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jurisprudence:meaning_nature_and_functions_of_law_215220122018

Meaning, Nature and Functions of Law

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 view point of the society. Law means Statutes, Acts, Rules, Regulations, Orders, and Ordinances from point of view of 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.

Meaning of Law

In old English “Lagu” i.e. law, ordinance, rule, regulation from old norse “lagu” law collective Plural of “Lag” is layer, measure, stroke ‘Literally’ something laid down of fixed. The term law has different meanings in different Places/societies at different times (as it is subject to amendments). In Hindu religion law implies “Dharma” in Muhammadean religion (Islam) it is “Hokum” in Roman its “Jus”, in French, its “Droit” in Arabic, Alqanoon, in Persian and Turkish, its Kunoon, in Latin its “Legam” in Philipino its “Batas” in Albanian language its “Ligj” in Czech its “Zakon” in Danish its “Lor” in Dutch its “Wet” in Italian its “Legge” and in Lithuanian its “Teise” and so on. It varies from place to place in the sense adultery is an offence in India (under section 497 of the Indian penal code, 1860) while it is no offence in America. Law differs from religion to religion in the sense personal laws viz. Hindu law, Muslim law etc. differ from one another. For instance, A Muslim can have four wives living at a time, but, a Hindu can have only one wife living at a time (Monogamy). If a Hindu male marries again during the life time of first wife he is declared guilty of the offence of bigamy and is Punishable under sec. 494. The law is subject to change with the change in society and also change in the Government/legislative through the amendments/Acts. Generally the term law is used to mean three things: First 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. Secondly, law means the whole body of legal Percepts which exists in a politically organized society. Thirdly, law is used to mean all official control in a politically organized society. This lead to actual administration of Justice as contrasted with the authoritive material for the Guidance of Judicial action. Law in its narrowest or strict sense is the civil law or the law of the land.

Definitions of law

It is very difficult to define the term law. Many Jurists attempted to define the term law. For the Purpose of clarity, some of the definitions given by Jurists in different Periods are categorized as follows.

Idealistic Definitions

Romans and other ancient Jurists defined law in its idealistic nature. Roman Justinian’s defined law in the light of its idealistic nature.

(a) Salmond: - According to salmond “the law may be defined as the body of principles recognized and applied by the state in the administration of Justice. Criticism of Salmond’s definition of law:- 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. Criticism by Dean Roscoe Pound: - Dean Roscoe Pound has criticized the definition of Salmond as reducing law to a mass of isolated decisions and the law in that sense to be an organic whole. Further, it is criticized on the ground that Salmond’s definition applies only to lax law not to Statute. Despite criticism, Salmond’s definition is considered as the workable definition.

(b) John chipman Gray’s Definition of Law:- According to Gray, “the Law of the State or of any organized 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. Criticism of Gray’s definition of law:- Gray’s definition is criticized on the Ground that he is not concerned with the nature of law rather than its Purposes and Ends. Further it does not take into account the statute law.

Positivist definition

(a) Austin’s definition of law” John Austin (1790-1859) An English Jurists expounded the concept of analytical positivism, making law as a command of sovereign backed by sanction. He developed logically, a structure of legal system in which he gave no Place to values, morality, idealism and Justice. According to Austin, a law, in the strict sense is a general command of the sovereign individual or the sovereign body. Issued to those in subjectivity and enforced by the physical power of the state. According to Austin “law is aggregate of rules set by men politically superior or sovereign to men as politically subject.” Austin says, “A law is command which obliges a person or persons to a course of conduct.

Criticism of Austin’s definition of law:- Austin’s definition of law is subjected to criticism on the ground that it ignores completely the moral and ethical aspects of law and unduly Emphasized the imperative character of law.

(b) Holland’s definition of law Thomas Erskine Holland, a reputed Jurist, who followed the Austin’s concept and nature of law attempted to define law as law is a General rule of external human action enforced by a political sovereign. Holland also measures or defines law with preference to sovereign devoid of moral, ethical or ideal elements which are foreign to law and Jurisprudence.

(c) John Erskine definition of law Law is the command of a sovereign, containing a common rule of life for his subjects and obliging them to obedience.

