Topic: - Meaning, Nature and Functions of Law
1. Introduction
The term “Law’ denotes different kinds of rules and Principles. Law is an
instrument which regulates human conduct/behavior. Law means Justice,
Morality, Reason, Order, and Righteous from the view point of the society.
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
In old English “Lagu” i.e. law, ordinance, rule, regulation from old norse
“lagu” law collective Plural of “Lag” is layer, measure, stroke ‘Literally’
something laid down of fixed.
The term law has different meanings in different Places/societies at different
times (as it is subject to amendments). In Hindu religion law implies
“Dharma” in Muhammadean religion (Islam) it is “Hokum” in Roman its
“Jus”, in French, its “Droit” in Arabic, Alqanoon, in Persian and Turkish, its
Kunoon, in Latin its “Legam” in Philipino its “Batas” in Albanian language
its “Ligj” in Czech its “Zakon” in Danish its “Lor” in Dutch its “Wet” in
Italian its “Legge” and in Lithuanian its “Teise” and so on. It varies from
place to place in the sense adultery is an offence in India (under section 497
of the Indian penal code, 1860) while it is no offence in America. Law differs
from religion to religion in the sense personal laws viz. Hindu law, Muslim
law etc. differ from one another. For instance, A Muslim can have four wives
living at a time, but, a Hindu can have only one wife living at a time
(Monogamy). If a Hindu male marries again during the life time of first wife
he is declared guilty of the offence of bigamy and is Punishable under sec.
494. The law is subject to change with the change in society and also change
in the Government/legislative through the amendments/Acts.
, Generally the term law is used to mean three things:
First 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.
Secondly, law means the whole body of legal Percepts which exists in a
politically organized society.
Thirdly, law is used to mean all official control in a politically organized
society. This lead to actual administration of Justice as contrasted with the
authoritive material for the Guidance of Judicial action. Law in its narrowest
or strict sense is the civil law or the law of the land.
3. Definitions of law:-
It is very difficult to define the term law. Many Jurists attempted to define the
term law. For the Purpose of clarity, some of the definitions given by Jurists
in different Periods are categorized as follows.
(I) Idealistic Definitions:-
Romans and other ancient Jurists defined law in its idealistic nature. Roman
Justinian’s defined law in the light of its idealistic nature.
(a) Salmond: - According to salmond “the law may be defined as the body of
principles recognized and applied by the state in the administration of
Justice.
Criticism of Salmond’s definition of law:- Salmond did not define the
expression Justice. Keeton says what has been considered to be just at one
time has frequently not been so considered at another.
Criticism by Dean Roscoe Pound: - Dean Roscoe Pound has criticized the
definition of Salmond as reducing law to a mass of isolated decisions and the
law in that sense to be an organic whole. Further, it is criticized on the
ground that Salmond’s definition applies only to lax law not to Statute.
, Despite criticism, Salmond’s definition is considered as the workable
definition.
(b) John chipman Gray’s Definition of Law:-
According to Gray, “the Law of the State or of any organized 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.
Criticism of Gray’s definition of law:-
Gray’s definition is criticized on the Ground that he is not concerned with the
nature of law rather than its Purposes and Ends. Further it does not take into
account the statute law.
(ii) Positivisties definition:-
(a) Austin’s definition of law”
John Austin (1790-1859) An English Jurists expounded the concept of analytical
positivism, making law as a command of sovereign backed by sanction. He
developed logically, a structure of legal system in which he gave no Place to
values, morality, idealism and Justice.
According to Austin, a law, in the strict sense is a general command of the
sovereign individual or the sovereign body. Issued to those in subjectivity and
enforced by the physical power of the state. According to Austin “law is aggregate
of rules set by men politically superior or sovereign to men as politically subject.”
Austin says, “A law is command which obliges a person or persons to a course of
conduct.
Criticism of Austin’s definition of law:-
Austin’s definition of law is subjected to criticism on the ground that it ignores
completely the moral and ethical aspects of law and unduly Emphasized the
imperative character of law.
