Nature and Kinds of Law

A research submitted for fulfillment for the course of Jurispudence-1, for

attaining the degree B.A. LL.B.(Hons.)

SUBMITTED BY- Ravi Prakash

- B.A. LL.B

- 1756 (Section: A)

SUBMITTED TO – Dr. Manoranjan Kumar, Assistant Professor of Law

Chanakya National Law University, Nyaya Nagar, Mithapur,

Patna, Bihar 800001
AUGUST, 201

i
 DECLARATION

I, Ravi Prakash hereby declare that the project entitled “Nature and Kinds of Law”
submitted to the Chanakya National Law University, Patna is a record of bonafide and
independent work done by me under the supervision and guidance of Professor of
Constitutional Law, Dr. Manoranjan Kumar, Assistant Professor of Law.

All information furnished in the project for scrutiny is the true to the best of my knowledge.
This project consists of secondary data.

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 ACKNOWLEDGEMENTS

At the outset, I take this opportunity to thank my Dr. Manoranjan Kumar, Assistant Professor
of Law from the bottom of my heart who have been of immense help during moments of
anxiety and torpidity while the project was taking its crucial shape.

Secondly, I convey my deepest regards to the administrative staff of CNLU who held the
project in high esteem by providing reliable information in the form of library infrastructure
and database connections in times of need.

Thirdly, the contribution made by my parents and friends by foregoing their precious time is
unforgettable and highly solicited. Their valuable advice and timely supervision paved the
way for the successful completion of this project.

Words aren’t sufficient to acknowledge the tremendous contributions of various people

involved in this project- as I know ‘Words are Poor Comforters’. I once again
wholeheartedly and earnestly thank all the people who were involved directly or indirectly
during this project making which helped me to come out with flying colours.

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Contents
1. Introduction........................................................................1
2. Evolution of Law..................................................................3
3. Nature & Scope of Law........................................................5
4. Kinds of law.........................................................................7
5. Limitations of Law.............................................................11
Bibliography...........................................................................13

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 1. Introduction
“At his best, man is the noblest of all animals; separated from law and justice, he is the
worst”

- Aristotle, the great Greek thinker1

Law plays indispensable roles in the life of a human being. It is nearly impossible to have a
single word to define the term “law”, as law deals with various aspects of a human being.
Vastness of law can be only be equated with the ocean. The analogy between law and ocean
is the most appropriate, since water is important for a human life, similarly human life is
impossible without law. In the words of Salmond, law may be defined as body of principles
recognised and applied by the state in the administration of justice.2

The term ‘Law’ has been taken from the Teutonic word ‘Lag, which means ‘definite’. 3 On the
basis of its terminology, law can be strictly defined as a definite rule of conduct and human
relations. It is applicable equally to all the people of the state as it is uniform rule of conduct.
Law provides as well as regulates general behaviour of human activity in the state. Holland
says, “A Law is a general rule of external behaviour enforced by a sovereign political
authority.”4 In a very ordinary sense, Law is a definite set of behaviour which is provided by
the sovereign power of the State. It is also a general pattern of human conduct in society
which is created and implemented by the government’.

Nature and scope of law is very wide as law several purposes and functions. In this project
report, I’ll be dealing with the juris prudential perspective of the nature and scope of law. The
project report will also contain features of law as well as its limitations. Different
Jurisprudential Schools of Law will also be discussed in the report and its evolution. At last, a
well-researched conclusion will be drawn about the project report.

1
What is law?, https://blog.ipleaders.in/what-is-law/
2
Ibid.
3
K.K. Ghai, Law: Meaning, Features, Sources and Types of Law, http://www.yourarticlelibrary.com/essay/law-
essay/law-meaning-features-sources-and-types-of-law/40363
4
Ibid.

1
OBJECTIVE:- The main objective is to do a detailed study of different types of laws in our
society and its scope. The focus will also be given on the study of different Jurisprudential
Schools of Law.

HYPOTHESIS:- Whatever be the nature of the law in a society, it’s scope remains the same
as to control or govern the human behaviour.