(d) Hans Kelsan’s definition of Law According to Kelsan legal order is the hierarchy of the norms, every norm derive its validity from the superior norm and finally there is highest norm known as grundnorm.

(e) H.L.A.Hart According to Hart Law is the combination of primary rules of obligations and secondary rules of recognition.

Definition of Historical school of Law

The chief exponent of the Historical school is Von Savigny. Historical Jurisprudence examines the manner or growth of a legal system. It deals with general principles governing the origin and development of law and also the origin and development of legal conceptions and principles found in the Philosophy of law.

Savigin’s definition of law:- Savigny says that law is not the product of direct legislation but is due to the silent growth of custom or the outcome of unformulated public or Professional opinion. He says that law not as a body of rules set by determinate authority but as rules consist partly of social habitat and partly of experience. He says law is found in the society, it is found in custom.

Sociological school of law

The sociological school commenced in the middle of nineteenth century, According to sociological school the common field of study of the Jurist is the effect of law and society on each other. This approach takes law as instrument of social progress.

(a) Ihering’s Definition of law : Ihering defines law as ‘the form of Guarantee of the conditions of life of society, assured by state’s power of constrain. He says law is a means to an end and end of the law is to serve its purpose which is social not individual.

(b) Dean Roscoe Pound’s definition of law Pound defines law as a social institution to satisfy social wants. He says law is a social engineering, which means that law is a instrument to balance between the competing or conflicting interests.

(c) Dias’s Definition of law Law consists largely of “ought” (normative) Propositions prescribing how people ought to behave the “ought” of laws are variously dictated by social, moral, economic, political and other purposes

Realist definition of law

It is branch of sociological school. It studies law as it is in its actual working and effects. It has been summed up by its exponent professor K. Llewellyn as “ferment” According to Georges Guroitch the neo-realistic school represents a violent reaction against the dominantly theological and moralizing orientation of “sociological Jurisprudence” Holmes J. The realist considered the law to be a part of judicial process. He says, “that the prophesies of what the courts will do, in fact and nothing more pretentions, are what I mean by law.

Origin of law

Ancient Egyptian law, dating as far back as 3000 BC had a civil code that was probably broken into twelve books it was based on the concept of Ma’at characterized by tradition rhetorical speech, social equality and impartiality by the 22nd century BC, ur-nammu an ancient Sumerian ruler, formulated the first law code consisting of casuistic statements (if…then…”) Around 1960 BC king Hammurabi further developed Babylonian law, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as Stelae, for the entire public to see this became known as the codex Hammurabi. Ancient India and china represent distinct tradition of law, and had historically independent schools of legal theory and practice. The Arthashastra, dating from the 400 BC and the Manusmriti from 100 BCE were influential treatises in India, but this Hindu tradition, along with Islamic law was supplanted by the common law when India became part of British Empire. Malaysia, Brunei, Singapore and Hongkong also adopted the common law. Japan was the first country to begin modernizing its legal system along western lines by importing bits of the French but mostly the German Civil Code. Similarly traditional Chinese law gave way to westernization towards the final years of the dynasty in the form of six private law codes based mainly on the Japanese modal of German law. One of the major legal systems developed during the Middle Ages was Islamic law and jurisprudence. During the classical period of Islamic law and jurisprudence “Hawala” and institution of law was an early informal transfer system which is mentioned in text of Islamic Jurisprudence as early as the 8th century. Hawala itself later influenced the development of the “Aval” in French civil law and Avallo in Italian law. Roman law was heavily influenced by Greek teachings.

Nature of law

What is the nature of law? This question has occupied center stage Jurisprudence and philosophy of law in the modern era, and has been the central occupation of contemporary analytic Jurisprudence. This entry in the legal theory Lexicon aims to give an overview of the “what is law” debate. Historically, the answer to the question, “what is Law” is thought to have two competing answers. The classical answer is provided by natural law theory, which is frequently characterized as asserting that there is an essential relationship between law and morality and Justice. The modern answer is provided by legal positivism, which as developed by John Austin, asserted that law is the command of the sovereign backed by the threat of punishment. Contemporary debates over the nature of law focus on a revised set of positions legal positivism is represented by Analytical legal positivists, like H.L.A Hart Joseph raza and Jules Coleman. The natural law tradition is defined by John Punis and a new position, interpretivism is represented by the work of the late Ronald Dworkin. In some ways, the title of this lexicon entry is misleading because of focus on the “what is law” question as it has been approached by contemporary legal philosophers.

