JURISPRUDENCE

Module 1: Nature and definition of law, Functions and purpose of law and
Classification of law.
Meaning and Nature of Law

Law is the subject-matter of jurisprudence since the latter deals with the study of law. In
its most general and comprehensive sense, it means any rule of action and includes any
standards or pattern to which actions are or ought to be confirmed. Blackstone defines
law as “it signifies a rule of action and is applied indiscriminately to all kinds of action
whether animate or inanimate or rational or irrational.

Salmond defines law as the body of principles recognized and applied by the sovereign in
the administration of Justice.

According to Austin law is a command of the sovereign backed by sanction

The word law is in two main forms that is one is concrete and the other is abstract. In its concrete
form, the law includes statutes, ordinances, decrees, and the act of Legislature. Law may be
described as a normative science that is a science which Lays down norms and Standards for
human behavior in a specified situation or situation enforceable through the sanction of the state.

What distinguishes law from other Social Sciences is its normative character. This fact along with
the fact that at stability and certainty of law are desirable goals and social values to be pursued,
make the law to be a primary concern for the legal fraternity.

Judges do not make law they only interpret or declare it but the truth is that even during the
period when analytical positivism held it’s over the common law judges through their judicial
creatively developed the common law to suit the needs of the social change.
The function of law is that of social engineering and this perception has been
accepted by all the civilized countries of the world including India.

The concern of law as an instrument of enhancing economic and Social Justice has
widened to an extent that there has been a growth of a variety of laws touching
various facets of human life.

Law is considered not as an end in itself but is a means to an end. The end is
securing of social justice. Almost all theorists agree that law is an instrument of
securing justice.

According to Holland, the function of law is to ensure the well-being of the society.
Thus, it is for the protection of individuals’ rights.
Roscoe Pound attributed four major functions of law, namely:

(1) maintenance of law and order in society;

(2) to maintain status quo in society;

(3) to ensure maximum freedom of individuals; and

(4) to satisfy the basic needs of the people.

He treats law as a species of social engineering. Though law functions to regulate the conduct of
men in society, it’s extent of operation has to be restricted to some extent for ensuring certainty and
stability in the legal system. Having regard to history of development of law, it would be seen that
different approaches through doctrinal theories propagated by jurists from time to time has been to
project law as an instrument for balancing the rights and duties of the Subjects to exert social
control
Functions of Law

Salmond’s opinion regarding the function of law appears to be sound and logical.
The term “Law’ denotes different kinds of rules and Principles. Law is an instrument
which regulates human conduct/behavior. Law means Justice, Morality, Reason,
Order, and Righteous from the viewpoint of the society. Law means Statutes, Acts,
Rules, Regulations, Orders, and Ordinances from point of view of the legislature.
Law means Rules of court, Decrees, Judgment, Orders of courts, and Injunctions
from the point of view of Judges. Therefore, Law is a broader term which includes
Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice, Morality, Reason,
Righteous, Rules of court, Decrees, Judgment, Orders of courts, Injunctions, Tort,
Jurisprudence, Legal theory, etc.
Law set up rules and regulations for society so that we can freedom, gives Justice
to those who were wronged, and it set up that it protects us from our own
Government. Most importantly the law also provides a mechanism to resolve
disputes arising from those duties and rights and allows parties to enforce
promises in a court of law.

According to Corley and Reed - law is a body of rules of action or conduct

Prescribed by controlling authority and having legal binding forces. Laws are
created because it helps prevent chaos from happening within the business
environment and as well as society. In business, the law sets guidelines regarding
employment regulatory, compliance, even inter office regulations.
The Modern History of Common Law

With the decline in the power of the monarchy and the ascendancy of parliament, the
English court system stabilized; judicial independence was taken for granted and no
longer considered a problem by the English rules. Even Oliver Cromwell and his puritan
followers, who overthrew the Stuart kings and established a commonwealth in England
between 1648 and 1660, feared the possible destabilizing effects of sweeping changes in
the law. Cromwell thus made no major effort to supersede the common law (Prall, 1966).
The English legal system remained a complex system of rules and precedents, interpreted
with small shades of meaning and requiring a body of legal expects to deal with it. These
legal experts had to save long apprenticeships to become familiar with the vast number of
cases and precedents that would govern their decisions.
Divine and Human Laws

Divine Laws are the laws of God himself and are beyond the scope of
jurisprudence, whereas human laws are framed by men.

