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MEANING AND SCOPE OF THE TERM “LAW” – AN OVERVIEW

Semester VI – B.A. LL.B Course


Paper : Jurisprudence II

Submitted By
Pintu Babu, Semester VI-‘C’, Roll No. 110
Batch 2015-20

Submitted To
Dr. Kaumudhi Challa
Assistant Professor , HNLU

Date of Submission : 06.03.2018

Hidayatullah National Law University


Uparwara Post, Abhanpur, New Raipur, Chattisgarh – 492002
Meaning and Scope of the term “Law” – An Overview

ACKNOWLEDGEMENTS

I, Pintu Babu, feel myself elated, as it gives me immense pleasure to come with the work on topic,
“Meaning and Scope of the term law – An Overview”. Words fail to express my deep sense of
glee to my teacher, Dr. Kaumudhi Challa, Assistant Professor, Hidayatullah National Law
University, Raipur, who enlightened me on my every difficulty in completion of task. I
acknowledge the blessings and support which my mother and father gave in finishing of this
task.

I would like to forward my hearty thanks to my University and Vice-Chancellor for providing
all the necessary requirements which aided me to achieve my goal. I also thank Librarian
HNLU, Raipur, for assisting me and allowing me to use the library of the University.

I feel a deep sense of thankfulness to all my seniors, my friends who helped me in achieving my
target.

Date : 06.04.2018
Place : HNLU Raipur

Pintu Babu, Semester V, Roll No. 110


Batch 2015-20

i
Meaning and Scope of the term “Law” – An Overview

DECLARATION

I hereby declare that the project work entitled “Meaning and Scope of the term law – An
Overview” submitted to the Hidayatullah National Law University, Raipur is the original work
done by me under the guidance of Dr. Kaumudhi Challa, Assistant Professor, Hidayatullah
National Law University, Raipur and this project has been submitted for the partial fulfillments of
the requirements for the award of the degree of BA- LLB. The results embodied in this thesis
have not been submitted to any other University or Institute for the award of any degree or
diploma.

Date : 06.04.2018
Place : HNLU Raipur

Pintu Babu, Semester V, Roll No. 110


Batch 2015-20

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Meaning and Scope of the term “Law” – An Overview

LIST OF CASES

1. A.D.M. Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207


2. A.K. Gopalan v. State of Madras, AIR 1950 SC 27
3. Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan, AIR 1996 SC 152
4. Air India Statutory Corporation v. Union of India, AIR 1997 SC 645
5. All India Judges Association v. Union of India, AIR 1992 SC 165
6. Fertilizers Corpn. Kamgar Union v. Union of India, AIR 1981 SC 344
7. Golak Nath v. State of Punjab, AIR 1967 SC 1643
8. H.L.A. Hart, ‘The Concept of Law’, (1961)
9. Maneka Gandhi v. UOI, AIR 1978 SC 567
10. S. P. Gupta v. Union of India, AIR 1982 SC 149

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Meaning and Scope of the term “Law” – An Overview

TABLE OF CONTENTS

Acknowledgements .......................................................................................................................... i
Declaration ...................................................................................................................................... ii
List Of Cases .................................................................................................................................. iii
Table Of Contents .......................................................................................................................... iv
Introduction ..................................................................................................................................... 1
Research Methodology ................................................................................................................... 2
Chapter 1: Definition Of Law ......................................................................................................... 6
Chapter 2: Austin’s Defination Of Law ........................................................................................ 12
Chapter 3 : Salomd’s Defination Of Law ..................................................................................... 18
Chapter 4 : Purposive Definition Of Law-New Indian Trend ...................................................... 21
Conclusion .................................................................................................................................... 23
Suggestions ................................................................................................................................... 24
Bibliography ................................................................................................................................. 25
Webliography................................................................................................................................ 26

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Meaning and Scope of the term “Law” – An Overview

INTRODUCTION

The problem of the definition of law is as old as Greek and Roman philosophy itself. There have
been conflicting and divergent views of the jurists regarding the nature, concept, basis and
functions of law. Dean Pound himself has given no less than twelve concepts of law. Law has been
regarded as a divinely ordained rule or a tradition of the old customs or recorded wisdom of the
wise men or a philosophically discovered system of principles which expresses the nature of things
or as a body of ascertainments and declaration of an eternal and immutable moral code, or as a
body of agreements of men in politically organized society, or as reflection of divine reason or as
a body of commands of the sovereign, or as a body of rules discovered by human experience, or
as a body of rules developed through juristic writings and judicial decision or as body of rules
imposed on men in society by a dominant class, or as body of rules in terms of economic and social
goals of the individuals.

Law can also be defined from the point of view of philosophers, theologians, historians and social
scientists. As there are different approaches of the various schools, to the study of jurisprudence
so there is no general definition of law which includes all the aspects of law. In fact every jurists'
definition of law is tainted by the approach of particular school to which the propounder of the
definition belongs. Indeed no definition of law can suit all times, all places and all societies. Again
law can be defined firstly, by its basis in nature, reason, religion or ethics secondly by its source—
in custom, precedent or legislation, thirdly, by its effects—on the life of society, fourthly, by the
method—of its formal expression or authoritative application; fifthly by the ends—that it seeks to
achieve. Therefore, it is not desirable to adhere rigidly to any one definition for the law is a social
institution which like society changes according to changing needs of society.

Present paper sheds light on the definition of law covered by various jurists, and significantly two
jurists have been talked about in the paper. John Austin and John Salomd has been discussed
extensively, with a glimpse of Indian legal system and definition of law according to Indian courts.

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Meaning and Scope of the term “Law” – An Overview

RESEARCH METHODOLOGY

1. Research Problem
What is the meaning and scope of term ‘law’, what has been the jurisprudence related to term
law debated and argued by different thinkers from time to time?

