MEANING

CONCEPT
AND
DEFINTION
OF LAW
LAW 109
Ashish Singh Taank
Assistant Professor
Lovely Professional University
• The term Law’ is sometimes used as such, sometimes as ‘a law’ and sometimes as
‘the law’, when it is used in ‘law’ or ‘the law’ it is said to be used in the abstract
sense i.e., representing the entire body of law, for example, law of India.

• When it is used as ‘a law’ it is said to be used as referring to a particular law or

enactment.

• The term ‘law’ has generally been used to mean three things.
• Firstly, it is used to mean ‘legal order’ that is the regime of adjusting relations
and ordering conduct by the systematic application of the force of organized
political society.
• Secondly, it means the whole body of legal precepts which obtained a political
organized society. Law in this sense is made of precepts, traditions and ideals.
This element comes down to a social order of time and place—a legal tradition
as to what that social order is and what are the ends or purposes of social
control.
• Thirdly, it is used to mean all official control in a politically organized society.
This leads to an increased attention to the phenomena of the actual
administration of justice.
• if law fails to respond to the needs of changing, society then either it will stifle the
growth of the society or choke progress.
• If the society is vigorous enough, it will cast away the law which stands in the way
of its growth.
• Laws, must therefore, constantly be on the move adopting itself to the fast changing
society and should not lag behind.

• LAW IN HINDU JURISPRUDENCE - The corresponding term for law in Hindu texts is
either Dharma or Vidhi.
• Dharma is more frequently used as the corresponding term for law but it does not
always mean a rule of human action. ‘Dharma’ or law according to Hindu texts
embraces everything in life.
• As per Dharma, a man has to follow the law not because of the fear of the penalty
or sanction but because it is for his own benefit and enables him to attain his goal of
salvation.
• He who upholds the Law will be upheld by it and he who destroys the law will be
ultimately destroyed by it.
Kinds of Law

• Law of Nature - consists of those ideals, abstract principles of universal justice and
applicability which were considered to be based on Reason or God for the
guidance of all men for all times and for all places.

• Customary law - Customary law consists of those rules of human action,

established by usage and regarded and legally binding by those to whom the rules
are applicable, which are adopted by the Courts and applied as source of law,
because they are generally followed by the political society as a whole, or by some
part of it.

• Physical law - also known as scientific law which describe general nature and
principles according to which the Physical phenomena act and interact under
given conditions.

• Moral law - ethical rules which externally lay down an ideal standard for human
behaviour.

• Conventional law – Law agreed in mutual relationships between persons

voluntarily.
• Constitutional law – The Fundamental Law of the State governing the structure and
functions of main organs of the State.

• Common law – Originated in England as from the principles, usages and customs
which were followed by the common people of England and in course of time
through Common law courts got metamorphosed into the basic common law of
England.

• Equity law – it is based on principles of justice and fairness and developed as in

England through the Equity Courts when the common law of England fell short or
proved inadequate in delivery of justice.

• Administrative law – It deals with the powers, functions, rights and obligations of
various government organs and agencies in course of administration.

• By-laws – It is subordinate legislation under mandate of legislature.

• Martial law – It means suspension of ordinary laws of land and application of

military governance and rules thereof.

• Military law – The laws applicable to personnel serving in military forces.

• Public law – Applicable to State vis-a-vis the subjects of the State.

• Private law – Determines relationships between individuals acting in private

capacities in their ordinary course – property, contracts etc.

• International law – The laws which are considered as binding on civilised States
and international organizations and at time individuals.

• State law or civil law - Legal system of a State.

NEED OF DEFINITION OF LAW

1. Clarity
2. Avoidance of Conflict
3. Proper Testing criteria
4. Connect theoretical and practical aspects of law
5. Universal character

