Note of Chapter 1: MEANING AND DEFINITION OF LAW from exam perspective. (cursory notes)
Chapter 1: MEANING AND DEFINITION OF LAW
a) Meaning of Law in Generic sense.
| SCHOLARS | DEFINITIONS |
| Plato | Law is a finding of reality, human conscience, reasoning, which maximizes the happiness". |
| Rousseau | Law is the expression of the general will |
| Immanuel Kant | Law is transcendental |
| Salmond | Law is the body of principles recognized and applied by the state in the administration of justice". |
| Duguit | Law is a means of social solidarity. |
| Kelson | Law is Grundnorm which should be free from extraneous matters like ethics, politics, sociology, history |
| Emile Durkheim | Law is the measuring rod of any society, which reproduces the principal forms of social solidarity |
| Austin | A rule laid down for the guidelines of an intelligent being by an intelligent being having power over him” |
| Glanvile Williams | Law is the cement of the society and also an essential medium of change.” |
| H.L.A. Hart | Law is the union of primary and secondary rules. |
School of thought:
The definition of law differs from person to person and place to place generally, the law is defined through approaches/school of thoughts which are as follows:
1. Natural Approach
According to natural school, law is the dictate of reason. Heraclitus is the founder of this school. “Law is right reason in agreement with nature.” - Cicero
2. Analytical/Imperative Approach
This school defines law as the command of sovereign. John Austin is the father of Analytical School.
“Law is the command of sovereign backed by sanction.” –John Austin
3. Historical Approach
Historical school believes that law is not made but found in the form of custom and tradition in the society. Law is developed like language. Savigny is known as the father of this school.
“Law is a product of general consciousness of people and the manifestation of their spirit”. - Savigny
4. Sociological Approach
Sociological school considers law as a social phenomenon to serve social interest. August Compte is the father of this school.
“Law is a social institution to satisfy human wants”- Ruscoe Pound
5. Realist Approach
This school believes law to be the preaching of the courts and precedents. It is closely related with sociological school.
” Law is what court decides or judge says in his decision.” - Justice Holmes
6. Socialist/Marxist Approach
Socialist consider law as rules set by superior to dominate the inferiors. This school was founded by Karl Marx
“Law is a means of exploitation by superior to inferior”- Marx
7. Feminist Approach
All laws are prepared to dominate the women. Law is instrument of male dominated society to exploit the female. Each and every rules of law seek to control the women.
In General sense:
Law is defined as body of rules which governs each and activities of human behavior. It is enforceable body of rules, made to govern society and individual within the society.
Therefore, Law is a rule enforced to regulate the behaviors of the fellow members of the society.
b) Concepts of LAW AND MORALITY
There was a time when there was no distinction between law and morality. Society was governed by the morals that were law also. Later on, distinction was made as obligatory rules and regulatory rules. Privy Council and our Supreme Court made a distinction between legal and moral injunctions.
In Europe, Greeks and Romans recognized natural law as the basis of law.
During Middle Ages Christian morals were considered as the basis of law. After Reformation distinction was made and state became basis or source of law.
17th and 18th century saw another change in reverse and theories of natural law became foundation.
Nineteenth Century saw complete separation of law.
from moral when Austin said that law is command of the sovereign. Hans Kelson finds only the legal norm as the subject matter of jurisprudence and exclude morals from the sphere of law.
Interrelationship between law and morality
- The law embodies within its moral principles, protects and guarantees fundamental moral values, and at the same time its fundamental force is given by its moral obligation. For legal rules to be effective, they must comply with moral standards of the society.
- Savigny in the theory of VOLKGEIST says that laws come from people rather than from state. In this regard law is not command of sovereign rather it has developed organically from the complex amalgam of reason, intuition, custom and other instinct.
- Fuller, a law theorist, claimed that there are necessary moral dimensions to the making of legal rules and that law has its own internal morality. Thus, for this reason, law is not capable of existing without morality.
