laws are principles enforced by court: a critical analysis

“Laws and principles are not for the times when there is no temptation: they are for such moments as this, when body and soul rise in mutiny against their rigour … If at my convenience I might break them, what would be their worth?” ― Charlotte Brontë, Jane Eyre

INTRODUCTION

Law is a common term that we come across frequently in our daily lives. However, we utilise this in a very abstract sense. There are numerous definitions of law that might be used. The principles and regulations established in a society by some authority and applicable to its inhabitants, whether in the form of legislation or custom and policies recognised and enforced by judicial decision, can be described as law. This can be written or spoken, but in fact, we enforce written and well-documented legislation. Laws promote social well-being and peace by focusing on reducing harmful behaviour by others. To maintain control, the law imposes a set of norms.

Law is difficult to describe, as the word implies, because the meaning and attributes of law differ from person to person. Aristotle, Cicero, and Karl Marks all presented definitions of law based on their points of view in ancient times. Here are some contemporary researchers’ definitions of law:

Sir John William Salmond wrote that “Law as the body of principles recognized and applied by the state in the administration of justice.”

Oliver Wendell Holmes wrote in The Common Law (1881) that the life of the law is not logic but experience, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”;

Roscoe Pound (American jurist born 1870-1964) named the informal practices of legal institutions “the law-in-action,” contrasting it to “the law-in-the-books,” by which he meant formally enacted legal doctrine. He also stated that “The law must be stable, but it must not stand still.”

 Karl Nickerson Llewellyn identified five “law jobs”

The purpose of law in any community is to-

  1. Keep the community from becoming a source of tumultuous conflict. Law contributes to the stability of a peaceful, orderly community by offering a mechanism of resolving disputes.
  2. Resolve disagreements among community members. Property law supports corporate operations, but rules restricting government power help to ensure some individual liberty.
  3. Adjust to changes in the community’s and its members’ situations. The ban of racial discrimination, on the one hand, and the construction of national health and social security systems, on the other, are examples of how law can be used to effect social change.
  4. Recognize the authority structure of the community.
  5. Establish procedural rules for performing other tasks.

Laws are a set of rules that are understood and followed in society in order to create a harmonious and peaceful community. Laws ensure that there is a resolution to any disturbance and that the state’s authority is enforced. Laws are enacted to prevent unethical behavior in society and to punish criminals. There are various kinds and subcategories of laws that oblige the guild members to live in peace.

It is commonly understood that law is a dynamic concept that evolves with society’s progress under various socioeconomic and political contexts. Rapid changes in modern times have created new challenges and issues that must be addressed by legislation using a pragmatic approach to law interpretation. Modern jurisprudence must do so while taking into account the social ethos and changing patterns of society, thereby expanding its reach as a science of law.

NATURE OF LAW

The term law can be interpreted in two ways: abstract and tangible. When the term ‘law’ is used in an abstract sense, it refers to a legal system, such as the Indian law, the law of defamation, law and justice, and so on. A statute, enactment, ordinance, or other exercise of legislative authority is referred to as the law.

We talk about ‘law’ or ‘the law’ in the abstract, but we talk about ‘a law’ or ‘of laws’ in the specific. The term ‘jus’ refers to abstract law, whereas ‘lex’ refers to real law. As a result, it is self-evident that ‘the law’ and ‘a law’ are not the same thing in terms of essence and scope.

DEFINITIONS OF LAW

According to Austin, “Law emanates and is enforced by the State. He firmly believed that there is a confluence of command, sanction and sovereignty in law.”

According to Hegel, “It is the abstract expression of the general will existing in and for it.”

According to Savigny, “The rule whereby the invisible borderline is fixed within which the being and the activity of each individual obtains a secure and free space.” He said that law grows with the growth of people, strengthens with the strength of people and finally dies away as the nation loses its nationality.

According to Ihering, law emphasises on two basic elements, namely social control and social purpose. In his view “Law is the form of gurantee of the conditions of life in society, assured by state’s power of constraint.”

According to Friedmann, “The law consists of norms of conduct set for a given community and accepted by it as binding by an authority equipped with the power to lay down norms of a degree of general application to enforce them by a variety of sanctions.”

According to Duguit, ‘”Law is essentially a social fact which regulates the conduct of each individual in the community.”

According to Parker, “Law is the body of principles enforced and applied by the state through judicial authorities by physical force in pursuit of justice.”