2. Rationale

For any study in the field of law it is very much important to understand the significance of its
title. In our daily life we hear a lot of terms like environmental laws, Newton’s laws, criminal laws,
corporate laws, international law, family law, labour law, intellectual property laws, human right
laws, substantive/procedural laws, natural laws, property laws, contract laws,
constitutional/administrative laws, equity/trust laws, space law, tax laws, banking laws, consumer
laws, adminirality law and many more.

The only sync in between is all of these is the term ‘law’, thus is can be inferred that the system of
rules which a particular country or community recognizes as regulating the actions of its members
and which it may enforce by the imposition of penalties is called law.

3. Objectives
 To study various legal system and their interpretations of the term ‘law’.
 To analyze and compare various jurists in the field of law and their opinions with
respect to law.
 To study the various theories which influenced the jurisprudence of term law.
 To understand how interpretation of law varies from one legal method to another.
 To gather information on Indian perspective of term ‘law’.
4. Review of Literature
a. Mahajan, V.D., Jurisprudence And Legal Theory, 5th Edition, Eastern Book Company,
2015
This book has helped the author in understanding and collecting the primary jurisprudence
which deals with the concept of law. Various definitions linked with the law has been
referred from this book.
b. Dhyani, S.N., Jurisprudence & Indian Legal Theory, 4th Edition, Central Law Agency,
2015

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Meaning and Scope of the term “Law” – An Overview

This book has helped the author in gathering various models and theories presented by
various juris in the field of law. The theories of this book has been duly acknowledged in
this project report. The last chapter of this project has particularly been taken from this
book, the Indian view on ‘law’.
c. Paranjape, N.V., Studies in Jurisprudence and Legal Theory, 8th Edition, Central Law
Agency, 2016
This book has helped the author in gathering information about the various approaches to
study law across different legal systems. Law as a rule differs from its place of operation,
one legal system is always different from another and this way the attributes of law also
changes with change in its zone of operation.
5. Hypothesis

In the present study it has been assumed that there exists various legal system around the world,
thus it is not justifiable to attend to one uniform definition of law. Various schools of jurisprudence
advocates for various definitions which some overlaps with each other and sometime even
contradictory to each other.

6. Concepts

Law, legal, jurisprudence, moral, immoral, command, sovereign, coercion, sanction, legislature,
government, parliament, obedience, social control, institution, courts, judicial, political, custom,
precedent, legislation, citizens.

7. Research Design
a. Nature of Study
Doctrinal research has been carried out for the completion of this project report. Systematic
analysis of statutory provisions and of legal principles has been incorporated. Logical and
rational ordering of the legal propositions and principles has been used.
b. Sources of data
Secondary sources of data has been made into use. The sources of data are legal and
appellate court decisions. Due help of books, journals and articles has been taken.
8. Chaptalization

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Meaning and Scope of the term “Law” – An Overview

Chapter 1 : This chapter deals with general definitions given by various jurists from time to time.
These definitions has been incorporated keeping in mind that all of the legal schools could be
covered while defining what law is. The utility of this technique is to gather a rough idea what has
been the evolution in terminology of law from a perspective of every legal system.

Chapter 2 : This chapter deals with the legal theory given by John Austin (Western philosophy,
Legal positivism). Austin developed logically a 'structure of legal system in which he gave no
place to values, morality, idealism and justice. He vigorously, rigidly and scientifically created a
legal system—a science of jurisprudence centered on sovereign, command, duty and sanction.

Chapter 3 : This chapter deals with the theory of law given by John Salmond (Judge, Legal
positivism). According to him the law may be defined as the body of principles recognized and
applied by the State in the administration of justice. In other words, the law consists of the rules
recognized and acted on by the courts of justice.

Chapter 4 : This chapter focuses on the Indian version of ‘law’. India follows the Austinian model
for its legal system. A system which advocates for command, duty and sanction has been followed
in India ever since independence and even during colonial period. We follows a purposive
definition of law, where justice should not only be done but it should seem to be done also.

9. Timeline

Author in order to carry out his research had at first gathered the resources for the study of topic.
For the purpose author had mainly relied on secondary data which includes books, articles and
journals. Reference to case laws has been made where deem required.

After collecting data from various sources the author had framed objectives for the study of his
topics and started assembling the data in more systematic way. The author later made heading of
the prominent chapters on which he is going to carry his research and drafted the content
accordingly. The author had made references to various books, case laws and journals and thus
made a diligent reading of the same throughout the making of this project report.

10. Limitations
 The study is limited to the laws which are enacted by legislature, or custom or
precedents.

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Meaning and Scope of the term “Law” – An Overview

 The study do not cover the environmental or metaphysical laws.


 The study is limited to the known legal system and do not address any legal system
which has not been acknowledged by the jurists.
 The study only covers the definition part of various thinkers and do not support of
counter their legal theories.
11. Contribution

The project report is useful in following terms:

 To understand the meaning and scope of law.


 To understand the debate that has been existing ever since about the true source of law.
 To make us aware about the evolution of law, given that a lot of technological changes
have been bought in the society which now make society more dynamic.
 To compare the definitions of jurists so that a comprehensive law of any nation can be
formed, a nation must read all the source available so as to provide sound legal system to
its people.

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Meaning and Scope of the term “Law” – An Overview

Chapter 1: DEFINITION OF LAW

In the words of Thurman Arnold: Obviously, low can never be defined. With equal obviousness,
however, it should be said that the adherents of the legal institution must never give up the struggle
to define law, because it is an essential part of the ideal that it is rational and capable of definition.
Hence the verbal expenditure necessary in the upkeep of the ideal of 'law' is colossal and never
ending. The legal scientist is compelled by the climate of opinion in which he finds himself to
prove that an essentially irrational word is constantly approaching rationality.

