not depend on definition of law. 

Julius Stone attempted a definition of law; he finds that the various definitions of converge on the following seven steps: 

(i) Law is a complex whole of many phenomena. The meaning of this whole can only be elaborated and not defined. 

(ii) These phenomena include norms regulating human behaviour i.e. prescribing what the behaviour ought to be, forbidding what it ought not to be. 

(iii)The norms are social norms i.e. they generally regulate behaviour of a member of a society vis-a-vis others. 

(iv) These social norms are systematically arranged; it is in short a “legal order”.

(vi)Law consists of social norms which are coercive i.e. authority of law is supported by acts of external compulsions such as deprivation of life, liberty or property. 

(vii)The coercion operates according to established norms. 

This institutionalised coercive order should be effective i.e. people must by and large obey the law. 

(A possible eight step was emphasised by Kantorowicz is that the judiciary must recognize this coercive order.) 

Therefore, any definition of law must take account of all these elements. The elements are fairly represented in the following definition of law given by Paton: “Law may shortly be described in terms of a legal order tacitly or formally accepted by a community. It consists of the body of rules which are seen to operate as binding rules in that community, backed by some mechanism accepted by the community by means of which sufficient compliance with the rules may be secured to enable the system or set of rules to continue to be seen as binding in nature.” 

Gray defined law as the rules which the courts lay down for the determination of rights and duties. According to Holland, laws are propositions commanding the doinc„ or abstaining from, certain classes of action; disobedience to which is followed by some penalty or inconvenience. 

Salmond defined law in terms of judicial process. According to him: the law may be defined as the body of principles recognized and applied by the State in the administration °justice. However, Salmond’s definition is criticised because courts recognize a statute because it is law. It is not law because the courts recognize it. The purpose of law is not justice. According to Salmond, the central idea of judicial theory is just and right He said: “All law is not produced by laws and all laws do not produce law.” He also said:The Constitution is both a matter of fact and a matter of law”. 

The legal positivists defined law in terms of criterion of validity. The law or the system of a country is valid only if it conforms to an ultimate criterion of validity. 

Public and Private Law. ‘Public law’ may be divided into – Constitutional law, Administrative law, and Criminal law. ‘Private law’ may be classified into – Law of persons, law of property, law of obligations, and conflict of laws. The Law of obligations’ includes Contract, Quasi-contract, and, Tort.

Law and Morality 

Ever since law has been recognized as an effective instrument of social ordering there has been an ongoing debate on its relationship with morality. According to Paton, morals or ethics is a study of the supreme good. In general, morality has been defined to include “all manner of rules, standards, principles or norms by which men regulate, guide and control their relationships with themselves and with others.” 

Both, law and morality, have a common origin. In fact, morals gave rise to laws. The State put its own sanction behind moral rules and enforced them. These rules were given the name “law”. In the words of Hart: “The law of every modern State shows at a thousand points the influence of both the accepted social morality and wider moral ideal.” Both, law and morality have a common object or end in so far as both of them direct the actions of men in such a way as to produce maximum social and individual good. Both, law and morality, are backed by social or external sanction. 

Bentham said that legislation has the same centre with morals, but it does not have the same circumference. Morality is generally the basis of law, i.e. illegal (murder, theft, etc.) is also immoral. But there are many immoral acts such as, sexual relationship between two unmarried adults, or hard-heartedness, ingratitude, etc., which are immoral but are not illegal. Similarly, there may be laws which are not based upon morals and some of them may be even opposed to morals, e.g. laws on technical matters, traffic laws, etc. 

Morals as test o f law – Several jurists have observed that law must conform to morals, and the law which does not conform to morals must be disobeyed and the government which makes such law should be overthrown. Paton says: If the law lags behind popular standards, it falls into disrepute, if the legal standards are too high, there are great difficulties of enforcement. 

Morals as end o f law – According to some jurists, the purpose of the law is to do justice. Paton said that justice is the end of law. In its popular sense, the word ‘justice’ is based on morals. Thus, such morals being part of justice, becomes the end of justice. The ends which the preamble of our Constitution tries to achieve are the morals.