FACULTY OF LAW

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Jurisprudence-I

assignment on:

Nature of law in relation of jurisprudence.

by,
Mirza Azhar Hussain.
Roll. No. 29,
B.A.LLB(Hons) 2nd year (4th sem).

Under Supervision: Mr. Sukesh Misra sir.

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 Acknowledgement

I take this opportunity to express my gratitude and personal regards to Mr. Sukesh Misra sir

for inspiring and guiding me during the course of this project work. I also owe my sincere

thanks to my class fellows and friends for their sincere help towards completion of the

project, also to library staff of Jamia Millia Islamia for the corporation and facility extended

from time to time during the progress of my project work.

Mirza Azhar Hussain.

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 TABLE OF CONTENTS

Introduction…………………………………………………………………..04
Nature…………………………………………………………………………05
Austin’s view………………………………………………………………….05
Criticism of Austin…………………………………………………………...06
Salmon’s view………………………………………………………………...07
Criticism of salmond…………………………………………………………08
Natural law & Moral law…………………………………………………....08
Purpose & function…………………………………………………………..09
Bibliography………………………………………………………………….10

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Introduction

We know that Law cannot be static. In order to remain relevant, Law has to grow with the
development of the society. In the same manner, the scope of law also cannot be kept static.
The result is that the definition of law is ever changing with the change in society. The
definition of law considered satisfactory today might be considered a narrow definition
tomorrow. This view has been put forward by Professor Keeton. He said that an attempt to
establish a satisfactory definition of law is to seek, to confine jurisprudence within a
Straight Jacket from which it is continually trying to escape.
What is the nature of law? This question has occupied center stage Jurisprudence and
philosophy of law in the modern era, and has been the central occupation of contemporary
analytic Jurisprudence. This entry in the legal theory Lexicon aims to give an overview of the
“what is law” debate. Historically, the answer to the question, “what is Law” is thought to have
two competing answers. The classical answer is provided by natural law theory, which is
frequently characterized as asserting that there is an essential relationship between law and
morality and Justice. The modern answer is provided by legal positivism, which as developed
by John Austin, asserted that law is the command of the sovereign backed by the threat of
punishment. Contemporary debates over the nature of law focus on a revised set of positions
legal positivism is represented by Analytical legal positivists, like H.L.A Hart Joseph raza and
Jules Coleman. The natural law tradition is defined by John Punis and a new position,
interpretivism is represented by the work of the late Ronald Dworkin. In some ways, the title
of this lexicon entry is misleading because of focus on the “what is law” question as it has been
approached by contemporary legal philosophers. There are other important perspectives on the
nature of law that focus on law’s functions rather than the meaning of the concept for criteria
of legal validity. For example, the sociological tradition includes important work on the nature
of law by Max Weber and Niklas Lahumann. These issues are discussed by Brian Tamanaha
in a very clear way. This lexicon entry maps the territory of the “what is Law”? Controversy,
and provides introductory sketches of the major positions as always, the lexicon is written for
law students.

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NATURE OF LAW:

A law may be defined as a rule of human conduct that emanates from a source recognized as
competent by the legal order and which prescribes the imposition of a sanction or penalty in
the event of disobedience.' In primitive communities, and to some degree in developed societies
also, the laws emanate directly from the people, i.e. from the undifferentiated mass of the
subjects governed by them. It follows that no particular person or organ can be identified as
their source. Such laws are called customs. In the modem State, nearly all laws emanate from
some organized body or authority having competence, either directly or indirectly, under the
constitution.2 Thus the laws may be enacted by some such specialized legislative organ as a
parliament or by some organ which is primarily concerned with some other governmental
function, e.g. a iaw court. Or they may be enacted by some subordinate body or authority to
which an authority which itself possesses competence under the constitution has delegated
legislative powers. Such laws are usually called statutes (when they emanate from a specialized
legislative organ), judgments (when they emanate from a court), and regulations, by-laws,
orders or decrees (when they emanate from some other organ). Unlike customary laws all of
them emanate only indirectly from the people or subjects that they govern.

Let us study the views of Austin and Salmon on the Nature of Law.

Austin said that law is the aggregate of the rules set by men as political superior or
sovereign to men as politically subject. In short, Law is the command of sovereign. It
imposes a duty and duty is backed by a sanction. He further said that there exists three elements
in law:
a. Command
b. Duty
c. Sanction

However, Salmond defined law as the body of principles recognized and applied by the
state in the administration of justice.