- Morality is a foundation for law in Cicero’s view also.
- Ehrlich has also supported living law in the combination of formalities, current social values and prescription of society which also reflects morality as it adopted by society who looks like dynamic and progressive in nature.
- According to the Durkheim, law is derived from morality of society to produce cohesion between individual ties with society (Social solidarity).
- According to Stammler, the content of the rule of law is just if it is conducive to harmonizing the purposes of the individuals with those of society. So, the legislators must keep principles to be a good law which is also conceptualized as morality.
- Prof. Hart says that some shared morality is essential if any society is to survive. Moral enters the arena of law in the name of justice, equity and good conscience. Morals act as restraint upon the power of the legislature. This supports the compulsion of morality for exercising the laws.
- Gilchrist has said that the state is supreme condition of the individual moral life.
- Hugo Grotius says, "Law is a rule of moral action obliging to that which is right".
- Morality is de-facto phenomenon whereas law is de-jure phenomenon to evaluate the law in particular context. In this regard, morality is also an integral part of law. Thus, law can’t go against moral principles.
- If law is to remain closure to the life of the people, it cannot ignore morals. When law fails to accept morality, it is uneasy for the implementation phase of the particular law.
Law must confirm the morals. A law is invalid if it is not in conformity with morals. Paton
writes that if law lags behind popular standard, it falls into disrepute.
- Law without morality has huge possibility of being autonomous. The atrocious legislation like Nazi Germany will be built if morality is ignored.
- Law and morals are distinguishable, but moral is an integral part of law. The laws without moral cannot be implemented in the society. They are just ‘dead laws’
- Morals are the basis, test and end of law.
DIFFERENCES BETWEEN LAW AND MORALITY
According to Vingradoff:
‘Law is clearly distinguishable from morality. The objective of law is the submission of the individual to the will of the organized society, while the tendency of morality is to subject the individual to the dictates of his conscience.’
According to Paton
| LAW | MORALITY |
It is concerned with social relation of men with the society, rather than the individual. | It is more concentrated on individual rather than society. |
| It conducts with standard. {seldom motive} | It conducts motive important. |
BASIC DIFFERENCES
| LAW | MORALITY |
| Universal in nature | Variable/Flexible |
| Sources are legislation, precedent, custom etc. | Sources are tradition, values, culture etc. |
| It can be claimed in the courts. | It has no proceeding in the courts. |
| Regulates external human conduct | Regulates internal human conduct |
| Definite/precise | Indefinite/Uncertain |
| Upheld by coercive power of the state | Morality simply enjoys support of public opinion |
| Studied under Jurisprudence | Studied under ethics |
| Political codes | social codes |
| Enforced by ruling (political) bodies of the state | No such significant body to enforce morality |
| The objective of law is the submission of the individual to the will of the organized society. | The tendency of morality is to subject the individual to the dictates of his conscience.” |
| It is concerned with social relation of men with the society, rather than the individual | It is more concentrated on individual rather than society. |
Legislation, precedent and custom are the sources. | Tradition, culture and values are the sources. |
| Binding/Obligatory to follow | Persuasive /Not obligatory to follow |
| It imposes sanction if it is not obeyed. | It is excusable. |
| Studied under Jurisprudence. | Studied under Ethics. |
| Morality is a matter of choice. | Laws are a matter of compulsion. |
| It enjoys support of state. | State has nothing to do with morality. It simply enjoys support of general public. |
Law is deliberately changed by parliament and/or the courts. | Morality cannot be deliberately changed, rather it evolves slowly. |
Therefore, there is a huge differentiate between law and morality. Sometimes legally wrong maybe morally right and moral wrong may be legally right. There are many things which are illegal in the
eyes of the state but are acceptable to morality. Another point of distraction is that laws are certain and universal, and they are universally applicable to all citizens whereas the morality are quiet.
Hrithik Yadav.