2
 2. Evolution of Law
Man is a social and sociable creature whose place in within a community. Thus emerge the
needs for organization, order, discipline, all leading to the occurrence of behaviour rules, to
sets of norms that would harmonize the individuals` interests to the interests of the
community as part of the collective interest. Along with the evolution of human society and
its organization in families, races and tribes, we witness the emergence of first behaviour
rules embedded in skills, habits, customs, etc. The entire community acted according to these
rules because their disobedience had an influence on the survival of the entire community, as
they had a powerful mystical and religious character.5

Behaviour rules have developed and evolved along with the evolution of human
communities, changing into social norms of cohabitation, organization and behaviour. The
evolution of the community brought about the evolution of penalties applied to individuals
who disobeyed or broke those rules. Thus, the first forms of human community used the
death penalty (blood revenge6) as means of punishment for serious violation of the rules of
coexistence. Later on, death penalty was replaced by the individual`s expulsion from the
community and as communities evolved, material redemption was used instead of expulsion.7

The first judicial norms (the germs of law) developed among these social cohabitation,
organization and behaviour rules. Judicial norms differed from other rules due to their
compulsory character and by appeal to the coercive force of the community when they were
broken by certain individuals. The change of social, customized norms into judicial norms
and the emergence of law as independent entity take place along with the occurrence of state
and public power rooted in the Greek – Roman Antiquity. It has been set that law is a social
phenomenon incidental to human society; thus, Romans have expressed this statement
through the phrase: “ubi societas, ubi jus”, namely law occurs along with the society. Law,
like society is not a static, immutable entity issued once and for all; they are under constant
development and social-historical evolution. As social phenomenon, social law experiences a
constant historical evolution, bearing the mark of historical periods and cultural, spiritual and

5
Bruce L. Benson, The Enterprise of Law, San Francisco, Pacific Research Institute, 1990.
6
see I. Craiovan, Teoria generala a dreptului, Ed. Sibila, Craiova, 2009, pp. 11-15.
7
Alan Watson, Law and History Review, Vol. 5, No. 2 (Autumn, 1987), pp. 537-570.

3
religious features of nations.8 Over time there have been several theories on the classification
and ordering of the law. Some of them are listed below:

 a theory centred on the basic characteristics of form and content of the law classifies it into
law systems or law families. For instance, the Roman-Germanic law system founded on the
Roman Law and blended with German, Spanish, French, etc. doctrine; the common-law
system founded on the English Law, etc.9

 another theory founded on the chronological and historical criterion of the emergence of
judicial norms groups the law in types of law. Thus, the Marxist Theory mentions four types
of law: slave-owning, feudal, burgher and proletarian (socialist). The following classification
of types of law can be taken into consideration:

- incipient law (early law) typical for the primitive society;

- Medieval law typical for the Middle Ages;

- modern law typical for the beginning of Capitalism;

- contemporary law which tends to share common features due to international public and
private law but can still be grouped into:

- the law of democratic societies;

- socialist law;

- the law of developing countries;

- community law, etc

8
Laurence Claus, Law’s Evolution and Human Understanding.
9
Anthony Niblett & Richard A. Posner & Andrei Shleifer, 2010. "The Evolution of a Legal Rule," The
Journal of Legal Studies, University of Chicago Press, vol. 39(2), pages 325 - 358.

4
 3. Nature & Scope of Law
Jurisprudence refers to the study of law. It can also be called as a science which deals with
creation, exploration and enforcement of laws. The word is derived from juris
prudential  which means knowledge of the law. If one understands the theories and
philosophies then one can get a better understanding of law. Legal thoughts can be viewed
from the angle of different schools of jurisprudence which are given below.

Positivist School10

 According to Positivist school, law is the command of the sovereign. It says that
decisions can be made logically from predetermined cases and ignoring the moral
aspects. It is also called Analytical school.

 This school says there isn’t a connection between law and morality. For example,
Judges may not want the landlord to evict the elderly old lady from the land on which
the rent is overdue. Though the laws may say that if the rent is not paid, the defaulter
has to vacate the land. Positivist law school says that judges should decide cases in
accordance to law and keeping aside their morals.

 It believes that integrity of law is maintained through neutral judiciary. Law is what is
laid down. What ought to be the law factor should be ignored.

 Also, basis of law should be maximum happiness of maximum people.

Historical School

 “Law is the product of social consciousness.” This social consciousness started even
before sovereignty. It started from the very beginning of the society. Sir Henry Maine,
Edmund Burke are the renowned jurists.

