DEFINITION OF LAW

By Kenneth Njiri

INTRODUCTION

The definition of the term ‘law’ has been a long term debate. Many have tried to come up with a
conclusive definition but to no avail. Most of the definitions have faced criticisms due to their
shallow nature of definition. There are others which have been criticized due to their rigidity.
Based on these hitches, is there need to define law? Is there any importance attached to the
definition of law? A layman also understands law and can explain in his or her own language.
Why should we bother with the definition of law? Legal scholars have done their best to define
law but they have fell short of defining what the law is.

In this paper, I will examine what law is. First, I will explain whether it is important to define
law. Secondly, I will look into the factors that need to be considered when giving meaning to the
term ‘law’. Thereafter, I will conclude by my own definition of the term ‘law’.

001. DEFINITION OF LAW: IS IT NECESSARY?

Many definitions have been attached to the term ‘law’. Many legal theorists have come with the
definition of the term ‘law’. The laymen also recognise ‘law’ and also have their own definitions
of law. Is it necessary to come up with a universal definition of this term? If it is necessary, why
should we attach meaning to this term? According to me, there can never be a conclusive
definition of the term law. This is because people have different ideologies about the law and
these ideologies influence their definition of the term law. For example, a lawyer may use the
law to defend the client in court. A prosecutor may use that law to ensure that a suspect ends up
in jail. The law may be used to conduct the activities of certain people in the society. For
example, a law to regulate the quantity and quality of milk of the farmers. When one considers
these three people and allows them define the term ‘law’, one will give varied opinions
concerning the law. The farmers will say that the law is there to regulate their farming activities.
The lawyer will say that the law is there to defend criminals. The prosecutor will say that the law
is there to ensure that wrong conduct is punished. All this will be in their definitions of the term
‘law.’

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In case there is a conclusive definition of law, then there would be no need for jurisprudence. In
fact, there would be no need for dynamism in law because the definition itself would be treated
as the alpha and omega. Secondly, too many definitions may create confusion amongst the legal
scholars and other members in the society. Some of the definitions do not even rhyme with the
roles as well as the ideologies of the society. From the examples given above, ideologies differ
from one society to another. Therefore, some ideologies are not applicable in other societies. For
example, the ideology of defending a person is only applicable to the lawyer and not a farmer.
Thirdly, including all these ideologies in one definition is cumbersome since it would take
thousands and thousands of words to explain the definition of law. It is my submission that there
is no need for finding a conclusive definition of law since this would vary from one society to
another. Secondly, there is also need for defining law. However, in my paper, I will give
meaning to the term law. Nevertheless, my opinion is that there is no need to define law. I think
the best way to understand law is to understand its ideology and role in a given society.

002. FACTORS TO CONSIDER WHEN DEFINING LAW

In defining law, there are three factors that have to be considered. To begin with, one has to
consider whether there is a society. I argue that for there to be law, there has to be people who
accept to be governed. Secondly, one has to consider the validity of the ‘law’. One has to
consider whether the law has been accepted by the society or not. Further, one has to consider
how the ‘law’ attained its validity. Did it come from the people themselves? Did it come from
the bodies mandated to make ‘law’? Where did the ‘law’ originate from and how did it attain its
status of governance? Thirdly, one has to consider the roles the law plays in the society. Is the
‘law’ effective in the society? To whom is it directed to? How does ‘law’ affect members of the
society? I will consider the three factors in defining ‘law’.

003. DEFINITION OF LAW

I will base my position on the definition of law on these four key arguments:

(i) Law is a social science.

(ii) It comes into force after being validated.
(iii) It deals with the concerns that have arisen from the society.
(iv) It imposes sanctions whether express or implied.

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 I. LAW IS A SOCIAL SCIENCE

According to Macmillan English Dictionary, the word ‘social’ means ‘relating to society and to
people’s lives in general’1. Therefore, for something to be called a social object, it has to be
related to the society and people. The definition of a society is ‘people in general living together
in organized communities, with laws and traditions controlling the way that they behave towards
one another2.’ Therefore, for a society to exist, there has to be a collection of people (two or
more people). Secondly, these people live together. This implies that these people have a certain
way of life that makes them live together. Thirdly, there has to be a territory in which these
people are living. Fourthly, there has to be regulation of conduct or behavior by the members.
The regulations step in to regulate their conduct and ensure harmonious living among the people
at a time when they are living together.

