DEFINITION OF LAW AND FUNCTION OF LAW

Advertisements

Spread the love

Post Views: 498

This article is written by Suvanshika Dutta, an intern under Legal Vidhiya

ABSTRACT

This article aims to provide a comprehensive understanding of the concept of law and its various functions. To fulfill our duties as responsible citizens, it is crucial to possess adequate knowledge about the legal framework in our country. When I reached out to those in my vicinity, I inquired about their thoughts, leading to the discovery of both captivating and elusive responses, which will be explored later in this article. I seek to engage your thoughts and ask you to reflect upon your personal understanding of law. I must emphasize that law encompasses a vast realm, deserving of thorough consideration and open-mindedness. Learning the concept of law and understanding its various functions was a process that spanned several years. When discussing my country, it becomes evident that our laws have been inherited from a multitude of nations. This deliberate selection ensures that we possess the most effective means of addressing the needs and concerns of our citizens. It is important to note that our legal system is not stagnant; rather, it has undergone continuous evolution over numerous years. For instance, each morning upon awakening, we create a to-do list and determine the methods for accomplishing our tasks. Essentially, we effectively plan and organize our day. Similarly, countries have laws in place to efficiently manage and interact with their citizens, ensuring fairness and eliminating those who engage in malicious or wrongful actions from society. I would be delighted if you joined me on a journey through this article, where we explore the concept of law and its many functions.

Keywords: legal framework, malicious and wrongful acts, concept of law, Justice, Liberty, Fraternity, Sovereignty, Equality.

Introduction

The word ‘Law’ has been derived from the Teutonic word ‘Lag, which means ‘definite’^[1] . To put it simply, law encompasses an array of acts, court judgments, ordinances, and statutes. These terms are the ones I received as responses upon questioning individuals about their comprehension of law. They are correct in their location. However, the term “law” encompasses a wide range of concepts and principles. The law serves as a valuable instrument for the country, aiding in the organization of its citizens, facilitating diverse governmental functions, and ensuring a well-coordinated legal framework. This text highlights the myriad roles it plays: guiding society, upholding morals, educating, and caring for the welfare of the community. This text elucidates how it facilitates conducting international business, enhances our negotiation capabilities, and ensures justice is served for both right and wrong. Law has a multitude of endlessly performed functions, which we shall delve into in a captivating and comprehensive manner. The law stands as the cornerstone and authoritative driving force in shaping our nation.

EVOLUTION OF LAW

The evolution of law cannot be pinpointed to a specific origin. As a human being grows, it undergoes a process of evolution, enriching its mind and unlocking its fullest potential. Similarly, the law has undergone a transformation through a myriad of negotiations, acquired wisdom, legal judgments, and the collective brilliance of the nation’s intellectual thinkers. I would like to express my heartfelt appreciation to those who dedicated their lives to meticulously documenting the laws of nations and enlightening us with the most effective methods for interacting with fellow citizens. The old testaments dates back to 1280 BC and takes the form of moral imperatives as recommendations for a good society^[2]. Law was introduced in India since ancient times, starting from the Vedic age. The legal structure of India was greatly influenced by two paramount texts, namely the Manusmriti and Arthashastra. Over time, it has transformed and developed from an assortment of ancient religious practices and rituals. In contemporary times, our nation firmly embeds traditional beliefs and customs within the confines of legislation. When the British arrived in India for trade, we operated under certain fundamental laws. However, over time, they established their own legal system and introduced what is now recognized as common law. They initiated the takeover of our nation, assuming ultimate control and disregarding the country’s governing laws. After India achieved independence, the widely renowned document known as “The Constitution of India” was drafted. The document is primarily a formal written piece that encompasses a multitude of laws, serving to elucidate the processes and implementation of the country’s legal framework. The increasing rate of education has effectively enlightened individuals about their moral and legal rights, thus strengthening compliance with our laws. Having a uniform law in a country is of utmost importance as it ensures that all individuals are treated equally.

Definition of law

The concept of law encompasses a wide range of meanings, making it difficult to provide a precise definition of what law truly entails. Let us now explore the diverse interpretations provided by renowned scholars to comprehend the essence of law and gain a deeper insight.