• Yet giving a precise definition of law which is universal in its content is no easy
task. Different terminologies are used in different legal systems for ‘Law’ which
necessarily don’t have identical meanings and ideas.
• A definition may include certain aspects but exclude others depending upon the
considerations of the philosopher or jurist.
• Some have defined it on the basis of its nature, some concentrating mainly on its sources,
some in terms of its effect on the society, some in terms of its ends or purpose .
• A definition which does not cover all the aspects would be an imperfect definition
although it does not mean that such a definition will be useless.
• Furthermore, law keeps on changing in accordance with the variables of time, place,
society, political leadership, geography, culture etc. Therefore, it is doubtful whether a
particular definition will showcase all elements of law for all times to come. A definition
may be valid for toady but not in future.
• The concept of law depends largely on the social values, accepted norms and behavioral
patterns of a particular society at a given time.
• To understand this in a better way, let us see a few definition of law.
• Justinian Code –
• Law is the King of all moral and immoral affairs.
• The standard of what is just and unjust
• The commander and forbidder
• ULPIAN - law as ‘what is equitable and good’.
•CICERO –
•Law is something eternal
•It is the highest reason implanted in nature, ordering what should be done and
forbidding the contrary
• Immortal Gods as well as men are subject to the law of right reason
• HINDU LAW –
• The Command on Dharma coming from the Almighty.
• Even the king is duty bound by law
• Morality and religion intricately and substantively a part of religion.
• The end goal is attainment of Justice.
• All these definitions came when no clear distinction was marked out in law, morals
and religion. Secularization of law yet to take place. People used to worship the
forces of nature and eventually the philosophers too envisaged definition of law
from a divine and eternal aspect.
• These definitions are not applicable today. Over emphasis on eternal character and
inclusion of subjective elements has reduced the universal applicability. Theological
viewpoints of law are no longer tenable.
• SALMOND –
• The body of principles recognized and applied by the State in the administration
of justice.
• To understand law one should know its purpose;
• To ascertain the true nature of law one should go to the courts and not to the
legislature.
• For Salmond law means civil law ie., the law of the land. The second thing which he
emphasized is that law must be recognized and applied by the state i.e., courts in the
administration of justice.
• Criticism - he confuses ‘justice’ with law. Law and ‘justice’ are not the same thing.
Law is that which is actually in force whether it be evil or good. Justice’ is an ideal
founded in the moral nature of man.
• However, his emphasis of law with justice seems to arise from the fact that he
wished to define law in terms of its purpose.
• Further his view that nature of law can truly be determined via courts also has
certain lacunae. law in primitive communities was not enforceable through courts
because they had not developed the machinery for its enforcement. Does that imply
that they aren’t law at all?
• Salmond ignores the difference between judge made law and legislative law.
• It is pertinent to mention that Salmond’s definition of law comes in the backdrop of
the fact that he focused on common law of England that by and large based upon the
decisions of the common law courts of England. Therefore, the emphasis on courts.
However, this definition if at all may serve the needs of lawyers at most and not
beyond.
• However, it must not lead to a conclusion that Salmond’s attempt at defining law is a
exercise in futility. With the emergence of modern State as primary authority, law
and its administration primarily rests with the State.
Positivism and Law
• AUSTIN –
• reacted against mixing up of law and morals.
• He had studied the roman laws and legal system in a detailed manner
and was impressed by its emphasis on municipal laws and authority of the
king.
• led Austin to define law in terms of sovereign’s superiority and its relation
with state.
• He was influenced by the utilitarianism of Bentham along with the stress
on absolute powers for the State authority by Thomas Hobbes.
• Defines Law as - a rule laid down for the guidance of an intelligent being
by an intelligent being having power over him. According to Austin, "Law
is the aggregate of rule set by men as politically superior, or sovereign, to
men as politically subject."
• Austin further broadly classified laws into two categories -
According to Austin –
• Laws Properly so-called are general commands further categorized into Law of God
and Law of Men.
• Further , Human law is categorised as positive law and law positive morality.
• Only the Laws which are set forth by a Political Superior for those politically inferior
as commands are to be construed as positive law.
• These laws are commands of the sovereign and casts an obligation of obedience.
• Any violation will correspondingly lead to sanctions.
• laws set by men to men neither as Political superior nor in pursuance of rights
conferred upon them by such Superior is positive morality.

