Law

1. Nature of law

Man is a social being. He lives in society and can live only in society. For the
harmonious running and functioning of society and security and well-being of
individuals, certain rules are needed and it is also necessary that these rules must be
obeyed. These rules are called law. In the primitive stage of society, these rules existed
in the form of customs and usages. These rules evolve and develop with the
development of society and it ensures their obedience by some kind of sanctions.
Afterwards, these rules are codified. In ancient India, this codification took place in the
form of Dharamashastras. In Dharamashastras and other scriptures these rules i.e. law
have been called Dharma. It has a wide meaning but the meaning contained in the term
‘law’ is also included in it.

The meaning of Dharma is that which sustains. After the society is politically organized
the said rules are recognized by the state and it makes new rules also. The former are
called custom and the latter statute. For their enforcement, judicial system, is
established by the state, interpretation of statutes and to determine and decide disputes
according to law is its function. In subsequent cases, these decisions are considered as
authoritative. These are called precedents. In modern times, there is a well organized
system for the administration of justice in all civilized countries.

As stated above, law is closely linked with the society. Therefore, it is a social science.
Due to its being inseparably linked with society, it develops and changes with the
development and changes in society and is adapted to the changed conditions and
needs. This nature and characteristic of law had been perceived in India since very
ancient times.

The term “Law’ denotes different kinds of rules and Principles. Law is an instrument
which regulates human conduct/behavior. Law means Justice, Morality, Reason and
Order, 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.

What is the nature of law? This question has occupied center stage Jurisprudence and
philosophy of law in the modern era, and has been the central occupation of
contemporary analytic Jurisprudence. This entry in the legal theory aims to give an
overview of the “what is law” debate.

Historically, the answer to the question, “what is Law” is thought to have two competing
answers. The classical answer is provided by natural law theory,

which is frequently characterized as asserting that there is an essential relationship

between law, morality and Justice. The modern answer is provided by legal positivism,
which is developed by John Austin, asserted that law is the command of the sovereign
backed by the threat of punishment. Contemporary debates over the nature of law focus
on a revised set of positions legal positivism is represented by Analytical legal
positivists, like H.L.A Hart Joseph and Jules Coleman. The natural law tradition is defined
by John Punis and a modern position is represented by the work of the late Ronald
Dworkin.

Origin of law

Ancient Egyptian law, dating as far back as 3000 BC had a civil code that was probably
broken into twelve books it was based on social equality and impartiality by
 3

the 22nd century BC, ur-nammu an ancient Sumerian ruler, formulated the first law code.
Around 1960 BC king Hammurabi further developed Babylonian law, by codifying and
inscribing it in stone. Hammurabi placed several copies of his law code throughout the
kingdom of Babylon for the entire public to see this became known as the codex
Hammurabi.

Ancient India and china represent distinct tradition of law, and had historically
independent schools of legal theory and practice. The Arthashastra, dating from the 400
BC and the Manusmriti from 100 BC were influential treatises in India, but this Hindu
tradition, along with Islamic law was supplanted by the common law when India became
part of British Empire. Malaysia, Brunei, Singapore and Hongkong also adopted the
common law. Japan was the first country to begin modernizing its legal system along
western line. Similarly traditional Chinese law gave way to westernization towards the
final years of the dynasty in the form of six private law codes based mainly on the
Japanese modal of German law.

One of the major legal systems developed during the Middle Ages was Islamic law and
jurisprudence. During the classical period of Islamic law and jurisprudence “Hawala” and
institution of law was an early informal transfer system which is mentioned in text of
Islamic Jurisprudence as early as the 8 th century. Hawala itself later influenced the
development of the “Aval” in French civil law and Avallo in Italian law. Roman law was
heavily influenced by Greek teachings.

Meaning of Law

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. 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 IPC. The law
is subject to change with the change in society and also change in the
 4

Government/legislative through the amendments/Acts.

(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:- The main point of criticism against

Salmond’s definition is that he confuses ‘Justice’ with law. Law and ‘justice’ is not
the same thing. Law is that which is actually in force whether it is evil or good.
‘Justice’ is an ideal founded in the moral nature of man.
 5

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 authorative
material for the guidance of judicial action. Law in its narrowest or strict sense is the civil
law or the law of the land.

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.

Romans:- Justinian’s Digest defines law as “the standard of what is just and unjust’.
Ulpain spoke of law as “the art of science of what is equitable and good”. In short, “justice”
as the main element of law, is the view expressed in all these definitions. But one thing
should be noted that whatsoever the theoretical view of Roams might have been, in
practice, they never confused law with justice. Jurists defined law in its idealistic nature.
Romans defined law in the light of its idealistic nature.

Hindu view: - Ancient Hindu view was that ‘law’ is the command of God and not of any
political superior (soverign). The ruler is also bound to obey it and is under a duty to
enforce it. Thus, law is part of ‘Dharma’. This being the view about law, we find moral and
religious injunctions mingled up with legal precepts. The idea of ‘justice’ is always present
in Hindu concept of law.