A similar view is expressed by Lord Lloyd1: Since much juristic ink has flowed in an endeavor to
provide a universally acceptable definition of law, but with little sign of attaining that objective."

R. Wollheim2 points out that much of the confusion in defining law has been due to the different
types of purpose sought to he achieved.

Morris writes: To a zoologist, a horse suggests the genus mammalian quadruped, to a traveler a
means of transportation, to an average man the sports of kings, to certain, nations an article of
food. Likewise, law has been variously 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. There is a lot of literature on the subject of law and in spite of that, different
definitions of law have been given.

Various schools of law have defined law from different angles. Some have defined it on the basis
of its nature. Some concentrate mainly on its sources. Some define it in terms of its effect on
society. There are others who define law in terms of the end or purpose of law. A definition which
does not cover various aspects of law is bound to be imperfect. Moreover, law is a social science
and grows and develops with the growth and development of society. New developments in society
create new problems and law is required to deal with those problems. In order to keep pace with
society, the definition and scope of law must continue to change. The result is that a definition of
law given at a particular time cannot remain valid for all times to com. A definition which is
considered satisfactory today may be found narrow tomorrow.

1
Llyod Denis, ‘Introduction to Jurisprudence’, (1959) p.87.
2
R. Wollheim, ‘The Nature of Law’ (1954).

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Meaning and Scope of the term “Law” – An Overview

Prof. Keeton rightly points out that to attempt to establish single satisfactory definition of law is
to seek to confine jurisprudence within a straitjacket from which it is continually striving to escape.

Prof. H. L. A. Hart writes: Few questions concerning human society have been asked with such
persistence and answered by serious thinkers in so many diverse, strained and even paradoxical
ways as the question 'What is law?'.

Pollock observes: No tolerably prepared candidate in an English or American Law School will
hesitate to define an estate in fee simple; on the other hand, the greater a lawyer's opportunities for
knowledge have been, and the more time he has given to the study of legal principles, the greater
will be his hesitation in the face of the apparently simple question 'What is law?'.

According to 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 forbidder of what
they should not do.

Ulpian defined law as "the art or science of what is equitable and good".

Cicero3 said that law is "the highest reason implanted in nature".

Pindar called law as "the king of all, both mortals and immortals".

Demosthenes wrote: "Every law is a gift of God and a decision of sages." Again, "this is law to
which all men yield obedience for many reasons and especially because every law is a discovery
and gift of God and at the same time a decision of wise men, a rightening of transgressions, both
voluntary and involuntary, and the common covenant of a State, in accordance with which it
beseeches all men in the State to lead their lives".

Chrysiphus defined law as "the common law with is the right reason, moving through all things,
and identical with Zeus, the Supreme Administrator of the universe".

According to Capito, "a lex is a general command of the people or the plebs on question by a
magistrate".

3
Cicero, De Republica, III, p.22-23.

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Meaning and Scope of the term “Law” – An Overview

Anaximenes writes: "Law is a definite proposition, in pursuance of a common agreement of a State


intimating how everything should be done."

According to Hobbes: "Law is the speech of him who by right commands somewhat to be done or
omitted." Again, "law in general is not counsel but command; nor a command of any man to any
man but only of him whose command is addressed to one formerly obliged to obey him. And, as
for civil law, it addeth only the name of the highest person commanding which is persona civitatis,
the highest person of the commonwealth."

Blackstone4 writes: "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 the laws of gravitation, or optics or mechanics, as well as the laws of nature
and of nations."

Hooker defines law as "any kind of rule or canon whereby actions are framed...that which reason
in such sort defines to be good that it must be done". Again, "of law there can be no less
acknowledged than that her seat in the bosom of God, her voice the harmony of the world, all
things in Heaven and Earth does her homage, the very least as feeling her care and the greatest as
not exempted from her power; both angels and men and creatures of what condition so ever; though
each in different sort and manner, yet all with uniform consent, admiring her as the mother of their
peace and joy".

The view of Kant was that law is "the sum total of the conditions under which the personal wishes
of one man can be combined with the personal wishes of another man in accordance with the
general law of freedom".

Hegel defined law as "the abstract expression of the general will existing in and for itself".

Sir Henry Maine5 writes: "The word 'law' has come down to us in close association with two
notions, the notion of order and the notion of force."

Savigny says that law is "the rule whereby the invisible borderline is fixed within which the being
and the activity of each individual obtains a secure and free space".

4
Blackstone, Commentaries, I, p.38.
5
Maine, ‘Ancient Law’, p.93.

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Meaning and Scope of the term “Law” – An Overview

According to Vinogradoff, law is a set of rules imposed and enforced by a society with regard to
the distribution and exercise of powers over persons and things".

According to Austin6, "law is the aggregate of rules set by men as politically superior, or sovereign,
to men as politically subject". In other words, law is the command of the sovereign. It imposes a
duty and is backed by a sanction. Command, duty and sanction are the three elements of law.

Kelsen7 defines law as the psychologised command. Though Kelsen defines law in terms of
command, he uses that term differently from Austin8. The sovereign of Austin does not come into
the picture in the definition of law as given by Kelsen.

Duguit defines law as essentially and exclusively a social fact. The foundation of law is in the
essential requirements of the community life. It can exist only when men live together. The
sovereign in not above the law but bound by it. Law should be based on social realities. Duguit
excluded the notion of 'right' from law.

Ihering defines law as "the form of the guarantee of the conditions of life of society, assured by
State's power of constraint". Law is treated only as a means of social control. It is to serve social
purpose. It is coercive in character. Obedience to law is secured by the State through external
compulsion.

Ehrlich includes in his definition of law all the norms which govern social life within a given
society. Pound9 defines law as "a social institution to satisfy social wants".

Justice Holmes says: "Law is a statement of the circumstances in which the public force will be
brought to bear upon men through courts". Again, "the prophecies of what the court will do in fact
and nothing more pretentious, are what I mean by law."

