10

THE NATURE OF LAW

The purpose of legal theory is to attempt to answer the question what law is? Jurists
snd writers have devoted sufficient attention to the meaning, nature and scope of law.
has been
There is yet another reason as to why an intensive study of law is necessary. It
oiterated that "law" is the subject-matter of jurisprudence since the latter deals with the
stuidy of law. Austin thought it necessary to define law in order to establish the province
of law in his
of jurisprudence. He devoted as many as six lectures to explain the nature 1832.
classic work Province of Jurisprudence Determined which was published in
rule of action and
Law in its most general and comprehensive sense means any
be conformed. In its
includes any standard or pattern to which actions are or ought tobehaviour of persons,
iudicial sense, law means a body of rules of conduct, actiom or As Holland puts it,
action.
made and enforced by the State. It expresses a rule of human the abstract idea or ordeer
sense of
"the term"law is employed in jurisprudence not in the
Law is a general rule of
but in that of the abstract idea of rules of conduct."2 For him,
external human action enforced by a Sovereign political authority
Hobbes also defined law as "the commands of determinate superior that has coercive
powers"

According to Blackstone, "Law in its most general and comprehensive sense signifies
whether animate or
a rule of action, and is applied indiscriminately to all kinds of actions,
of optics, of mechanics,
inanimate, rational or irrational. Thus there is law of gravitation,
as well as the laws of nature
and of nation." The term law' in this sense is applied to
observe uniformity of actions.
the convincing reply may be
As to the question why do people generally obey laws,
standards which people consider it necessary
that they do so because rules of law generate
out by H.L.A. Hart, law exerts a certain "pull"
to obey as their moral duty. As pointed
on human beings towards compliance
with law.
Plato and Aristotle believed in the existence
The early Greek philosophers, notably
which preceded all human laws and which is
of an unwritten highest law of devine origin
Later, Thomas Aquinas, the propounder of
co-extensive with the eternal order of things.
rational approach to law. The tendency to weigh the
natural law philosophy, developed a
towards the seventeenth century which
rationality of law through 'reasoning' developed However, as the civilization progressed
the medieval jurists termed as legal positivism.*
necessitated some external protection
the complexities in human life and social pressure
function was assumed by the law under the
to regulate the social requirements and this
a realist ideolo8y.
patronage of sociological school adopting
Definition of "Law"
from different point of views. It has been called
Jurists have defined law differently
in Islamic system. Romans called it Jus
Dharma in Hindu jurisprudence and "Hukum"
and in Germany and France it is called as Richt and Droit respectively.

on Jurisprudence, (2nd ed., 5th Reprint, 1988) p. 1.

.P. J. Fitzgerald: Salmons 21.
2 Holland Jurisprudence, (13th ed.). p.
Hart, H.L.A. Concept of Law, (1961), p. S6.
in Medieval Political Theory, (1940), p. 50; See also
Lewis Ewart: Natural Law Expediency
and
4 27.
Thomas Hobbes: Leviathan, (1991), p.
(141)
142 JURISPRUDENCE AND LEGAL THEORY

ancient States law conceived as divinely ordained set of rules of humann action,
n was
Although these definitions are
re noi
Cerore, it was believed to have a divine origin. no
longer
theoretical significance.
applicable in the nodern time but they still have a

According to Justinian, "law is the king of themortal

of all and
immortal affairs w l
noble and the base, and thCh
ought to be the chief, the ruler and the leader
commander to animals naturally social ofn
standard of what is just and unjust, the should not do." what
they should do, the forbidden of what they
is equitable and good". The anc
Ulpian definedlaw as "the art of science of what ncient
more powertul and rigid than th
Hindu jurists held law to be the king of kings, far ney,
that of the highest monarch e
nothing can be mightier than law, by whose aid, by
as
even
the weak may prevail over the strong
The above idealistic definitions of law were given at the time when there was n
distinction between law, morals and religion and law was broadly conceived as a part of
religion. These definitions have therefore, lost their significance in modern time when
law is being treated as an instrument of social change. The element of justice' in law is
however, considered necessary even in the present time. But what law contemplates today
IS legal justice' and not 'abstract justice' as visualised by the ancient jurists. In the
present age law pervades all the spheres of human activites and the State seeks to regulate
them through the instrumentality of law. The law therefore, has to play a positive role in
regulating human conduct. The modern jurists have defined law as a means to secure legal

justice.
Expressing his views regarding confusion about an exact definition of law, Lord
Lloyd observed, "since much juristic ink has flown in an endeavour to provide d
universally acceptable definition of law, but with little sign of attaining that objective."5
As rightly pointed out by R. Wollheim, much of the confusion in defining law has been
due to the different types of purpose sought to be achieved.

Morris also holds similar views about the lack of unanimity in the definition of law
and opines that since law has been differently defined by various legal scientists, from
different points of views, there could not be any unanimity of opinion regarding the real
nature of law and its definition. Despite there being lot of literature available on law,
there is no common definiton of law which could be acceptable to all.
Moden jurists have defined law from different angles. Some have defined it on the
basis of its nature, some concentrate mainly on its sources. Again, some writers define
law in terms of its effect on society while others prefer to define it in terms of ends or
purpose of law.
About the exact definition of law, Keeton pointed out that, "to attempt to establish d

single definition of law is to seek to confine jurisprudence within the straight jacket fro
which it is continually striving to escape."
According to Blackstone, "law in its most general and comprehensive sense signitics
a rule of action and is applied indiscrimately to all kinds of actions, whether animale o
inatmate, rational or irrational."
Hooper defines law as "any kind of rule whereby actions are framed...that whie
reason in such sort defines to be good that it must be done.
Ihring defines law as "the form of the guarantee of the conditions of life. of soce
assured by State's power of constraint." Thus he treats law only as a means of soct

5. Liyod Insroduction o Jurisprudence. p. 42.

 THE NATURE OFLAW 143

antrol and its obedience is secured by the State through external compulsion. Ihring
mphasised that law IS an instrument for serving the needs of human society.

According to J. C. Gray, "law is a statement of the circumstances in which public

to bear upon men through courts. It consists of rules which the
force will be brought
Ourts lay down for the determination of legal rights and duties. According to him

statutes part of the law itself.

are sources of law and not

Salmond defined law "as the body of principles recognised and applied by the State
for the administration of justice." The object of law is to achieve justice.
law to be "social
The definition of law is well explained by Roscoe Pound. He stated
Thus
control through systematic application of force of politically organised society."
at large functioning
law can be described in terms of legal order accepted by society
within the limits of the State.
which are seen to operate as
According to Paton, "law consists of a body of rules with the rules
rules in the community by means of which sufficient compliance
binding
set of rules to be seen as binding."
may be secured to enable the
is a technique of social organisation.
He says, "law is
Law, according to Kelson
as an apparatus of compulsion
to
characterised not as an end but as a specified means,
no political or ethical value,
law apparatus whose value
which, as such there adheres
transcends the law."
derives rather from some end which
definition of law can be treated as satisfactory
It would thus be seen that no single element. All
the dynamic fabric of its inherent
because law is ever changing in
follow certain sequence. It is for this reason that Thurman Arnold
developments in law
of prescribed formal rules enforced by the
a set positive
observed, "law is ultimately to social
with the approval of common public opinion in response
SOvereign authority factors and currency of forces."
challenge emanating from contemporaneous
rules-the primary and secondary ruies.
defined law as a system of
H.L.A. Hart has as the essence of law. The primary
their union or combination may justly be regarded
imposing while secondary rules are power conferring.
Tules according to Hart are duty