Law

Meaning, Nature, and

Functions

Adv. RIFA SANBAQ

FACULTY BVP NLC
1
INTRODUCTION

• The term “Law’ denotes different kinds of rules and Principles

• Law is an instrument which regulates human conduct/behavior.

• From the view point of the society. - Law means Justice, Morality,
Reason, Order, and Righteous
• From point of view of legislature -Law means Statutes, Acts, Rules,
Regulations, Orders, and Ordinances.
• From the point of view of Judges -Law means Rules of court, Decrees,
Judgment, Orders of courts, and Injunctions.

• 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 2
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.

3
• Generally the term law is used to mean three things:

1. 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.

2. Secondly, law means the whole body of legal Percepts which exists in a
politically organized society.(a command or principle intended especially as a general
rule of action, an order issued by legally constituted authority to a subordinate official)

3. 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.
4
5
DEFINITIONS OF LAW

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.

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

6
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

H.L.A.Hart According to Hart Law is the combination of primary rules of

obligations and secondary rules of recognition

7
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.

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

8
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. 9
ORIGIN OF 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.

10
NATURE OF LAW

11
The nature of law is a complex and multifaceted concept that has been debated by
philosophers, legal scholars, and theorists for centuries.

Different schools of thought have proposed various theories about the nature of law, and
there is no single universally accepted definition. However, some key elements are
commonly discussed in understanding the nature of law:

1. Normativity: Law is a system of norms or rules that govern the behavior of individuals and
societies. These norms are usually prescriptive, setting out what people ought or ought not to do.

2. Authority: Law is typically created and enforced by a recognized authority, such as a government
or a legal system. The authority of law gives it the power to apply sanctions or punishments for non-
compliance.

3. Social Order: One of the primary purposes of the law is to maintain social order, resolve conflicts,
and provide a framework for peaceful coexistence among individuals and groups.

4. Enforceability: Laws are backed by some form of enforcement mechanism to ensure compliance.
This enforcement can involve various sanctions, such as fines, imprisonment, or other penalties.

12
5. Justice and Fairness: Many legal systems aim to promote justice and fairness in society by
providing remedies and protections for individuals and ensuring that decisions are made impartially
and transparently.

6. Flexibility and Change: The nature of law is dynamic, and it evolves to adapt to societal changes,
new circumstances, and emerging values.

7. Legitimacy: The acceptance and legitimacy of law often depend on whether it is seen as being
grounded in moral principles, the will of the people, or an established governing system.

13
FUNCTION OF LAW

14
In jurisprudence, the function of law refers to the various purposes and roles that legal systems and
rules serve in society. These functions are essential for maintaining order, resolving disputes,
promoting justice, and regulating behavior within a community. Different legal theorists and
philosophers have proposed various functions of law, and some of the primary functions include:

1. Regulation and Social Control: One of the fundamental functions of law is to regulate human
behavior and maintain social order. Laws set standards of conduct and define what is permissible
and what is not, thus guiding individuals and organizations in their actions.

2. Conflict Resolution: Law provides a framework for resolving disputes and conflicts between
individuals, groups, or entities. Courts and legal processes offer a formal mechanism for resolving
disagreements and enforcing rights and obligations.

3. Protection of Individual Rights: Laws safeguard individual rights and freedoms, such as freedom of
speech, freedom of religion, and the right to privacy. The legal system aims to protect citizens from
abuses of power and ensure their basic human rights are respected.

4. Promotion of Justice: Laws are meant to uphold principles of justice and fairness. They seek to
treat all individuals equally, regardless of their background, wealth, or status, and to provide
remedies when injustices occur.

15
5. Preservation of Order and Stability: Legal systems contribute to the stability and predictability of
society. When laws are consistently enforced, people have greater confidence in the system, which
helps prevent chaos and social unrest.

6. Social Engineering and Public Policy: Laws can be used as a tool for shaping and guiding societal
behavior. Governments can enact laws to promote specific social or economic objectives, such as
environmental protection or consumer safety.

7. Redress and Compensation: Law provides a means for individuals to seek compensation or redress
when they have suffered harm or injury due to the actions of others.

8. Deterrence: Legal sanctions, such as fines and imprisonment, serve as a deterrent against illegal
conduct. The threat of punishment can discourage individuals from engaging in harmful or criminal
behavior.

9. Expression of Values and Norms: Laws often reflect the values, customs, and norms of a society.
They can play a role in shaping and preserving cultural identity.

16
10. Economic Regulation: Laws can govern economic activities, such as contract law and antitrust
laws, which aim to ensure fair competition and protect consumers from monopolistic practices.

It's important to note that the functions of law can vary between different legal systems and societies,
and they can evolve over time in response to societal changes and advancements. Additionally,
debates and discussions in jurisprudence continue to explore the complex interplay of these
functions and their implications for the legal system and society as a whole.

17