Natural School: In the natural school of thought, a court of justice decides all the laws. There are two main parts of this definition. One, to actually understand a certain law, an individual must be aware of its purpose. Two, to comprehend the true nature of law, one must consult the courts and not the legislature^[3]. It asserts that a court of justice plays a central role in interpreting and deciding all laws. This perspective emphasizes two key points:

Understanding through Purpose: To truly comprehend a specific law, individuals must grasp its underlying purpose. This suggests that the rationale or intent behind a law is essential for its correct interpretation.

Consulting Courts over Legislature: To gain a genuine understanding of the nature of law itself, individuals should turn to the courts rather than relying solely on legislative texts. This implies that the courts, through their interpretations and judgments, provide insights into the true essence of legal principles.

In essence, the natural school emphasizes the purposive understanding of laws and considers the judiciary as the primary authority for elucidating the broader nature of legal concepts.

2. Positivistic Definition of Law: John Austin’s law definition states “Law is the aggregate set of rules set by a man as politically superior, or sovereign to men, as political subjects.” It asserts that law is the aggregate set of rules established by a sovereign authority, applicable to all individuals within that political community. This definition emphasizes the following key points:

Sovereign Authority: The source of law, according to Austin, is a politically superior entity, often identified as the sovereign. This could be a governing body or an individual vested with ultimate legal authority.

Universal Applicability: The rules comprising the law are meant to be followed by all individuals within the political community, regardless of their social status or position. The law is seen as a set of universally applicable directives.

Obligatory Nature: Individuals are obligated to adhere to these rules, and non-compliance may lead to legal consequences. Austin’s definition underscores the coercive aspect of law.

In summary, John Austin’s positivistic definition presents law as a command emanating from a sovereign authority, with a universal reach that binds all members of the political community to follow its dictates. to be followed by everyone, regardless of their stature^[4].

3. Hans Kelsen created the “pure legal theory”. He says that law is a “standard science”. The law does not try to describe what must happen, but rather simply defines certain rules that must be followed. In his perspective:

Pure Legal Theory: It seeks to isolate and analyze the basic, fundamental norms without incorporating moral or sociological considerations. It aims to create a science of law that is detached from other disciplines.

Standard Science: He describes law as a “standard science,” meaning it provides a framework of norms or standards that prescribe what should be done rather than describing what actually happens. It focuses on the normative aspect of law, dealing with legal obligations and norms as they ought to be.

Normative Rules: The essence of law lies in the formulation of normative rules. These rules are commands or norms that specify how individuals should behave. The emphasis is on the legal structure and the hierarchical nature of legal norms.

In summary, Kelsen’s pure legal theory defines law as a normative science, concentrating on the formulation of rules or norms that prescribe how individuals should act, without delving into descriptive or moral aspects.

4. Sociological definition of law: Leon Duguit states that law is “essentially and exclusively a social fact”^[5]. A French jurist, is associated with the sociological school of thought in legal theory. Law is essentially and exclusively a social fact.”* This statement reflects the core of sociological perspective on law. It suggests that law, in his view, is not merely a set of rules or commands imposed by a sovereign authority but is deeply rooted in the social fabric of a community. The emphasis is on understanding law as a reflection of social relations, structures, and collective norms within a given society. His approach encourages an exploration of how legal systems evolve in response to social needs and dynamics.

5. Definition of the law of Rudolph von Ihering. – “A form of guarantee of the living conditions of society, guaranteed by the limiting power of the state”^[6]. A German jurist, provided a perspective on law that emphasizes its role as a form of guarantee for the living conditions of society, backed by the regulating power of the state. This definition encapsulates Ihering’s belief that the law serves as a mechanism to ensure and protect the vital conditions of a society. The state, through its regulatory authority, plays a crucial role in establishing and maintaining the legal framework that contributes to the well-being and stability of the community. His view reflects the idea that law serves as a social instrument with the purpose of safeguarding and fostering the conditions necessary for the harmonious existence of individuals within a society.

