Definition of Law, its kinds and Classifications

1. Introduction:

The term ‘law’ denotes different kinds of rules and principles. Law is an
instrument which regulates human conduct or behaviour. Law means Statutes,
Acts, Rules, Regulations, Orders and Ordinances from point of view of
legislature. Law means Rules of court, Decrees, Judgment, Orders of courts, and
Injunctions from the point of view of Judges. Therefore, Law is a broader term
which includes Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice,
Morality, Reason, Righteous, Rules of court, Decrees, Judgment, Orders of
courts, Injunctions, Tort, Jurisprudence, Legal theory, etc.

2. Meaning of Law:

The term law has been derived from the Latin term ‘Legam’ which
means the body of rules. In Hindu religion or jurisprudence, law implies
‘Dharma’, in Islamic religion it is ‘Hukum’, in Romans it is ‘Jus’ and in
France it is ‘Droit’, and in Germany it is ‘Richt’. All these words convey
different meaning. Thus, the term law has different meanings in different
places/societies at different times as it is not static and it continues to grow.

For example:- Law varies from place to place in the sense that while adultery is
an offence in India under Section 497 of IPC, it is not an offence in America.
Further, law differs from religion to religion in the sense of personal laws, e.g. a
muslim man can have four wives at a time, but a hindu can have only one wife
living at a time. If a hindu marries during the lifetime of first wife he is declared
guilty of the offence of bigamy under section 494 of IPC.

Generally, the term law is used to mean three things:

(i) Legal Order:

Firstly, it is used to mean ‘legal order’. It represents the regime of
adjusting relations, and ordering conduct by the systematic application of
the force of organized political society.
(ii) Legal Precepts:
Secondly, law means the whole body of legal precepts which exists
in an organised political society.

(iii) Official Control:

Thirdly, law is used to mean all official control in an organised
political society.

3. Definitions of Law:

It is very difficult to define the term law. Various jurists have

attempted to define this term. Some of the definitions given by jurists in
different periods are categorised as follows:

(i) Idealistic Definitions:

Romans and other ancient jurists defined law in its idealistic nature.

(a) Salmond:
According to Salmond, “the law may be defined as body of
principles, recognised and applied by the State in the administration
of justice”.

(b) Gray, “According to Gray- the law of the state or of any organised
body of men is composed of the rules which the courts, that is the
judicial organ of the body lays down for the determination of legal
rights and duties.”

(ii) Definitions of Positivists:

(a) Austin:
Austin defined law as a command of sovereign backed by
sanction. According to him there are three elements of law, i.e. (a)
command, (b) duty (c) sanction. Thus, every law have a command and
due to this command we have a duty to obey this command and if
don’t obey this command, then there is a sanction.
 (b) H.L.A. Hart:
He defined law as a system of rules- the primary and secondary
rules. The primary rules are duty imposing while the secondary rules
are power conferring.

(iii) Definition of Historical School of Law:

The chief exponent of the Historical school is Van Savigny.
Historical jurisprudence examines the manner or growth of a legal
system. He says that the law is not the product of direct legislation but is
due to the silent growth of custom. He says that law is found in the
society, it is found in the custom.

(iv) Definition of Sociological School of Law:

This school defines the law on the basis of its effect on law and
society and vice versa.

(a) Ihering definition of law: He says that law is a means to an end and
the end of law is to serve its purpose which is social and not
individual.

(b) Roscoe Pound’s definition of law: He defines law as a social

institution to satisfy social wants. He says that law is a social
engineering, which means that law is an instrument to balance
between the competing or conflicting interests.

(v) Realistic definition of Law:

It studies law as it is in its actual working and effects.

(a) Holmes J. considered the law to be part of judicial process. He says,

“the prophesies of what the courts will do, in fact and nothing more
pretentions, are what I mean by law”.

It would thus be seen that no single definition of law can be treated as

satisfactory because law is ever changing in the dynamic fibre of its inherent
element.
 4. Difference/Distinction between ‘the law’ and ‘a law’

The subject matter of jurisprudence being the study of law,

it is necessary to understand the distinction between the terms ‘the law’ and ‘a
law’.

The term ‘the law’ or law cannotes the whole legal system in its totality. It has
been termed ‘jus droit’ in Latin.

According to Roscoe Pound, “The expression ‘the law’ or law means the legal
system operating in a country. On the other hand, the term ‘a law’ is termed as
lex loci in Latin which means a particular statute in its isolated form.”