According to Gray10: "The law of the State or of any organised body of men is composed of the
rules which the courts— that is, the judicial organs of that body—lay down for the determination
of legal rights and duties."

6
Austin, ‘Lectures on Jurisprudence’, 5th Edition, (1880) p.55.
7
Hans Kelsen, ‘The Concept of Legal Order’, (1982).
8
Ibid.
9
Pound, ‘An Introduction to the Phhilosphy of Law’, (1950) P.60-68.
10
Gray, ‘The Nature and the Sources of Law’ 2nd Edition, (1921) p.82.

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Meaning and Scope of the term “Law” – An Overview

Cardozo writes: "A principle of rule of conduct so established as to justify a prediction with
reasonable certainty that it will be enforced by the courts if its authority is challenged is a principle
or rule of law."

Holland says: "More briefly, law is general rule of eternal human action enforced by a sovereign
political authority. All other rules for the guidance of human action are laws merely by analogy;
and propositions which are not rules for human action are laws by metaphor only."

According to Bentham: "Law or the law, taken indefinitely, is an abstract or collective term, which
when it means anything, can mean neither more nor less than the sum total of a number of
individual laws taken together" Salmond defines law as "the body of principles recognised and
applied by the State in the administration of justice."

According the Paton11, the term law may be defined from the point of view of the theologian, the
historian, the sociologist, the philosopher, the political scientist or the lawyer. Law may be used in
a metaphorical sense. Law may be defined firstly by its basis in nature, reason, religion or ethics.
Secondly, it may be defined by its source in customs, precedents or legislation. In the third place,
it may be defined by its effect on the life of society. Fourthly, it may be defined by the method of
its formal expression or authoritative application. In the fifth place, it may be defined by the ends
that it seeks to achieve. Paton himself defines law in these we "Law may be described in terms of
a legal order tacitly or formally accepted by a community, and it consists of the body of rules
which that community considers essential to its welfare and which it is willing to enforce by the
creation of a specific mechanism for securing compliance. A mature system of law normally sets
up that type of legal order known as the State, but we cannot say a priori that without the State no
law can exist."

According to Lord Moulton: "Law is the crystallized commonsense of the community".

Prof. M. J. Sethna writes: "Law in its widest sense means and involves a uniformity of behaviour,
a constancy of happenings or a course of events, rules of action, whether in the phenomena of
nature or in the ways of rational human beings. In the synthetic sense, civil law is all that body of
principles, decisions and enactments made, passed or approved by the legally constituted
authorities or agencies in a State, for regulating rights, duties and liabilities (between the State and

11
Paton, ‘Text book of Jurisprudence’, 4th Edition, p.75.

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Meaning and Scope of the term “Law” – An Overview

the citizens, as also the citizens inter se, and the citizens of the State in relation to members of
foreign States), and enforced through the machinery of the judicial process, securing obedience to
the sovereign authority in the State."

From what has been stated above, it follows that law presupposes State. There may be law even
without the State such as primitive law, but law in the modem sense of the term implies a State.
The State makes or authorises to make, recognises or sanctions rules which are called law, for the
rules to be effective, there are sanctions behind them. Rules are made to serve some purpose. That
purpose may be a social purpose or the personal ends of a despot.

Hindu Law

The corresponding term for law in Hindu texts is either Dharma or Vidhi. In the Vedic hymns, the
word ritam is generally used to denote law.12 However, Dharma is more frequently used as the
corresponding term for law but it does not always mean a rule of human action. Dharma or law
according to Hindu texts embraces everything in life. It is regarded as highly beneficial to man and
not as something imposed on him by an external authority having physical power over him, Under
Hindu jurisprudence a man has to follow the law not because of the fear of the penalty or sanction
but because it is for his own benefit and enables him to attain his goal of salvation. Even a criminal
is urged to confess his offence and get punished in order to purge himself of his sin and attain
heaven.

The earthly idea of Dharma was Loka Sangraha or the welfare of the universe and Sarva Bhootha
Hitheratha or the welfare of every living thing. That is why the Hindu law-givers said, "He who
upholds the law (Dharma) will be upheld by it. He, who destroys the law (Dharma) will be
destroyed by it", and "that Dharma is the foundation of the universe".13 According to Hindu texts
the chief end of law and its declared goal was the ideal of righteousness.

12
Prof. Nomitha Aggarwal, ‘Jurisprudence Legal Theory’ 10 th Editions, (2016) p.50.
13
Ayyar, ‘The contribution of Hindu Law to the World Jurisprudence’, p.5.

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Meaning and Scope of the term “Law” – An Overview

Chapter 2: AUSTIN’S DEFINATION OF LAW

The work of the English Jurist John Austin (1790-1859) who expounded the concept of Analytical
Positivism making law as a command of the sovereign is as epoch-making for English legal theory
as Newton's theory of law of gravitation to physical scientists. Austin developed logically a
'structure of legal system in which he gave no place to values, morality, idealism and justice. He
vigorously, rigidly and scientifically created a legal system—a science of jurisprudence centered
around sovereign, command, duty and sanction.

Elements of Austin’s Law

a. Law and Society

Austin's main concern was to give a logically coherent definition of law as distinguished from
divine law and positive morality. Therefore, he sought the basis of his 'law' with reference to a
society which could be said to be political and independent as distinguished from all other
societies—traditional, feudal or any other form of primitive groupings of a people. In other words,
Austin is mainly interested in maturer, ampler or developed societies—a society consisting of a
body of men who habitually obey some determinate person or number of persons who themselves
are not in the habit of obedience to any other human authority. The Austinian system of law,
therefore, presupposes the existence of such a society.

