What is Law?

Is it important to answer ‘What is Law?’

 What is Law?
Need for generalization – it appears natural to
look for a general test of legality and searching
for some abstract criterion by which to determine
the validity of a rule of law
 What is Law?
Emotive power – call something law and people
would ordinarily tend to follow it
Vice versa – stop calling something law and its
force decreases.
 What is Law?
What to call Law and what not to has led to much
debate and interesting outcomes

Let us examine one of the prominent examples

from world history which highlights this central
debate in Jurisprudence
Nuremberg Trials
 Nuremberg Trials
Shortly after Adolf Hitler came to power as chancellor of
Germany in 1933, he and his Nazi government began
implementing policies designed to persecute German-
Jewish people and other perceived enemies of the Nazi
state. Over the next decade, these policies grew
increasingly repressive and violent and resulted, by the
end of World War II (1939-45), in the systematic, state-
sponsored murder of some 6 million European Jews
(along with an estimated 4 million to 6 million non-Jews).
 Nuremberg Trials
Once it was clear that the Axis powers (Germany, Italy
and Japan) were going to be defeated, the Allied Powers
started discussing prosecution of

In December 1942, the Allied leaders of Great Britain,

the United States and the Soviet Union “issued the first
joint declaration officially noting the mass murder of
European Jewry and resolving to prosecute those
responsible for violence against civilian populations,”
 Nuremberg Trials
There were many legal and procedural difficulties to
overcome in setting up the Nuremberg trials. First, there
was no precedent for an international trial of war
criminals.

In the case of the Nuremberg trials, trials were being

conducted by a group of four powers (France, Britain,
the Soviet Union and the U.S.) with different legal
traditions and practices.
 Nuremberg Trials
The Allies eventually established the laws and
procedures for the Nuremberg trials with the London
Charter of the International Military Tribunal (IMT),
issued on August 8, 1945.

It was determined that civilian officials as well as military

officers could be accused of war crimes.
 Nuremberg Trials
Among other things, the charter defined three categories of
crimes:
i. Crimes against peace (including planning, preparing, starting
or waging wars of aggression or wars in violation of
international agreements),
ii. War crimes (including violations of customs or laws of war,
including improper treatment of civilians and prisoners of
war) and
iii. Crimes against humanity (including murder, enslavement or
deportation of civilians or persecution on political, religious or
racial grounds).
 Nuremberg Trials
THE MAJOR WAR CRIMINALS’ TRIAL: 1945-46
• The best-known of the Nuremberg trials was the Trial
of Major War Criminals, held from November 20,
1945, to October 1, 1946.
• The format of the trial was a mix of legal traditions:
There were prosecutors and defense attorneys
according to British and American law, but the
decisions and sentences were imposed by a tribunal
(panel of judges) rather than a single judge and a jury.
 Nuremberg Trials
• The chief American prosecutor was Robert H.
Jackson, an associate justice of the U.S. Supreme
Court.
• The men on trial were high ranking officials in the
Nazi party, government, and military (except Hitler
and some of his top officials, who had by that time
committed suicide)
 Nuremberg Trials
• Nazi defendants objected to being put on trial for
simply following orders and the laws of their country.
• They also complained that defining crimes after the
fact constituted improper “ex post facto” laws, which
is specifically prohibited by the United States
Constitution and the laws of many other nations.
• So, on what basis could the victor nations presume to
convene these war crimes trials in Nuremberg?
 Nuremberg Trials
• The answer to that question is found in the opening
statement of the lead prosecutor at Nuremburg,
Robert Jackson, who was also a justice on the United
States Supreme Court at the time.
• Justice Jackson stated that “even rulers are, as Lord
Chief Justice Coke said to King James, ‘under God and
the law.’”
 Nuremberg Trials
• Despite the fact that the defendants were following
orders and laws of their country, they were found
guilty of violating a higher law to which all nations
were equally subject.
• Sir Hartley Shawcross, the British prosecutor, said that
there could be no immunity “for those who obey
orders which – whether legal or not in the country
where they are issued – are manifestly contrary to
the very law of nature from which international law
has grown.”
 Nuremberg Trials
• The Nuremberg Court rejected the argument of Nazi
defendants that there was no pre-existing law and
appealed to natural law in its judgment
• They noted that “so far from it being unjust to punish
[them], it would be unjust if [their] wrong[s] were
allowed to go unpunished.”
 Nuremberg Trials
This recurring theme in jurisprudential debates – throws
some light on the need for answering what law is.
 What is Law
So how do we define law?
Salmond says:
Traditional method of defining any concept is:
• Specify the class to which something belongs
• Describe the features which distinguish it from other
members of the class
 What is Law
For eg.
Human beings are rational animal

Can we attempt to define Law in this way?

 What is Law
We could define law as a species of rule and set out
what distinguishes legal from non legal rules.

In this way, Law is a legal rule.

But is this a good definition? Is it adequate?

No, because so much of the difficulty in defining law

stems from the problem of explaining exactly what rules
are.
 What is Law
Thus, we notice that the definition of law is surrounded
in philosophical perplexities.

In fact, no simple definition of law would do.

We need analysis to furnish us with an insight into the

nature, function and operation of law.
 What is Law
Such analysis is provided to us by various Schools of
thought on Law (set of thinkers categorized together
because of similarity on their approach towards law)
giving various theories of law (explanations of what law
is)

We will now proceed with considering various thinkers,

schools and theories of law
 What is Law
Humankind, beginning with early stages of their history
and civilization, have formed certain ideas and
conceptions about the nature of law and justice.

However, the gift of philosophical penetration of natural

and social phenomena was possessed to an unusual
degree by the intellectual leaders of ancient Greece.
 What is Law
Even if not everything they proposed proved to be
correct, the way these thinkers posed and discussed the
basic problems of life, including law, in philosophical
terminology and explored various possible approaches to
their solution may claim enduring validity.
 What is Law
Quoting from Will Durant, The Story of Philosophy:
“Traditions and dogmas rub one another down to a minimum in
such centers of varied intercourse; where there are a thousand
faiths we are apt to become sceptical of them all. Probably the
traders were the first sceptics; they had seen too much to believe
too much; and the general disposition of merchants to classify all
men as either fools or knaves inclined them to question every
creed. Gradually, too, they were developing science; mathematics
grew with the increasing complexity of exchange, astronomy with
the increasing audacity of navigation.
 What is Law
The growth of wealth brought the leisure and security which are
the prerequisite of research and speculation; men now asked the
stars not only for guidance on the seas but as well for an answer to
the riddles of the universe; the first Greek philosophers were
astronomers.
"Proud of their achievements," says Aristotle, "men pushed farther
afield after the Persian wars; they took all knowledge for their
province, and sought ever wider studies." Men grew bold enough
to attempt natural explanations of processes and events before
attributed to supernatural agencies and powers; magic and ritual
slowly gave way to science and control; and philosophy began””
 Ancient Greece

Oracle of Delphi – 8th century – 4th century BC

 Ancient Greece
Law and religion remained largely undifferentiated in the
early period.

Oracle of Delphi, considered an authoritative voice for

the enunciation of the divine will, was frequently
consulted in matters of law and legislation.

The forms of lawmaking and adjudication were

permeated with religious ceremonials
The king, as the supreme judge, was believed to have
been invested with his office and authority by Zeus
himself.
 Ancient Greece
Thus, for this period, law could be described to be
issuing from Gods and known to Man through revelation
of the divine will

This age did not have any jurists or legal thinkers. Thus,
we find the earliest expressions of law and its meaning in
the literary works of Homer and Hesiod.