According to Salmond, “Law as the body of principles, recognised and applied by the State, in the administration of justice.”

CLASSIFICATION OF LAW BY DIFFERENT THINKERS

Different thinkers like Salmond, Austin and Holland have classified law into the number of categories.

There classification is as follows:

Salmond’s Classification of Law

Salmond has given an exhaustive classification of laws. He has referred to nine kinds of laws, which are as follows:

  1. Imperative Law:

It’s defined as “a rule that prescribes a broad course of behaviour enforced by some authority that enforces it through greater strength, whether through physical force or any other type of coercion.” ‘Austin’ was a leading proponent of the imperative theory of law, which defines law as a sovereign mandate that all people must obey. It could be heavenly or human in origin.

Human laws can be divided into three categories: civil law, law of positive morals, and law of countries, sometimes known as “international law.” Civil law is made up of instructions given by the state to its citizens and enforced by the state’s physical force. The law of positive morality is made up of regulations that society imposes on its citizens and enforces through public scorn or disapproval. International law is a set of laws imposed on states by a society of states and enforced in part by international agreements and in part through the threat of war. Imperative law is made up of two parts.

First, the sovereign’s command must be broad and addressed to a specific individual; second, law enforcement should not be left to the will of the people, but should be implemented by some authority.

2. Physical or Scientific Law

Physical laws are scientific laws that express the uniformities of nature. These laws are faultless in their consistency and regularity, and they are not subject to modification. For instance, the laws of gravity, motion, and air pressure, among others.

3. Natural or Moral Law

The concepts of justice and wrong underpin natural law. It encompasses all sorts of good deeds. Natural law is sometimes known as eternal law or universal law. Because it is based on reason, it is also known as ‘rational law.’ It is devoid of any bodily compulsion and embraces moral precepts. Hugo Grotius formulated international law using natural law.

Aristotle, Cicero, Kant, Locke, Pufendorf, and others are among those who built their legal philosophy on natural law ideas. Natural law embodies natural justice principles, of which legal justice is a more or less flawed embodiment. Legal and natural justice are two overlapping circles, in which justice can be legal but not natural or moral, or moral but not legal, or both legal and moral.

The three consequences of natural law are as follows:

• It has the power to declare a human law void if it contradicts natural law.

• Natural law aided the development of judicial and legal processes during the mediaeval period. During this time, an individual’s natural rights were increasingly important.

• It has given international law the strength to develop as a law.

4. Conventional Law

Conventional law, according to Salmond, is “any norm or set of rules agreed upon by persons for the regulation of their conduct toward one another.”

It’s a type of special legislation. A conventional law is something like the norms of a club, a cooperative society, or any other voluntary organisation. Some commentators argue that the law of nations, commonly known as international law, is a type of conventional law because its principles are officially or implicitly agreed upon by the member states.

5. Customary Law

Many customs have been in the community since the beginning of time, even before the states were established. With the passage of time, they have acquired the status of law. According to Salmond, “Any norm of action that is genuinely observed by men when a custom is firmly established is enforced by the state as law because of the people’s broad consent.”

The entire Hindu law of marriage, adoption, and succession, for example, is founded on ancient Hindu society’s practises. The legal authority of custom as a law is a point of contention among jurists. Some see it as a proper Jaw, while others just regard it as a legal source.

Particularly, the positivists do not accept custom as a proper law but treat it only as a source of law. But historical jurists like Savigny and Henry Maine have recognised customary law as far more superior to the law of the State.

6. Practical or Technical Law

Practical laws are norms created by human action for a specific field. This area may contain rules governing cleanliness and health, as well as building construction and architecture.

7. International Law

Bentham coined the term “international law” in 1780 to describe the law of countries of the 18th century. It is made up of rules that govern the interplay between states. “International law,” according to Oppenheim, “is the body of customary and conventional principles that are considered legally enforceable by civilised governments in their interactions”. The Permanent Court of International Justice (PCIJ) in SS Lotus case defined International law as:

“Principles which are in force between all independent nations.”

According to Starke, International law is defined as “Rules of conduct which States feel themselves bound to observe and therefore do commonly observe in their relations with each other, and which also includes:

The rules of law relating to functioning of international institutions and organisations, their relations with each other and their relations with states and individuals, Certain rules of law relating to individuals so far as the rights and duties of such individuals are the concerns of the international community.

