DEFINITION OF LAW, ITS KIND AND CLASSIFICATION

DEFINITION OF LAW, ITS KINDS AND CLASSIFICATIONS

• Meaning and Definition of Law
• Nature or Basic Features of Law
• Functions/Purposes of Law
• Advantages and Disadvantages of Law 
• Kinds/Classification of Law
• Sources of law in jurisprudence
  • Custom
  • Precedents
  • Legislation

Introduction:

The term ‘law’ denotes different kinds of rules and principles. Law is an instrument which regulates human conduct or behaviour.

The term law has been derived from the Latin term ‘Legam’ which means the body of rules.

LAW= DERIVED FROM LATIN WORD = LEGAM = BODY OF RULES

• Law in Hindu religion or jurisprudence = ‘Dharma’,
• Law in Islamic religion = ‘Hukum’,
• Law in Romans  = ‘Jus’
• Law in France = ‘Droit’, and
• Law in Germany = ‘Richt’.

All these words convey different meaning. Thus, the term law has different meanings in different places/societies at different times as it is not static and it continues to grow.

For example:- Law varies from place to place in the sense that while adultery is an offence in India under Section 497 of IPC, it is not an offence in America.

Further, law differs from religion to religion in the sense of personal laws, e. a Muslim man can have four wives at a time, but a Hindu can have only one wife living at a time. If a Hindu marries during the lifetime of first wife he is declared guilty of the offence of bigamy under section 494 of IPC.

• Generally, the term law is used to mean three things:
  • Legal Order: Firstly, it is used to mean ‘legal order’. It represents the regime of adjusting relations, and ordering conduct by the systematic application of the force of organized political society.
  • Legal Precepts: Secondly, law means the whole body of legal precepts which exists in an organised political society.
  • Official Control: Thirdly, law is used to mean all official control in an organised political society.

Definitions of Law:

It is very difficult to define the term law. Various jurists have attempted to define this term. Some of the definitions given by jurists in different periods are categorized as follows:

(i) Idealistic Definitions: Romans and other ancient jurists defined law in its idealistic nature.

According to Salmond, “the law may be defined as body of principles, recognised and applied by the State in the administration of justice”.

According to Gray-, “the law of the state or of any organised body of men is composed of the rules which the courts, that is the judicial organ of the body lays down for the determination of legal rights and duties.”

(ii) Definitions of Positivists:

Austin: Austin defined law as a command of sovereign backed by sanction. According to him there are three elements of law, i.e  

• command,

• duty

• sanction.

Thus, every law have a command and due to this command we have a duty to obey this command and if don’t obey this command, then there is a sanction.

• H.L.A. Hart: He defined law as a system of rules- the primary and secondary rules.

According to Roscoe Pound, “The expression ‘the law’ or law means the legal system operating in a country. On the other hand, the term ‘a law’ is termed as lex loci in Latin which means a particular statute in its isolated form.”

According to Jeremy Bentham, the term ‘the law’ means – “neither more or less than the total of a number of individual laws taken together.” Thus every Act or Statute of Parliament is called “a law” whereas the aggregate of Acts comprising legal systems are known as ‘the law’ or ‘law’ of the country.

Nature or Basic Features of Law:

Law may be described as a normative science, that is, a science which lays down norms and standards for human behaviour in a specified situation or situation enforceable through the sanction of the state.

The concept of law may be understood by analysing the features common to all laws. Among these features, the ones considered as essential or basic include:-

(i) Generality:- Law is a general rule of conduct. It does not specific the names of specific persons or behaviours. Its generality is both in terms of individuals governed and in terms of the social behaviour controlled. The extent of the generality depends upon on whom the law is made to be applicable.

For example:–

1. Everyone has the right to life, liberty and security of a person under Article 3 of the Universal Declaration of Human Right (UNDHR). This law is made applicable to everyone on this world, therefore, it is universal.
2. The State shall not deny to any person equality before law or the equal protection of laws within the territory of India (Article 14 of the Constitution). This law is applicable to every person residing in India, therefore, it is national in character.

