LAW -Jurisprudence

LAW LAW Law has been variously defined by b y various individuals from different point of view and hence there could not be and is not any unanimity of opinion regarding the real nature of law &definition. Morris : “To azoologist a horse suggest the genus Mammalian Quadruped to a traveler a means of transportation  to an average man the sports of a !ing to a certain nation an article of food" Lord Lloyd : “ #ince much $uristic in! has flowed in an endeavour to provide a universally acceptable definition of law but with little sign of attaining that ob$ective" R.Wolheim : Much of confusion in defining law has been due to different types of purpose sought to be achieved

%arious %arious schools of law have defined law from different angles 4.Terms of ends or urose of la!  . ased on 1.Nature 2. Sources 3.Effect on society 4.Terms Law is a social science and grows and develops with growth and development of society .' definition which does not cover various va rious aspects of law is bound to be imperfect .(ew developments in society create new problems and law is re)uired to deal with those problems.Thus the definition and scope of law must continue to change .The result is that a definition of law given at a particular time cannot remain valid for alltimes to come.' satisfactory satisfactory definition today may be found narrow tomorrow. "rof.#eeton : “To attempt to establish a single satisfactory definition of law is to see! to confine  $urisprudence with in a straight $ac!et from which it is continually continually striving to escape." "rof.$art : “*ew )uestions concerning human society have been as!ed with persistence and answered by serious thin!ers in so many diverse  strained and even parado+ical way as the )uestion , -hat is law ." "olloc%  :  : “ (o tolerably prepared candidates in an /nglish or 'merican law school will hesitate to define an estate in fee simple 0 on the other o ther hand  the greater a lawyers opportunities for !nowledge have been and the more time he has given to the study of legal principles the greater will be his hesitation in the face of the apparently simple )uestion , -hat is law ."

affairs  which ought to be the hief  the ruler  and &ustinian  : “ Law is the !ing of all mortal and immortal affairs the leader of the noble and the base and thus the standard of what is $ust and un$ust  the commander to animals naturally social of what they should do  the forbidder of what they should do “ 'lian : “The art or science of what is e)uitable and good “ (icaro : “The highest reason implanted in nature ." "indar : “ /very law is gift of god and decision of sages “

'gain"This law top which all men yield obedience for many reasons and especially because every law is a discovery and gift of god and at the same time a decision of wise men  a rightening of transgression  both volutary and involuntary and the common covenant of a state  in accordance with which it beseeches all men in the state to lead their lives" (hysihus : “ The comman law which is the right reason  moving through all things  and identical with zeus  the supreme administrator of the universe"

(aito : “ ' Le+ is a general command of the people or the plebs on )uestion by magistrate."

co mmon agreement of a state intimating Ana)imenes  : “ Law is a definite proposition  in pursuance of a common how everything should be done ." $o**es : “Law is a speech of him who by rights commands somewhat to be done or omitted" 'gain “ Law in general is not counsel but command 0 nor a command of any man to any man but only of him whose command is addressed to one on e formerly obliged to obey him .'nd as for civil law it addeth only the name of the highest person commanding which is persona civitatis the highest person of common wealth". +lac% Stone : , Law in its most general and comprehensive sense signifies a rule of action and is a pplied indiscriminately to all !inds of actionswhether animate1inanimate  raional 1irrational .Thus we say the laws of gravitation  or optics1mechanicsas well as the law of nature and of nations." $oo%er : “'ny !ind of rule or canon whereby actions are framed .That which reason in such sort definite to  be good that it must be done “ 'gain “2f law therecan be no less ac!nowledged than that her seat in the bosom of 3od  her voice the harmony of the world  all things in heaven and earth does her homage  the very least as feeling her care and the greatest as not e+empted from her power 0both angels and men and creatures of what condition so ever 0 though each in different sort and manner yet all with uniform consent  admiring her as mother of their peace and $oy" #ant : “The sum total of the conditions cond itions under which the personal wishes of one man can be combined with  personal wishes of another man in accordance with general law of freedom “ $e,el : “The abstract e+pression of the general will e+isting in and for itself. “ Sir $enry Maine : “ The law has come down to us in close association with two notions  the notion of order and notions of force ."

b y the invisible borderline is fi+ed within which the being and the activity of Sa-i,ny : “The rule where by each individual obtains a secure and free space." ind,radoff : “'set of rules imposed and enforced by a society with regard to the distribution d istribution and e+ercise of powers over persons and things." Austin : “Law is the aggregates of rules set by b y men as politically superior or sovereign to men as politically sub$ect." #elsen : “ Law as the depschologised command .Though 4elson defines law in terms of command he uses that term differently from 'ustin .The sovereign of 'ustin does not come into the picture of 4elson 5efinition of law." law." "ound: “' social institution to satisfy satisfy social wants." /u,uit  : “6t is essentially and e+clusively a social fact .The foundation of law is in the essential re)uirements of the community life .6t can e+ist only when men live together .The sovereign is not above the law bound by it.Law should be based on social realities.5uguit e+clude the notion of right from law .