(I) Idealistic Definitions:-

In modern times, the law, in most part has been secularized and it has grown into an
independent branch of social science. Therefore, the definitions of law given from a
theological point of view are no longer tenable. But, justice is still an important
element in some of the definitions given by certain acknowledged jurist of modern
times. They have defined law in terms of justice but their concept of justice is not the
same as that of the ancient jurists. Justice, in modern definitions means legal justice
 6

and not an abstract justice. It is only on the ground of their taking justice as an
element of law that we have classed these jurists as ‘Idealistic’; otherwise they are
‘Positivist’. The most popular definition of this kind is that of Salmond.

Despite criticism, Salmond’s definition is considered as the workable definition.

(b) 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) Positivistic Definition:-

Though the positivistic definition of law is very old, we find a clear and logical exposition
of it in Austin.

(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 sovereign,

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
 7

the moral and ethical aspects of law and unduly emphasized the imperative character of
law.

Merits of Austin’s Definition- Austin’s definition has its merits also. Austin’s definition is
clear and simple. It presents an easy answer to the question of the validity of law. It laid
down the precise boundaries with which the jurisprudence is to work. Austin focused his
attention exclusively on the English law and defined law as he found it there. Therefore,
his definition fully applies to English law but it has no universal application.

(c) Hans Kelsan’s definition of Law

Kelsen is a positivist. Though he 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 Kelsen’s definition. According to him
legal order is the hierarchy of the norms, every norm derives its validity from the superior
norm and finally there is highest norm known as grundnorm.

Sociological School of Law:-

The Sociological school commenced in the middle of nineteenth century. The

sociological approach is not a single approach but it includes a number of thoughts. A
common heading has been given to them all for the reason that they proceed from the
common ground (i.e., they define law in terms of its relation with the society).

Ihering’s Definition of law

Ihering defines law as ‘the form of Guarantee of the conditions of life of society, assured
by State’s power of constrain’. There are three main implications of this definition: First, in
this definition law is treated as only one means of social control. Second, law is to serve
social purpose. Third, it is coercive in character, in other words, the obedience to law is
secured by the state through external compulsion. He says law is a means to an end and
end of the law is to serve its purpose which is social not individual.

(a) Dean Roscoe Pound’s definition of law

Pound defines law as a social institution to satisfy social wants. He says law is a
social engineering, which means that law is an instrument to balance between the
competing or conflicting interests.
 8

(b) Dias’s Definition of law

Law consists largely of “ought” (normative) propositions prescribing how people

ought to behave the “ought” of laws are variously dictated by social, moral,
economic, political and other purposes.

Realist Definition of Law

It is branch of sociological school. It studies law as it is in its actual working and

effects.

Holmes J. the realist considered the law to be a part of judicial process. He says
that ‘the prophesies of what the courts will do, in fact and nothing more pretentions,
are what I mean by law.” Jerome Frank, Cardozo and others have built upon it
their theories. 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.

This definition points out a very important factor which influences law because law
is administered through the Courts but as a definition, it is miserably deficient. The
definition is in terms of the organ which administers law. It is in most part based on
the experience of the judicial system in U.S.A..

Definition must be comprehensive: Most of the definitions discussed above have

been given keeping in view only the legal system of which the jurists giving the
definition had the experience. They present a partial and not a complete picture of
law. The function of a definition is to give a precise but full idea contained in the
terms which is being defined. Only such a definition can have a universal
application. In modern times, the concepts of state and sovereignty have
undergone considerable change.

Law is a social institution: Therefore, it presupposes a society. For the law to

come into existence, the members of the society must agree upon certain values,
Such an agreement and its observance by the member is the beginning of law.
Gradually, society develops and sets up a legal order. It prescribes the method for
making and enforcing law. Later on, the persons or groups that dominate the legal
order at a particular time go on making modifications in the law according to their
views. In this way law develops. In this picture of the law there are following
 9

elements:

(1) Law presupposes state. There may be law even without the state, as the
primitive law (simple not developed law), but law, in modern sense of the term,
implies state.

(2) The state makes or authorizes to make, recognizes or sanctions rules which are
called law.

(3) For the rules to be effective there are sanctions behind them.

(4) These rules (called law) are made to serve some purpose. The purpose may be
a social purpose.

Functions of law:

Law has several functions that are all related to providing a uniform code to be followed.
All the functions of law can be traced back to bring orderliness and provide with
knowledge of correct procedures to be followed. Ever since the down of Human
civilization, mankind has had some sort of rules or that they used to govern itself in
society. Laws set the standard in which we should live in, if we want to be part of society.
Most importantly the law also provides a mechanism to resolve disputes arising from
those duties and rights and allows parties to enforce promises in a court of law. According
to Corley and Reed (1986) law is a body of rules of action or conduct prescribed by
controlling authority, and having legal binding forces. Laws are created because it helps
prevent chaos from happening within the business environment and as well as society. In
business, law sets guide lines regarding employment regulatory, compliance, even inter
office regulations.

Roscoe Pound states that there are four major functions of law, (i) maintenance of law
and order in society; (ii) to maintain status quo in society; (iii) to ensure maximum freedom
of individuals; and (iv) to satisfy the basic needs of the people.

