Law is incapable of having any universally accepted definition for it depends upon a host of different factors such as the social setup, cultural ideas, territory, political conditions, economic conditions, etc.
Nature & Definition of Law | Overview Ideological Definitions Roman Definitions Ancient Indian Definitions Modern Definitions Positivistic Definition Sociological Definitions Realistic Definitions Nature of Law Law forms the subject matter of jurisprudence. Therefore, it is essential to examine the nature and definition of law. Many jurists have argued that there exists no exact definition of law. They have gone on to say that law cannot and should not be defined for the...
Nature & Definition of Law | Overview
- Ideological Definitions
- Roman Definitions
- Ancient Indian Definitions
- Modern Definitions
- Positivistic Definition
- Sociological Definitions
- Realistic Definitions
- Nature of Law
Law forms the subject matter of jurisprudence. Therefore, it is essential to examine the nature and definition of law. Many jurists have argued that there exists no exact definition of law. They have gone on to say that law cannot and should not be defined for the same would narrow down its scope.
According to Arnold, the law is incapable of being defined. However, he states that this particular fact must not discourage the people from attempting to define law for the world rejects renders anything that is incapable of definition as irrational. Lloyd has observed that several attempts have been made over time to provide a universally acceptable definition of law, however, none of them have even remotely succeeded.
According to Keeton, "to attempt to establish a single satisfactory definition of law is to seek to confine jurisprudence within a straight jacket from which it is continually striving to escape."
Law is incapable of having any universally accepted definition for it depends upon a host of different factors such as the social setup, cultural ideas, territory, political conditions, economic conditions, etc. Due to this, several different definitions of law have emerged which can be broadly classified as follows:
1. Ideological Definitions
Ideological definitions are called so because they are based on cultural ideas and beliefs that ancient legal systems hold. These can be further subdivided as follows:
Roman Definitions
According to the Justinian Code, "Law is the standard of what is just and unjust." Thus, it declares law as a yardstick to determine whether an act is justified or not. Ulpian believes law to be an "art of science of what is equitable and good." Cierco, on the other hand, states that, "Law is the highest reason implanted in nature."
Ancient Indian Definitions
The Hindu legal system is one of the most ancient legal systems of the world. It is based on the concept and philosophy of "Dharma". Dharma refers to the order set by nature and the adherence of the human beings to such natural order. It includes the concept of nyaya or justice. The term natural order implies to the cosmic order- the law which sustains the entire universe. The Hindus believe that dharma ensures that humans exist in harmony with the entire cosmos or universe.
Modern Definitions
The modern definitions of law regard law as a means to achieve the goal of justice. While the ancient ideological definitions defined law in context of the society, the modern definition defines it in context of the State. According to Salmond, 'law' refers to "the body of principles recognized and applied by the state in the administration of Justice."
The ideological definitions of law are widely criticized for confusing the ideas of law with that of justice.
2. Positivistic Definition
Positivistic definition of law is mainly concerned with the idea of positive law. The positivists view the law as "the aggregate of rule set by men as political superiors, or sovereign, to man as a political subject." It has been widely criticized on many grounds. Firstly, it is argued by critics that the positivistic definition fails to recognize laws which have been come into existence even before the idea of 'State' emerged.
Secondly, the positivistic definition of law regards law as a general rule of conduct which is not practical in all the spheres of law.
Thirdly, the positivistic definition requires the law to be communicated or promulgated to the general public or "political subjects" by whom such law is to be followed. However, many legal systems around the world do not recognize promulgation as an essential requirement for a law to be enforceable.
Fourthly, all laws cannot be said to be "commands". There are several laws which neither instruct nor forbid people from doing something. Such laws empower people in order to provide them with the means to achieve an objective.
Fifthly, the idea of sanctions behind law cannot be said to be applicable to the modern democratic state. Lastly, the positivistic definitions of law fail to recognize international law.
3. Sociological Definitions
The sociological definitions of law reject the idea of legal right. They view law as a product of the society. According to Duguit, "Law is essentially and exclusively as a social fact." Ehrlich defined law as "norms which govern social life within a given society." Roscoe Pound regarded law as "a social institution to satisfy social needs."
4. Realistic Definitions
Legal Realism is considered to be a branch of the sociological approach. The realistic definitions are mostly unconcerned with the ends of the law. The "realists" aim to study the actual workings of law and reject the traditional definitions which regard enacted law as the only true law.
Holmes J., a noted American realist, regarded law as "prophecies" of what the courts will do. The realistic definitions of law are mainly concerned with litigation and judge-made law. According to them, "formal law is simply a guess as to what the courts would decide and law is what the courts actually decide."
Nature of Law
From the various definitions of law, its nature can be deduced as follows:
- Law is a Social and a Normative Science- The primary aim of the law is to regulate human conduct. It has been introduced to maintain order in the society. Thus, law is essentially a social science and is normative in nature since it lays down rules for human conduct.
- Law is Dynamic in nature- An essential element of law is its dynamic nature. According to the Supreme Court of India, "Greatest virtue of Law is its Adaptability and Flexibility."[1]
- Law is Territorial in nature- The enforcement of a law is limited to the territory of a State. Different states around the world have their own legal system and laws. An act which is a crime in State A might be considered to be righteous in State B. Modern legal systems have introduced the concept of extra-territorial law whereby certain laws may be enforced even outside the territory of the Sate. The concept of extra-territorial laws has been recognized by the Indian Legal System as well.[2]
References
- V. D. Mahajan, 'Jurisprudence and Legal Theory', Fifth Edition, Eastern Book Company.
- W. Friedmann, 'Legal Theory', Fifth Edition, Sweet & Maxwell (South Asian Edition).
[1] Balbir Kaur and Anr. v. Steel Authority of India & Ors., (2000) 6 SCC 493.
[2] See Mobarik Ali Ahmed v. State of Bombay, AIR 1957 SC 857.
