DEFINITIONS OF LAW

Several attempts have been made to define law but it has been very difficult to present a universal definition. The prime reason being that different societies have seen different processes of development of law as per their diverse requirements. Moreover, owing to the above reason different jurists have got different notions about the nature, purposes and sources of law. Therefore, we find several schools which define law from their respective precept. We may classify the definitions into three broad classes:-

• Idealist definitions
• Positivist definitions
• Sociological definitions

Idealist definitions

In this category, most of the definitions given by the Roman and other ancient jurists will fall. All these definitions present justice to be the main element of law. Justinian’s Digest defines law as “the standard of what is just and unjust.” Ulpian spoke of law as “the art or science of what is equitable and good.” Cicero said that law is “the highest reason implanted in nature.”

However, in the modern times, the law has been secularised and has grown into an independent branch of social science. Therefore, now the earlier theological definitions no longer hold ground. Nevertheless, “justice” still happens to be an important element in some of the modern definitions. But the concept of justice now is seen in the sense of legal justice and not an abstract justice.

Salmond defines law as “the body of principles recognised and applied by the state in the administration of justice.” Salmond therefore gives emphasis upon two aspects:-

• It is the courts and not the legislature which will determine the true nature of law.
• In order to understand the true nature of law, one should understand its purpose.

Criticism

• Vinogradoff criticises Salmond on the ground that his definition of law proceeds from the action of the judges. It is somewhat ‘like the definition of a motor car as a vehicle driven by chauffeur.’ He asks: “What should we think of a definition of a medicine as a drug prescribed by a doctor?”
• Another point of criticism against Salmond’s definition is that 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, Salmond never means that law is justice but the utmost that he says is that only by law justice can be achieved. From this interpretation it appears that law has been defined by Salmond in terms of its purpose. Defining law in terms of its purpose may help in understanding the nature of law but law serves many ends and by confining it only to the pursuit of ‘justice’, Salmond has narrowed the field of law.

According to Salmond’s definition, a rule is law because courts would recognise, apply and enforce it rather than the courts would recognise, apply and enforce it because it is law. Salmond’s definition presents a picture of law in which law is subsequent to the administration of justice and thus more-importance is attached to the law courts. Salmond’s definition may be of some use to lawyer but otherwise it has no wider application. A definition must have, if not universal, at least very wide application and Salmond’s definition is lacking in this respect. His definition is very narrow. It is applicable only to the common law of England which is judge- made law.

Positivist definition

According to Austin, “law is the aggregate of sovereign, to men as politically subject.” In other words, law is the ‘command of the sovereign.’

Thus, the command, duty and sanction are the three elements of law. The law which has these elements of characteristics is called ‘positivist law’. He distinguishes ‘positive law’ from ‘positive morality’. According to Austin, sovereign, command and sanction are the three basic and essential elements of law.

Criticisms

• All law is not command.
• Much of the law is enabling rather than restrictive (it means it is not duty).
• It is not the sanction alone that makes the obedience of law possible but there are other factors also.
• Austin’s definition does not cover customs and International law because they have not all the essentials which “law” must have according to Austin. He completely ignored the social aspects of the law and the psychological factors which secure its obedience.

Kelson: Kelson defines law as the ‘depsychologized command.’ Though Kelson defines law in terms of command, he uses it in a sense quite different from Austin’s. By command, he simply means that it imposes a duty. Austin’s ‘sovereign’ does not come into picture in Kelson’s definition.

Sociological definition

They define law in terms of its relation with the society.

Duguit defines law as essentially and exclusively as social fact. It is in no sense a body of rules laying down rights. The foundation of law is in the essential requirements of the community life. It can exist only when men live together. Therefore, the most important fact of social life is the interdependence of men (this Duguit calls as ‘social solidarity’). The aim of the social institutions is to safeguard and further it. Only those rules can be called laws 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. The law should be based on social realities.

Ihering: Ihering defines law as ‘the form of the guarantee of the conditions of life of society, assured by State’s power of constraint.’ There are three main implications of this definition:

• Law is treated as only one means of social control.
• Law is to serve social purpose.
• It is coercive in character, in other words the obedience to law is secured by the state through external compulsion.

Ehrlich: He includes in his definition all the norms which govern social life within a given society. This definition goes to include even those fields where the law no longer remains law, but becomes sociology.

Pound: Pound defines law as ‘a social institution to satisfy social wants’. It lays down a constructive scheme for the study of law in the context of social problems.

Realist movement (applicable in U.S.A.) which is considered to be a part of the sociological

approach, defines law in terms of judicial proposes. Holmes J., the father of Realist Movement, says that ‘the prophesies of what the courts will do, in fact, and nothing more pretentious, are what I mean by law.’ Jerome Frank, Lewellyn, Cardozo to this belongs to schools. According to them, the formal law is simply a guess as to what the courts would decide and the law is that what the courts actually decide.

In the ultimate analysis all the definitions have to be seen together. The combined effect of all the definitions is as follows:

• Law presupposes state. There may be law even without the state, as the primitive law, but law, in modern sense of the term, implies state.
• The state makes or authorises to make, recognises or sanctions rules which are called law.
• For the rules to be effective there are sanctions behind them.
• These rules (called law) are made to serve some purpose. The purpose may be a social purpose, or it may be simply to serve some personal ends of a despot.