Austin accordingly defines 'law' as a rule laid down for the guidance of an intelligent being by an
intelligent being having power over him. He divides14 Law under two classes. Firstly ‘law properly
so called' and the second, 'law improperly so-called'. The ‘law properly so-called' are described as
commands of the sovereign and all the rules emanating from the political superior are species of
commands.

However, there are laws which resemble like laws are styled by Austin as 'laws improperly so-
called' or laws by analogy or metaphor or positive morality for such laws are not commands of the
sovereign. They are not set by men as no superiors for human conduct and are merely opinions or
sentiments held or felt by men in regard to regulation of human conduct. o such laws can '
conveniently termed as positive morality or positive moral rules, e.g., the rules of the club, fashion,

14
Supra (6).

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Meaning and Scope of the term “Law” – An Overview

public opinion, international law, the rules of utility and religion, etc. The science of jurisprudence
as such is concerned with 'law properly or strictly so-called' without regard to their goodness or
badness.

b. Laws properly so-called—Distinguished

As stated above, Austin as an analyst wanted to exclude from the scope of law other various forms
of so-called laws described by Austin as 'laws improperly so-called' in order to determine the
exact nature of law to be binding upon the people irrespective of any consideration or value
judgment.

He, therefore, disengaged and divorced all other so-called laws in order to build a logically self-
justifying and self-sufficient system unmingled and unaffected by other disciplines or philosophy.

As such he divides law in three parts: first, law of God, i.e., law made by God to his creatures;
second, law made by man to man and third, laws of physical nature or scientific laws, e.g., laws
of gravitation, relativity, biological laws of human body etc.

As regards the law of God is concerned, Austin says what should be the relationship between God
and his creatures is not the concern of law or jurisprudence. This is something other—worldly. So
he rejects the metaphysical concept of law from the purview of his jurisprudence. As regards the
third type of laws is concerned, Austin says such laws are improperly so-called for they do not
immediately and directly concern with human conduct. The term law is extended to them by
caprice or fancy. According to Austin the rules of animal breathing or rules of blood circulation or
natural species cannot be equated with rules for human conduct in a society. So he describes such
scientific laws as laws improperly so-called or laws by analogy or metaphor.

The second type of laws, as stated above, were divided by Austin in two categories: (a) laws made
by men in their sovereign political capacity to men who are subjects or political inferiors and (b)
described by him as positive morality.

The positive law or laws of private persons. The former type of laws are termed by Austin as laws
or laws strictly so-called and the latter type of laws b) laws made by men in their private individual
capacity to men as strictly so-called are obligatory and legally binding upon the subjects for they
are in the nature of commands backed by sanction. The laws of positive morality are not legally

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Meaning and Scope of the term “Law” – An Overview

binding upon the individuals and are unaccompanied by sanction of the sovereign. Such laws
depend for their enforcement upon overwhelming majority sentiments or public opinion only. As
such rules of positive morality too are excluded from Austin's definition of law.

Law as Command

According to Austin laws properly so-called are species of commands. The word 'command' in
ordinary sense means 'must' or 'shall' as distinguished from 'may' or 'ought'. Austin defined a
command in these words: 'if you express or intimate a wish that I shall do or forbear from some
act, and if you will visit me with an evil in case I comply not with your wish, the expression or
intimation of your wish is a command'. A command is distinguished from other significations of
desires, not by the style in which the desire is signified but the power and purpose or party
commanding to inflict an evil or pain in case the desire is disregarded. If you cannot or will not
harm me in case I comply not with your wish, the expression of your wish is not a command,
although you utter your wish in imperative phrase'. A command, therefore, embraces the following
things:

a) A wish or desire conceived by a rational being to another rational being that he shall do or
shall forbear.
b) An evil to proceed from the former to be incurred by the latter in case of non-compliance.
c) An expression or intimation of the wish by words or otherwise.
d) A duty to obey command by which the latter is obliged or bound by command.

Commands may be of two types: General commands and Particular commands. A command which
obliges a single person is a particular command and which obliges a body or group of persons
generally is a general command. Hence, every positive law is a species of commands whether in
the negative or positive form.

Law and Sanction

Since law is the command of the sovereign all such laws are backed by the power or force of the
sovereign by which subjects are and duty bound to obey the laws. In-other words command, duty
sanction are the necessary ingredients of law. Sanction, therefore, can be described as the power
of inflicting pain or evil in order to compel people to conform to the conduct as described by the
sovereign. Sanction is the power of enforcing compliance according to law as distinguished from

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Meaning and Scope of the term “Law” – An Overview

religious or moral sanctions. Every positive law necessarily presupposes duty and sanction which
are correlative of each other.

Law and Morality

Austin further attempted to separate law from morality. He was of the view that law is law because
it is made by the sovereign and it has nothing to do with its historical origin, ethical significance
or moral validity. He excluded the notion of goodness and badness from the purview of his law.
For him law is neither concerned with abstract natural ideal nor with social reform, social welfare
and social progress which is the concern of the science of legislation but not of law of the
sovereign. Buckland has correctly subsumed5 the Austinian concept of law as 'law is law since it
is made by the Sovereign, the Sovereign is Sovereign because he makes the law'.

Law and International Law

Austinian concept of law is at once irreconcilable with international law. For Austin international
law is positive morality because it does not emanate from the determinate sovereign and so is not
binding on the people. Conversely the sovereign itself is not bound by any law, it recognizes no
authority whether internal or external superior to itself. As international law cannot be defined as
command over and above the sovereign, international law at best is a positive morality-depending
on the choice of the sovereign to abide or not to abide by such law. It lacks also sanction. So
international law is not law properly so-called and, therefore, excluded by Austin from the scope
of jurisprudence.