According to Jeremy Bentham, the term ‘the law’ means – “neither more or
less than the total of a number of individual laws taken together.” Thus every
Act or Statute of Parliament is called “a law” whereas the aggregate of Acts
comprising legal systems are known as ‘the law’ or ‘law’ of the country.

5. Nature or Basic Features of Law:

Law may be described as a normative science, that is, a science

which lays down norms and standards for human behaviour in a specified
situation or situation enforceable through the sanction of the state.

The concept of law may be understood by analysing the features common to

all laws. Among these features, the ones considered as essential or basic
include:-

(i) Generality
(ii) Normativity
(iii) Sanction

(i) Generality:-
Law is a general rule of conduct. It does not specific the
names of specific persons or behaviours. Its generality is both in terms
of individuals governed and in terms of the social behaviour
controlled. The extent of the generality depends upon on whom the
law is made to be applicable.
 For example:-
(a) Everyone has the right to life, liberty and security of a person under
Article 3 of the Universal Declaration of Human Right (UNDHR).
This law is made applicable to everyone on this world, therefore, it
is universal.
(b) The State shall not deny to any person equality before law or the
equal protection of laws within the territory of India (Article 14 of
the Constitution). This law is applicable to every person residing in
India, therefore, it is national in character.

(ii) Normativity:-
Law does not simply describe or express the human conduct
it is made to control, but it is created with the intention to create some
norms in the society. Law creates norms by allowing, ordering or
prohibiting the social behaviour. Under this heading, law can be
classified as follows:-

(a) Permissive Law:-

It allows or permits subjects to do the act they provide.
E.g., every person who is arrested has a right to be produced before
the nearest Magistrate within a period of 24hr. of his arrest. The
term “has the right” used in this provision shows that subject is
given the right. So it is permissive law.

(b) Directive Law:-

It orders, directs, or commands the subjects to do the act
provided in the law. It is not optional. E.g., if there is a contract
between the parties that any particular act must be performed by
the parties themselves, then they must perform it personally. This
is a directive law.

(c) Prohibitive Law:-

It discourages the subject from doing the act required not
to be done. All criminal laws are usually prohibitive laws. E.g., no
one should enter the property of another person against the will of
that person.
(iii) Sanction:-
Each and every member of society is required to follow the
laws. Where there is a violation of law, sanction should follow. The
term sanction is derived from the Roman word “Sanctio” which
means that part of the statute which imposes a penalty or has made
some other provision for its enforcement. In general sanction means
‘penalty’.

Definitions of Sanction:-
(a) Salmond defined sanction as an instrument of coercion by which
any system of imperative law is enforced. The state uses its
physical force as a sanction for the administration of justice.

(b) According to Friedrick Pollock, sanction is modern sense means

constant readiness of the state to use its force for ensuring
justice to be done to both i.e., for law abiding person as also to
the evil doer.

Kinds of Legal Sanction:-

Hibbert has classified legal sanctions under two
broad headings:-

(a) Criminal Sanction (7 types) (b) Civil Sanction (5

types)
i. Capital punishment i. Damages
ii. Imprisonment ii. Costs
iii. Corporal punishment iii. Restitution of
iv. Fine property
v. Deprivation of civil and iv. Specific
political rights performance
vi. Forfeiture of property v. Injunctions
vii. Deportation/transportation
Whether Sanction is an Essential element of Law?

Legal thinkers or jurists are not unanimous on this point

whether sanction is an essential element of law. Some believe that it is an
essential element while others believe that it is not essential.

Essential element of law Not essential element of law

Some jurists believe that sanction is There are other jurists who don’t
indispensable element of law. consider sanction absolutely necessary
for law.
Austin is the supporter of this view as
his definition of law also asserts that According to them, sanction is not the
sanction is an essential element of law. only thing which induces people to
obey the law. There are another
Another jurist Ihering also supported things too which sufficiently provokes
this view. He said that – “a law the people to obey law. E.g., habit of
without sanction is like a fire that obedience, sense of duty, social
does not burn and light that does not necessity etc.
glow.”
They even went to saying that if whole
society decides to disobey the law, no
amount of sanction can enforce it.

6. Functions/Purposes of Law

The law serves many purposes and function in society. Many

jurists have expressed different views about the purpose and function of
law. For example:

According to Holland: “the function of law is to ensure well being of

the society.” Thus it is something more than an institution for the
protection of individual’s rights.

According to Roscoe Pound: there are mainly four functions to law, i.e.