Public and Private Law

The term public implies either State, or sovereign part of it. By private, it means an
individual or a group of individuals. In private law, State exists but only as an
arbiter of rights which exist between individuals. In public law, State itself is a
party involved along with the public at large.
Salmond’s classification of Law - He has referred to eight kind of laws:

1. Imperative law – the command of the sovereign must be general, and the observance of law must be
enforced by some authority.

2. Physical or scientific law – these are laws of science which are the expression of the uniformities of nature.

3. Natural or moral law – Natural law is based on the principles of right and wrong whereas Moral laws are
laws based on the principles of morality.

4. Conventional law – system of rules agreed upon by persons for the regulation of their conduct towards
each other.

5. Customary law – any system of rules which are observed by men as a custom and has been in practice since
time immemorial.
6. Practical or technical law – rules meant for a particular sphere by human activity.

7. International law – rules which regulate the relations between various nations of the world.

8. Civil law – the law enforced by the State.

Austin’s Classification of Law: John Austin has classified law as follows:

1. Divine law – the law of God, beyond the scope of jurisprudence.

2. Human Law – Law made by men.

3. Positive morality – rules set by the non-political superior.

4. Law metaphorically or figuratively so-called.

However, according to him, only divine law and human law are proper laws.
Classification of Law

As stated earlier, the term ‘law’ is used in different senses. It denotes different kinds of rules and principles.
The jurists have classified law according to their own legal perception.

Salmond’s Classification of Law:

Salmond has referred to eight kinds of laws. These are:-

(1) Imperative Law: It means ‘a rule which prescribes a general course of action imposed by some authority
which enforces it by superior power either by physical force or any other form of compulsion.

He further divided imperative law into two types:

(i) Divine law: It consists of the commands imposed by God upon men either by threats of punishment
or by hope of his blessings.

(ii) Human law: Human laws are the laws by analogy.

It is further divided into four different kinds:-

· Civil law: imperative law imposed and enforced by State is called civil law.

· Moral Law: imperative law imposed and enforced by members of society is moral law.

· Autonomic law: those enforced and enforced by different institutions or autonomous bodies,
like universities, airline companies etc.

· International law: those imposed upon State by the society of States and enforced partly by
international option and partly by the threat of war.

(2) Physical or Scientific Law: Physical laws are laws of science which are expression of the
uniformities of nature. They are not created by human and can’t be changed by human. They are
invariable forever. The examples of physical law are the law of gravity, law of air pressure etc.
Natural or Moral Law: Natural law is based on the principles of right and wrong. It also called

universal or eternal law, rational law. It embodies the (1) principles of morality and is devoid of any

physical compulsion. Many laws of the modern time are founded on the basis of natural law. E. law of

quasi contract, the conflict of law, law of trust etc. are founded on natural justice.

(2) Conventional law: It is the body of rules or system of rules agreed upon by persons for their

conduct towards each other. E., international law and rules of club or cooperative societies, rules of

game or sport are best examples of conventional law.

(3) Customary law: There are many customs which have been prevalent in the community from
time immemorial even before the States came into existence. They have assumed the force of law in
course of time. (e. under hindu personal law, a man can’t marry his brother’s widow, however, if there
is any custom which allows the same then the marriage will be valid). According to Salmond, “any rule
of action which is actually observed by men when a custom is firmly established, it is enforced by State
as law because of its general approval by the people.

(4) Practical or Technical Law: Practical laws are the rules meant for a particular sphere by
human activity, e. laws of health, laws of architecture.

(5) International law: It also knows as law of nations as it applies to States rather than
individuals. It consists of rules which regulate relations between the States inter-se.

(6) Civil Law: The law enforced by the State is called civil law and it contains sanction behind it.
Civil law is territorial in nature as it applies within the territory of the State concerned. Civil law differs
from special as the latter applies only in special circumstances.
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.

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.).

[Link] 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.
[Link] 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).