According to Russel, International law is defined as, “the aggregate of the rules to which the nations have agreed to their conduct towards one another.” Salmond, however, believes that “International law is essentially a species of conventional law and has its source in International agreements.”

According to Austin, Willoughby and Holland, International law is a mere positive morality. They disagree that it is law in the appropriate sense of the word. A compendium of standards for human conduct set and enforced by a sovereign political authority, according to Austin. International law’s validity is exclusively dependent on the voluntary acceptance of States in the absence of any binding force, and hence it cannot be called ‘law’ in the real sense of the term.

Holland also supports to this view of Austin and observes, “The rules of international law are voluntary, though habitually observed by every State in its dealings with the rest, can be called ‘law’ only by courtesy, Oppenheim defends international law as ‘law’ and says a Weak law nevertheless is still a law.”

Professor Dias claims that while States pay international law significantly less regard than individuals do municipal law, it is still named “law” to inspire a sense of obligation among states to follow it. As a result, it is ‘law,’ but it is a weak law.

“States consent to the standards of international law not because they want to, but because they have no other choice,” says Harold Laski. International law is not regarded as a part of UK law ipso facto, as Chief Justice Coleridge held in the Franconia case.

8. Prize Law

That portion of International law which regulates the practices of the capture of ships and cargo in wartime, as applied by courts is called ‘prize law’. It is meant for administering justice between the captors of ships or cargos and the persons interested in the property seized. Salmond, however, disagreed with the view that prize law should be regarded as a branch of International law in strict sense of the term.

9. Civil Law

Civil law refers to the state’s enforcement of the law. This law is backed by the force of the state. Civil law is primarily territorial in character, as it only applies within the boundaries of the state in question. Although the name ‘civil law’ comes from the Latin phrase ‘jus civile,’ Austin and Holland prefer to refer to it as ‘positive law,’ because it is enacted by a sovereign political authority. Salmond, on the other hand, defends the phrase “civil law” as the law of the land.

Austin’s Classification of Law

John Austin has classified law into following categories: Divine Law and Human Law.

Positive moralities, such as international law, are laws established by non-political superiors. So-called law, metaphorically or symbolically.

Austin considers only divine and human law to be valid law, but does not consider positive morality or figurative law to be law in the true meaning of the term because they lack binding force in the absence of a penalty and have no negative consequences if they are broken.

Holland’s Classification of Law

Holland classified law according to their functions. He classified law into following categories:

  1. Private and Public Law

There are two types of statutes: public and private. A public act is distinguished by the fact that judicial notice is taken of its existence. Private, on the other hand, is anything that does not fall under the normal jurisdiction of the courts of justice and will not be applied by them until specifically drawn to their attention. The adjustment of relationships between people is the province of private law, whereas the interaction between people and the state is the province of public law. In private law, the parties to a dispute can be either natural or artificial individuals, and the state’s role is limited to that of an adjudicator through its courts. The laws of property, contracts, corporations, torts, trusts etc are examples of private law. Public law, on the other hand, seeks to regulate the activities of the state.

The important sub-divisions of public law are:

  • Constitutional Law
  • Administrative Law
  • Criminal Law
  • Criminal Procedure.

In general, public law concerns the state’s rights and obligations to its citizens, as well as vice versa. Municipal law is the combination of private and public law. The state is an interested and enforcing party in public law, whereas the state is just the enforcement authority in private law.

2. General and Special Law

‘General law’ refers to a country’s territorial law. It is made up of all people, things, activities, and events that occur on a country’s territory and are governed by it. For example, Indian criminal law and contract law are broad laws because they apply across India’s whole area. The general law consists of legal rules that the courts take judicial notice of, whereas the special law consists of legal rules that the courts will not recognise and apply as a matter of course, but must be specifically proven and brought to the courts’ attention by the interested parties.

Judicial notice, as Salmond correctly points out, is the ultimate litmus test for distinguishing between general and particular law. Aside from ordinary law, the court is required to be aware of specific types of special laws. They’re known as ‘jus specile.’ In the same way that it applies to general laws, the maxim ‘ignorantia juris non excusat’ applies to specific laws.

The examples of special laws are the Bombay Prohibition Act, The Maharashtra Ownership of Flats Act, Tamil Nadu Gambling Act, The Calcutta Police Act etc.

There are several kinds of special laws, namely:

  • Local Law
  • Foreign Law
  • Conventional Law
  • Autonomic Law
  • Martial Law
  • International Law
  • Mercantile Law Etc.

