This article is written by Darshika Lodha, a BBA.LLB(Hons.) student of Unitedworld School of Law, Karnavati University. This article deals with various different definitions of law given by various scholars and the functions of law.
The term “Law” refers to various forms of rules and principles. The law is an instrument that controls human actions and behaviour. Law is justice, Morality, Reason, Order, and Righteous from society. Law includes the Laws, the Acts, the Rules, the Regulations, the Orders, and the Ordinances of the legislature. Law means the rules of law, the decrees, the judgment, Rules of the courts, and decisions from the judges. Law is, therefore, a broader term, which includes the Acts, the Statutes, the Rules of Procedure, Rules, Orders, Orders, Justice, Morality, Reason, Righteous, Rules of Procedure Court, Decrees, Judgment, Orders of Courts, Injunctions, Tort, Jurisprudence, Legal Theory, etc.
Definitions of Law
The definition of the term law is very difficult. Many lawyers tried to identify the terms of fact. Some of the definitions given by jurists for clarity in different periods, they are categorized as follows.
Therefore, many scholars have different definitions of law as follows:
- SALMOND: According to Salmond, “the law can be described as the body of principles recognized and applied by the State in the management of justice.
- JOHN CHIPMAN GRAY’S: According to Gray, the “Law of the State or any organized human body is composed of rules governed by the courts, that is the body’s judicial organ sets out the legal rights and responsibilities to be established.
- JOHN AUSTIN: John Austin (1790-1859) An English jurist put forward the concept of analytical positivism, making law a sovereign command backed by punishment. Logically he developed a legal system structure in which he gave no place to values, morality, idealism, and justice.
In the strict sense, according to Austin, a rule is the general order of the sovereign person, or sovereign body. Issued in subjectivity to and enforced by the state’s physical strength. According to Austin, “law is an aggregate of rules that are set as a political subject by men who are politically superior or sovereign to men.” Austin says, “A law is a command that obliges a person or persons to behave.
- THOMAS ERSKINE HOLLAND: Thomas Erskine Holland, a reputed jurist who followed the concept of the Austin and the nature of the law attempted to define law as law is a general rule of external human action enforced by a sovereign political. Holland also measures or defines law preferably without moral, ethical, or ideal elements which are foreign to law and jurisprudence.
- JOHN ERSKINE: Law is the rule of the sovereign, which contains a common rule of life for his subjects, and oblige them to obey.
- HANS KELSEN: According to Kelsen, the legal order is the hierarchy of norms, of all norms, derive its validity from the higher norm, and finally there is the highest norm known as the basic norm.
- H.L.A HART: According to the Hart Law, there is a combination of primary obligations rules and secondary rules for recognition.
- SAVIGNY: Savigny says that the law is not a direct product. Legislation is due, however, to the silent growth of customs or the outcome of unformulated public opinion or professional opinion. It says that the law, not as a body of rules established by a given authority, but as rules, consists partly of a social habitat and part of the experience. He says that the law is found in society, that it is found in custom.
- IHERING: Ihering defines the law as ‘the form of the guarantee of the conditions of life’ society, assured by the constraining power of the state. He says that law is a means to an end, and that the end of the law is to serve its social purpose, which is not individual.
However, some more scholars and jurists who define law according to their knowledge.
FUNCTIONS OF LAW
1. SOCIAL CONTROL
The members of society can have various social beliefs, attitudes, and desires. It is necessary to regulate these behaviours and to instil socially acceptable social norms among the members of society. There are informal and formal social controls in place. Law is one of the types of structured social regulation. As for Roscoe Pound, the law is a highly specialized form of social control in a politically organized society. Lawrence M. Freedman discusses the two ways in which the law plays a significant role in social control: First, the legislation explicitly defines the laws and standards that are important to society and punishes deviant behaviour. Secondly, there are other social regulation laws in the legal system. The police arrest the burglars, the prosecutors prosecute them, the courts sentence them, the prison guards watch them, and the probation officers release them.
2. DISPUTE SETTLEMENT
Disputes can not be prevented in the life of society, and it is the task of the law to resolve disputes. Disagreements that are justifiable will, therefore be resolved by law in court or outside the court using alternative dispute settlement mechanisms.
3. SOCIAL CHANGE
Several scholars agree on the role of law in contemporary society as a mechanism for social change. Law helps us to bring about rational, expected, and guided social change. The flexibility of law provides for some measure of discretion in law to make it adaptable to social conditions. If the law is static and unalterable, it does not react spontaneously to changes that may lead to discontent and frustration among subjects and may even lead to violence or revolution. A degree of flexibility is therefore necessary in law
Justice, as a central characteristic of the most evolved human societies, has been the focus of philosophic thought since the beginning of Western philosophy in ancient Greece. In the 21st century, the main figures of the modern era — especially Hobbes, Bentham, Hart, and Kelsen — and the schools of realistic jurisprudence continued to shape their concerns. Whether new paradigms in legal theory emerge, marking a break from the trends of the modern age, will ultimately rely on how law and legal institutions change in the future.
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