(a) maintenance of law and order in the society;

(b) to maintain status quo in society;

(c) to ensure maximum freedom of individuals; and

 (d) to satisfy the basic needs of the people.

According to Salmond, “the object of law is to ensure justice. This

justice may be distributive or corrective. Distributive justice seeks to
ensure fair distribution of social benefits among the members of the
community and corrective justice seeks to remedy the wrong”.

After studying various views of jurists regarding function or purpose of law,

it can be said that the following are the major functions or purposes of law. (
It can be summarised as follows):

(a) Establishing Standards:

The law is a guidepost for minimally acceptable behaviour in
society. Some acts, e.g., are crimes because society (through legislative
body) has determined that it will not tolerate certain behaviours that
injure or damage persons or their property. (for example, it is a crime to
cause physical injury to another person without justification, as it is
generally constitutes the crime of assault).

(b) Maintaining Order:

Some semblance of order is necessary in a civil society and is
therefore reflected in law.

(c) Resolving Disputes:

Disputes are unavoidable in a society made of persons with
different needs, wants, values and views. The law provides a formal
means for resolving disputes – the court system.

(d) Protecting Freedoms and Rights:

Every person has some fundamental freedoms and rights and
it is the function of law to protect these freedoms and rights from
violations by persons, organisations or government. (For example, subject
to certain exception, there is a fundamental right of equality before law,
i.e. every person is equal in the eyes of law and if any person feels that
his fundamental right is violated may approach the court for remedy.)
7. Advantages and Disadvantages of Law:
As law is a dynamic concept and is instrument of bringing about
desired social change in the society. Its advantages are many but there are
certain disadvantages as well.

Advantages Disadvantages
1. It provides uniformity and 1. Rigidity of law, because of
certainty to the justice this, it is unable to keep pace
system. It is applicable to all with the fast changing
equally. Everyone is equal in society. This sometimes
the eyes of law. causes hardship and injustice
to the people.
2. Law as fixed principles of
justice, avoids the danger of 2. Law is conserving in its
arbitrary and biased decision. approach. This is not
Thus, it eliminates the conducive to a progressive
chances of bias. community.

3. It provides adequate 3. The law suffers from

safeguards against error of excessive formalism. Greater
judgement. emphasis is laid on the form
of law rather than its
4. Another advantage of law is substance.
its reliability. It is certainly
more reliable than the 4. Law is generally complex in
individual judgement of the nature rather than being
courts. simple. This makes it beyond
the reach of a man or
ordinary understanding.
 8. Kinds/Classification of Law

As stated earlier, the term ‘law’ is used in different senses. It denotes

different kinds of rules and principles. The jurists have classified law according
to their own legal perception.

1. Salmond’s Classification of Law:

Salmond has referred to eight kinds of laws. These are:-

(1) Imperative Law: It means ‘a rule which prescribes a general course

of action imposed by some authority which enforces it by superior
power either by physical force or any other form of compulsion.

He further divided imperative law into two types:

(i) Divine law:

It consists of the commands imposed by God upon men either by
threats of punishment or by hope of his blessings.
(ii) Human law:
Human laws are the laws by analogy. It is further divided into
four different kinds:-
Civil law: imperative law imposed and enforced by State is called
civil law.
Moral Law: imperative law imposed and enforced by members of
society is moral law.
Autonomic law: those enforced and enforced by different
institutions or autonomous bodies, like universities, airline
companies etc.
International law: those imposed upon State by the society of
States and enforced partly by international option and partly by the
threat of war.

(2) Physical or Scientific Law:

Physical laws are laws of science which are expression of
the uniformities of nature. They are not created by human and can’t
 be changed by human. They are invariable forever. The examples of
physical law are the law of gravity, law of air pressure etc.

(3) Natural or Moral Law:

Natural law is based on the principles of right and wrong. It
also called universal or eternal law, rational law. It embodies the
principles of morality and is devoid of any physical compulsion. Many
laws of the modern time are founded on the basis of natural law. E.g.
law of quasi contract, the conflict of law, law of trust etc. are founded
on natural justice.

(4) Conventional law:

It is the body of rules or system of rules agreed upon by persons
for their conduct towards each other. E.g., international law and rules
of club or cooperative societies, rules of game or sport are best
examples of conventional law.

(5) Customary law:

There are many customs which have been prevalent in the
community from time immemorial even before the States came into
existence. They have assumed the force of law in course of time. (e.g.
under hindu personal law, a man can’t marry his brother’s widow,
however, if there is any custom which allows the same then the
marriage will be valid). According to Salmond, “any rule of action
which is actually observed by men when a custom is firmly
established, it is enforced by State as law because of its general
approval by the people.

