LAW:

NATURE;
CLASSIFICATION;
AND
SOURCES
WHAT IS LAW?

– Why we study law?

– Rule of actions which are to be conformed.
– Rule of actions: doing something; abstains from doing it; disobedience follows penalty.
– Law can be of three kinds (Holland)
 Eternal
 Natural
 External
― Why we obey law? (H.L.A Hart: create a standard which is necessary and regard it as
moral duty)
NATURE AND UTILITY OF LAW

– Standards of Human Behaviour.

– Social engineering (social control through law)
– Enhancing social, political, economical justice
– Ensuring justice in every realm led to growth of variety of laws:
 Executive : delegated legislation, by-laws
 Legislature : various complex enactments
 Judiciary: ambiguity, doctrines, principles, guidelines
– Instrument for Balancing rights and duties
DEFINITIONS OF LAW
(Law, religion, morality: equivalent)
– Hindu law :Dharma
– Islamic law :hukum
– Divinely ordained set of rules of human actions : Divine origin.
– Ulpian : “the art of science of what is equitable and good.”
– Law is king of kings, far more powerful and rigid than they, nothing can be mightier than law,
by whose aid, as by that of the highest monarch even the weak may prevail over strong.
– Justinian : “Law is the king of all mortal and immortal affairs which ought to be the chief, the
ruler and the leader of the noble and the base, and thus the standard of what is just and
unjust, the commander to animals naturally social of what they should do, the forbidden of
what hey should not do.”
DEFINITIONS OF LAW
(Law as weapon to Legal Justice)
– Modern jurist: Law as an instrument to social change; securing legal justice.
– Blackstone : “law in its most general and comprehensive sense signifies a rule of action and
is applied indiscriminately to all kinds of actions, whether animate or inanimate, rational or
irrational”.
– Ihring : “the form of the guarantee of the conditions of life, society, assured by state’s power
of constraint.
– Salmond : “as body of principles recognized and applied by the state for administration of
justice.”
– Roscoe Pound : “social control through systematic application of force of politically organised
society.”
– Thurman Arnold : “law is ultimately a set of positive prescribed formal rules enforced by the
sovereign authority with the approval of common public opinion in response to social
challenge emanating from contemporaneous factors and currency of forces.”
IMPERATIVE THEORY OF LAW
(JOHN AUSTIN)
THEORY
– Command by Sovereign authority
– Nature of command : General and NOT particular
– Accompanied by sanctions
CRITICISM
– Henry Maine (Historical school) : ubi societas ibi lex – where is society, there is
Law.
– Earlier laws were customs & administered by village communities: no sovereign
– Customary law, constitution and international law: no sanction
– Salmond (analytical) : ubi civitas ibi lex; mature states; rules of positive morality
and not of ‘civil law’.
 Continued… (SALMOND’S CRITICISM)

– Overemphasis on “Force”
– Ignores ethical purpose of Law.
– What is “a law” not “the law” (approach is concrete rather than abstract)
– Holds good only in monarchial police state and not in democratic
– Force may be right against few rebels but not against the whole society.
– Law opposed by all people; no force on earth can enforce it.
– Sanction: criminal law and not civil law.
– Ignores the customs, usage, international law, rights and social justice.
NEO AUSTIAN: SALMOND

– “The body of principles recognised and applied by the state in the administration of
justice”
– Practice of courts; court expounds the law and not the legislature.
– Theory of legal realism.
– Criticism
• Judges does not define law rather apply and enforce the law
• Salmond reversed the order: application of law, then formulation.
• Laws are not recognized merely by virtue of judicial recognition.
• There are number of law suits never reach courts, they don’t have Judicial recognition.
PURE THEORY OF LAW: KELSON

THEORY
– Law as norm of action and jurisprudence as normative science.
– Modified Austin’s theory of law
– State is synonym to legal order which is ‘Pyramid of Norms’
– Hypothetical existence of grundnorm “what Crown in parliament lays down as
law”
– Norm making power trickles down to lower level, the whole hierarchy of norm
making organs and the process of concretisation of norms is “Legal order”
 Continue…

