Jurisprudence notes- Concept of Law

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Tue 25 Oct, 2016 at 2:16 AM

MEANING AND DEFINATION OF LAW

An Act of Parliament or State Legislature that has been signed by the
President or Governor. It is bunch of rules established by a governing
authority to establish and maintain orderly social coexistence.
Law is a social science and grows and develops with the growth and
development of society. New developments in society creates new problems
and law is required to deal with those problems. In order to keep peace in the
society, the definition and scope of law must continue to change.
Law has been defined by various individuals from different points of view and
hence there could not be and is not any unanimity of opinion regarding the
real nature of law and its definition. Some of the scholars have defined law as:
John Austin: A rule laid down for the guidance and of an intelligent being by
an intelligent being having power over him.
A body of rules fixed and enforced by a sovereign political
authority.
Plato and Aristotle: "An embodiment of reason"- Whether in the individual or
the community.
Thomas Hobbes: Law is the formal glue that holds fundamentally
disorganised societies together.
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. Thus, we say laws of gravitation,
or optics or mechanics, as well as the laws of nature and nations.

FUNCTIONS OF LAW
There has been a lot of speculation about the purpose and function of law.
There is nothing dogmatic about it. Law changes from time to time and from
country to country. Law is not static. It must change with change in society.
That is the reason why there is no unanimity with regard to the purpose and
function of law.

However some general characteristics and functions of law in the modern

society are as follows:
1. Uniformity:Justice is not the only possible goal of law, uniformity by
lawtoo is needed for many reasons. The first reason is that it provides
certainty and predictability. Where rules of law are fixed and generalised, the
citizen can plan his activities with a measure of certainty and predict the legal
consequences of his behaviour. Second reason is that uniformity by
lawsubstitutes fixed rules for the arbitrary "fiat" of the judge. Lastly, it
provides stability and security which the social order derives from uniform,
unchanging and certain rules of law.
2. Allocate Power: The second major function of law is allocate governmental
power in society. It is another way of characterising the distribution of power.
The allocating function of law actually designates which individuals or groups
in society may exercise which governmental powers. Law mayallocate certain
powers to one governmental and not to the other. And it may allocate powers
between government officials and the citizenry by denying certain powers to
allgovernment officials as a class. Law, therefore, fulfils its major function of
allocatinggovernmental powereither by granting it positivelyto certain
governmental officials or denying it to all of them on procedural or
substantive grounds.
3. To Order Society: The third major function of law is to order society by
providing a framework or model for social and individual interaction. Without
proper law and order a society cannot function peacefully and effectively.
Order in a society is an essential element to ensure progress of the society as it
helps in regulation of external behaviour ofa personwhich may go against
the principles and morals of a society. The ordering function of law provides a
framework within which these interactions may take place.
4. To Control Individuals: The fourth major function of law is to control
member of the society so as to maintain peace and order. Control becomes
necessary when people refuse to accommodate their behaviour according to
the framework of the society. Law then deals with potential conflicts and
prevents them from becoming actual breaches of peace. Thus, law in general is
often identified as a form of social control.
5. To Adjust Conflicts: With respective to conflict adjustment the control of
law is merely preventive. The fifth function of law is to adjust actual conflicts
once they have broken out. Here the goal is to restore peace and order rather
than to maintain it. This function of law is easily associated with the work of
courts, which after all, are the most visible legal institution. Working through
courts or other adjudicatory agencies, the adjustment of conflicts which have
already occurred must be a major function of law.

6. To Dispense Justice: The answer given by many jurist is that the objective
of law is the deliver justice. Justice operates at two different levels(I) Distributive justice: It works to ensure a fair division of social benefits and
burdens among the members of a community. For example, voting, one of the
most important democratic rights shouldbe fairly distributed and taxation,
one of the most important burdens in justice, should be equally and fairly
distributed. Thus, it serves to maintain balance and equilibrium amongst the
members of the society.
(II) Corrective justice: When the equilibrium is disturbed, corrective justice
comes into play. For example, if one citizen A, is prevented by another citizen,
B, from exercising his right to vote. Here, by this prevention equilibrium set by
fair and distribution is disturbed, now, the corrective justice will come to
correct this disequilibrium and ask B to give A some compensation.
This justice in its distributive aspect serves to secure and in its corrective
aspect to redress, the balance of benefits and burdens in a society.
7. Peaceful Change: Law serves as an instrument of peacefulchange in a
society. With time our society and advancing and these advancement have led
to development of new issues. Law ensures there is peaceful and change and
development in the society as it helps maintain law and order even in these
changing times. For example the internet. The borderless and virtual nature of
the internet had to lead to increase in cyber crimes and law dealt with it
effectively by codifying the virtual space.

CLASSIFICATION OF LAW
Prof. Holland has classified law into the following categories according to their
functions:
1. Private Law and Public Law:
Law which regulates and governs the relations of citizens with each other is
private law while law which deals with relationship between person and the
State is public law. Public law can further be divided into
(a) Constitutional Law- It is the body of rules governing the relation between
the sovereign and his subjects and the different parts of the sovereign body.
According to Austin, Constitutional law purports to control the sovereign and
therefore, it is not positive law but is merely positive morality, The Indian
Constitutional law which is contained in the Constitution of India came into
force in 1950. It is a written and quasi-fedral Constitution and the provisions
regarding amendment of it are contained in Article 368 of the Constitution.
(b) Administrative Law- Is the law which defines the organisation, powers and
duties of administrative authorities.
The difference between Constitutional law and Administrative law is that the
Constitutional law deals with various organs of sovereign power which are at
rest while administrative law deals with those organs which are in motion.
Constitutional law deals with the structure while administrative law deals
with the functions of the State.