Following are the most basic and common function approved by jurists, is to ensure
well-being of the society by keeping order:

The main functions of law in a society are discussed in detail below:

(1) Maintenance of law and order in society:

 10

Laws are directives that govern and regulate human behavior and code of conduct to
ensure order. They are made for people within a territory to abide with. Laws are also
responsible for keeping peace of a country intact. Many countries possess a very
diverse population. If the same law is applied throughout the population, irrespective of
their diversity, different needs and differences in opinions, it would cause conflicts.
Hence, laws are drafted to cater the needs of different parts of the society and help in
maintaining peace in the country. For example, in a secular country like India, the
constitution leaves certain subjects, like marriage, under people's respective religion.
These laws are called Personal laws.

(2) Protection of Fundamental Human Rights:

There would be no use of any law that does not work towards protecting and securing
the rights of people. Law is in place to maintain order and benefit the society. They are
written to cater to people's needs and interests. In cases of crimes, laws punish
violators in order to ensure that the basic rights of the people are protected and further
set examples to ensure security. Thus, one of the most fundamental functions of law is
to promote and protect of Fundamental Human Rights.

(3) Control of Political System:

Law and politics have an obvious relationship. One of the major governmental functions
is to draft and amend laws in the interest of the people. However, the political system is
also subject to law and has to perform its duties according to law and be responsible for
its consequences. Thus, law also governs and controls the political system by
predetermining their duties, the structure of the system and who qualify to be a part of it.

(4) The regulations of economic activity:

Law also sets the rules and regulations that must be followed while performing
economic activities such as sale, trade, labor and investment. Law is needed to have
valid and legal business deals and agreements. Laws such as sales tax, income tax,
GST and customs law are also responsible for government revenue that are used as
funds for investing in the development of the country. Hence, law is also responsible for
governing the economic sector and its counterparts to ensure ordinance.

(5) Regulations of human relations:

 11

Human relations, such as contracts, agreements, families and marriages also come
under the purview of law. Law plays the function of keeping human behavior and
relations in a check. Thus, it automatically influences human relations by restricting
unacceptable behavior, for example adultery. It is also responsible for clarifying the
correct procedure of entering legal relationships, its legality and validity. Cases in
marriage, like divorces, are needed to be approved by the law and registered in order to
be valid. Hence, law holds control over the regulation of human relations.

(6) International relations:

Law is responsible for conducting and making international relations. It plays an

important role in forming economic, diplomatic and strategic relations with other nations.
Visa law is also responsible for allowing people from other countries to enjoy the
services provided by that nation. Laws are also used against policies and demands of
other nations, and protect and promote the nations interests.

Kinds of law

Law is used in different senses. The use of the term “law” is made in various senses. It
denotes different kinds of rules and Principles. Blackstone says “law in its most general
and comprehensive sense signifies a rule of action and is applied indiscriminately to all
kinds of action whether, animate, rational, irrational. Thus we say the law of motion, of
gravitation, of optics or mechanics, as well as the law of nature and nations” it is helpful in
understanding the different senses in which “law” is used in various fields of knowledge.

Kinds of law by Sir Jhon Salmond:

Sir John Salmond refers to eight kinds of law:

1. Imperative law

2. Physical or scientific law

3. Natural or moral law

4. Conventional law
 12

5. Customary law
6. Practical or technical law

7. International law, and

8. Civil law

Imperative law

Imperative law means a rule of action imposed upon by some authority which enforces
obedience to it1. In other words it is a command enforced by some superior power either
physically or in any other form of compulsion. Not only the rules given by the state but
also the rules of other organizations and association are imperative because there is
some kind of sanction behind them. International law, compliance to which is secured
generally by the pressure of the public opinion and threat of war, is also an imperative
law.

Kinds of Imperative law:-

There are two kinds of imperative law, Divine or human

1. Divine laws

2. Human laws

1. Divine laws are consists of the commands imposed by God upon men either by
threats of punishment or by hope of his blessings.

2. Human laws are the laws by analogy.

1
Salmond, Jurisprudence
 13

Physical or scientific law:

This kind of law signifies those uniformities and regularities which are observable in nature
as the laws of light and heat. It includes also those actions of human beings which are
uniform such as sleep. They are not the creation of men and cannot be changed by them.
Human laws change from time to time and from country to country but physical laws are
invariable forever. The uniform actions of human beings, such as law of psychology, also
fall into this class.

Natural or Moral law:

It has various other names such as, “the moral law” “divine law” “God Law” ‘universal or
eternal law and “law of reason” etc. It signifies the principles of natural right and wrong, in
other words, the ideal conception of justice. The idea of natural law and justice is based
on moral or religious grounds. Generally, it presents a picture of ideal law or what the law
ought to be. The idea of natural law we find from very early time. It is present in ancient
Greek, Roman, and Hindu legal thought. The portion of morality which supplies the
important universal rules for the governance of the outward acts and conducts of mankind
have been termed as laws of nature, These rules of morality essentially rest on public
sentiments.

Many laws of modern time are formulated on the basis of natural law. Thus the law of
quasi-contract, the conflicts of law, law of trust etc. are essentially founded on natural
justice. Again, the judicial control of administrative and quasi-judicial functions is based on
the principles of natural justice. It has been realized that any law to be effective must be
founded on reason so that it may have universal application with variable contents
depending upon time and place.

