This article is written by Aaliya Fatima of University of Lucknow, an intern under Legal Vidhiya.
Abstract
Law is indeed the most important element in the formation of an organized state. Without the presence of rules and regulations, the society is a mess. Law is simply the rules and regulations that people need to follow in order to live a civilized and an organized life in a state. Every country follows it’s own rules and regulations. Law although maybe a simple word but it has a wide meaning as well as scope. Law differs from religion to religion as well as region to region. For instance, sonography that is knowing the gender of a child is illegal in India but is legal in United States of America whereas bigamy is prohibited in the Hindu religion but is permitted among the Muslims. Hence the scope of law is far and wide. With this paper, the readers even who are from the non-law background would easily understand the concept of law, it’s meaning as well as it’s significance as to what important functions does the term “law” has.
Keywords
Law, society, regulations, state, government, guidelines
Introduction
Sir Edward Coke in his theory of Rule of Law has rightfully said that Law is above all. Law even surpasses the power of a government that is in function which in turns guarantees that there should be an absence of arbitrary law i.e., the laws that are vague in nature and are not based on established facts but merely on the opinions. Law is synonymous of various words such as sovereign, decree, rules and regulations and many more. Society was created for the benefit of the man. The men who were competent enough to form a government of that particular state formed various rules and regulations for their people to follow. These certain rules and regulations were termed as laws. Rules and regulations ensured that there is law and order in the society and that nobody is denied justice. Hence with the help of this paper we will understand the importance of law in our lives.
Definition of Law
Law is a wide subject that is simultaneously changing and evolving itself according to the need of times. It might look like a piece of cake to study and relate with, but it takes years and one’s sheer hard work to be able to gain specialization in this field as law is mostly based on human psychology which keeps on evolving as time passes. Laws or simply the rules and regulations have been around since the times ancient and are considered the back bones of a society. In a nutshell, law is a rule or set of rules that are set up by an authority who are competent enough to form a ruling committee or a government or the society itself and are applied on a community or territory. However, no single definition of law can fully express its meaning universally as law itself is dynamic.[1]
Many jurists and thinkers have given various definitions to this day to provide a that exact definition that would actually cover and engulf the entire scope of law as a subject. Notwithstanding, there are many definitions of law that are considered for being the most comprehensive and accurate for the time and circumstances that they were provided in, and also being considerably inclusive of the subject’s general scope. Many theories have been discovered and negotiated in order to find that close to perfect definition or understand the concept of law. Various jurists have given and supported various theories to make the people understand the concept of law. Out of them a few of them are discussed in detail below which are as follows:
- Positive Theory of Law
The first and the foremost popular theory that tries to explain what is the actual meaning or concept of law rather than what things should be made law. John Austin and Jeremy Bentham developed this theory and this theory is widely accepted by Salmond and Kelsen who are famous jurists. The positive theory of law, also called legal positivism follows the analytical school of thought. It summarises that:
Law is that command of sovereign that is backed by a penalty or a sanction. Firstly, legal positivism gives the credit of the invention of law to the humans, unlike the natural theory of law. It says that laws are mere commands that are implemented by a sovereign. The nature does not affect the validity of law. These commands had to be followed, notwithstanding one’s own opinions, judgements or ethics. Since, it is applied that these commands are given by a sovereign, this theory takes in consideration the political structure of a community or a society where people have been provided with greater political power in order to govern those who are below them, that is the general population. This theory suggests that politics play a key role in formations of law. If these laws are not followed through with, punishments as well as penalty are imposed. All this further ensures the commands are followed, keeping intact the viability of laws and preventing the society away from chaos and disorder by making ignorance or violations subject to penalty. This theory has a very clear and easily understandable definition of law that describes the conventional nature of law. It stays true to its analytical and practical approach and analyses the structure of law, as well as that form of law which can be easily related and understood. Although law has existed even before states existed and the sovereigns. Hence, this theory has a drawback in that respect. Another criticism of this theory is that this theory is shallow, considering sovereign’s command to determine the validity of law. Several laws are accepted to be valid because they follow natural justice, or corresponds to public policy. Similarly, people also tend to abide by law to get rewards and benefits, habits, general acceptance in society or simply out of respect for justice[2]. Hence, punishment is not the only reason due to which people are obeying laws.