– N o dualism of state and law (Austin law is command of sovereign; treats state
as a unity of legal order)
– Law need not to be imperative (sanctions)
– Customs are also law (intermediate norm followed by popular practice,
generates into legal norm)
– Private and public law (no sovereign, thus no rights & duties against the
subjects)
– International law as law (International organisation superior to legal order
MARXIST THEORY OF LAW

– Aim: to unfold a pattern of evolution of law focussing on economic substratum

of contents of law.
– The social and economic development of society is essentially an outcome of
class struggle between the dominant and suppressed classes of the society.
– Privileged- slaves; capitalists and working class
CLASSIFICATION OF LAW

– Abstract (the law) and Concrete (A law)

– Law : Rule of human action
 Divine law
 Human law : rules by state & positive morality (indeterminate authority)
– With whom law is connected :
 Public : Constitutional (ascertain political centre and form of govt.) and
Administrative law ( framework under which govt. shall exercise the power)
 Private law : Substantive and Procedural
SALMOND’S CLASSIFICATION

– Imperative : Command + observance not dependent upon pleasure of people.

– Physical/ Scientific : not subject to change
– Natural/ Moral : rational, eternal, universal, righteous action, morality, devoid of compulsion,
principles of natural justice.
– Conventional : agreed between persons to regulate their conduct
– Customary : historical jurist – Maine and savigny (superior law); positivists only source of law
– Practical/ Technical
– International
– Prize : regulates capturing of ships/ cargo during wartime
– Civil Law : territory (law of land)
AUSTIN CLASSIFICATION

– Proper Law & Improperly called law

– Divine law : revealed (written) & unrevealed (consciousness)
– Human Law : Positive law & Positive morality (non political sovereign)
HOLLAND’S CLASSIFICATION
OF LAW
– Private and Public law = municipal Law
– General (territorial, general applicability) and Special Law ( local, autonomic,
martial law, mercantile, etc.)
– Substantive and Adjective law
– Antecedent (right to have act done for own sake: delivery of goods) and
Remedial law (right to have act done on default of another’s act: damages for
breach)
– In rem and In personam
MISC.

– Martial and military law

– Equity and common law
– Comparative law
SOURCES OF LAW

– Natural law philosophers : divine origin (vedas, smritis)

– Analytical school (Austin) : Sovereign, documents, causes {legislations, equity}
– Sociological school : Duguit- public service; Ehrlich- society
– Salmond : Material (legal and historical) and Formal sources (state and courts)
– Keeton : Binding and persuasive
– English law : custom, legislation, precedents, conventions
– Hindu law : smritis, srutis, conduct of virtuous, one’s own conscience
– Present day : legislations, customs, precedents, jurists
DEFINITION OF CUSTOMS

– Oldest source of law

– Allen : uniformity of habits or conduct of people under like circumstances. When
people find any act to be good and beneficial, apt and agreeable to their nature
and disposition, they use and practice it from time to time, it is by frequent use and
multiplication of this act that the custom is made.
– Herbert spencer : “before any definite agency for social control is developed there
exists a control arising partly from the public opinion of the living, and more largely
from the public opinion of the dead. The tradition passing on from one generation
to another that originally governed human conduct. This tradition is called custom.
– Salmond : “is embodiment of those principles which have commanded themselves
to the national conscience as principles of justice and public utility.”
 Continued…

– Halsbury : “Custom is some kind of special rule which is in actual existence or

possibly followed from time immemorial and which has acquired the force of
law in specified territory, although it may be contrary or inconsistent with the
general law of the land.”
– Austin : is a rule of conduct which the governed observe spontaneously and not
in pursuance of law settled by the political superior.
REASONS FOR RECOGNITION
OF CUSTOMS
– Reasonableness : conform to norms of justice and public utility; must not opposed
to principles of justice, equity, good conscience.
– Consistency : not contrary to the act of parliament.
– Continuity and immemorial antiquity : continuously in existence, no definite period
to determine the antiquity of custom, long time existence.
– Compulsory observance : followed as matter of right, without the necessity of
permission of those who are adversely affected.
– Certainty : observed continuously and uninterruptedly with certainty. (Guruswamy
Raja v. Perumal : easement of shade- ambiguous, transitory, no custom)
DIFFERENCES