Criticism of Austin's 'Law'

1. Austin ignores completely the moral and ethical aspects of law. Morality cannot be
excluded from law since both of them have a close community with the life of the people.
2. Law cannot be defined in terms of State. Historically law is older than State. Del Vecchio
suggests that those who define law in jurisprudence terms of the State should be forced to
study history before writing jurisprudence/
3. Kelsen also rejects the definition of law in terms of State. Primitive tribe may have a legal
order long before it has developed a State.
4. Austin was mainly concerned with the nature of law in which it is created or enforced.
However, the essence of law is its function rather than its form. Law should be defined by

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Meaning and Scope of the term “Law” – An Overview

the part it plays in the life of the society, not by the historical accident that it is sometimes
laid down by a sovereign. We cannot say that there can be no law where there is no
sovereign.
5. According to Sir Henry Maine in primitive communities like those of the Homeric Age or
Manu Age or of Iceland there was no sovereign to be found nor any legislative command
nor any definite sanction. Yet there were laws in the form of themistes, judge-made law,
customs, codes etc., which governed the life of the people. A strong Muslim ruler like
Allauddin and Ranjit Singh of Punjab were absolute or despotic yet they could not ignore
the customs or religious practices of the people.
6. Austin stressed too much upon sanction, i.e., a fear of evil or punishment. However, laws
are obeyed not merely because of sanction but by the promise of reward. Psychologically
it is not correct to say that sanction alone makes people to obey law. Universal disobedience
will rapidly destroy the whole basis of the legal order. Law is obeyed because of its
acceptance by the community, and while the sanction plays its part in dealing with a
recalcitrant minority, the reasons for that acceptance lay deeper.
7. His definition is not applicable to conventions of the Constitution, although conventions
cannot be enforced in a court of law yet they are the foundation of legal order. There is no
sanction behind them yet they are observed because it is recognised that if they are flouted
the legal order will break down.
8. His definition of law cannot apply to constitutional law which cannot be called the
command of the sovereign. As a matter of fact it is the constitutional law of a country which
defines the powers of the various organs of the State.
9. The personal laws of the Hindus and Muslims are the creation of traditions and usages and
are not in the nature of command yet they have the force of law and are recognized and
accepted by the society.
10. Austin took no account of law as what it ought to be. He relied excessively on logic by
saying that law is law because it is made by the sovereign and sovereign is sovereign
because he makes the law.
11. Austin does not consider international law as law because it is not backed by some
authority. He calls it as positive international morality. However, international law is law
because ultimate sanction behind ordinary law is public opinion, so the sanction behind

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Meaning and Scope of the term “Law” – An Overview

international law is world public opinion. Of course there is sanction of collective


enforcement action to compel a recalcitrant State to abide by the norms of international
law but as a last resort as provided in the Charter of the United Nations. 'Law is enforced'
says Pollock 'On account of its validity. It does not because valid merely become it is
enforced by the State'.
12. Austin unduly emphasized the imperative character of law. According to Prof. P. G. Osborn
enabling statutes, laws conferring franchise and rules of judicial construction, procedure
and customary practices cannot he said to be commands.

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Meaning and Scope of the term “Law” – An Overview

Chapter 3 : SALOMD’S DEFINATION OF LAW

Another important jurist of Imperative school of jurisprudence is Sir John Salmond from New
Zealand. He like Gray defines law in terms of judicial process. He also substituted for the political
sovereign the courts of law as the real source.

He says in England much of the law is made by the courts besides the legislature. But all law,
however, made is recognized and administered by the courts, and no rules are recognized and
administered by the courts which are not rules of law. To understand the nature of law one should
go to courts and not to the legislature. So Salmond observes' 'The law may be defined as the body
of principles recognized and applied by the State in the administration of justice. In other words,
the law consists of the rules recognized and acted on by the courts of justice'.

Salmond —If Austinian

Before we consider Salmond's definition of law it would be appropriate to discuss how far he is
Austinian. Salmond is Austinian in the sense that he correlates law with the State as the source of
law although he avoids the controversy as to legal and political sovereignty. He only emphasizes
the authority of the State—especially the courts who act upon the rules of law. It is in the judge
that we find Austin's sovereign.

However, to some extent he departs from Austin. He does not say law is a command of the
sovereign nor he rejects the notion or purpose of law—the administration of justice. In fact he
improved the variety of the definition of law of the Analytical School of Jurisprudence. Salmond
associated law with the element of right or justice, an aspect totally excluded by Austin. Salmond's
definition of law indeed attempts to remove all the shortcomings of the definition of law
propounded by Austin and his followers.

Elements of Salmond's Law

a. Meaning of the term 'Law'

The expression 'Law' as defined by Salmond means the civil law i.e. the law of the State, or law
of the country or law of the lawyers and the courts. Law is defined with reference to State. It is not
an ideal or abstract law. It is positive and actual law with which the ordinary lawyers are concerned
with, i.e., the law of the land. In other words, law consists whole body of legal system or legal

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Meaning and Scope of the term “Law” – An Overview

order which actually governed legal relationship between individuals in the administration of
justice.

b. Recognized and Applied

Salmond emphasizes that law must be recognized and applied by the State, i.e., courts in the
administration of justice. However, there are laws which are only recognized but not enforced.
According to Salmond such laws are not laws. He is of the view that laws are laws because applied
by the courts. But this is not a correct view.

There are laws e.g. the prohibition laws in the United States of America, and India, the Indian
Dowry Act, 1961 the Directive Principles of State Policy under the Indian Constitution, the decree
of the restitution of conjugal rights, the Child the Restraint Act, -1929 are some examples of law
which cannot be enforced because of prevailing social situation or lack of ready social acceptance
of such new norms of human behaviour. Yet they are all laws. In this respect Salmond's definition
of law is defective as much as it envisages like that of Austinian law is law because it is recognized
and applied by the State and does not take into consideration the social disapprobation as an
important factor for non-enforcement of law.

c. Administration of Justice

According to Salmond the purpose of law is the administration of justice. He says justice should
be within the framework of law. He does not mean by the ideal or abstract justice. He says that
law must be understood with reference to justice. It is a means towards the attainment of justice
and he its defined law with reference to ends. Law is merely the instrument while justice is the end
the primarily purpose for which the State exists.