Science is defined as ‘the study and knowledge of the physical world and its behaviour that is
based on experiments and facts that can be proved, and is organized into a system3.’ From the
above definition, it is evident that for there to be science, there has to be a study that has to be
carried out. Secondly, the study, in itself, is directed towards the world (living and non-living
organisms) and its behaviour. Thirdly, this study is based on experiments and facts. For one to
analyse these experiments and facts, one has to have the knowledge related to the experiment and
facts. For example, for one to invent a cure or a vaccine for corona virus, one has to have a
background information of corona virus. Upon attaining the background information, one has to
conduct experiments and gather facts to ensure that an effective vaccine or drug is invented. The
inventor has to consider factors, one of them which includes, how the human beings will respond
to the drug. Fourthly, the facts and experiments should be capable of being proved. The inventor
of the corona virus vaccine or drug must be capable of proving that the drug is effective. Fifthly,
the study and the knowledge should be organized into a system. A system is ‘a set of connected
things that work together for a particular purpose.’ The experiments and the facts have to be

1
Macmillan English Dictionary for Advanced learners 2 nd Edition p1417
2
Ibid
3
Ibid p1329

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considered to achieve a certain goal. The inventor of the corona virus vaccine has to put the
experiments and the facts together to find a cure or vaccine for the corona virus disease.

Law deals with issues in the society. It arises out of concerns from the society. The people decide
to come up with rules and regulations to govern their behaviour in the course of their
interactions. These rules and regulations dictate to the people what to do or what not to do. The
law deals with people. However, other living organisms are also regulated by law.

The law is a science. It is arrived after one has considered the societal concerns in the society.
For one to understand the societal concern, one has to gather facts to see the problems in the
society and how the problem will be addressed. For one to come up with the law, one has to
understand the principles that underlie it. The principles will make the law maker to understand
how to frame the law to suit the needs of the members of the society. Further, one has to have the
knowledge to collect authentic data or information to ensure that an effective law is enacted. The
facts are collated to see the problem to be addressed in the society. Thereafter, a law is enacted to
address the problem in the society. There are various bodies that touch on the law. There is a
body that enacts laws(legislature), a body that enforces laws(executive) and a body that interprets
the law(judiciary). All these bodies form a system which ensure that the law benefits the society.

Law as a science is also evident in courts. The advocates, in their submissions, apply the law
with the facts of the case. Therefore, for them to fight justice for the clients, they have to
convince the judge through cases which are called precedents. Precedents are decisions made by
judges in the previous cases that seek to move the judge to decide a similar case in accordance
with the previous cases. The advocates rely on precedents that were decided in higher courts to
appeal the judge to rule the case in their favour. This is also a form of science. The judge will
also rely on precedents in his or her decision of the case. The judge analyses the previous cases
and tries to marry the facts of the case with the legal principles that have been laid out by the
previous cases. The judge has the authority to distinguish cases. He or she has the authority to
depart from the earlier decision of the court in case he thinks that the previous case was decided
per incuriam or the facts of the case do not interlink with the legal principles.

II. IT COMES INTO FORCE AFTER BEING VALIDATED

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To validate is to make something valid. According to the Blacks law Dictionary the meaning of
valid is to be ‘legally sufficient4.’ According to the Macmillans English dictionary, the word
validate means ‘to officially prove that something is true or correct5.’ Therefore, for one to
determine the validity of a law, one has to ascertain whether it is true or correct. Does it mean
that the law may not be true? Something that is not true is not accurate. How does one determine
the accuracy of the law?

Majorly, the validity of laws is determined by the presence of higher norms. The pure theory of
law is of the view that ‘the creation of a norm’ is ordered by higher norms6. In case a single norm
is in conflict with the higher norm, the single norm is void to the extent of its inconsistency. The
higher norm is also known as the grundnorm. Most of the states in the world regard their
constitutions as the supreme law and any other law inconsistent with the constitution is void to
the extent of its inconsistency. Moreover, the states believe that the constitution came into being
out of the sovereign power of the people. These constitutions have stipulated that the sovereign
power of the people needs to be respected. Further, the people have the power to amend the
constitution. All these are higher norms which need to be respected. There has also been an
argument that the norms are above the constitution (supra-constitutional). The higher norms are
also above the framers of the constitution themselves. These higher norms qualify the validity of
the law.