Let us comeback to Austin’s definition now.

Austin’s Theory of Law or Imperative Theory of Law

As we know, according to Austin, there are three elements in law:

a. It is a type of command
b. It is laid down by a political superior
c. It is enforced by a sanction

He goes on to elaborate this theory. For him, Requests, wishes etc. are expressions of
desire. Command is also an expression of desire which is given by a political superior to a
political inferior. The relationship of superior and inferior consists in the power which

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the superior enjoys over the inferior because the superior has ability to punish the inferior
for its disobedience.

He further said that there are certain commands that are laws and there are certain commands
that are not laws. Commands that are laws are general in nature. Therefore, laws are general
commands. Laws are like standing order in a military station which is to be obeyed by
everybody.

He goes on to define who is a sovereign. According to him, Sovereign is a person or a body

or persons whom a bulk of politically organized society habitually obeys and who does
not himself habitually obey some other person or persons. Perfect obedience is not a
requirement.

He further goes on to classify the types of laws:

1. Divine Law- Given by god to men
2. Human Law- Given by men to men
a. Positive Laws- Statutory Laws
b. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc.

Criticism of Austin’s Theory of Law

1. Laws before state- It is not necessary for the law to exist if the sovereign exists. There were
societies prior to existence of sovereign and there were rules that were in prevalence. At that
point of time, there was no political superior. Law had its origin in custom, religion and
public opinion. All these so called ‘laws’ were later enforced by the political superior. Thus,
the belief that sovereign is a requirement for law has received criticism by the Historical
and Sociological School of Thought.

However, the above mentioned criticism is not supported by Salmond. Salmond said that the
laws which were in existence prior to the existence of state were something like primitive
substitutes of law and not law. They only resembled law. Salmond gave an example. He
said that apes resemble human beings but it is not necessary to include apes if we define
human beings.

2. Generality of Law- The laws are also particular in nature. Sometimes, a Law is applicable
only to a particular domain. There are laws which are not universally applicable. Thus, laws
are not always general in nature.

3. Promulgation- It is not necessary for the existence of the law that the subjects need to be
communicated. But, Austin thought otherwise.

4. Law as Command- According to Austin, law is the command of the sovereign. But, all
laws cannot be expressed as commands. Greater part of law in the system is not in the nature

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of command. There are customs, traditions, and unspoken practices etc. that are equally
effective.

5. Sanction- The phrase ‘sanction’ might be correct for a Monarchical state. But for a
Democratic state, laws exist not because of the force of the state but due to willing of the
people. Hence, the phrase ‘sanction’ is not appropriate in such situations. Also, there exists no
sanction in Civil Laws unlike Criminal Laws.

6. Not applicable to International Law- Austin’s definition is not applicable to International

Law. International Law represents law between sovereigns. According to Austin,
International Law is simply Positive Morality i.e. Soft Laws.

7. Not applicable to Constitutional Law- Constitutional Law defines powers of the various
organs of the state. It comprises of various doctrines such as separation of power, division of
power etc. Thus, no individual body of a state can act as sovereign or command itself.
Therefore, it is not applicable to constitutional law.

8. Not applicable to Hindu Law or Mohameddan Law or Cannon Law- Personal Laws
have their origin in religion, customs and traditions. Austin’s definition strictly excludes
religion. Therefore, it is not applicable to personal laws.

9. Disregard of Ethical elements- The moment law is devoid of ethics, the law loses it colour
and essence. Justice is considered an end of law or law is considered a means to achieve Justice.
However, Austin’s theory is silent about this special relationship of Justice and Law. Salmond
said that any definition of law which is without reference to justice is imperfect in nature.
He further said ‘Law is not right alone, it is not might alone, it a perfect union of the
two’ and Law is justice speaking to men by the voice of the State. According to Salmond,
whatever Austin spoke about is ‘a law’ and not ‘the law’. By calling ‘the law’ we are referring
to justice, social welfare and law in the abstract sense. Austin’s definition lacked this abstract
sense. A perfect definition should include both ‘a law’ and ‘the law’.

10. Purpose of law ignored- One of basic purposes of Law is to promote Social Welfare. If
we devoid law of ethics, the social welfare part is lost. Again, this part has been ignored by
Austin.

Merit in Austin’s Definition

Not everything is faulty about Austin’s theory of law. He gave a clear and simple definition of
law because he has excluded ethics and religion from the ambit law. Thus, he gave a paramount
truth that law is created and enforced by the state.