 The Historical school is based on Volksgeist theory. It says law is based on the
general will of the people. It grows as the nation grows. Also, a law which is suitable
for one set of people may be useless for the other which gives us the point that there is
no universal application of law. The laws are based upon the local customs, local
behaviour and the current thought processes of the society. All these affect law and
makes it a peaceful society.

10
Friedman: Legal Theory, 5th ed., 1967, Stevens & Sons, London.

5
  The theory focuses a lot on the past. However, it mentions that laws must change with
time. Laws must be what the society demands.

Natural School11

 Natural law is a philosophy that focuses on the laws of the nature. It says that there
are some laws which all humans deserve as they are inherent in society. It opposes the
positivist theory. A lot of emphasis is placed on morals and ethics of the society.

 It is based on the reasons they make for deciding between good and evil.

 Immanuel Kant, Hegel and Grotius are eminent jurists. They regarded law neither as
command of the sovereign nor a product of consciousness rather based on rationality
and reasonableness.

 The main aim of Philosophical school or Natural school is to elevate humans from
evil and raise them to do good.

 Even in Declaration of Independence and Bill of Rights of US Constitution, Thomas

Jefferson has cited Natural Law theory calling it “the laws of Nature and of Nature’s
God.”

Sociological School12

 This school emerged as a synthesis of many jurist’s thoughts. This school of thought
lay emphasis on functional part of law rather than the abstract part of law.

 They regarded law as a social institution. They believed that laws are not created by
state. Laws come from society. The laws are not sanctioned by the state but by the
awareness on the part of people.

 These laws establish an interconnection between society and laws. Both Historical
and Philosophical schools caused a hindrance to social and legal reforms, as a result
Sociological school was formed.

 This school is the only school of jurisprudence which has a definite program which
the other schools do not have. They placed a lot of emphasis on the concept of justice.

11
https://blog.ipleaders.in/what-is-law/
12
Fuller, Lon L.: Problems of jurisprudence-Brooklyn, Foundation Press, 1949.

6
Realism School

 This school of law emphasises a lot on what courts may do rather than the abstract
ideas. Law exists as a matter of reality.

 Allen observed that “fermentation is necessary in legal chemistry for without it the
liquor of” the law becomes sour and stale. This takes into account the customary
practices and circumstances for providing with a new law. The theory can be
understood with descriptive way or prescriptive way or both.

 In this it is believed that law is a body of government for the administration of justice.
Like Positivist theory, this also sees law as will of the state but it is done through
administration of justice.

Comparative School13

 Professor Kecton considers, “the development of Comparative Jurisprudence is the

development of two or more systems of law.” However, the term has one meaning.

 As historical school is concerned with time, this school is concerned about space. It
collects and examines rules that are prevalent and the man who agree and disagree
with the system and tries to find a system which is natural. Natural system will be the
system what all men wanted to have but due to different laws couldn’t.

 Comparative Jurisprudence does a comparative analysis and aids Historical as well as

an Analytical School of Law.

4. Kinds of law
There are several ways of classifying law and the idea of classification of law is not new.
Even in ancient civilizations, the jurists were well aware of the difference between civil and
criminal laws. However, with the passage of time, many new branches have come into
13
Fuller, Lon L.: Anatomy of Law, 1968.

7
existence and therefore, the old classification has become outdated. Law can be classified in
many ways with respect to time and place. However law may be broadly divided into the
following two classes in terms of its usage:

i. International Law
ii. Municipal Law

These classes of law are discussed briefly hereafter.

International law is an important branch of law. It deals with those rules and regulations of
nation which are recognized and are binding upon each other through reciprocity. Many jurist
however, do not give much importance to this branch. In recent times, this branch of law has
grown manifold and has acquired increasing importance on account of globalization and
other related factors. 14

International law has been further classified as follows:

i. Public International Law

This branch of law relates to the body of rules and regulations which governs the relationship
between nations. Countries mutually recognise these sets of rules which are binding on them
in their transactions on a reciprocal basis.

ii. Private International Law

Private international law is that part of law of the State, which deals with cases having a
foreign element. Private international law relates to the rights of private citizens of different
countries. Marriages and adoption of individuals belonging to different nations fall within its
domain.