3. Substantive and Procedural Law

According to Salmond, substantive law establishes a right, whereas procedural law establishes remedies. Because it oversees the litigation process, procedural law is often known as ‘law in action.’ Procedural law is concerned with the means by which the administration of justice strives to attain its goals, whereas substantive law is concerned with the goals themselves. For example, substantive laws such as the Law of Contract, the Transfer of Property Act, the Negotiable Instruments Act, and crimes are substantive laws, but procedural laws such as civil procedure and criminal procedure are procedural laws.”

4. Antecedent and Remedial Law

Prior law refers to independent specific enforcement that does not require recourse to a remedial law. The best illustration of antecedent law is the law dealing to specific fulfilment of a contract. The remedial law, on the other hand, stipulates a course of action. Tort law, writs, and other remedies fall within the category of remedial laws.

5. Law in Rem and Law in Personam

Law in rem pertains to the enforcement of a person’s rights against the entire world or against the people if they are universal, whereas law in personam pertains to the enforcement of rights accessible against a specific person or persons. For example, the law of inheritance, succession, ownership, and so on are examples of law in rem, whereas the law of contract, trust, and so on are examples of law in rem.

THE MAIN AIM OF LAW

We now know that laws are necessary but what is the aim of law. How will they benefit the society, is what we will discuss here.

  • The law serves as a tool for achieving justice. The main aspect of justice has been harped on by various theorists. They conflated the terms “law” and “justice.”
  • But why is it necessary to have a law to achieve justice? “To this fight of every man, against every man, this too is consequent; that nothing can be unjust,” Thomas Hobbes writes in his book Leviathan in response to the question. There is no space for concepts like good and wrong, justice and injustice. There is no law where there is no common power: where there is no law, there is no injustice.” As a result, it can be stated that legislation is required for justice.
  • This now poses another question that What if law proves to be inefficient and no justice is provided? What will be the situation if law turns out to be biased?
  • The answer to the above issue is that every court judgement is subject to revisions, which ensure that the law evolves through time. It evolves in response to changing societal demands. Consider the infamous Nirbhaya case, which rocked the country. In the case of juvenile offenders, there were no such case laws. Following the incident, a commission was constituted to suggest harsher penalties for sexual violence. To put it another way, if a law is shown to be ineffective, it is amended. Similarly, when it was established that the legislation needed to be altered, the Supreme Court gave its approval and decriminalised the 150-year-old practise.
  • Why is the Supreme Court in charge of making decisions rather than the people? What if people band together in kins to express their dissatisfaction?
  • This is not permitted since man is regarded as selfish. He will be more concerned with his own self-interests than with the welfare of society. He will only think about himself, exacerbating the problem. Because not all of the sector’s demands will be met, this will lead to agitation and violence, which will finally lead to mob lynching.
  • Thus, there is a need for a body to make laws for everyone keeping aside the biases. Also, Supreme court of India, in July 2018, passed a judgement ensuring that justice is the law’s business and not mob’s. Furthermore, the Indian constitution guarantees justice for all.

CONCLUSION

  1. Law can be used to bring about beneficial social change as well as to alter existing social systems. It works as a catalyst for transformation.
  2. Literature has been influenced by law. In his plays, Shakespeare mentions law more than any other profession. To put it another way, law is so vital that it has an effect on literature as well.
  3. Lawyers can use literature as a rich source of specific types of information. Every one of us anticipates the day when we will be able to practice law.
  4. While the law can be deterrent at times, its primary goal is to provide justice. Law denotes a society that is well ordered. The government can give all of this. In the end, law is the most important aspect of the state. It is the state’s absolute power that determines what is right and evil.
  5. Despite having only one syllable and three letters, the word law can be interpreted in a variety of ways.

BIBLIOGRAPHY

  1. http://hrlibrary.umn.edu/edumat/IHRIP/circle/justiciability.htm#:~:text=The%20fundamental%20rights%20are%20enforceable,Courts%20and%20the%20Supreme%20Court.&text=The%20Supreme%20Court%20has%20the,%E2%80%94executive%2C%20legislative%20and%20judicial.
  2. http://www.legalserviceindia.com/legal/article-4045-nature-sources-and-schools-of-law-under-jurisprudence.html#:~:text=According%20to%20Parker%2C%20%22Law%20is,in%20the%20administration%20of%20justice.%22
  3. Jurisprudence and Legal Thoery 5th Edition by V.D Mahajan (2020)

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