Law & five classes of law-tradecareer.blogspot.com

                                                      Law & five classes of law

The nature and meaning of law has been described by various jurists. However, there is 

no unanimity of opinion regarding the true nature and meaning of law. The reason for 

lack of unanimity on the subject is that the subject has been viewed and dealt with by 

different jurists so as to formulate a general theory of legal order at different times and 

from different points of view, that is to say, from the point of view of nature, source, 

function and purpose of law, to meet the needs of some given period of legal 

development. The various definitions of law propounded by legal theorists serve to 

emphasize the different facets of law and build up a complete and rounded picture of 

the concept of law. 

                                                                

Various definitions of law can be classified in to following 5 classes:

1. Natural School 

Ulpine defined Law as “the art or science of what is equitable and good.”

Cicero said that Law is “the highest reason implanted in nature.”

 Justinian’s Digest defines Law as “the standard of what is just and unjust.”

In above definitions “justice” is the main and guiding element of law. Ancient 

Hindu view was that ‘law’ is the command of God and not of any political 

sovereign. Everybody including the ruler, is bound to obey it. Thus, ‘law’ is a part 

of “Dharma”. The idea of “justice” is always present in Hindu concept of law. 

 Salmond, defines law as “the body of principles recognised and applied by the 

State in the administration of justice.” 

In other words, the law consists of rules recognised and acted upon by the courts 

of Justice. It may be noted that there are 2 main factors of the definition. 

1st To understand law, one should know its purpose: 

2nd In order to ascertain the true nature of law, one should go to the courts 

and not to the legislature. 

 Vinogradoff described Law as “A set of rules imposed and enforced by society 

with regard to the attribution and exercise of power over persons and things.”

2. Positivistic Definition of Law 

 According to John Austin, “Law is the aggregate of rules set by man as politically 

superior, or sovereign, to men as political subject.” OR law is the “command of 

the sovereign”. It obliges a certain course of conduct or imposes a duty and is 

backed by a sanction. Thus, the command, duty and sanction are the 3 elements 

of law. 

 Kelsen gave a ‘pure theory of law’. According to him, law is a ‘normative 

science’. The legal norms are ‘Ought’ norms as distinct from ‘Is’ norms ofphysical and natural sciences. Law does not attempt to describe what actually 

occurs but only prescribes certain rules. The science of law to Kelson is the 

knowledge of hierarchy of normative relations. All norms derive their power 

from the ultimate norm called Grund norm.

                                                                   

3. Historical Definition of Law 

Savigny’s theory of law can be summarised as follows: 

That law is a matter of unconscious and organic growth. Therefore, law is found 

and not made. 

 Law is not universal in its nature. Like language, it varies with people and age. 

Custom not only precedes legislation but it is superior to it. Law should always 

conform to the popular consciousness. 

 Law has its source in the common consciousness (Volkgeist) of the people. 

 Legislation is the last stage of law making, and, therefore, the lawyer or the jurist 

is more important than the legislator.

According to Sir Henry Maine, “The word ‘law’ has come down to us in close 

association with two notions, the notion of order and the notion of force”.

4. Sociological Definition of Law 

 Duguit defines law as “essentially and exclusively as social fact.” 

 Ihering defines law as “the form of the guarantee of the conditions of life of 

society, assured by State’s power of constraint”. There are 3 essentials of this 

definition -

1st  In this definition law is treated as only one means of social control. 

2nd Law is to serve social purpose. 

3rd It is coercive in character.

5. Realist Definition of Law 

 Realists define law in terms of judicial process. 

 According to Holmes  “Law is a statement of the circumstances in which 

public force will be brought to bear upon through courts.” 

 According to Cardozo  “A principle or 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.”