Therin, : “The form of the guarantee of the conditions of life of societyassured by state is power of constraint “.Law is treated only as a means of social control.6t is coercive in character .2bedience to law is secured by the state through e+ternal compulsion . Ehrlich : “6ncludes in his definition definition of law all the norms which governs the social life within a given society. &ustice $olmes : “ Law is a statement of the circumstances in which the public force will be brought to bear  upon men through courts" 'gain “The prophecies of what the court will do in fact and nothing more pretentious are what 6 mean by law ."

o f men is composed of the rules which the court 7that 0ray : “The law of the state or of any organized body of is $udicial organ of that body 7lay down for the determination of legal rights &duties" Lord Moulton : “Law is the crystalised common sense of the community “ +entham  “Law or the law ta!en indefinitely is an abstract or collective term which when it means anything can mean neither n either more nor less than the sum total of a number of individual laws ta!en together." Salmond : “The body of principles recognized and applied by state in administration of $ustice ."

condu ct so established as to $ustify a prediction with reasonable certainity (ardo : “'principle of rule of conduct that will be enforced by the courts if its authority is challenged is a principle or rule of law . $olland  : “ More briefly law is a general rule of eternal human action enforced by a sovereign political authority .'ll other rules fro the guidance of h uman actions are laws merely by analogy analog y and propositions which are not rules for human action are laws by metaphor only." "rof.M.&.Sethna : Law in its widest sense a means and involves a uniformity of behaviour  constancy of happenings or a course of events rules of action whether in the phenomena .of nature or in the ways of rational human beings.6n synthetic sense civil law is all that bo dy of principles decisions and enactments made  passed or approved by the legally constituited authorities or agencies in a state  for regulating rights duties and liabilities and enforced through machinery of the $udicial $udicial process securing obedience to the sovereign authority in the state . "aton : The term law may be defined from the point of view of theologian the  the historian the sociologist the  philosopher the political scientist scientist or the lawyer . “ Law may be described in terms of a legal order tacitly or formally accepted bya acommunity and it consists of body of rules which that community considers essential to its welfare and which it is willing to enforce by the creation of specific mechanism for securing compliance.'mature system of law normally sets up that legal order !nown as the state but we cannot say a priori that without the state no law can e+ist." Law defined 8st 7 nature reson religion ethics 9ndsource in customs precedentlegislation ;rd 7life of societyeffect on
"urose and unction of La!

Lot of speculation about that .There no dogmatic and unanimity about it .Law changes 7*rom 7Time 7Time to time country to country .6ts not static and changes with changes in the society. "lato  : “Man!ind must either give themselves a law and regulate their lives by it or live no better than wildest of the wild beasts" $o**es : “Law was brought into the world for nothing else but to limit natural liberty of pa rticular men in such a manner as they might not hurt but assist one another and $oin together against a common enemy" en emy" Loc%e : “The end of law is not to abolish or restrain but to preserve or enlarge freedom". #ant : “The aim of law is freedom and the fundamental process of law is the ad$ustment of ones freedom to that of every other member of the community". +entham : “2f the substantive branch of the the law the only defensible ob$ect or end in view is the the ma+imization of the happiness of the greatest number of members of the community in )uestion “ $olland : “Law is something more than police .6ts ultimate ob$ect is no doubt nothing less than the highest well being of society and the state from which law derives its force is something more than a n institution for the protection of rights" Roscoe "ound  :Ther are < purposes of law 8stto maintain law and order within a given society and that has to be done at any cost 9nd 7 To maintain the status )uo in the society ;rd 7 To enable individuals to have ma+imum of freedom to assert themselves.
d etermines the sphere within which the e+istence and activity of each individual Sa-i,ny : “The rule which determines may obtain secure and free play “ #rause and Ahrens  7>epresentatives of a school of $urist 75emand that  Law should be conceived as harmonizing the conditions under which human race accomplishes its destiny by realizing the highest good of which he is capable .The pursuit pursuit of the highest good of the individual individual and of the society needs a controlling power  which is law  and an organization for the application of its control wh ich is the state . $indu La! : ?urpose of Law 7 6t should aim at the welfare of the people in this world and also from salvation after death. Mohammedean La! : ?urpose of Law is the 5iscipline of the soul the improvement of morals and the  preservation of life property and reputation . Sir A*dur Rahim :"The end of law is to promote the welfare of man both individually and socially not  merely in respect of life on this earth but bu t also of future life “ Salmond  2b$ect is @ustice“Law is those principles which are applied by the state in administration of  $ustice".

