DEFINITION OF LAW
Law is a rule of
conduct developed by the government or society over a certain territory. Law
follows certain practices and customs to deal with crime, business, social
relationships, property, finance, etc. The Law is controlled and enforced by
the controlling authority. According to different schools and thoughts, Law is different in a slightly different fashion. few of them can be seen below-
1. According to Natural School
In the natural
school of thought, a court of justice decides all the laws. There are two main
parts of this definition. First, to understand a certain law, an individual
must be aware of its purpose & second, to comprehend the true nature of
law, one must consult the courts and not the legislature.
2. Positivistic Definition of Law
John Austin's
law definition states "Law is the aggregate set of rules set by a man as
politically superior, or sovereign to men, as political subjects." Thus,
this definition defines law as a set of rules to be followed by everyone,
regardless of their stature.
Hans Kelsen
created the ‘pure theory of law'. Kelsen states that law is a ‘normative
science'. In Kelson's law definition, the law does not seek to describe what
must occur, but only defines certain rules to abide by.
3. Historical Law Definition
Friedrich Karl
von Savigny gave the historical law definition. His law definition states
the following theories.
·
Law is a matter of unconscious and organic
growth.
·
The nature of law is not universal. Just 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 because of customs.
·
Law has its source in the common consciousness
(Volkgeist) of the people.
·
The legislation is the last stage of lawmaking,
and, therefore, the lawyer or the jurist is more important than the legislator.
4. Sociological Definition of Law
Leon Duguit
states that law as "essentially and exclusively as a social fact."
Rudolph Von
Ihering's law definition. – "The form of the guarantee of conditions
of life of society, assured by State's power of constraint."
This definition has
three important parts. One, the law is a means of social control. Two, the law
is to serve the purposes of the society. Three, law due to its nature, is
coercive.
Roscoe Pound
studied the term law and thus came up with his law definition. He considered
the law to be predominantly a tool of social engineering.
Where conflicting
pulls of political philosophy, economic interests, and ethical values
constantly struggled for recognition.
Against a
background of history, tradition and legal technique. Social wants are satisfied
by law acting which is acting as a social institution.
5.Realist Definition of Law
The realist law
definition describes the law in terms of judicial processes. Oliver Wendell
Holmes stated – "Law is a statement of the circumstances in which
public force will be brought to bear upon through courts."
According to Benjamin
Nathan Cardozo who stated "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."
As the above law
definitions state, human behavior in the society is controlled with the help of
law. It aids in the cooperation between members of society. Law also helps to
avoid any potential conflict of interest and also helps to resolve them.
FUNCTION OF LAW
Establishing
Standards
The law is a
guidepost for minimally acceptable action in society. Some activities, for
example, are crimes because society (through a legislative body) has determined
that it will not tolerate specific behaviors that injure or damage persons or
their property. For example, under ordinary state law, it is a crime to cause
physical injury to another person without justification—doing so normally
constitutes the crime of assault.
Maintaining
Order
This is an offshoot
of establishing standards. Some semblance of order is necessary for civil
society and is therefore reflected in the law. The law, when enforced, provides
order consistent with society's guidelines.
Resolving
Disputes
Disputes are
unavoidable in a society formed of persons with different needs, wants, values,
and views. The law provides a formal means toward resolving disputes—the court
system. There is a federal court system and each state has its court system.
Protecting
Liberties and Rights
A purpose and
function of the law are to protect these various liberties and rights from
violations or unreasonable interventions by persons, organizations, or
government.
LAW JUSTICE AND MORALITY
law justice and morality are often used interchangeably in layman concepts. Though they all are part of the same system and have a lot of common factors, it cannot be ignored that they connote different meanings in the Legal term.
Law and
Justice
"Justice
according to the law" is the of justice in society. Dicey has named
this principle as "Rule of Law". This includes that everyone is equal
before the law and there should be no arbitrariness and law should apply
particularly to everyone without any differentiation. ‘No one is above law'
Law and Morals
Morals look into
the motive behind the action of the person. The obedience of morals is a matter
of individual conscience. Morals are usually universal.
Roscoe Pound
stated " As to the application of moral principles and legal percepts
respectively, it is said that moral principles are of individual and relative
application; they must be applied regarding circumstances and individuals,
whereas legal rules are of general and absolute application"
CLASSIFICATION OF LAWS
(i) Public and Private law
Public law -
Public law is concerned with the constitution & functions of various organs
of government including local authorities, their relations with each other and
citizens. it consists of those fields or branches of law in which the state has
an interest as a sovereign.
ex- Criminal law,
constitutional law, Administrative law.
Public law asserts
state sovereignty and power.
Private law
- private law consists of those fields or branches of law in which the state
has no direct interest as the sovereign. it is concerned with day to day
transactions of legal relationships between the person. It defines the right
and duties of parties.
ex- Law of
contracts, Law of Property, Law of succession
(ii)
Substantive and Procedural law
Substantive law
consists of written statutory rules passed by the legislature that govern how
people behave. It creates the right and duties of parties. It provides remedies
when the rights are violated as it defines offense and prescribes punishment.
ex - Indian penal code
Procedural Law determines
how proceedings concerning the enforcement of substantive law occur. it
consists of steps or guiding principles or rules of practice to be compiled
with or followed in the administration of justice or in the application of substantive
law. ex - CrPC, CPC
(iii) Municipal
and International Law
International
law is a body of rules that regulates the relations between
countries/states and other international persons. it is generally based on
international agreements of treaties and customary practices of states and
general principles.
Municipal law
is the law specific to a selective city or county (known legally as a
"municipality"), and the government bodies within those cities or
counties. This can cover a broad range of issues, including everything from
police power, education policies, and property taxes e.t.c
(iv) Civil
and Criminal law
Civil law deals
with the disputes between the individuals, organizations, or between the two,
in which compensation is awarded to the victim. "Preponderance of
evidence" The burden of proof lies on the plaintiff. One must produce
evidence beyond the balance of probabilities. Civil litigation usually involves
some type of compensation for injuries or damages as well as the disposition of
property and other disputes.
ex- Landlord/tenant
disputes, divorce proceedings, child custody proceedings, property disputes,
personal injury, etc.
Criminal law is
the body of law that deals with crime and legal punishment of criminal
offenses. "Beyond a reasonable doubt": Burden of proof is always upon
the state/government. A guilty defendant is punished by incarceration and/or
fines, or in exceptional cases, the death penalty.
ex- Theft, assault,
robbery, trafficking in controlled substances, murder, etc.
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