(6) Practical or Technical Law:

Practical laws are the rules meant for a particular sphere by
human activity, e.g. laws of health, laws of architecture.

(7) International law:

It also knows as law of nations as it applies to States rather than
individuals. It consists of rules which regulate relations between the
States inter-se.
 (8) Civil Law:
The law enforced by the State is called civil law and it contains
sanction behind it. Civil law is territorial in nature as it applies within
the territory of the State concerned. Civil law differs from special law
as the latter applies only in special circumstances.

2. Austin’s Classification of Law

John Austin has classified law into following categories:
(1) Divine Law
(2) Human Law
(3) Positive Morality

He treats only divine law and human law as law in real sense of the term and
does not consider positive morality as law since it lacks sanction or binding
force.

3. Holland’s Classification of Law: He classified law according to their

functions. He classified law into following five categories.

(1) Private and Public law:

Private law determines relationship between person and person
where as public law deals with relationship between person and the
State. In private law, State is only the enforcing authority while in
public law, State is an interested and enforcing party.
Examples of private law: laws of property, contracts, torts, trusts etc.
are instances of private law.
Example of public law: law of crimes,
Public law is further divided into two parts:
(a) Constitutional law: constitutional law includes all rules which
directly or indirectly affect the distribution or exercise of the
sovereign power of the State. It is the body of those legal principles
which determines the Constitution of State.
(b) Administrative law: it describes in detail the manner in which the
government shall exercise those powers that were outlined in the
constitutional law.
(2) General and Special Law:
The territorial law of a country is called General Law. For
example, Indian Penal Code, Indian Contract Act are the general laws
of the country because they have general application throughout the
territory of India. Besides the general law, there are certain kinds of
special laws. E.g. laws applicable to particular locality (the Punjab
Police Act etc.).

(3) Substantive and procedural law:

Substantive law is that law which defines a right while
procedural law determines the remedies. Substantive law is concerned
with ends which administration of justice seeks to achieve while
procedural law deals with the means by which those ends can be
achieved. (E.g. law of contract, transfer of property, law of crimes etc.
are substantive law whereas the Civil Procedure Code or Criminal
Procedure Code are procedural laws.

(4) Antecedent and Remedial Law:

Antecedent law relates to independent specific enforcement
without any resort to any remedial law. (e.g., law relating to specific
performance of a contract is the best example of antecedent law). The
remedial law provides for the remedy. (e.g. Law of torts, writs etc.
come within the category of this law)

(5) Law in Rem and Law in Personam:

Law in rem relates to enforcement of rights which a
person has against the whole world or against the people in general
where as law in personam deals with enforcement of rights available
against a definite person or persons. (E.g. law of inheritance,
succession, ownership etc. are subject matter of law in rem, while the
law of contract, trust etc. are examples of law in personam).
 Legal Maxims

Ignoratia juris non excusat Ignoratia facit excusat

Meaning: Ignorance of law is no Meaning: Ignorance of fact is

excuse. excusable.
It provides that a person who is It provides that where any person
unaware of law may not escape has done any wrong in ignorance
liability for violating that law of fact then it is excusable if he
merely because he or she was not proves the ignorance of the fact.
aware about the law.
e.g., A is ordered by the Court to
Objective of the Maxim or arrest Y and after due inquiry,
Doctrine:- believing Z to be Y arrested Z. A
The rational of this doctrine has committed no offence as he
is that if ignorance of laws were done the same in ignorance of fact
an excuse then a person charged that Z is Y.
with criminal offence or subject
to a civil suit would merely claim Note: It is to be remembered that
that he is unaware of law in the doctrine of ignorance of fact is
question to avoid liability even excusable is not applicable in all
though he really does not know cases or circumstances. In those
the law is question. Thus, the cases, where a criminal act is
court presumes that everyone has expressly prohibited by law and
the knowledge of law. there is strict liability then this
maxim will not apply and the
person will be liable.

E.g. where the girl kidnapped was

under the age of 18 years or boy
under the age of 16 years, then the
person can’t take the defence that
from appearance, they were
looking above that age and he had
kidnapped them in ignorance of
fact that they were above the age
of 18 years or 16 years
respectively. The kidnapper will
be liable for offence as it is
specifically provided in section
363 of IPC that there will be strict
liability for offence under this
section.