(ii) Normativity:- Law does not simply describe or express the human conduct it is made to control, but it is created with the intention to create some norms in the society. Law creates norms by allowing, ordering or prohibiting the social behaviour. Under this heading, law can be classified as follows:-

• Permissive Law:- It allows or permits subjects to do the act they provide. E., every person who is arrested has a right to be produced before the nearest Magistrate within a period of 24hr. of his arrest. The term “has the right” used in this provision shows that subject is given the right. So it is permissive law.
• Directive Law:- It orders, directs, or commands the subjects to do the act provided in the law. It is not optional. E., if there is a contract between the parties that any particular act must be performed by the parties themselves, then they must perform it personally. This is a directive law.
• Prohibitive Law:- It discourages the subject from doing the act required not to be done. All criminal laws are usually prohibitive laws. E., no one should enter the property of another person against the will of that person.

(iii) Sanction:- Each and every member of society is required to follow the laws. Where there is a violation of law, sanction should follow.

The term   sanction   is  derived   from   the  Roman  word  “Sanctio”  which means that part of the statute which imposes a penalty or has made some other provision for its enforcement. In general sanction means ‘penalty’.

• Definitions of Sanction

a) Salmond defined sanction as an instrument of coercion by which any   system   of   imperative   law   is   enforced.   The   state   uses   its physical force as a sanction for the administration of justice.

(b) According to Friedrick Pollock, sanction is modern sense means constant  readiness   of   the   state   to   use   its   force   for   ensuring justice to be done to both i.e., for law abiding person as also to the evil doer.

Kinds of Legal Sanction:-                      

 Hibbert has classified legal sanctions under two broad headings

According to Salmond, “the object of law is to ensure justice. This justice may be distributive or corrective. Distributive justice seeks to ensure fair distribution of social benefits among the members of the community and corrective justice seeks to remedy the wrong”.

The following are the major functions or purposes of law:

• Establishing Standards: The law is a guidepost for minimally acceptable behaviour in society. Some acts, e., are crimes because society (through legislative body) has determined that it will not tolerate certain behaviours that injure or damage persons or their property. (for example, it is a crime to cause physical injury to another person without justification, as it is generally constitutes the crime of assault).
• Maintaining Order: Some semblance of order is necessary in a civil society and is therefore reflected in law.
• Resolving Disputes: Disputes are unavoidable in a society made of persons with different needs, wants, values and views. The law provides a formal means for resolving disputes – the court system.
• Protecting Freedoms and Rights: Every person has some fundamental freedoms and rights and it is the function of law to protect these freedoms and rights from violations by persons, organisations or government. (For example, subject to certain exception, there is a fundamental right of equality before law, i. every person is equal in the eyes of law and if any person feels that his fundamental right is violated may approach the court for remedy.)

Theories Of The Functions Of Law

Different people have suggested different functons of the law in the society.  But these various functons of law can be categorized according to the following theories:

1. Consensus Model
2. Conflict or Pluralist Model
3. Open Model
4. Marxist Theory

1. The Consensus Model

This theory perceives law as protecting the societys shared beliefs or social values to which “everyone in the society subscribes. According to this theory, the society is unitary having monolithic and universally shared value system. Therefore, conflicts that may be in such society are on a personal level.

2. Conflict or Pluralist Model

The law operates to harmonize conflicting This theory denies that there is a shared value system in the society. Rather it contends that there exists conflictng groups, all of which  are assumed to have equal bargaining powers such  that  the  constant  interaction  between  them  helps  to  attain  social  stability  and equilibrium. Under this theory, the state is a neutral arbiter providing only the machinery for conflict settlement either through political debate or policy making. So, the law is used as tool for harmonizing conflicting groups.

3. Open Model

According to this model, conflicts in society are between interest groups and can be resolved through

• Negotaton
• Arbitraton
• Litgaton
• Electoral process, etc.

without necessarily resulting to revolution.

4. The Marxist Theory

According to Karl Marx, primitive societies were free from antithesis or conflicts. That the law was introduced as a tool of exploitation by the ruling class over the working class. This status quo will continue as long as confrontation is avoided. Revolution is however the only effective way of dethroning the ruling class and enthroning the working class. It is believed that only then will equality be restored in the society.

Advantages and Disadvantages of Law:             

 As law is a dynamic concept and is instrument of bringing about desired social change in the society. Its advantages are many but there are certain disadvantages as well.               

Austin’s Classification of Law          

 John Austin has classified law into following categories

• Divine Law
• Human Law
• Positive Morality

He treats only divine law and human law as law in real sense of the term and does not consider positive morality as law since it lacks sanction or binding force.