‘Law is not right alone or might alone, but the perfect union of the two. It is justice speaking to
men by the voice of the State.’ In other words, Salmond's theory of law corresponds to its
prevailing legal and political doctrine of the rule of law which presupposes equality between men
irrespective of social and economic distinctions of caste, creed, religion or status etc.

Criticism of Salmond's Definition of Law

1. Salmond says law is an instrument by which justice can be achieved. Paton while agreeing
with Salmond says that the purpose of law is essential to an understanding of its real nature

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Meaning and Scope of the term “Law” – An Overview

but the pursuit of justice is not the only purpose of law; the law of any period serves many
ends and those ends will vary as the decades roll by. To seek for one term which may be
placed in a definition as the only purpose of law leads to dogmatism.
In other words, ends of law vary and change according to changing social requirements.
According to Levy Ullmann law may have many ends, e.g., security, order, general good
and the greatest happiness of greatest number or restructuring and revival of age-old
cultural and moral values and ideals to suit the contemporary needs.
2. Salmond did not define the expression 'justice'. Keeton says what has been considered to
be just at one time has frequently not been so considered at another. Is the protection of
private property or is its abolition a principle of justice? If we say, with Lord Wright, that
justice is that which appears just to the reasonable man, the reasonable man evidently has
different views on the matter at different times and places and there may even be important
differences in the point of view between different reasonable men within the same
community.
3. Dean Pound has criticised the definition of Salmond as reducing law to a mass of isolated
decisions and the law in that sense ceases to be an organic whole.
4. According to Lord Wright 'although the guiding principle of deciding cases is to do
justice—that is justice according to law. But I have not found a satisfactory definition of
justice'. Jethro Brown also agrees with Wright in this regard.
5. His definition applies only to case law and not to statute law. Generally speaking a statute
is law as soon as it is passed. It does not have to wait for recognition by the courts before
becoming entitled to the name 'law'. Courts recognize a statute because it is law. It is not
merely law because the courts recognize it.
6. Salmond's definition of course does not cover inter-national law nor does it cover
administrative law which is enforced administratively and not judicially.

For the twenty-first century Salmond's definition of law contains all the necessary ingredients
of a just and humane law where indispensable for a democratic and egalitarian society where
individual rights, freedoms and dignity is end or goal of law subject to overall good of the
society.

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Meaning and Scope of the term “Law” – An Overview

Chapter 4 : PURPOSIVE DEFINITION OF LAW-NEW INDIAN TREND

Pedagogically speaking the mould of contemporary Indian jurisprudence and law is largely of
English origin, nature and content. It is, therefore, not surprising that despite vast kaleidoscopic
changes in Indian legal system since Independence the legal educationists, lawyers and judges in
complete disregard to Indian social realities and environment follow Austin's theory and concept
of law as mantra (a religious precept).

Perhaps they little realise that Austin's theory of positive law has been ridiculed and rejected even
in the land of its origin. As Buckland remarks15 'The analysis of legal concepts is what
jurisprudence meant for the students in the days of my youth. In fact it meant Austin. He was a
religion; today he seems to be regarded as a disease'. The triple features of Austin's positive law—
command, duty and sanction devoid of morality and justice is not merely an evil but a disaster for
the law ceases16 to be an instrument of social change and social justice. For India the need of a
purposive rather than positive" concept of law is of paramount importance in order to prevent
abuse of legislative power, injustice by positive law and violation of liberties and human rights of
the people.

Maneka17 has been a turning point in radicalising Indian jurisprudence and discarding of Austinian
positive law. In the formative era it is judges like Krishna Iver and Bhagwati who correlated 1aw
with life of the people, their needs, claims interests and hopes. To Krishna Iyer law and life18 are
symbiotic and realities of the latter mould the process of the former. He observes 19 Law is a social
auditor and this audit function can be put into action only when some public interest ignites the
jurisdiction. In other law as a social audit and its accountability to people particularly poor and
helpless persons is vital to remould the whole system of law and justice in India. Krishna lyer
again asserts20 Law is a means to an end and justice is that end. But in actuality, Law and Justice
are distant neighbours; sometimes even strange hostiles. If law shoots down justice, the people

15
Buckland, ‘Some Reflection on Jurisprudence’, (1945).
16
A.K. Gopalan v. State of Madras, AIR 1950 SC 27, Golak Nath v. State of Punjab, AIR 1967 SC 1643, A.D.M.
Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.
17
Maneka Gandhi v. UOI, AIR 1978 SC 567
18
Krishna Iyer, ‘Some half Hidden Aspects of Indian Social Justice’, Eastern Book Company, (1979)
19
Fertilizers Corpn. Kamgar Union v. Union of India, AIR 1981 SC 344
20
All India Judges Association v. Union of India, AIR 1992 SC 165

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Meaning and Scope of the term “Law” – An Overview

shoot down law and lawlessness paralyses development, disrupts order and retards progress. This
is the current scene.'

However in different context Mr. justice Bhagwati echoes a similar change in the nature and
purpose of new emerging Indian law and justice, when he says21 : “Today a vast revolution is
taking place in the judicial process; the theatre of law is fast changing and the problems of the
poor are corning to forefront. The Court has to innovate new methods and device new strategies
for the purpose of providing access to justice to a large masses of people who are denied their
basic human rights and to whom freedom and liberty has no meaning.”