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Salmond’s Definition of Law

According to Salmond ‘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 rules
recognized and acted upon by the Courts of Justice.

Salmond believed that law may arise out of popular practices and its legal character becomes
patent when it is recognized and applied by a Court in the Administration of Justice. Courts
may misconstrue a statute or reject a custom; it is only the Ruling of the Court that has the
Binding Force of Law.

He further said that laws are laws because courts enforce them. He drew a lot of emphasis
on Administration of Justice by the Courts. He was of firm belief that the true test of law
is enforceability in the courts of law.

Thus, we see that Salmond has defined law in the abstract sense. His definition brings out the
ethical purpose of law. In his definition, law is merely an instrument of Justice.

Criticism by Vinogradoff

Vinogradoff heavily criticized Salmond’s definition. He said that the definition of law with
reference to Administration of Justice inverts the logical order of ideas. The formulation of
law is necessary precedent to the administration of justice. Law has to be formulated
before it can be applied by a court of justice.

He further said that the definition given by Salmond is defective because he thinks law is
logically subsequent to administration of justice. Existence of a Rule of Law because Courts
of Justice could apply it and enforce it while deciding cases, vitiates the definition of law.

Natural Law or Moral Law

Natural Law refers to the Principles of Natural right and wrong and the Principle of Natural
Justice. Here, we must use the term ‘justice’ in the widest sense to include to all forms of
rightful action. Natural Law is also called Divine Law or Law of Reason or The Universal Law
and Eternal Law. This law is a Command of the God imposed on Men.

Natural Law is established by reason by which the world is governed, it is an unwritten law
and it has existed since the beginning of the world and hence, is also called Eternal Law. This
law is called Natural Law as its principles are supposed to be laid down by god for the guidance
of man. It is called Rational Thought because it is based on reason. Natural Law is unwritten
as we do not find it in any type of Code. Therefore, Natural law exists only in ideal state and
differs from law of a State. Philosophy of Natural law has inspired legislation and the use of
reason in formulating a System of law.

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Purpose and function of law

Society is dynamic and not static in nature. Laws made for the people are also not static in
nature. Thus, purpose and function of law also cannot remain static. There is no unanimity
among theorists as to purpose and function of law. Thus, we will study purpose and function
of law in the context of advantages and disadvantages.

1. Advantages of law-

a. Fixed principles of law

i. Laws provide uniformity and certainty of administration of justice.

ii. Law is no respecter of personality and it has certain amount of certainty attached to it.
iii. Law avoids the dangers of arbitrary, biased and dishonest decisions because law is certain
and it is known. It is not enough that justice should be done but it is also important that it
is seen to be done.
iv. Law protects the Administration of Justice from the errors of individual judgments.
Individual whims and fancies are not reflected in the judgment of the court that follow the Rule
of Law.

b. Legislature represents the wisdom of the people and therefore a law made by the legislature
is much safer because collective decision making is better and more reliable than individual
decision making.

2. Disadvantages of law-

a. Rigidity of Law- An ideal legal system keeps on changing according to the changing needs
of the people. Therefore, law must adjust to the needs of the people and it cannot isolate itself
from them. However, in practice, law is not usually changed to adjust itself to the needs of
the people. Therefore, the lack of flexibility results into hardship in several cases.

b. Conservative nature of law- Both lawyers and judges favour in continuation of the existing
laws. This creates a situation where very often laws become static and they do not respond to
the progressive society because of the conservative nature of law.

c. Formalism of law- Most of the times, people are concerned with the technical operation of
law and not the merits of every individual case. It creates delay in the Justice Delivery system.
It also leads to injustice in certain cases.

d. Complexity of law- Sometimes, the laws are immensely intricate and complex. This causes
difficulty in Interpretation of Statutes.
3. Therefore, advantages of law are many but disadvantages are too much- Salmond

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 BIBLIOGRAPHY

Books:
1. Dr. N.V. Paranjapae, Studies in Jurisprudence and Legal Theory, 7th Edition, Central
Law Agency.
2. P J Fitzgerald, Salmond on Jurisprudence, 12th Edition, Universal Law Publishing Co.
Ltd.
Journals:
1. George W. Goble, Nature, Man and Law, American Bar Association Journal
Vol. 41, No. 5 (MAY 1955), pp. 403-407, 473-476.
Websites:
1. www.books.google.co.in
2. www.jstore.com
3. www.catholicculture.org
4. www.mit.edu.

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