Holland’s Classification of Law: 

He classified law according to their functions. He classified law into following five categories.

1. Private and Public law: Private law determines relationship between person and person where as public law deals with relationship between person and the State. In private law, State is only the enforcing authority while in public law, State is an interested and enforcing party. Examples of private law: laws of property, contracts, torts, trusts etc .are instances of private law.   Example of public law: law of crimes,

Public law is further divided into two parts:

(a) Constitutional   law:  constitutional   law   includes   all   rules   which directly   or   indirectly   affect   the   distribution   or   exercise   of   the sovereign power of the State. It is the body of those legal principles which determines the Constitution of State.

(b) Administrative law: it describes in detail the manner in which the government shall exercise those powers that were outlined in the constitutional law.

2 .General and Special Law: The territorial law of a country is called General Law. For example, Indian Penal Code, Indian Contract Act are the general laws of the country because they have general application throughout the territory of India. Besides the general law, there are certain kinds of special laws. E. laws applicable to particular locality (the Punjab Police Act etc.).

3.Substantive and procedural law: Substantive law is that law which defines a right while procedural law determines the remedies. Substantive law is concerned with ends which administration of justice seeks to achieve while procedural law deals with the means by which those ends can be achieved. (E. law of contract, transfer of property, law of crimes etc. are substantive law whereas the Civil Procedure Code or Criminal Procedure Code are procedural laws.

4.Antecedent and Remedial Law: Antecedent law relates to independent specific enforcement without any resort to any remedial law. (e., law relating to specific performance of a contract is the best example of antecedent law). The remedial law provides for the remedy. (e. Law of torts, writs etc. come within the category of this law)

5.Law in Rem and Law in Personam: Law in rem relates to enforcement of rights which a person has against the whole world or against the people in general where as law in personam deals with enforcement of rights available against a definite person or persons. (E. law of inheritance, succession, ownership etc. are subject matter of law in rem, while the law of contract, trust etc. are examples of law in personam).

Sources of law in jurisprudence

According to John Chipman Grey, who was a Harvard Law School professor,  “the Law of the State or of any organised body of men is composed of the rules which the courts, that is the judicial organ of the body, lays down for the determination of legal rights and duties”.

Though Gray’s definition has been criticized for being narrow, he distinguished law from the sources of law. According to him, law has evolved through case laws and sources of law are where we get the content and validity of law from. Essentially, law refers to the rules or code of conduct and its sources refer to the materials from which it gets its content.

• Types of sources of law

John Salmond, a legal scholar renowned for his ideologies on law in the field of jurisprudence, classified the sources of law into mainly two categories ,i.e., material sources and formal sources.

1. Material sources

Material sources of law are those sources from which the law gets its content or matter, but not its validity. There are two types of material sources which are legal sources and historical sources.

A. Legal sources

Legal sources are the instruments used by the state which create legal rules. They are authoritative in nature and followed by courts of law. These are the sources or instruments that permit newer legal principles to be created. According to Salmond, legal sources of English law can be further classified into four categories-

• Legislation,
• Precedent,
• Customary law, and
• Conventional law.

B. Historical sources

Historical sources are sources that influence the development of law without giving effect to its validity or authority. These sources influence legal rules indirectly. The difference between legal and historical sources is that all laws have a historical source but they may or may not have a legal source. Decisions given by foreign courts serve as an example for this kind of source. 

2. Formal sources

Formal sources of law are the instruments through which the state manifests its will. In general, statutes and judicial precedents are the modern formal sources of law. Law derives its force, authority, and validity from its formal sources.

According to Keeton, the classification given by Salmond

was flawed. Keeton classified sources of law into the following:

1. Binding sources

Judges are bound to apply such sources of law in cases. Examples of such sources are statutes or legislation, judicial precedents, and customs.

2. Persuasive sources

Persuasive sources are not binding but are taken into consideration when binding sources are not available for deciding on a particular subject. Examples of such sources are foreign judgements, principles of morality, equity, justice, professional opinions, etc.