- Natural Theory of Law
Natural law of law acclaims that law was not formed by human beings, but rather it is something which is provided to us by nature in the disguise of morality, or ethics as well as the ability to judge between what is right or what is wrong. It also argues that morality is an that feature of human beings which is already inherent by nature and that creation of morality does not require such work or persistence. So therefore, laws were not merely formed by the force of society or civilizations but by this ability that is innate, by the ability that differentiates between what is right and what is wrong. This theory Connects nature with the origin of law. It is the earliest theory that tried to find the meaning and the origin of law and is as old as the civilizations similar to ancient Greece. Great philosophers like Socrates, Plato and Aristotle believed this theory to be true. Esteemed modern jurists like Hobbes, Rousseau and John Locke are also considered to support natural theory of law. The natural theory of law is quite plausible to explain the origin of law, from where the idea of law comes from and the reasons as to why laws were created. However, people’s values and morality are different from one person to another making the laws differ on a physical basis. This is why it isn’t successful in explaining law in its present state, which is in the form of rules and regulations which are complied uniformly within a society and is different from place to another place.
- Realist Theory of Law
Sir Chipman Gray, Oliver Holmes and Karl Llewellyn founded this theory of law. Other traditional theories of law are disregarded by this theory. This theory deals with the actual working of law. According to this theory, unless the laws are applicable in the real world, there is no value of laws that are created by legislature. Only the laws that have applicability or the use in practical cases are known to be laws according to this theory. Therefore, it is not the legislation but instead the decisions made by the judges in the actual court that are actual laws. The judiciary is known to be the lawmaker and hence not the legislation according to this theory. In a nutshell, it acclaims that, law is that product of judgements of judges which are made by their social, economic and contextual influences. This theory hence also emphasizes in the human factor in law. It states that law is the judgements that are made via interpretation made from human mind. These judges use their own intelligence and with the help of their conscience evaluate cases. Different judges would use different approaches to deliver justice in their best knowledge, hence interpretation varies with time. Hence, legal statutes alone don’t provide justice, human factors also have a major role in law. This theory is extensively based on the practice of already passed judgements.
There are many possible drawbacks and criticism of this theory as it seemed to be very flawed. One major criticism is that this theory is majorly based on litigation. There are plenty of cases that does not need compulsory interference of courts but still require laws to govern their fundamentals for instance contracts and marriages. Those laws are also fully valid in practical world. Another huge criticism is the great importance is given to human factors. This theory tried to put the judgements of the judges above the law in a world where judges can be biased. According to this, laws are subject to an individual, or group of individuals’ conscience and personal choices, leaving laws up to the mercy of their interpretation. Aside from these, laws exist before judiciary passes judgements on them, and still have validity in the society. Hence, this is a very imperfect theory.
Functions of law
Law is a wide subject which has great significance and functions. Some of the functions of law are as follows:
- It maintains law and order in the society and guarantees that justice is delivered at every doorstep.
- Without law, the society would be a mess and chaos.
- Law helps in the reduction of crimes. Law has categorised various actions into offences that have some penalties ranging from simple compensations to grave punishments. This in turn creates fear in the mind of most of the people which eventually leads to the reduction of crimes.
- Laws guarantees fundamental rights to the people. If a person ever feels that his fundamental rights are been threatened or violated, he/she may go to the courts for the same.
- Law even frames guidelines for the government. It in turn ensures that the government does not practice in a biased way.
- Law ensures absence of arbitrary powers.
- Law ensures equality among the people of a country and that nobody is subjected to discrimination on the basis of caste, colour, creed etc.
- Law ensures the basic needs of the people.
- Law improves the status quo in the society
- It protects each and every individual of the society of the country.
Conclusion
Law has indeed protected the society against various evils and crimes. Without law, society indeed was a mess where people having more power would have exploited the poor in every worst way possible. But by keeping law above everything else, even above the government, the makers of the Constitution of India indeed took an applauding step wherein they made sure that there is a presence of legal spirit always and has absence of arbitrary law along with equality before law. This step hence ensured that the future of India is definitely in safe hands and that nobody whether rich or poor is exploited anywhere in the world or in the country itself.
[1] Legal Service India, https://www.legalserviceindia.com/legal/article-5069-definitions-of-law-and-its-functions.html, last visited June 21, 2023
[2] Ibid at 2