6. Roscoe Pound studied the concept of law and thus got his definition of law. He saw law primarily as a tool for social engineering^[7]. An American legal scholar and jurist, was a prominent figure in the development of sociological jurisprudence. He viewed law not only as a set of rules but also as a means of achieving social ends. His definition of law is often associated with the concept of social engineering. In other words, he saw law as a dynamic instrument that should be designed and applied to solve social problems and promote justice. He emphasized the importance of considering the social consequences and impacts of legal rules and decisions. This approach reflects a broader understanding of law as a mechanism for shaping and improving society, aligning with the goals of social engineering.

7. A realist definition of law describes law in terms of legal processes^[8]. It focuses on describing law in terms of legal processes rather than strictly adhering to abstract principles or moral ideals. Legal realism, as a legal philosophy, emerged in the early 20th century and sought to analyze law by examining how it is actually practiced and enforced in the real world. This perspective contrasts with more formalistic or idealistic views that might solely emphasize legal rules or abstract principles. Legal realists often consider factors such as judicial decisions, legal precedents, and the effects of legal rules on society to gain a more pragmatic understanding of the law.

8. Oliver Wendell Holmes said, “Law is a statement of the circumstances under which public authority is to be judged by a court of law^[9]. A prominent legal theorist and Associate Justice of the United States Supreme Court, is often associated with legal realism. His views are characterized by a pragmatic and empirical approach to law. Here are key aspects of Holmes’s legal philosophy:

Legal Realism: Holmes is considered a leading figure in the legal realist movement. Legal realism rejects formalistic and idealistic notions of law, emphasizing the need to understand the law in the context of its practical application and real-world consequences.

Predictive Theory of Law: Holmes proposed a predictive theory of law, suggesting that judges should focus on predicting the likely outcome of cases based on their understanding of social, economic, and political factors. This contrasts with traditional theories that view judges as merely applying pre-existing legal rules.

The Path of the Law: In his influential essay “The Path of the Law,” Holmes argued that the law should be studied as a predictive science rather than a deductive or moral science. He stressed the importance of understanding the actual behavior of courts and the effects of legal rules on society.

Social Context and Evolution: Holmes believed that the law should be viewed in its social context and that it evolves over time in response to changing circumstances. He famously stated, “The life of the law has not been logic; it has been experience. “Holmes’s legal realism had a profound impact on the study and practice of law, challenging traditional jurisprudential approaches and emphasizing the practical, evolving nature of legal systems.

After reading and understanding all the theories presented by various experts, we can conclude that the definition of law is not concrete. Everyone has their own idea of the law. Having gone through the definition, it can be said that it is indeed a broader concept that can be defined in two or three lines. Now we can accept the fact that lawyers take years to study law.

Classification of law

There exists a multitude of law categories. We will gain comprehension regarding the significance of these various types of law.

Public law: It encompasses the regulations that govern matters pertaining to both the government and society. Additionally, it encompasses both constitutional law and administrative law. The society is directly affected by it. This aids in the organization and welfare of society.
Private law: It is a crucial mechanism for addressing interpersonal connections among individuals. Engaging in societal activities necessitates the application of private law as a safeguard mechanism. This becomes particularly handy, for instance, when entering into a contractual agreement. In such cases, private law offers protection against potential loopholes that may arise.
Substantive law: It encompasses the fundamental provisions that outline the entitlements, obligations, and accountabilities of individuals. This text serves as a reminder of our individual rights and the means by which we can protect them.
Procedural law: It as the name suggests, is comprehensible based on its nomenclature. Enforcing the laws is made possible with its assistance. The observation helped us understand the enforcement and application of laws. In simple terms, it establishes the rules to follow for implementing laws.
Civil law: It allows individuals to seek compensation when they experience harm or wrongdoing. The focus lies on the individual and personal gathering.
Criminal law: It aids in shedding light on the occurring offenses within society and enables the prosecution of those who commit wrongdoing.
National law: It provides us with the necessary framework to govern effectively within our country. This rule is only valid within the country’s borders. Being knowledgeable about national laws is crucial as it aids in comprehending the dynamics of a country.
International law: It plays a pivotal role in governing global relations. Performing international business is made easier with its assistance.