Precedent as a source of law

Judicial precedents refer to the decisions given by courts in different cases. A judicial decision has a legal principle that is binding on the subordinate courts. Once a court has delivered a judgement on a particular case, the courts subordinate to it must abide by the precedent while deciding on similar cases with similar facts. Some of the most influential judicial precedents in India are the following:

• Kesavananda Bharati v. the State of Kerala (1973): This case is what introduced the concept of the basic structure doctrine in India, protecting the fundamental features of the Indian Constitution from being removed.
• Gian Kaur v. the State of Punjab (1996): This judgement affirmed that the right to die does not come within the scope of Article 21 of the Indian Constitution. The court affirmed that every person has the right to die with dignity. The court also stated that the right to die in a dignified manner is not the same as the right to die in an unnatural way.
• Maneka Gandhi v. the Union of India (1978): The court held Section 10(3)© of the Passports Act, 1967 as void since it violated Article 14 and 21 of the Indian Constitution.
• Indra Sawhney v. the Union of India (1992): This judgement set a ceiling of 50% for reservation of backward classes. It also held that the criteria of classifying groups as backward classes cannot be limited to economic backwardness.

The doctrine of Stare Decisis

The authority of judicial precedents is based on the doctrine of stare decisis. The term stare decisis means to not disturb the undisturbed. In other words, precedents that have been valid for a long time must not be disturbed.

In India, subordinate courts are bound by the precedents of higher courts, and higher courts are bound by their own precedents. But when it comes to High Courts, the decision of one High Court is not binding on the other High Courts. Their decisions are binding on the subordinate courts. In cases where there are conflicts between decisions of court with the same authority, the latest decision is to be followed.

As per Article 141 of the Constitution of India, the Supreme Court’s decisions are binding on all the courts across the country. However, the Supreme Court’s decisions are not binding on itself. In subsequent cases where there are sufficient reasons to deviate from the earlier decision, the Supreme Court can do so.

Doctrine of Res Judicata

The term res judicata means subject matter adjudged. As per this doctrine, once a lawsuit has been decided upon, the parties are barred from raising the same issue in courts again, unless new material facts have been discovered. They can’t raise another issue arising from the same claim either since they could have raised the same in the previous suit.

Ratio Decidendi

As per Salmond, a precedent is a judicial decision that contains a legal principle with an authoritative element called ratio decidendi. Ratio decidendi means reason for the decision. Whenever a judge gets a case to decide on, he has to adjudicate it even when there is no statute or precedent concerning it. The principle that governs such a decision is the reason for the decision which is also called ratio decidendi.

Obiter Dicta

The term obiter dictum means mere say by the way. This term is used to refer to statements of law that are not required for the case at hand. A judge may in the judgement of a case declare some legal principles to be applied in a hypothetical situation. It does not have much impact or authority. However, the subordinate courts are bound to apply the principles.

Types of precedents

1. Authoritative and Persuasive

Authoritative precedents are those precedents that must be followed by subordinate courts whether they approve of it or not. They create direct and definite rules of law. They fall into the category of legal sources of law. Persuasive precedents on the other hand do not create a binding obligation on the judges. Persuasive precedents can be applied as per the discretion of the judge.

Authoritative precedents can be classified into the following two types:

A. Absolute authoritative

An absolutely authoritative precedent is binding on subordinate courts in an absolute manner and it cannot be disobeyed even if it Is wrong.

B. Conditional authoritative

A conditionally authoritative precedent is binding on other judges but it can be disregarded in certain special circumstances as long as the judge shows the reason for doing so.

2. Original and Declaratory

According to Salmond, a declaratory precedent is a precedent that simply declares an already existing law in a judgement. It is a mere application of law. An original precedent creates and applies a new law.

Factors increasing the authority of a precedent

• The number of judges constituting the bench that makes the decision.
• A unanimous decision has more weight.
• Approval by other courts, especially the higher courts.
• The enactment of a statute that carries the same law subsequently.

Factors decreasing the authority of a precedent

• Abrogation of judgement by reversal or overrule of a higher court.
• Abrogation of judgement by a statutory rule enacted subsequently.
• Affirmation or reversal of decision on a different ground.
• Inconsistency with the previous decision of a higher court.
• Inconsistency with previous decisions of the court of the same rank.
• Inconsistency with already existing statutory rules.
• Erroneous decision.

Legislation as a source of law

Legislation refers to the rules or laws enacted by the legislative organ of the government. It is one of the most important sources of law in jurisprudence. The word legislation is derived from the words legis and latum, where legis means law and latum means making.