II. MUNICIPAL LAW

Municipal laws are basically domestic or national laws. They regulate the relationship
between the State and its citizen and determines the relationship among citizens. Municipal
law can be further classified into two segments: Public law chiefly regulates the relationship
between the State and its' subjects. It also provides the structure and functioning of the organs
of States. The three important branches of public law are the following:

14
Alan Watson, The Evolution of Law, Oxford University Press, https://www.cambridge.org/core/journals/law-
and-history-review/article/evolution-of-law-continued/67EF219D519E1440DAD0B857E6FD7E49

8
(a) Constitutional Law: Constitutional law is considered to be the basic as well as the
supreme law of the country. The nature of any State is basically determined by its
Constitution. It also provides the structure of the government. All the organs of states derive
their powers from the Constitution. Some countries, such as India, have a written
Constitution, while countries such as the United Kingdom have an 'uncodified Constitution'.
In India, the fundamental rights are granted and protected under the Constitution.

(b) Administrative Law: Administrative law mainly deals with the powers and functions of
administrative authorities - government departments, authorities, bodies etc. It deals with the
extent of powers held by the administrative bodies and the mechanism whereby their actions
can be controlled. It also provides for legal remedies in case of any violation of the rights of
the people.15

(c) Criminal Law: Criminal law generally deals with acts which are prohibited by law and
defines the prohibited act as an offence. It also prescribes punishments for criminal offences.
Criminal law is very important for maintaining order in the society, and for maintaining
peace. It is considered a part of public law, as crime is not only against the individual but
against the whole society. Indian Penal Code, 1860 (also known as IPC) is an example of a
criminal law legislation, in which different kinds of offences are defined and punishments
prescribed.

II. Private Law

This branch of law defines, regulates, governs and enforces relationships between individuals
and associations and corporations. In other words, this branch of law deals with the
definition, regulation and enforcement of mutual rights and duties of individuals. The state
intervenes through its judicial organs (e.g. courts) to settle the dispute between the parties.
Private or Civil law confers civil rights which are administered and adjudicated by civil
courts. Much of the life of a society is regulated by this set of private laws or civil rights. This
branch of law can be further classified into the following:

(a) Personal Law: It is a branch of law related to marriage, divorce and succession
(inheritance). These laws are based on religion, ritual and customs of marriage, divorce, and
inheritance. In such matters, people are mostly governed by the Personal laws laid down by
their religions. For example, the marriage of Hindus is governed by Personal laws like the
15
Pollock, Sir Frederick: Jurisprudence and legal Essays Selected Introduced by A.L. Goodhard, London
Macmillan, 1961.

9
Hindu Marriage Act, 1955 while Muslim marriages are governed by the Muslim personal law
based on a Muslim customary law which is largely uncodified.16

(b) Property Law: This branch of law deals with the ownership of immovable and movable
properties. For example, the Transfer of Property Act, 1882, deals with transfer of immovable
property, whereas the Sales of Goods Act, 1930, deals with movable property.

(c) Law of Obligations: This branch of the law pertains to an area where a person is required
to do something because of his promise, contract or law. It puts an obligation on the person to
perform certain actions which generally arise as a consequence of an enforceable promise or
agreement. If someone violates his promise, that promise may be enforced in a court of law.
According to the Indian Contract Act, 1872, a contract is an agreement which is enforceable
by law. In other words, a contract is anagreement with specific terms between two or more
persons in which there is a promise to do something in lieu of a valuable profit which is
known as consideration. For example,'A' has offered his mobile phone to 'B' for Rs.15,000.
'B' agreed to purchase the same. This has created a legal relationship" both have made a
promise which is enforceable by law.

16
Tripathi B,N. Mani: An Introduction to Jurisprudence(Legal Theory),ed.,2008

10
 5. Limitations of Law
Law is a formal means of social control. Society uses laws  (rules designed to control
citizen’s behaviors) so that these behaviors will conform to societal norms, cultures, mores,
traditions, and expectations. Because courts must interpret and enforce these rules, laws differ
from many other forms of social control. Both formal and informal social control have the
capacity to change behavior. Informal social control, such as social media (including
Facebook, Instagram, and Twitter) has a tremendous impact on what people wear, how they
think, how they speak, what people value, and perhaps how they vote. Social media’s impact
on human behavior cannot be overstated, but because these informal controls are largely
unenforceable through the courts as they are not considered the law.