Theories of law

Natural Theory of Law: It says law is not a human construct, but rather an innate aspect bestowed upon us by nature. It encompasses ethics, morality, and our inherent capacity to discern the righteousness or wrongdoing of any given action. The argument posits that morality is an intrinsic characteristic of individuals, naturally ingrained within them, rendering the need to cultivate or fabricate morality unnecessary. The laws were established relying on the intrinsic capacity to perceive the distinction between what is morally just and unjust, rather than being imposed by societal or civilization pressure. The natural theory of law offers a highly credible explanation regarding the inception of law, the genesis of the idea of law, and the very essence behind the creation of laws. On the other hand, the diversity of people’s ethics and morality leads to variations in laws on a subjective scale. Hence, it falls short in elucidating the existing legal system, which is comprised of regulations and legislations that are consistently followed throughout a region and vary across different locations^[10].
The Positive Theory of Law: It is characterized by its optimistic perspective. It focuses on the descriptive nature of law, attempting to understand and explain its existence and functioning within society. Rather than evaluating whether laws are just or unjust, the Positive Theory seeks to analyze law as it is, without passing judgment or moralizing. This approach allows for a neutral observation and understanding of the law’s role in regulating behavior and maintaining social order. By studying how laws are formulated, enforced, and upheld, the Positive Theory aims to provide insights into the mechanisms and influences behind legal systems^[11].
The Realist Theory of Law: is a perspective that considers the practical and empirical aspects of the legal system. Rather than dwelling on abstract principles or the intentions of lawmakers, realist legal scholars focus on how law is actually enforced and applied in society. They believe that the effectiveness and impact of the law can only be understood by examining its real-life consequences, such as the behavior of judges, prosecutors, and other legal actors. Realists argue that law is not a fixed set of rules, but rather an evolving product of human actions and social dynamics. By studying the real-world application of law, realist theorists aim to provide a more accurate understanding of legal systems and the role they play in shaping society. ^[12]

Numerous theories, among other variations, have been developed to define law and simplify its comprehension. Nevertheless, there is no escaping the intricacy of the matter, rendering every theory susceptible to criticism. These days, there seems to be an increasing trend in people’s reliance on technology. Whether it’s the latest smart phones, the newest smart watches, or the most advanced laptops, individuals are constantly seeking out the latest innovations and gadgets. This dependence on technology has become so ingrained in our daily lives that it’s hard to imagine a world without it. From communication to information, entertainment to productivity, technology has become an integral part of modern society. However, as with any dependency, there are both advantages and disadvantages to relying so heavily on technology. It’s important to recognize and balance the benefits with the potential drawbacks in order to maintain a healthy relationship with the digital world.

Functions of law

Law plays a central role in society. It helps us to secure and create different values. It helps to strengthen the moral values of the society. The law binds everyone, which means that there is a fair chance to give justice to those who are eligible. It keeps the country’s political engine running by systematically regulating various regulations and prohibitions. We will delve into the various functions performed by law.

Ensuring law and order in society: Laws are directives that guide and regulate human behavior and guidelines to maintain order and peace. They are designed to track people in the area. Laws are also responsible for maintaining the peace of the country. Many countries have very diverse populations. Applying the same law to the entire population regardless of their diversity, different needs, and differences of opinion would create contradictions. Therefore, laws are made to consider the needs of different sections of society and maintain peace in the country. For example, in a secular country like India, the constitution leaves certain topics like marriage to people and similar religions. These laws are called personal laws.
The guidelines governing interpersonal connections: The law also encompasses human relations, including contracts, agreements, families, and marriages. The purpose of the law is to regulate and maintain control over human behavior and relationships. Hence, it exerts a direct impact on interpersonal connections by limiting inappropriate conduct, like adultery. Additionally, it assumes the role of elucidating the proper protocol for engaging in lawful associations, ascertaining their lawfulness, and establishing their validity. In order for cases in marriage, such as divorces, to be considered valid, they must be approved by the law and officially registered. Consequently, the law possesses authority in governing human interactions.
The Political System’s Control: The relationship between law and politics is undeniably clear. Drafting and amending laws in the interest of the people stands as one of the primary tasks carried out by the government. Nevertheless, the political system remains subject to the law and must adhere to its duties while being accountable for the consequences of its actions. Therefore, the law not only regulates and exercises authority over the political system, but also establishes its responsibilities, organizational framework, and criteria for membership.
Protection of fundamental rights: Any law that does not protect and secure people’s rights will not be used. Law exists to maintain order and benefit society. They are written to serve human needs and interests. In criminal cases, laws punish criminals to ensure the protection of basic human rights and set an example for future security. Thus, one of the main tasks of the law is the promotion and protection of human rights.