There are other important perspectives on the nature of law that focus on law’s functions rather than the meaning of the concept for criteria of legal validity. For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Lahumann. These issues are discussed by Brian Tamanaha in a very clear way. This lexicon entry maps the territory of the “what is Law”? Controversy, and provides introductory sketches of the major positions as always, the lexicon is written for law students.

Functions of law

Ever since the down of Human civilization, mankind has had some sort of rule or that they used to Govern itself in society laws set the standard in which we should live in if we want to be part of society. 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 (Corley and Reed 1986 P.A) According to Corley and Reed (1986) 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 law sets guide lines regarding employment regulatory, compliance, even inter office regulations.

Role of law in Business

The rule of law plays an important role in the business world when set setting a business it is the laws that determine what type of business it is to became, and the structure is to be formed. Also the law sets up a reasonable expectation on how the business should operate in order to protect the business owner’s interest of the Customer of that business. The rule of law not only allows people to understand what is expected of them in their personal capacities but also set forth rules for business so that they, too know what is expected of them in their dealing and transactions ( Johnson & Lalu 2014) the law protects those who work for a business. it sets Guideline of how treat your employees, equal opportunities, pay scale, hours, breaks, benefits and long with a host of other right privileges. In short the laws for business create an honest environment where consumers and business owners interest can be protected and we have ways to solve of any disputes arise. If these laws are in any ways are violated it sets up Guidelines for punishment.

Role of law in Society

Without law our society would be chaotic, uncivilized mess and anarchy would reign supreme. The role that law has in society is that it creates a norm of conducts in the society we live in laws are made to protect its citizen from harm. It set in way that all citizens are given equal opportunity, protection from harm no matter your race, Gender, religion and social standing. Under the law all its citizens are guarantee equal protections. In society laws are made to promote the common good for everyone. That is sets up Guideline for everyone in society to act in way that brings the Greater Good. Everyone acted without thinking about the Greater Good, society would revert to those days where survival of the fittest was the common sight. We live in world where we have finite amount of resources should shared or used. Laws are made on how to manage these and how we resolve if issues arise over these resources. If know laws were in place these sources would be controlled by the string and the wealthy.

Enforcement of Law and the Adminstration of Justice

When society came into existence there was hardly any rule which could regulate the behaviour of the people constituting the society. It was lawlessness, barbarism and chaos everywhere. In the process of civilization and growth of society, there was the need of a system which could regulate the human behaviour and minimize the friction among them on the basis of set principles of justice and fair play. Many tools were developed for development and betterment of the society. The role of these tools is described as follows:

A Legal System is a set of legal principles and norms to protect and promote a secure living to its people in a society. In this way, it plays an important role by recognizing rights and prescribing duties for the people and also by providing the way to enforce these rights and duties.

To enforce these rights and duties, the Legal System considers the socio-economic and political conditions in the society and makes its own goal and then makes a set of rules or principles and laws which help the society to achieve its identified goals.

Judges

The Judges, who are the crusaders of Justice are independent of both Executive and Legislature in a Democratic set up. Therefore, they are the persons who administer justice without fear or favour. They adjudicate the matters before them after proper inquiry in accordance with just, fair and reasonable principles of law to provide justice.

Advocates

Advocates are the key functionaries assisting the judges in the administration of justice. They are the officers of the Court and are constituted into an independent profession under the Advocates Act, 1961. Without the expert assistance of the advocates or lawyer on either side of a dispute, judges will find it difficult to find the truth on disputed facts in issue and interpretation of law.

Civil Society

In democracy, ‘we the people’ i.e. citizens and their particular groups play pivotal role in good governance. They create ‘Pressure Groups’ for seeking attention of the legislature and the government, For example several movements led by Mahatma Gandhi during the freedom struggle. People’s effective participation brings transparency, accountability and responsiveness in the government.


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Created on 2020/10/19 23:14 by • Last modified on 2021/01/27 22:18 by LawPage