Law and legal rules promote social control by resolving basic value conflicts, settling
individual disputes, and making rules that even our rulers must follow. Kerper (1979)
recognized the advantages of law in fostering social control and identified four major
limitations of the law. First, she noted, the law often cannot gain community support without
support of other social institutions.17  (Consider, for example, the United States Supreme
Court (Court) case of  Brown v. Board of Education of Topeka, Kansas,  347 U.S. 483 (1954),
which declared racially segregated schools unconstitutional. The decision was largely
unpopular in the southern states, and many had decided to not follow the  Court’s holding.
Ultimately, the Court had to call in the National Guard to enforce its decision requiring
schools to be integrated.) Second, even with community support, the law cannot compel
certain types of conduct contrary to human nature. Third, the law’s resolution of disputes is
dependent upon a complicated and expensive fact-finding process. Finally, the law changes
slowly.18

Lippman (2015) also noted that the law does not always achieve its purposes of social
control, dispute resolution, and social change, but rather can harm society. He refers to this as
the “dysfunctions of law.”

“Law does not always protect individuals and result in beneficial social progress. Law can be
used to repress individuals and limit their rights. The respect that is accorded to the legal
system can mask the dysfunctional role of the law. Dysfunctional means that the law is

17
Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed.). West Publishing Company.
18
Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed.). West Publishing Company.

11
promoting inequality or serving the interests of a small number of individuals rather than
promoting the welfare of society or is impeding the enjoyment of human rights.”19

Similarly, Lawrence Friedman has identified several dysfunctions of law: legal actions may
be brought to harass individuals or to gain revenge rather than redress a legal wrong; the law
may reflect biases and prejudices or reflect the interest of powerful economic interests; the
law may be used by totalitarian regimes as an instrument of repression; the law can be too
rigid because it is based on a clear set of rules that don’t always fit neatly (for example,
Friedman notes that the  rules of self-defence do not apply in situations in which battered
women use force to repel consistent abuse because of the law’s requirement that the threat be
immediate); the law may be slow to change because of its reliance on precedent (he also
notes that judges are also concerned about maintaining respect for the law and hesitate to
introduce change that society is not ready to accept); that the law denies equal access to
justice because of inability to pay for legal services; that courts are reluctant to second-guess
the decisions of political decision-makers, particularly in times of war and crisis; that reliance
on law and courts can discourage democratic political activism because Individuals and
groups, when they look to courts to decide issues, divert energy from lobbying the legislature
and from building political coalitions for elections; and finally, that law may impede social
change because it may limit the ability of individuals to use the law to vindicate their rights
and liberties.20

19
Lippman, M. R. (2015). Law and society (pp. 11). Thousand Oaks, CA : SAGE Publications
20
Lippman, M. R. (2015). Law and society (pp. 11). Thousand Oaks, CA : SAGE Publications

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Bibliography

Books

1. Dr. V.D.Mahajan, Jurisprudence and Legal Theory, Eastern Book Co. (EBC);
2016 edition (2016)
2. Dr. N.V.Paranjape, Jurisprudence and Legal Theory, Central Law Agency
(CLA); 2016 edition (2016).
3. Dr. B.N. Mani Tripathi, Jurisprudence (Legal Theory), Allahabad Law
Agency(ALA); (2018)
4. G.W. Paton, A Textbook of Jurisprudence, Oxford Publications; (2007)
5. Dr. Avtar Singh, Introduction to Jurisprudence, LexisNexis; (2013)

Websites

1. Twinkle, Meaning Nature And Scope of Jurisprudence, Legal Bites; (2016),

https://www.legalbites.in/meaning-nature-scope-jurisprudence/
2. Anastasia Powell, Nicola Henry, The Potentials and Limitations of Law,
SpringerLink; 2017, https://link.springer.com/chapter/10.1057/978-1-137-58047-4_7
3. LORE RUTZ-BURRI, Functions and Limitations of Law.
https://openoregon.pressbooks.pub/ccj230/chapter/8-1-functions-and-limitations-of-law/
4. Simran Sabharwal, What is Law?, IPleaders, https://blog.ipleaders.in/what-is-law/

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