Conventional law:

It is the body of rules agreed upon and followed by the concerned parties to regulate
their mutual conduct. It is form of special law and law for the parties which can be
made valid or enforced through an agreement. A Good example of the conventional law
is the International law, laws of cricket or any other game, rules of club.

Customary law:

Customary laws are those rules of custom that are habitually followed by the majority of
 14

the persons subject to them in the belief of binding nature. According to Salmond,
customary law means “any rules of action which is actually observed by men (any rule
which is the expression of some actual uniformity of voluntary action) “when a custom is
firmly established it is enforced by the authority of the State. Custom is not law by itself
but an important source of law. Only those customs acquired the force of law, which are
recognized by the courts. The ancient Code of Mannu, Narda and Yajnavalkya contain
an excellent exposition of customary law of the Hindu society. The Twelve Tables also
contained the laws which were based on Roman customs during the ancient Roman
Empire.

Practical or Technical law:

Technical laws mean those rules which are necessary for the attainment of certain ends
such as the laws of poetical compositions or the laws of health etc. There are certain
rules the observance of which is necessary for the composition of poetry. It consists of
Principles and rules for the attainment of certain ends e.g. laws of health, laws of
architecture. These rules guide us as to what we ought to do in order to attain certain
ends.

International law:

According to “Hughes” international law is the body of Principles and rules which
civilized States consider as binding upon them in their mutual relations. According to
Salmond it is considered of these rules which the sovereign States have agreed to
observe in their dealings with one another. The Permanent Court of International Justice
(PCJI) in S.S. Lotus case2 defined International law as “principles which are in force
between all independent nations”.

International law is of two kinds:

I: Public International law: It prevails universally all over the world.

II: Private International Law: It is enforced only between some of States.

Civil Law:

2
1927 PCJI
 15

It is the law of the States regarding the land “Civil Law” according to the Salmond , is
“the law of State or the law of the land, the law of lawyers and the law of the courts”.
Civil law is the positive law, or law of the land which means the law as it exists. It is
backed by the force and might of the State for purposes of enforcement. The term ‘Civil
Law’ is derived from the Roman word jus civile. Austin and Holland prefer to call civil law
as positive law because it is enforced by the sovereign political authority.

CLASSIFICATION OF LAW

For a proper and logical understanding of law its classification becomes necessary, It
helps in grasping the principles and the logical structure of the legal order. Secondly, it
makes clear te inter-relation of rules and their effect on each other. Thirdly, it helps in
arranging the rules in a concise and systematic way. Fourthly, classification presents
an analysis of the architect of law which greatly helps in codification. Fifthly, it is of
great use to a lawyer. It helps him in understanding the law. Therefore, the classification
is an important task of an author who attempts to present a study of law. Etymological
meaning of classification is “the process of putting something into category” or the basic
process of arranging into classes or categories. For a proper and logical understanding
of law its classification becomes necessary. Iit elucidates the way of systematic logical
structure of the legal order. It explicates the inter relation of rules and their effect to each
other. It analysis the law that intern is helpful in codification of laws it is an
arrangement of rules in a conciseand systematic way.

Law may be broadly divided into two classes:

(1) International Law, and

(2) Municipal or National law.

(1) International law:-

The Present form of international law is of recent origin. Some earlier Jurists were of
the view that the International law is not law as it lacked many elements which law
should have. Then came another view that International law is law and it is superior to
the municipal law. Kelson is a very strong supporter of this view.
 16

What is International Law?

The legal Process that concerns legal relations among nations is called international
law. Belief and experience some form international law dates from at least the days of
the Roman Empire. The united nation is of the primary mechanism that articulate and
create international law. The major sources of international law are multilateral Treaties,
international custom and such General Principles as are recognized by civilized nations.
According to some Jurists international law may be divided into two classes.
 17

(1) Public international law, and

(2) Private international law

(1) Public international law is that body of rules which govern the conduct and
relations of States with other, really speaking; the term international law is used
for this class of law.
(2) Private international law means those rules and Principles according to which
the cases having foreign element are decided for example, if a contract is made
between an Indian and Pakistani and it is to be performed the rule and Principles
on which the rights and liabilities of the Parties would be determined would be
called Private international law. This class of law is called “Conflict of laws” also.
After knowing the field of application of this class of law, it is clear that the
adjective “international” is wrongly given to it because it applies to individuals
and not to States and these rules and Principles (called Private international law)
vary from State to State and thus lacked uniformity. This class of law is enforced
by municipal courts which administer municipal law and not international law. So,
such a law does not process the characteristics of international law.
In modern times this class of law has gained much importance and every states
has made rules for its administration.