Some constitutions stipulate the roles of certain bodies with regards to the law. Most of the
constitutions stipulate a three-tier government. They state that the government should include the
following: the legislature, executive and the judiciary. The legislature is given the responsibility
to enact and amend the laws, the executive to implement the laws and the judiciary to interpret
the laws. However, it should be understood that not all governments have this three-tier system
but they still make laws as long as the people follow those laws. It is presumed that they follow
these laws since they recognise that the laws have been enacted by certain persons who have the
authority to do so whether they have a constitution or not.

4
Blacks law Dictionary Ninth Edition p1690
5
Supra n1 p1653
6
Juristic Definition of Law (1968) 78The University of Chicago Press 255 p257. It was accessed on 3 rd February
2020 at 1439 hrs.

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What about states that are led by only de facto governments? What about states that are led by
tyrants? Are laws still being formulated in those states? My answer is yes. The dictators in this
case will be considered the source of validity. The people in these states, by their conduct in
following these laws, show that they recognise the laws hence they also recognize the source of
validity, Despite even being coerced to follow these laws, it is still evident that they recognise
the validity of the laws. They recognize that these laws, however bad they are, have been enacted
by the government (which they believe has the power to enact laws) and that they know that the
government intended them to follow them.

III. IT DEALS WITH CONCERNS THAT HAVE ARISEN FROM THE SOCIETY

What is the essence of law without the society? What is the essence of law without any problem
in the society? Due to the selfish nature of the human beings, the society experiences problems.
Humans would like to preserve themselves in order for them to survive in the society. The
common saying of ‘every one for himself and God for us all’ shows the selfish nature of human
beings to take care of their needs first. Therefore, humans will go against the societal values
because they want to meet their needs. For example, a person sets up an industry in a certain area
which deals in the manufacture of Sulphur(IV)Oxide. The person knows that it is very expensive
to set up structures that would reduce the Sulphur(IV)Oxide fumes from escaping into the
environment. He or she allows the fumes to escape into the environment. The fumes later cause a
child to be asthmatic and the child dies. The mother of the child will demand justice. Therefore,
there has to be a law in place in favour of her. How about other people other than the mother
complaining about the effects of the fumes? Will the law be enacted to address their needs?

Laws are enacted to address these issues. A law will be enacted to address the aftermath of the
pollution. In case the law is enacted, the issue will be addressed and probably reduce the rate of
death (in case there are numerous deaths that have occurred due to the environmental pollution)
The persons who have set up manufacturing industries will be cautious in their work to avoid
being caught up with the law thus reducing the rate of death in the society. As a result, there is
the protection of the society (the current and the future generations).

IV. IT IMPOSES SANCTIONS WHETHER EXPRESS OR IMPLIED

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A sanction is an ‘official approval or authorization’. It also means ‘a penalty or coercive measure
that results from failure to comply with a law, rule or order.’ Therefore, for there to be sanctions,
an ‘official approval’ has to be sought. What is regarded as an official approval? This will
depend on the grundnorm (the higher norms). The grundnorm dictates the approval of the law.
As earlier mentioned, one of the grundnorms may be the constitution as most of the states or
people regard it as the supreme law of the land. There are other societies that regard other higher
norms other than the constitution. Once approved, it is accepted by the members of that society
as law.

A ‘penalty or coercive measure’ must be evident in that law. This may be express or implied.
One can argue that dead laws are still part of the law system yet they have no coercive nature.
However, my argument is that there is an implication that these laws have a coercive nature. As
long as they have been approved regardless of their time of approval, they are still law. It does
not matter whether their presence has been felt or not. Maybe the laws were enacted to counter
challenges that would occur in the future. Maybe the laws were enacted to counter problems that
will arise time and again. Therefore, as long as they have not been invalidated by the higher
norms of the society, they remain part of law. The laws, in themselves, have a ‘punishment’ goal
in the end. Anyone who breaches the laws is punished. This would ensure that the members of
the society respect the societal values. Moreover, the punishment deters the members of the
society from committing a wrong in the society because they are afraid of being punished by the
law.

004. CONCLUSIVE DEFINITION OF LAW

I conclude by defining the law as a social science that has obtained social validity and governs
any member of that particular society to whom it is directed to, upon consideration of the
concerns of the society.

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