law: its meaning and
definition by jurists of different
shades
1-Abstract
The term ‘law’ has no single and static
[Link] has been varying from jurist to jurist as per
societies. Law and society are intertwined; since society is
destined to grow and develop so is the case with law to cope
with the emerging issues of society. JOHN MORRIS, an
Australian jurist, accentuates this phenomenon by expounding
the following analogy
“To a zoologist, a horse suggests the
genus mammalian quadruped, to a traveler a means of
transportation, to an average man the sports pf kings, to
certain nations an article of food.”
Likewise, law has been defined in various manners by various
jurists from various viewpoints.
2-Meaning of law
In common parlance, it refers to certain rules imposed and
enforced by society culminating into some rights and duties in
its application.
BLACK’S LAW DICTIONARY defines it as follows “The aggregate
of legislation, judicial precedents and accepted legal principles;
the body of judicial and administrative action”.
3- John Austin’s notion of law
“Law is the general command, issued by sovereign and
enforced with sanction”
a- Generality of command differentiate b/w law and ordinary
command i.e transitory command given to troops on
parade ground.
b- Sovereign refers to supreme authority of polity whom the
bulk of population habitually obeys but he doesn’t do so.
c- Sanction denotes that failure to obey the command can
entail evil consequences.
d-
4- Criticism on Austin
a- Critics, mainly of historical school, point out that there was
no sovereign or polity in primitive society.
b- But law still existed as custom and religion reigned
supreme, hence basis of law not command of sovereign.
c- Law is prior to and independent of political authority.
Austin’s reply to criticism; he said that what sovereign
doesn’t forbid, it accepts and what it accepts, it actually
commands.
But, Henry Maine terms this answer as ‘artifice of speech’.
John salmond in support of Austin; rules existed before
political state would resemble law but weren’t actual law as
APES are not actual HUMAN BEINGS.
5- salmond’s definition of law
“The body of principles recognized and applied by the state in
administration of justice. In other words, law consists of rules
recognized and acted upon by courts of justice.”
Salmond differs from AUSTIN in the sense that he makes law
purposeful__ seeking justice.
Austin took law as an end while for salmond it is a means to
achieve an end.
Then, Salmond makes law contingent upon its recognition and
administration by court.
6- Criticism on salmond
a- Critics assert that a judge acts for application of law after
it’s is made. Definition of law starting from his action is
absurd.
VINODRADOFF says that: “what should we think of a
definition of medicine as a drug prescribed by doctor?”
THEN, if administration of justice is defined as application
of law, it would be utter idiosyncrasy to term law as what
is applied in administration. From this viewpoint,
salmond’s definition suffers from running in a circle.
b- The term ‘body of principles’ gives more of abstract and
metaphysical principles not categorically explains i.e
statutes, ordinances, act passed by parliament etc.
7- definition of law by jurists of
analytical school
Thomas Hobbes, John Austin and Jeremy Bentham ere chief
exponents of this school.
a- This school considers law as command given by superior to
inferior and enforced with material sanction.
b- Sovereign is determinate superior.
c- The merit of this school lies in their simplicity and
consistency.
HOWEVER, modernists reject this as being more of monarchial
nature and detrimental to modern republics.
8- Jurists of historical school
and their definition of law
Savigny and sir Henry Maine are main proponents.
They view law as result of varying, progressive and slow-cum-
lengthy social process than arbitrary will of sovereign.
In primitive ages, customary rules not the will of sovereign,
would rule the roosters.
“HUMAN NATURE is far from radical change; and therefore that
to which we give the name of law has been ans still is and will
forever continue to be custom.”
9- Jurists of sociological school
and their notion of law
Duguit, krabbe, and Laski as major founders.
a- Law as product of social forces and serves needs of
society and satisfy desires of individuals. To judge its
efficacy, we must see if it satisfies needs of society.
b- Law must be synchronized with the fundamental social
rules.
Prof. LASKI says that “an individual consenting mind is
source of law. People obey law to fulfill desires. A good law is
which has, as its result, the satisfaction of desires in maximum
possible manners.”
10- KARL MARX’S definition of
law
He hails from socialist school.
“Law is intimately associated with the nature of state.”
a- In Capitalistic state, it is the will of bourgeois class only to
serve its interests.
b- In socialist state, it is a tool to set up socialist state.
That’s why MARX lays down that “there is no single best form
but there are forms which suits or don’t suit.”
11- Philosophical and
comparative school
a- Philosophical school considers law as an abstraction, based
upon abstract ethical principles of justice.
b- Comparative school advocates examination and
comparison of legal systems of past and present, with a
view to arrive at certain conclusion.
12- Conclusion
The above said juristic definitions buttressed the viewpoint
that there is no definite and absolute definition of law. But,
every school holds some truth. Some take it as command of
sovereign whiles other more than that. One moment, it seems
that state-force is sine qua non for it; next moment nullifies this
view that if majority of people resorts to rebellion, then it is
useless. Some jurists put custom as basis of law, while
modernity invalidates this notion. Succinctly, law from__ the
perspective of definition__ is fluid not static.