The Municipal law, Law of land, Civil law, or law applied within a State is
divided into two classes:-

(A) PUBLIC LAW

(B) PRIVATE LAW

A) PUBLIC LAW:- The State activities are largely regulated by public law. It
determines and regulates the organization and functioning of the State and
determines the relation of the State with the subject. Public law may be divided
into three classes:-
(i) Constitutional law
 18

(ii) Administrative law and

(iii) Criminal law

(i) Constitutional law: By constitutional law is meant that law which

determines the nature of the State and the Structure of the Government. It
is above and superior to the ordinary law of the land. Constitutional law is
the basic law or fundamental law of the State. The constitutional law may
be written as in India or unwritten as in England. In modern times there is
tendency to adopt written constitution.
(ii) Administrative Law:- Administrative law deals with the structures, powers
and the functions of organs of the administration, the limits of their powers,
the methods and procedures followed by them in exercising their powers
and functions; the methods by which these powers are controlled including
the legal remedies available to a person against them when his rights are
infringed by their operation.
(iii) Criminal law:- Criminal law defines offences and prescribes punishment
for them. Its aim is the prevention of and punishment for offences. Criminal
law is necessary for the maintenance of order and peace within the State.
In civilized societies crime is considered to be wrong not only against the
individual (who has been wronged) but a wrong against the society.
Therefore, the State initiates the proceedings against the offender, and
thus it is always a party in criminal cases. This is why the criminal law is
considered as a branch of public law.
(iv) Private Law: - This branch of law regulates and governs the relations of
citizens with each other. The parties in such cases are private individuals
and the State through its judicial organ adjudicates the matters in dispute
between them. In these cases the State takes the position of only an
arbiter. But it does not mean that the State regulates all the conducts and
relations of the citizens but regulates only such of them as are of public
importance and these relations (which State regulates) constitute the civil
rights of the citizens. The major part of municipal law consists of this
branch of law but in Totalitarian States the public law regulates the major
part of the social life.
In the Classification of private law there is great difficulty. Different Jurists
 19

have given different classification, a very general classification is as

follows:-
 20

1. The law of Persons

2. The law of Property
3. The law of obligations
4. The conflict of laws
The law of obligations is divided into three classes.

(i) Contract
(ii) Quasi contract, and
(iii) Tort
The classification is only substantive law. The procedural law and Evidence are also
the branches of the Private law.
A chart Presenting the above classification is as below:-

Law
State law/national law international law

Constitutional law Administrative law criminal law

Public law private law

Law of Person law of Property law of obligations the conflict of laws

Contract Quasi-contract Tort

 21

Above classification defective: - The above classification of law has many defects.
Many of the classes do not exist in many legal system at all some branches of law
which has developed in recent years cannot be put under any one class exclusively.
Therefore, the above classification is neither universal nor exhaustive. Many other
Jurists have made classifications based on different principles. But these too have been
made keeping in view the law of a particular nation; therefore, they are not satisfactory
and have no wide application.
New developments; A new classification necessary: - In modern times, new
branches of law are growing fast and developing. These laws are of such composite
nature that they partake the nature and characteristics of many of branches of the law
and do not fall into any one class exclusively for example we may take the commercial
law. It cuts across the two branches of law i.e the law of obligation and the law of
property. Similarly, industrial law also partakes the characteristics of many branches of
the law.
With the change in the concept of the State and law many branches of private law have
shifted and have become part of the public law. In totalitarian States this change has
taken place to a considerable degree. Under these circumstances it is necessary to
make a comprehensive and complete classification which might cover the recent
developments of law for this purpose a very close study of the laws of various nations
and various branches of law must be made.

Law and morality

No Distinction in ancient times: In the early stages of the society there was any
distinction between law and morals. In Hindu law, the prime sources of which are the
Vedas and the Smritis, we do not find such distinction in the beginning. However, later
on, Mimansa laid down certain principles to distinguish obligatory from recommendatory
injunctions. In the West also the position was similar. The Greeks in the name of the
doctrine of natural rights formulated a theoretical moral foundation of law. The Roman
jurists in the name of natural law recognised certain moral principles as the basis of law.
In the middle Ages, the Church became dominant in Europe. The natural law was given
a theological basis and Christian morals were considered as the basis of law. Ever
since law has been recognized as an effective instrument of social ordering there has
 22

been an ongoing debate on its relationship with morality.

According to Paton, morals or ethics is a study of the supreme good. In general,
morality has been defined to include: all manner of rules, standards, principles or norms
by which men regulate, guide and control their relationships with themselves and with
others. Both, law and morality, have a common origin. In fact, morals gave rise to laws.
The State put its own sanction behind moral rules and enforced them. These rules were
given the name law.

In the words of Hart “The law of every modern State shows at a thousand points the
influence of both the accepted social morality and wider moral ideal. Both, law and
morality have a common object or end in so far as both of them direct the actions of
men in such a way as to produce maximum social and individual good. Both, law and
morality are backed by social or external sanction.”

Bentham said that legislation has the same center with morals, but it has not the same
circumference. Morality is generally the basis of law, i.e. illegal (murder, theft, etc.) is
also immoral. But there are many immoral acts such as sexual relationship between two
unmarried adults, hard-heartedness, ingratitude, etc. which are immoral but are not
illegal. Similarly, there may be laws which are not based upon morals and some of them
may be even opposed to morals, e.g. laws on technical matters, traffic laws, etc. Morals
as test of law: several jurists have observed that law must conform to morals, and the
law which does not conform to morals must be disobeyed and the government which
makes such law should be overthrown.

Paton said that if the law lags behind popular standard, it falls into dispute, if the legal
standards are too high; there are great difficulties of enforcement.
Morals as end of law: According to some jurists, the purpose of the law is do justice.
Paton said that justice is the end of law. In its popular sense, the word justice is based
on morals. Thus, such morals being part of justice become end of justice. The end
which the preamble of our constitution tries to achieve is the morals.