• The difference between a positive law and positive morality lies on the fact that the
former is set by a political superior, whereas rules of morality are comprised of
precepts prescribing what is just and unjust, good and bad—these cannot come
under the head ‘law’.
• According to Austin laws of positive morality are emanating from an indeterminate
body and it is incapable of commanding.
• To him sovereign is a determinate person or body of persons who command the
whole corpus of the law.
• Bulk of subjects are in habit of abiding and paying obedience to the commands of
the sovereign.
• On the contrary, the sovereign does not have the habit not is under the authority of
anyone who can command obedience over him.
• Law is a command of the sovereign which obliges a person or persons to a course of
conduct.
• The person who receives the command must realise that there is a possibility of
incurring some evil in the event of disobedience.
• However, Austin points that every wish of the sovereign does not amount to
Command of law. A mere desire does not entail evil for disobedience but a command
entail diection of evil in form of sanction for disregard of sovereign’s will.
• His definition has also given an answer to the problem of the validity of law,
since law is valid for the simple reason that it has been laid down by the
sovereign. The validity and sanctity Law of State was no more dependent the
approval of Church.
• Austin did not deny the fact that moral influences are at work in the creation of
law. He, however, gave no place to moral element while analysing the nature
of law.
• Austin lays too much emphasis on Sovereign as the sole source of law
ignoring the fact institution of State was once non existent and yet there were
laws that regulated human conduct even in absence of a sovereign political
master.
• Primitive law serves the same function in early communities as does mature
law today. Thus, essence of law lies in its function but not the form in which it
is created and the method by which it is enforced.
• Maine says that the theory of Austin is based only on the Modern European
State and represents no more than a single phase in the development of
western society.
• Jethro Brown defends Austin against this point of criticism by contending that
He attempted to frame a theory to fit modern states and not ancient societies.
• Another point of criticism against Austin is that not all commands of law are
obligatory as many rules are merely permissive or enabling in character.
• Paton says it is superficial to sovereign as source for validity of laws. If we are
considering the legal validity of a system of law, acceptance of laws also is a
important factor as it affects enforcement of laws.
• Salmond says that In modern legal systems the procedure for legislation may
well be so complex as to make it impossible to identify any commander in this
personal sense.
• Austin describes international law as rules of morality as there is neither a
determinate sovereign whom the nations of the world habitually obey nor is
there any definite body behind it. But it is rather incorrect as by and large,
international law is obeyed by States. (Art. 51 of Indian Constitution).
• Mere absence of effective sanction and of sovereign authority behind
International law does not mean that it is inoperative. Austin's definition of law
cannot be applied to international law
• Austin's theory is silent about the special relation between law and justice.
The end of law is justice. Any definition of law without reference to justice is
inadequate.
• However, in spite of the criticism of Austin's theory of law, it has certain value.
Austin provided a clear and simple definition of law.
• His theory of law contains an important element of universal and paramount
truth that law is created and enforced by the authority of State.
• HOLLAND – Law is a general rule of external human action enforced by a
sovereign political authority.
• He has somewhat improved the definition of law given by Austin by terming
sovereign as enforcer of law instead of creator.
• Yet a greater emphasis on again makes this definition subject to same
criticism as that of Austin.
• KANT – A German legal philosopher, has defined law as the sum total of the
conditions under which the personal wishes of one man can be combined with
the personal wishes of another man in accordance with the general law of
freedom.
• VINOGRADOFF – Acc to him, , law is a set of rules imposed and enforced by
a society with regard to the distribution and exercise of powers over persons
and things.
• IHERING - the form of the guarantee of the conditions of life of society,
assured by State's power of constraint".
• DUGUIT - defines law as essentially and exclusively as social fact. The
foundation of law is in the essential requirements of the community life, It can
exist only when men live together.
• The most important fact of social life is the interdependence of men i.e.
Social Solidarity. Only those rules can be called law which further this end.
• The basis of the validity of law is the popular acceptance and not the will of
the sovereign. The sovereign is not above the law but is bound by it.
• His definition also suffers from certain shortcomings.
• He excluded the notion of ‘right’, from law as he opines that only right that
any man has in a society is his right to perform his duty.
• Also he completely ignores the role of sovereign.
• The term ‘social solidarity’ is very vague and it can be interpreted to serve
almost any end as was done by Fascism and Nazism in garb of nationalism.
• ROSCOE POUND - defines law as ‘a social institution to satisfy social
wants.’
• He laid down a constructive scheme for the study of law in the context of
social problems.
• His stress was upon social function of law in maintaining harmony within the
society by satisfying varying needs and interests of members of society
through process of harmonization via social engineering.
• SAVIGNY – Law is the rule whereby the invisible borderline is fixed within
which the being and the activity of each individual obtains a secure and free
space
• Acc. To CARDOZO, Law is a principle of rule of conduct so established as
to justify a prediction with reasonable certainty that it will be enforced by the
courts if its authority is challenged is a principle or rule of law
• HOLMES - Law is a statement of the circumstances in which the public
force will be brought to bear upon men through courts
• JEROME FRANK - law for any law person with regard to a particular set of
facts is a decision of a Court. Until the Court has passed on these facts, no
law on that subject is yet in existence.
• JULIUS STONE - Law is a complex whole of many phenomena. The
meaning of this whole can only be elaborated but not defined.
• These phenomena are regulating human conduct by prescribing what the
behaviour ought to be and forbidding what not ought to be
• Generally these norms are regulating the social behaviour of man in the
society with respect to others.
• All such norms are systematically arranged and collectively termed as legal
order.
• These social norms are backed by compulsive force of authority of law with
external compulsions like deprivation of life, liberty or property.
• However, this coercion operates as per the established norms of legal order.
• By and large people obey the law when this institutionalised coercion is
effective.
• Stone, therefore, has tried to cover all aspects of law within his definition.
• Thus, the term law may be defined from the point of view of the theologian,
the historian, the sociologist, the philosopher, the political scientist or the
lawyer.
• It is not possible to say that any particular definition is absolutely correct and
is applicable to all societies. The purpose and function of law has been
different in different times.