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What Is Law?: Salmond Definition of Law

The document discusses several key topics related to law: 1. It provides definitions of law from different perspectives, such as Salmond's definition that law is the body of principles recognized and applied by the state in the administration of justice. 2. It discusses Austin's theory of law, which states that law is a command from a sovereign backed by sanctions. Key aspects of Austin's theory include law being a command, the sovereign as the source of laws, and sanctions for enforcing laws. 3. It also briefly discusses the purposes and functions of law, such as securing order in society and providing mechanisms for resolving disputes and enforcing agreements.

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Hasan Muhtady
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7K views5 pages

What Is Law?: Salmond Definition of Law

The document discusses several key topics related to law: 1. It provides definitions of law from different perspectives, such as Salmond's definition that law is the body of principles recognized and applied by the state in the administration of justice. 2. It discusses Austin's theory of law, which states that law is a command from a sovereign backed by sanctions. Key aspects of Austin's theory include law being a command, the sovereign as the source of laws, and sanctions for enforcing laws. 3. It also briefly discusses the purposes and functions of law, such as securing order in society and providing mechanisms for resolving disputes and enforcing agreements.

Uploaded by

Hasan Muhtady
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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What is Law?

Law is a social science grows and develops with the growth and development of society. New
developments in society create new problems and law is required to deal with those problems.
According dictionary definition of Law, it means a rule established by authority or by custom. It
regulates the behaviors of a community, Country, etc. In other words, it is the legislative
pronouncements of the rules which should guide one’s action in society. To say, it is a rule of action to
which human beings conduct must conform.

Salmond Definition of Law


“The body of principles recognized and applied by the state in the administration of justice”. In other
words, it is consisted of the rules recognized and acted upon by the court of justice.

AUSTIN'S THEORY OF LAW


Introduction:
The theory of legal realism, like positivism, looks on law as the expression of the will of the state but
sees it as made through the medium of Courts. Law no doubt is the command of the sovereign, but the
sovereign to the realist is not the Parliament but the Court. 

2. IMPERATIVE OR AUSTIN'S THEORY OF LAW:


Austin says that law is a command which obliges a person or persons to a course of conduct. It is laid
down by a political sovereign and enforceable by a sanction.

3. FEATURES OF IMPERATIVE THEORY:


According to Austin, positive law has three main features:
I.          Command
II.         Sovereign
III.        Sanction

I. COMMAND:
The first features of law is that it is a type of command.

According to Austin:
Commands are expressions of desire given by superiors to inferiors.

(i) Laws are general commands:


There are commands which are laws and which are not, Austin distinguishes law from other commands
by their generality. Laws are general commands, unlike commands given on parade grounds and obeyed
there then by the troops.

II. SOVEREIGN:
According to Austin, a sovereign is any person or body  of persons,  whom  the bulk of a political society
habitually obeys  and who does not himself habitually obeys, some other persons or persons.

>Characteristics of Sovereign:

(i) Source of Laws:


Sovereign is the source of law. Every law is set, by a sovereign persons or body of persons.

(ii) Source of Power:


Prof. Laski says that there are three implications of the definition of sovereignty given by Austin. The
state is a legal order in which there is a determinate authority acting as the ultimate source of power.

(iii) Indivisible Power:


The power of sovereign is indivisible. It cannot be divided. Accordingly to Austin, there can only be one
sovereign in the state. The totality of sovereign is vested in one person or a body of persons.

(iv) Habitual obedient by People:


The chief characteristic of sovereign lies in the power to exact habitual obedience from the bulk of the
member of the society.

III. SANCTION:
The term sanction is derived from Roman Law. According to Salmond "Sanction is the instrument of
coercion by which any system of imperative law is enforced. Physical force is the sanction applied by the
state in the administration of justice.

The Purposes of Law


Salmond retains the emphasis on the judicial process but considers that a reference to the purpose of
the law is essential. The law may be defined as the body of principles recognised and applied by the
state in the administration of Justice. Justice is the end of law and it is only fitting that an instrument
should be defined by a delineation of the purpose which is its raison d’être.

Many writers have fallen into the simple trap. Earlier theories of natural law put the emphasis on Justice
and denied the validity of law if it was opposed to natural justice but slavery condemned by natural law
yet existed in the legal systems of the time and thought the Romans recognise this difficulty they never
succeeded in solving it. A second means of solving the problem of the relationship of law and justice is
to place all the emphasis on law and regard justice as near conformity to law by then we are depriving
ourselves of a Criterion which may not be wholly subjective by which we made test the operation of a
legal system.

The purpose of law is essential to an understanding of its real nature but the pursuit of justice is not the
only purpose of law the law of any period so many ants and doors and will vary as the decades roll by
and to seek a for one term which may be placed in a definition as the only purpose of law leads to
dogmatism the end That seems most nearly Universal is that of securing order but this alone is not an
adequate description indeed, Kelson regards it as a pleonasm since law itself is the order of which we
speak.

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 view
point 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.

 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, the law sets guide lines regarding employment
regulatory, compliance, even inter office regulations.

Classification of Law

DIVINE LAWS 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 LAW 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 LAWS


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.

Question of Law and Question of Fact


Introduction:
It is commonly said that all questions which arise for consideration in a Court of justice are of two kinds.
They are either question of law or of fact. It has been found to be very difficult to define the exact
difference between law and fact. Law consists of the abstract rules and facts are the raw materials on
the basis of which the law creates certain rights and duties.

Question Of Law:
According to Salmond, the term question of law is used in three distinct, thought related senses.

I. Questions Authoritatively Answered By Law:


In first sense, it means a question, which the Court is bound to answer in accordance with a rule of law.
All other questions are questions of fact. It excludes the right of the Court to answer the question as he
thinks fit.

Illustration:
Whether the holder of a cheque has been guilty of unreasonable delay in giving notice of dishonor is a
question of law to be determined in accordance with certain fixed principles (sec. 138) laid down in the
Negotiable Instruments Act,1881.

II. Interpretation Of Statutory Provision:


In the second sense, it means a question as to what the law is on a particular point. This arises in cases
where a rule of law is ambiguous and requires determination.
Once the provision has been authoritatively interpreted by the judge, it becomes a judicial precedent
and a settled question of law.

III. Questions To Be Answered By Judges:


In the third sense, all question whose answers given by the judges and not the jury are questions of law.
Question Of Fact:
The term question of fact is used also two different senses:
I. Wider sense
II. Narrow sense

I. Wider Sense:
In a Wider or general sense, all questions which are not questions of law are questions of fact.
According to Salmond:
A question of fact means any question
(i) Which is not previously determined by a rule of law.
(ii) Other than question as to what the law is.
(iii) Which is to be answered by the jury and not by the judge.

II. Narrow Sense:


In a narrow sense, question of fact means only those questions which are not subject to judicial
discretion. [Judicial Discretion is the power or right to make official decisions using reason and judgment
to choose from among acceptable alternatives. It is the  Power of a court to act or not to act, as it deems
fair under the circumstances, and as provided under the rules of law.  It refers to the inherent powers of
the judge to pass a judgment without interference of the rules laid in the statues or law books.]

Illustration:
The question as to whether the accused has committed the criminal act with which he is charged is a
question of fact

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