Again there came a reaction. In the 19th century, Austin propounded his theory that the
law has nothing to do with the morals. He defined law as the command of the sovereign.
 23

He further said that it was law (command) alone which is subject-matter of

jurisprudence. Morals are not a subject-matter of study for jurisprudence.

Many later jurists supported the view of Austin. In the 20th century, Kelsen said that
only the legal norms are the subject-matter of jurisprudence. He excluded all other
extraneous things including the morals from the study of law. There is a change in trend
of thought in modern times.
The sociological approach to law indirectly studies morals also. Though they always
make a distinction between law and morals and consider the former as the proper
subject-matter of study, in tracing the origin, development, function and ends of law,
they make a study of the forces which influence it. Thus their field of study extends to
the various social sciences including morals.

India: As observed earlier, the ancient Hindu jurists did not make any distinction
between law and morals. Later on, in actual practice some distinction started to be
observed. The Mimansa made a distinction between obligatory and recommendatory
rules. By the time the commentaries were written the distinction was clearly established
in theory also. The Commentators pointed out the distinction and in many cases
dropped those rules which were based purely on morals. The doctrine of factum valet
was recognized which means that an act which is in contravention of some moral
injunction, if accomplished in fact, should be considered valid.

However, this rule does not apply to legal injunctions. In modern times, the Privy
Council in its decision always made a distinction between legal and moral injunctions.
Now there is no longer any confusion between law and morals and when the law is
gradually being codified, there are little chances of such confusion.

Distinction between Law and Morals

It has been repeatedly observed in the preceding paragraphs that in modern times there
is a clear distinction between law and morals in every developed and civilized society.
Now the points of distinction between the two shall be discussed as:

The morals are concerned with the individual and lay down rule for the molding of his
character. Law concentrates mainly on the society and lays down rules concerning the
 24

relationships of individuals with each other and with the state. Morals look to the
instrinsic (basic) value of conduct or in other words, they look into motive. Law is
concerned with the conduct of the individual for which it lays down standards. The
morals are an end in themselves. They should be followed because they are good in
themselves. Law is for the purpose of convenience and expediency, and its chief aim is
to help a smooth running of the society. The observance of morals is a matter of
individual conscience. Law brings into picture the complete machinery of the state
where the individual submits himself to the will of the organised society and is bound to
follow its rules. The morals are considered to be of universal value. Law is relative-
related to the time and place, and, therefore, it varies from society to society. Law and
morals, again, differ in their application. The morals are applied taking into consideration
the individual cases whereas the application of law is uniform.
Roscoe Pound therefore, says that: “as to application of moral principles and legal
precepts respectively, it is said that moral principles are of individual and relative
application; they must be applied with reference to circumstances and individuals,
whereas legal rules are of general and absolute application.”

Relation between Law and Morals

In the preceding paragraph the points of distinction between law and moral have been
discussed, but due to these points of distinction between the two, it should not be
gathered that they are opposed to each other and there is no relationship between the
two. Really speaking, they are very closely related to each other. In considering the
relationship between law and morals much will depend on how one defines law.
Analytical, Historical, Philosophical and Sociological jurists all have defined law in their
own way and these definitions materially differ from each other.

A study of the relationship between law and morals can be made from three
angles:

(1) Morals as the basis of law.

(2) Morals as the test of (positive) law.
(3) Morals as the end of law.
 25

(1) Morals as the basis of law:

As observed earlier, in the early stages of the society no distinction was made between
law and morals. All the rules originated from the common source, and the sanction
behind them was of the same nature (mostly supernatural fear). When state came into
being, it picked up those rules which were important from the society point of view and
the observance of which could be secured by it. The state put its own sanction behind
these rules and enforced them. These rules were called law. The rules which were
meant for some supreme good of the individual (in the metaphysical sense) and the
state could not ensure their observance continued in their original condition. These rules
are known as morals.

Thus, law and morals have the common origin but in the course of development they
came to differ. Therefore, it could be said that law and morals have a common origin but
diverge in their development. As the law and morals have come from the common
stock, many rules are common to both. For example, to kill a man or to steal, are acts
against law and morals both. It is on this ground that, sometimes, law is said to be
minimum ethics.
Queen v. Dudley and Stephen’s case:
Though law and morality are not the same, and many things may be immoral which are
not necessarily illegal, yet the absolute divorce of law from morality would be a fatal
consequence. The principles laid down in Queen v. Dudley and Stephen (14 Q.B.D.
273) are worth mentioning in this connection. In that case three seamen and a boy, the
crew of an English yacht, were cast away in a storm on the high seas and were
compelled to put into an open boat belonging to the said yacht. They had no food and
no water in the boat and in order to save themselves from certain death, they put the
boy to death and fed on the boy’s body, when they were picked up by a passing vessel.
They were tried for the killing of the boy and jury returned a special verdict. The case
came before a bench of five judges of Queen Bench Division. Coleridge C.J. (the other
four judges concurring) observed:
“To preserve one’s life is generally speaking a duty, but it may be the plainest and
highest duty to sacrifice it. War is full of instances in which it is man’s duty not to live but
to die. The duty in case of ship wreck, of a captain to his crew, of the crew to the
passengers, of soldiers to women and children.....These duties impose on men the
moral necessity, not of the preservation, but of the sacrifice of their lives for others, from
 26