Types of legislation

According to Salmond, legislation can be classified into two types-

1. Supreme legislation

Legislation is said to be supreme when it is enacted by a supreme or sovereign law-making body. The body must be powerful to the extent that the rules or laws enacted by it cannot be annulled or modified by another body. Indian Parliament cannot be said to be a sovereign law-making body as the laws passed by the parliament can be challenged in the courts. The British Parliament, on the other hand, can be said to be a sovereign law-making body since the validity of laws passed by it cannot be challenged in any court.

2. Subordinate legislation

Legislation enacted by a subordinate law-making body is said to be subordinate legislation. The subordinate body must have derived its law-making authority from a sovereign law-making body. It is subject to the control of the supreme legislative body.

The following are the different kinds of subordinate legislation:

• Executive legislation: This is a form of subordinate legislation where the executive is granted or conferred certain rule-making powers in order to carry out the intentions of the legislature.
• Colonial legislation: Many territories across the globe were colonised by Britain and such territories were called colonies. The legislation passed by the legislature of such colonies was subject to the control of the British Parliament.
• Judicial legislation: Courts also have a role in enacting laws that aid in regulating the internal affairs and functioning of courts.
• Municipal legislation: Municipal authorities also possess the law-making power as they enact bye-laws.
• Autonomous legislation: Another kind of legislation is autonomous legislation, which is concerned with bodies like universities, corporations, clubs, etc.
• Delegated legislation: Sometimes legislative powers may be delegated to certain bodies by the parliament through principal legislation. A principal act may create subsidiary legislation that can make laws as provided in the principal legislation.

Custom as a source of law

Custom refers to the code of conduct that has the express approval of the community that observes it. In primitive societies, there were no institutions that acted as authority over the people. This led to people organising themselves to form cohesive groups in order to maintain fairness, equality, and liberty. They started developing rules with coordinated efforts to make decisions. They eventually started recognising the traditions and rituals practised by the community routinely and formed a systematised form of social regulation.

In India, laws relating to marriage and divorce are mostly developed from customs followed by different religious communities. Additionally, several communities belonging to the Scheduled Tribes category have their own customs related to marriage. As a result of that Section 2(2) of the Hindu Marriage Act, 1955 has exempted Scheduled Tribes from the application of this Act.

Requisites of a valid custom

• Reasonability: The custom must be reasonable or practical and must conform with the basic morality prevailing in the modern-day society.
• Antiquity: It must have been practised for time immemorial.
• Certainty: The custom must be clear and unambiguous on how it should be practised. 
• Conformity with statutes: No custom must go against the law of the land.
• Continuity in practice: Not only the custom must be practised for time immemorial, but it should also be practised without interruption.
• Must not be in opposition to public policy: The custom must adhere to the public policy of the state.
• Must be general or universal: There must be unanimity in the opinion of the community or place in which it is practised. Hence, it should be universal or general in its application.

Sir Henry Maine’s views on customs

According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or judgments”. Themistes refers to the judicial awards dictated to the King by the Greek goddess of justice. The followIng are the different stages of development of law according to Henry Maine:

• At the first step, law is made by rulers who are inspired by the divine. Rulers were believed to be messengers of God.
• At the second stage, following rules becomes a habit of the people and it becomes customary law.
• At the third stage, knowledge of customs lies in the hands of a minority group of people called the priestly class. They recognise and formalise customs.
• The final stage is the codification of customs.

Types of customs

1. Customs without a binding obligation

There are customs that are followed in society that do not have a legal binding force. Such customs are related to clothing, marriage, etc. Not abiding by such customs can only result in a social boycott and not legal consequences.

• Customs with a binding obligation

Customs that are meant to be followed by law are called customs with a binding obligation. They are not related to social conventions or traditions. There are mainly two types of customs with binding obligations-

• Legal customs: Legal customs are absolute in sanction. They are obligatory in nature and attract legal consequences if not followed. Two types of legal customs are general customs and local customs. General customs are enforced throughout the territory of a state. Local customs on the other hand operate only in particular localities.
• Conventional customs: Conventional customs are those customs that are enforceable only on their acceptance through an agreement. Such a custom is only enforceable on the people who are parties to the agreement incorporating it. Two types of conventional customs are general conventional customs and local conventional customs. General Conventional Customs are practised throughout a territory. Local Conventional Customs on the other hand is restricted to a particular place or to a particular trade or transaction.

Difference between custom and prescription