2. General and Specific Law:

General law means territorial law, general or ordinary law of the land. Those
laws which have general application throughout the country are general
laws.Special laws are certain other bodies of legal rules which are special and
exceptional in nature, sources and application. Ordinarily, special laws are
very opposite to statue laws which courts are bound to know. The maxim
"ignorantia jus non excusat" i.e. ignorance of law is no excuse, applies to
special law in the same way as it applies to general laws.
3. Antecedent and Remedial Law:
All rights are either substantive or procedural and all substantive rights are
either "antecedent" or "remedial." An antecedent right is a right to have an act
done for its own sake, and a 'remedial right' is a right to have an act done on
default of another act: (see Holland on Jurisprudence, Edn. 10, p. 141). The
right to the delivery of goods under a contract is an 'antecedent right.' The
right to have damages for breach of contract is a remedial right because it is
claimable on default of the original right of delivery of goods. The antecedent
right, out of which a remedial right may arise, may be a right of property or
may not be a right of property. For instance, a right to personal safety and
freedom, a right to the society land control of one's dependents, a right to one's
reputation and a right to immunity from damages by fraud-these being rights
in rem; the conjugal right of a husband against his wife, the right of
chastisement or restraint of a father against his child, the right of a guardian to
restrain his ward-these being rights in personam -are all rights which cannot
be classed as 'property.' If any of these rights is infringed there may arise a
right to get damages by way of compensation, but such right to damages does
not arise out of what may be termed a 'property right.'
4. Substantive and Procedural Law:
Substantive law is part of statutory law which creates and defines rights. It
deals with the legal relationship between people or the people and state. It is
codified in legislated statues. substantive law deals with the substance of the
case, how the charges are to be handled and how the facts are to be dealt with
(In layman's term it tell you what an individual can or cannot do)
For eg. Indian penal code, Law of contracts, Law of property, Specific relief Act
etc
Procedural law comprises of the set of rules that governs the proceedings of
the court in criminal cases as well as civil and administrative proceedings. It
basically provides the state with the machinery to enforce the substantive
right on the people. procedural law will give a step by step action plan on how
the case is supposed to proceed in order to achieve the desired goals.
For eg, Criminal Procedure Code, Evidence Act, Civil procedure Code
5. Law in rem and Law in personam:

All legal rights are said to be either in personam or in rem. In personam right
is a personal right attached to a specific person, such as contract rights, a tort
award against a defendant, or a license. In rem rights are property rights
enforceable against the entire world (such as property rights) whereas an in
personam judgment binds only the litigants
OTHERS
Civil law and Criminal Law:
Criminal law deals with behaviour that is or can be construed as an offense
against the public, society, or the stateeven if the immediate victim is an
individual. Examples are murder, assault, theft and drunken driving.
Civil law deals with behaviour that constitutes an injury to an individual or
other private party, such as a corporation. Examples are defamation (including
libel and slander), breach of contract, negligence resulting in injury or death,
and property damage.
Criminal law and civil law differ with respect to how cases are initiated (who
may bring charges or file suit), what kinds of punishment or penalty may be
imposed, what standards of proof must be met, and what legal protections
may be available to the defendant.
International law and Domestic Law:
The definition of international law centreson the word "inter," which means
"between," as opposed to "intra," which means "within." So, literally,
"international law" is defined as "law between nations (States)," which stem
from agreements, embodied in a treaty, or customs that is recognized by all
nations. According to Article 38 of the Statute of the International Court of
Justice, sources of international law, in order of precedence, are: (a)
international conventions (treaties); (b) international custom, as evidence of a
general practice accepted as law; (c) the general principles of law recognized
by civilized nations; and (d) judicial decision and the teachings of the most
highly qualified publicists of the various nations.
National law, which is often referred to as domestic law, are those laws that
exist within a particular nation (State). National laws are also recognized as
the expression of the State itself, since it emanates from the local authority,
which could be the law making institution, such as the United States Congress
or the French Parliament. In some States, called States with acommon law
tradition, laws could also come from decisions made by judges, which is also
called case law. Other States, called States with acivil law tradition, do not
recognize judge made law, but only laws enacted by the legislature
Prospective and Retrospective Law:
The meaning of the word prospective with reference to statutes shows that it is
concerned with or applying the laws in future or at least from the date of

commencement of the statute. Whereas the word retrospective when used

with reference to an enactment may mean:
1. Effecting an existing contract or
2. Reopening of the past , closed and completed transactions, or
3. Affecting accrued rights and remedies, or
4. Affecting procedure.
Ordinarily, a legislature has power to make prospective laws, but Art.20 of the
Indian Constitution, 1950 provides certain safeguards to the persons accused
of crime and so Art. 20(1) of the Indian constitution imposes a limitation on the
law making power of the constitution. It prohibits the legislature to make
retrospective criminal laws however it does not prohibit a civil liability
retrospectively i.e. with effect from a past date. So a tax can be imposed
retrospectively. Clause (1) of the Article 20 of the Indian Constitution
guarantees rights against ex-post facto laws. It provides that " no person shall
be convicted of any offence except for violation of a law in force at the time of
the commission of the act charged as an offence, nor be subjected to a penalty
greater than that which might have been inflicted under the law in force at the
time of the commission of the offence."

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