which in no country, least of all it is to be hoped in England will men ever shrink, as
indeed, they have not shrunk. It is not correct, therefore, to say that there is any
absolute or unqualified necessity for preserving one’s life. It is not needful to point out
the lawful danger of admitting the principle which has been contended for. Who is to be
the judge of this sort of necessity? By what measure is the comparative value of lives to
be measured? Is it to be strength, or intellect or what? It is plain that the principle leaves
to him who is to profit by it to determine the necessity which will justify him in
deliberately taking another’s life to save his own. In this case the weakest, the youngest,
the most unresisting, was chosen. Was it more necessary to kill him than one of the
grown-up men? The answer must be, No…..

So spoke the Fiend, and with necessity. The tyrant’s plea excused his devilish deeds.

“It is not suggested that in this particular case the deeds were ‘devilish’, but it is quite
plain that such a principle, once admitted might be made the legal cloak for unbridled
passion and atrocious crime. There is no safe path for judges to tread but to ascertain
the law to the best of their ability and to declare it according to their judgment and if in
any case the law appears to be too severe to individuals, to leave it to the sovereign to
exercise that prerogative of mercy which the Constitution has entrusted to the hands
fitted to dispense it.”

“It must not be supposed that in refusing to admit temptation to be an excuse for crime it
is forgotten how terrible the temptation was; how lawful the suffering; how hard in such
trials to keep the judgment straight and the conduct pure.” We are often compelled to
set up standards we cannot reach ourselves, and to lay down rules which we could not
ourselves satisfy. But a man has no right to declare temptation to be an excuse, though
he might himself have yielded to it, or allow compassion for the criminal to change or
weaken in any manner the legal definition of crime.

Grove J. while concurring added: “If the two accused men were justified in killing Parker,
then if not rescued in time two of the three survivors would be justified in killing the third,
and, of the two who remained, the stronger would be justified in killing the weaker, so
that three men might be justifiably killed to give the fourth a chance of surviving.” Thus,
the principle is that no man has a right to take another’s life to save his own.
 27

Recently Supreme Court of India held that in case of conflict of fundamental rights of
two individuals the decision is to be made on the basis of morals. In this case, the
appellant's blood sample was found to be HIV (+). On account of this disclosure the
appellant’s proposed marriage to one A which had been accepted, was called off. The
appellant sued the hospital for damages on the ground that the doctors violated their
duty to maintain confidentiality as well as his right to privacy. This was contested on the
ground that the disclosure of the health conditions of the appellant to, the girl to whom
he was proposed to be married was protected under the right to life of the girl which
includes the right to a healthy life.

The court held: “As a human being A must also enjoy, as she obviously is entitled to,
all the human rights available to any other human being. This is apart from, and in
addition to, the fundamental right available to her under Article 21. This right would
positively include the right to be told that a person, with whom she was proposed to be
married, was the victim of a deadly disease, which was sexually communicable.”

Since right to life includes right to lead a healthy life so as to enjoy all the faculties of the
human body in their prime condition, the respondents, by their disclosure that the
appellant was HIV(+), cannot be said to have, in any way, either violated the rule of
confidentiality or the right of privacy.

Moreover, where there is a clash of two Fundamental Rights, as in the instant case,
namely, the appellant’s right to privacy as part of right to life and right to lead a healthy
life which is her Fundamental Right under Article 21 the right which would advance the
public morality or public interest, would alone be enforced through the process of court,
for the reason that moral considerations cannot be kept at bay and the Judges are not
expected to sit as mute structures of clay in the hall known as the courtroom, but have
to be sensitive, in the sense that they must keep their fingers firmly upon the pulse of
the accepted morality of the day.3

However, it does not mean that morals are the basis of all the legal rules. There are a
number of legal rules which are not based upon morals and some of them are even

3
Mr. X v. Hospital Z, (1998) 8 SCC 296.
 28

opposed to morals. Morals will not hold a man vicariously liable, one liable for the act of
another, where the person made liable is in no way blame able. In the same way, in
cases where both the parties are blameless and they have suffered by the fraud of a
third, law may impose the loss upon the party who is capable of bearing it but such a
course will not be approved by morals.

(2) Morals as the test of law:

It has been contended by a number of jurists, since very early times, that law must
conform to morals. This view was supported by the Greeks and the Romans. In Rome,
law to some extent, was made to conform to natural law which was based on certain
moral principles and as a result jus civila was transformed into jus gentiuma. Most of the
ancient jurists expressed their views in a spirit of compromise and attached sanctity to
legal rules and institutions. They said that law, even if it is not in conformity with morals,
is valid and binding. During the Dark Ages, Christian Fathers preached forcefully that
law conform to Christian morals and said that any law against it is invalid. In the 17th
and the 18th centuries, when the natural law theory (which was based on certain
morals) was at its highest, it was contended that law (positive law) must conform to
natural law.

They said that any law which does not conform to natural law is to be disobeyed and the
government which makes such law should be overthrown. It was this theory which
inspired the French Revolution.