In this way the judiciary has liberated the current Indian law from its positivistic Austinian model
which Prof. Hart says is like the case of a gunman22 making a demand backed by threat and is
regularly obeyed by most in the society while habitually obeying no one else. Consequently,
besides Krishna Iyer and Bhagwati, Courts have linked the due process of law and the dignity of
man, moral accounting of the State or Government for ‘social justice’, ‘liberty’ and ‘equality’ and
similar other basic concepts which permeat the current Indian law23 and legal system. Such is the
Indianness in the contemporary concept of law in India which is missing in the works of legal
educationalists who still refuse to look beyond Austin and his positivism.

21
S. P. Gupta v. Union of India, AIR 1982 SC 149
22
H.L.A. Hart, ‘The Concept of Law’, (1961)
23
Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan, AIR 1996 SC 152, Air India Statutory Corporation v.
Union of India, AIR 1997 SC 645

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Meaning and Scope of the term “Law” – An Overview

CONCLUSION

The above manifold aspects of the definition of law are correct in so far as each aspect embodies
the accepted values and goals of human society at different periods and in different countries.
Hence the study of every aspect becomes not only necessary but useful also for a clearer and
broader understanding of the basic perspectives of law. To define law with reference to one aspect
is not only incorrect but also inadequate for law is a dynamic institution for achieving the set-social
goals. Hence the above approaches are complementary and supplementary to each other.

However, in the words of Levy-Ullmann a definition of law should have two aims; Firstly to make
precise the meaning of law, and secondly, to call up in the mind of the reader a true picture of law
and its operation. Thus Paton gives a more sociological and pragmatic enunciation of the concept
and meaning of law. He says the existence of law pre-supposes a community, implies in the
community is the acceptance of a set of values dealing with fundamental issues on which the
existence of that society depends.

Of course, as Paton further says, law is not ideal justice but human justice to achieve ends as set
by society for itself. Further, sanction is also a necessary ingredient of law but it is not the sole
exclusive element of law for observance and enforcement of law. In short law is nothing but a
synthesis of abstract rules and legal institutions meant to serve the contemporary ideals and goals.
Since these goals change so the definition of law also changes to suit the changing needs of human
society. It. therefore, becomes very difficult to give a precise definition of law.

The jurists are still seeking a definition of law said by Emmanuel Kant and these words have not
lost their force even today. In the same strain Keeton also remarks “To attempt to establish a single
definition of law is to seek to confine jurisprudence within a strait-jacket which it is continually
striving to escape”. These words are of great significance to all people particularly to Indian jurists
and judges who sometimes try to interpret law in old Austinian fashion without looking around
the complex social situation and pressing social needs.

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Meaning and Scope of the term “Law” – An Overview

SUGGESTIONS

Law and Ethics

Law as a body of rules for social control has also to be distinguished from the rules of ethics or
positive morality. Ethics differs from law in as much as the former is a study of the supreme good.
Ethics attempts to lay down rules for supreme human conduct considered necessary at a particular
time and place. Ethics further stresses upon individual excellence whereas law concentrates on
social or general good of the community. Ethics tries to emphasize upon inner motive or inner
conduct of the individual, law on the other hand concerns with overt acts or external conduct.

However, this difference between ethics and law cannot be stretched beyond a particular point.
Law in fact cannot be devoid of ethics. Indeed ethical values of a society directly influence the
nature of law. Of course the object of ethics is to make individual perfectly good in every sense of
the term whereas law attempts to make individuals socially useful. Therefore, law derives
inspiration from ethics for shaping human values.

Law and Positive Morality

Law also may be distinguished from positive morality. Positive morality, like law, emphasizes
upon actual human conduct rather than ideal abstract notions. However, there are some differences
between the two concepts. A rule of law is enacted, enforced and imposed by the State, a rule of
positive morality is not imposed by the State. Secondly, there is no sanction behind the rules of
morality as is behind the rules of law. They also differ in their content. The rules of law contain
matters which are deemed absolutely desirable or necessary for the good of the community. The
rule of morality contains all the things which ought to be for the good of the individual or society.
However, law and morality are interdependent upon each other. Generally speaking it is true
morality perfects law but sometimes it is law which creates social morality. For instance in India
through social legislation concerning untouchables, backward classes and women a new social
morality has evolved in due course of time which has favorably changed the attitude of the
dominant groups towards the weaker sections of the Indian society. In other words law is
inextricably mixed with ethics, morality, and other socio-economic phenomenon of the society.

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Meaning and Scope of the term “Law” – An Overview

BIBLIOGRAPHY

1. Austin, ‘Lectures on Jurisprudence’, 5th Edition, (1880)


2. Buckland, ‘Some Reflection on Jurisprudence’, (1945)
3. Gray, ‘The Nature and the Sources of Law’ 2nd Edition, (1921)
4. Hans Kelsen, ‘The Concept of Legal Order’, (1982)
5. Krishna Iyer, ‘Some half Hidden Aspects of Indian Social Justice’, Eastern Book Company,
(1979)
6. Llyod Denis, ‘Introduction to Jurisprudence’, (1959)
7. Pound, ‘An Introduction to the Phhilosphy of Law’, (1950)
8. Prof. Nomitha Aggarwal, ‘Jurisprudence Legal Theory’ 10th Editions, (2016)
9. R. Wollheim, ‘The Nature of Law’ (1954)

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Meaning and Scope of the term “Law” – An Overview

WEBLIOGRAPHY

1. https://www.law.cornell.edu/wex/jurisprudence
2. https://sixthformlaw.info/01_modules/other_material/law_and_morality/0_what_is_law.h
tm
3. https://en.wikipedia.org/wiki/Jurisprudence
4. http://www.desikanoon.co.in/2012/08/the-nature-of-law.html
5. https://thelawdictionary.org/jurisprudence/
6. https://study.com/academy/lesson/schools-of-jurisprudence-theories-definitions.html
7. https://www.lawteacher.net/free-law-essays/constitutional-law/jurisprudence-and-the-
concept-of-law-constitutional-law-essay.php

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