PRESCRIPTION CUSTOM
– Individual – Community
– Source of right – Source of law
– Time period 20, 30 years – Subsisting for time immemorial
– Origin- Waiver of right – Origin- Long usage
– Not in prescription – Conform to justice, equity, public
policy
THEORIES OF CUSTOM

HISTORICAL SCHOOL ANALYTICAL SCHOOL

– Law has its existence because of – Material source
common consciousness of people.
– Drives binding force from the state
– Superior law : modify, repeal the existing
– Law when adopted an act or statute
statute. (savigny)
– Transcendent to law (Manu) – Only persuasive value

– What governed human conduct from – “customary law is nothing but judicial
beginning will regulate till end time law founded upon anterior custom”
(James carter)
LEGISLATION

– Legislation : Legis and latum (law and to set) = law making

– Declaration of legal rules by competent authority
– Includes all methods of law making
– Bentham : process of law making + law evolved
– Prof Gray : “Formal utterances of the legislative organs of the society”
– Blackstone : law that origin in legislation is enacted law (statute law); all others are
unenacted law (common law)
– Austin : activities which result in law making, amending, transforming. No law without
legislative act.
– James Carter (Historical): legislative is least creative source, it is not possible to make laws
alone through it.
KINDS OF LEGISLATION

– SUPREME
• Proceeds from sovereign power in state, incapable of being repealed, annulled,
controlled by other legislative authority.
– SUBORDINATE (delegated legislation)
• Proceeds from other than sovereign power, existence is dependent upon the
supreme legislation
• Kinds : Colonial (Westminster statute), executive (administrative law), judicial,
municipal, autonomous (universities, corporations)
DELEGATED LEGISLATION

– Delegated legislation? : made by any authority other than the legislature.

– Delegated vs. executive legislation (president and governor making law)?
– “Delegated legislations outnumbered the legislative enactments”
 Welfare state
 Laws pertaining to technical fields, require experts
 To meet situations of emergency
 Executive to devise new laws for effective realization of the goal of socio
economic justice.
REQUISITES OF DELEGATED
LEGISLATION
– Parent act must be valid
– Delegation clause under parent must be valid
– Statutory instrument made must conform to the delegation clause on the
substance, form and procedure
– Statutory instrument must Not violate certain norms of the judicial decisions
– Intra vires constitution
CONTROLS ON DELEGATED
LEGISLATION
– PROCEDURAL
 Prior consultation of interests which are likely to be affected
 Prior publicity of the rules and regulations
 Publication being mandatory
– PARLIAMENTARY : presenting before the house of parliament, opportunity to
discuss, scrutiny committees.
– JUDICIAL : ultra vires the constitution or the parent act it is declared null and
void. (Air India v. Nargesh Mirza)
PRECEDENTS

– Bentham : it is a judge made law

– Austin : judiciary’s Law
– Keeton : judicial pronouncements of the court which carry with them certain
authority having a binding force.
– It creates law, but never abolish it, filling up the gap in the legal system.
– Process of judicial decision can either be :
 deductive ( codified rules apply to the case in hand- general to particular), or
 Inductive ( reasoning inductively and in the process judge is bound by the decision of
the courts higher to it- particular to general)
KINDS OF PRECEDENTS (on the
basis of binding force)

– Precedent to become binding dependents upon:

 Pronounced by a court sufficiently senior
 Ratio decedend is binding
– Authoritative
– Persuasive ( obiter dicta, foreign courts, commentaries etc.)
DECLARATORY THEORY

– Judges declare law, they don’t make law.

– Blackstone : judge is to discover in the existing law the principles that govern
the facts of individual cases. Judges are law finders and not law makers.
– They maintain and explain the existing law
– James Carter : precedents are merely interpretative of the existing law, they do
not create new law.
– Criticism : cases which are not covered by existing law, judicial decisions create
new notions and formulate new principles which were contemplated earlier.
(negligence, absolute liability etc.)
DESTRUCTION OF BINDING
FORCE
– Ignorance of statute
– Erroneous decisions
– Equally divided decisions
– Dissenting opinions
– Inconsistency between the earlier decisions
DOCTRINES

– RATIO DECEDENDI
– OBITER DICTA
– STARE DECISIS
– PROSPECTIVE OVERULING
THANK YOU