In modern times, such views that law must conform to morals and if it is not in
conformity with morals, it is not valid and binding are no longer heard. However, in
practice to a great extent law conforms to morals.

Generally, law cannot depart far from the morals due to many reasons. The law does
not enforce itself. There are a number of factors which secure the obedience of law. The
conformity of law with morals is a very important factor. There is always a very close
relation between the law and the life of a community, and in the life of the community
morals have got an important place.

Paton rightly observes that, “if the law lags behind popular standard it falls into
 29

disrepute, if the legal standards are too high; there are great difficulties of enforcement.”

(3) Morals as the end of law:

Morals have often been considered to be the end of law. A number of eminent jurists
have defined law in terms of, justice. They say that the aim of law is to secure justice.
Justice in its popular sense is very much based upon morals.

In most of the languages of the world, the words used for law convey an idea of justice
and morals also. According to analytical jurists, any study of the ends of law falls
beyond the domain of jurisprudence. But sociological approach considers this study as
very important. It says that law has always a purpose; it is a means to an end, and this
end is the welfare of the society.

According to this utilitarian point of view, the immediate end of law is to secure social
interests, that is, to secure harmony of claims or demands. It means that the conflicting
interests (in the society) should be weighed and evaluated and the interests who can
bring greater benefit with the least sacrifice should be recognized and protected.

Thus, this all becomes a question of choice. In making this choice and in weighing or
evaluating interest, whether in legislation or judicial decision, or juristic writing, whether
we do it by law making or in the application of law, we must turn to ethics for principles.
Morals are an evaluation of interests; law is or at least seeks to be delimitation in
accordance therewith.

Many of the modern definitions of law say that the evaluation of interests is a very
important test of law. This can be done properly in the context of socially recognised
values which in their turn are closely related to morals. Thus, ultimately morals become
the end of law.

This end has been expressed in the constitutions of many countries. If we look at the
preamble of our own Constitution, we shall find that the ends which it endeavours to
achieve are the morals; of course, they are the morals of the modern age.

Conclusion:
 30

Generally, legal rules are composite and are derived from heterogeneous sources. In
India, if we examine all the legal precepts, we shall find that some of them have come
from personal laws and local customs, a good number of them are based on foreign
rules and principles (mainly English), and some are based on the logic or political
ideology and so on.

Secondly, public opinion which greatly influences law is made up of a number of things-
political ideas, economic theory, ethical philosophy, etc. These directly and indirectly
influence law. Therefore, when so many elements work in shaping the legal precepts,
the matter cannot be put in such a simple way as the relation between law and morals,
because a number of factors join hands in influencing law, and morals is only one of
them. However, some observations can be made about the relation between law and
morals.

Influence of morals on law:

Law and morals act and react upon and mould each other. In the name of justice',
equity, good faith, and conscience' morals have in filtered into the fabrics of law. In
judicial law making, in the interpretation of legal precepts, in exercising judicial
discretion (as in awarding punishment) moral considerations play a very important role.
Morals work as a restraint upon the power of the legislature because the legislature
cannot venture to make a law which is completely against the morals of the society.
Secondly, all human conduct and social relations cannot be regulated and governed by
law alone.

A considerable number of them are regulated by morals. A number of actions and

relations in the life of the community go on very smoothly without any intervention by
law. Their observance is secured by morals. So far as the legal rules are concerned, it
is not the legal sanction alone that ensures their obedience but morals also help in it.
Thus, morals perfect the law. In marriage, so long as love persists, there is little need of
law to rule the relations of the husband and wife, but the solicitor comes in through the
door, as love flies out of the window.

Hart’s view:
The law of every modern state shows as at a thousand points the influence of both the
 31

accepted social morality and wider moral ideals. These influences enter into law either
abruptly and avowedly through legislation, or silently and piecemeal through the judicial
process. In some systems, as in the United States, the ultimate criteria of legal validity
explicitly incorporate principles of justice or substantive moral values; in other systems,
as in England where there are no formal restrictions on the competency of the supreme
legislature, its legislation may yet no less scrupulously conform to justice or morality.

The further ways in which law mirrors morality which are myriad, and still insufficiently
studied: statutes may be a mere legal shell and demand by their express terms to be
filled out with the aid of moral principles; the range of enforceable contracts may be
limited by reference to conceptions of morality and fairness; liability for both civil and
criminal wrongs may be adjusted to prevailing views of moral responsibility.

No positivist could deny that these are facts or that the stability of legal systems
depends in part upon such types of correspondence with morals. If this is what is meant
by the necessary connation of law and morals, its existence should be conceded.

Growing importance of morals:

Now, sociological approach has got its impact upon the modern age. This approach is
more concerned with the ends that law has to pursue. Thus, recognised, or, in other
words, morals (of course the morals of the modern age) have become a very important
subject of study for good law making. On international law also morals are exercising a
great influence.

The brutalities and inhuman acts in World Wars made the people to turn back to morals
and efforts are being made to establish standards and values which the nations must
follow. Perhaps there is no other so forceful ground to justify the Nuremberg Trials as
morals. If the law is to remain closer to the life of the people and effective, it must not
ignore morals.