The purpose of the law is to maintain social order in a well-organized manner. Maintaining order involves the establishment of rules and regulations as well as the provision of mechanisms for dispute resolution. Upon reviewing the aforementioned purposes of law, it becomes evident that our nation is incapable of functioning without it. Without law, our society would be lost, lacking any sense of direction. It is through law that we ensure everyone is afforded equal rights, protection, and opportunities. The text asserts that discrimination should not be tolerated based on caste, sex, color, or religion.

Conclusion

The dynamics of the law are constantly changing. The foundation of Our Constitution is built upon the principles of JUSTICE, LIBERTY, SOVEREIGNTY, FRATERNITY, and EQUALITY, as declared in our Preamble. Nevertheless, the absence of law will consistently shatter these ideals. These ideals will be beyond salvation. In a world where “survival of the fittest” reigns supreme, a simple observation of the sheer magnitude of the human population allows only one conclusion to be drawn. The existence of law is indispensable for the continuity of life. It is imperative to avoid conflict between us as it will undoubtedly result in our downfall. The existence of law instills a certain fear that can deter individuals from taking the lives of their fellow human beings. Each individual is given their fair share and what is rightfully theirs. The purpose of laws is to inform us about the outcomes that can be anticipated as a result of our actions. We are compelled to look before we vault. There, it exists to safeguard and annihilate. If someone gets carried away by the freedom they have in the absence of law, it can be limiting for them. They are aware that any misuse of the law will have economic, mental, and physical consequences for them. This rule is generally applicable, although there might be some exceptions. Common sense dictates that law plays a crucial role in our society, ensuring our survival and providing convenience. Comfort is what humans primarily desire, placing it above even happiness due to its convenience. In addition, the law plays a vital role in dismantling the social barriers prevailing within our society. By virtue of the law, we not only endure but also flourish. Consequently, a society necessitates the presence of laws.^[13]

References

[1] K.K Ghai, Law: Meaning, Features, Sources and Types of Law, (3nov,2023), https://www.yourarticlelibrary.com/essay/law-essay/law-meaning-features-sources-and-types-of-law/40363

[2] Wikipedia(4 nov,2023) https://en.m.wikipedia.org/wiki/Law

[3] (4 november,2023) https://www.toppr.com/guides/business-law-cs/introduction-to-law/various-definitions-of-law/

[4] (4 november,2023) https://www.toppr.com/guides/business-law-cs/introduction-to-law/various-definitions-of-law/

[5] (4 november,2023) https://www.toppr.com/guides/business-law-cs/introduction-to-law/various-definitions-of-law/

[6](4 november,2023) https://www.toppr.com/guides/business-law-cs/introduction-to-law/various-definitions-of-law/

[7] (4 november,2023) https://www.toppr.com/guides/business-law-cs/introduction-to-law/various-definitions-of-law/

[8](4 november,2023) https://www.toppr.com/guides/business-law-cs/introduction-to-law/various-definitions-of-law/

[9] (4 november,2023) https://www.toppr.com/guides/business-law-cs/introduction-to-law/various-definitions-of-law/

[10] Shivani Shrivas,(3 November 4, 2023, 2023), Definition of law and its functions https://www.legalserviceindia.com/legal/author-10669-shivani-shrivas.html

[11] Shivani Shrivas,(3 November 4, 2023, 2023), Definition of law and its functions https://www.legalserviceindia.com/legal/author-10669-shivani-shrivas.html