(b) Holland’s definition of law
1. Introduction
The term “Law’ denotes different kinds of rules and Principles. Law is an
instrument which regulates human conduct/behavior. Law means Justice,
Morality, Reason, Order, and Righteous from the view point of the society.
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
In old English “Lagu” i.e. law, ordinance, rule, regulation from old norse
“lagu” law collective Plural of “Lag” is layer, measure, stroke ‘Literally’
something laid down of fixed.
The term law has different meanings in different Places/societies at different
times (as it is subject to amendments). In Hindu religion law implies
“Dharma” in Muhammadean religion (Islam) it is “Hokum” in Roman its
“Jus”, in French, its “Droit” in Arabic, Alqanoon, in Persian and Turkish, its
Kunoon, in Latin its “Legam” in Philipino its “Batas” in Albanian language
its “Ligj” in Czech its “Zakon” in Danish its “Lor” in Dutch its “Wet” in
Italian its “Legge” and in Lithuanian its “Teise” and so on. It varies from
place to place in the sense adultery is an offence in India (under section 497
of the Indian penal code, 1860) while it is no offence in America. Law differs
from religion to religion in the sense personal laws viz. Hindu law, Muslim
law etc. differ from one another. For instance, A Muslim can have four wives
living at a time, but, a Hindu can have only one wife living at a time
(Monogamy). If a Hindu male marries again during the life time of first wife
he is declared guilty of the offence of bigamy and is Punishable under sec.
494. The law is subject to change with the change in society and also change
in the Government/legislative through the amendments/Acts.
, Generally the term law is used to mean three things:
First 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.
Secondly, law means the whole body of legal Percepts which exists in a
politically organized society.
Thirdly, law is used to mean all official control in a politically organized
society. This lead to actual administration of Justice as contrasted with the
authoritive material for the Guidance of Judicial action. Law in its narrowest
or strict sense is the civil law or the law of the land.
3. Definitions of law:-
It is very difficult to define the term law. Many Jurists attempted to define the
term law. For the Purpose of clarity, some of the definitions given by Jurists
in different Periods are categorized as follows.
(I) Idealistic Definitions:-
Romans and other ancient Jurists defined law in its idealistic nature. Roman
Justinian’s defined law in the light of its idealistic nature.
(a) Salmond: - According to salmond “the law may be defined as the body of
principles recognized and applied by the state in the administration of
Justice.
Criticism of Salmond’s definition of law:- Salmond did not define the
expression Justice. Keeton says what has been considered to be just at one
time has frequently not been so considered at another.
Criticism by Dean Roscoe Pound: - Dean Roscoe Pound has criticized the
definition of Salmond as reducing law to a mass of isolated decisions and the
law in that sense to be an organic whole. Further, it is criticized on the
ground that Salmond’s definition applies only to lax law not to Statute.
, Despite criticism, Salmond’s definition is considered as the workable
definition.
(b) John chipman Gray’s Definition of Law:-
According to Gray, “the Law of the State or of any organized 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.
Criticism of Gray’s definition of law:-
Gray’s definition is criticized on the Ground that he is not concerned with the
nature of law rather than its Purposes and Ends. Further it does not take into
account the statute law.
(ii) Positivisties definition:-
(a) Austin’s definition of law”
John Austin (1790-1859) An English Jurists expounded the concept of analytical
positivism, making law as a command of sovereign backed by sanction. He
developed logically, a structure of legal system in which he gave no Place to
values, morality, idealism and Justice.
According to Austin, a law, in the strict sense is a general command of the
sovereign individual or the sovereign body. Issued to those in subjectivity and
enforced by the physical power of the state. According to Austin “law is aggregate
of rules set by men politically superior or sovereign to men as politically subject.”
Austin says, “A law is command which obliges a person or persons to a course of
conduct.
Criticism of Austin’s definition of law:-
Austin’s definition of law is subjected to criticism on the ground that it ignores
completely the moral and ethical aspects of law and unduly Emphasized the
imperative character of law.
(b) Holland’s definition of law