&ustice'sed in !ider and Restricted sense 'ppears to be roughly synonymous with morality Wider sense 5 'ppears Restricted sense The term refers to but one area of morality 7as in e+pressions: “Aourts of @ustice"  “natural $ustice" “denial of $ustice" . &ustice6erates at 2 /ifferent le-els  5istributive @ustice and corrective @ustice /istri*uti-e &usti-e This wor!s to ensure a fair social benefits and burdens among the members of a community .6t serves to secure balance or e)uilibrium among the members of the society. correcti-e &ustice The point at which the state of e)uilibrium is upset the corrective $ustice will move in to correct the dise)uilibrium by compellsion.The function of courts is to apply $ustice in its corrective sense . air and E7ual E7ual disensation of 8ustice demands more than e)uality 1- parties to individual law suits .6t re)uires that all be e)ual before law .Legal rights which each each person has should be given e)ual  protection by the courts. 6n each case both the plaintiff and defendant should get an e)ual 9(rac% 6f Whi: .@udges should mete out $ustice -12 fear and case should be treated not $ust regard the hearing but also the finding .6n a fair legal system there a re procedural or other rules which give each e ach partty an e)ual opportunity of presenting his case and calling c alling evidence and to prevent $udicial pre$udice in favour of either. Roscoe "ound  Law is a species of social engineering whose function is to ma+imize the fulfillment of the interestsBbodily security  property property reputation freedom of speech C of the community members and to  promote the smooth running of the machinery. B>ight to privacy 7nt recognized by /nglish law  >econcilation of Aonflicts Aonflicts ?art of problem of $usticeC $usticeC 0oal 6f La!  (ot $ust $ustice (otion of law represents a basic conflict between 9 different needs:Need for uniformity and Need for fle)i*ility 'niformity  7(eeded partly to provide certainity and predictability.citizens predictability.citizens plan activities in meaure of some certainty and predict legal conse)uences conse)uenc es .social order derives stability and security from uniform rules of lawfi+ed rules rules preferable in area of contract and property than other less certain certain rules. le)i*ility  7 *le+ibility enable law to adapt itself to the social change .6f law is unaltered the necessary changes will come by revolution violence and upheavals.Law that is capable of adaptation whether by legislation or $udicial development allows for peaceful change from time to time ..fle+ibility needed as the e+isting rule may not provide for borderline case no rule can ma!e provision for evry possible case . Therefore the *( of law is to sachieve sachieve stability and peaceful change in the society society . Ad-anta,es of La! 1;There are many advantages of fi+ed principles of law .They ro-ide uniformity and certainity to the administration of 8ustice .6t re)uires that all be e)ual before the law .The legal system of country is put in 1- and thus all !now law of the land.This adds convienience and happiness h appiness of the people . -12 these rules society becomes more and more complicated these help millions of people move with relative safety . 2;The e+istence of fi+ed principles of law a-oids the dan,ers of ar*itrary <*iased and dishonest decisions  .6t is not enough that $ustice should be done but it is also necessary that it should be seen to be done .6f the administration of $ustice is left completely to the individual discretion of a $udge improper motives and dishonest opinion could affect the distribution of $ustice. Salmond : 6t is to its impartiality far more than its wisdom that are due the influence and reputation which the law has possessed all the times 0 wise or foolish 0 it is same for all .: Loc%e  9The legislative or supreme authority cannot assume to itself a power to rule by e+temporary  arbitary decrees  but is bound to dispense $ustice and to decide the rights of the sub$ects by promulgating standing law and !nown authorized $udges 9.

(icero : -e are the slaves of the law that we may be free:. 3; The fi+ed principles of law rotect the administration of 8ustice from the errors of indi-idual  8ud,ement  8ud,ement .6n most cases the law on the sub$ect is clear and $udges are not e+pected to twist the same .They .The y are not e+pected to substitute their own opinion for the law of the country .& not to decide every case according to what sees to them to be best . Aristotle : “To see! to be wiser than law is very thing which is by good laws forbidden “ Salmond  : “The establishment of the law is the substitution of the opinion and conscience of o f the community at large for those of the individuals to whom the $udicial functions are entrusted .The law is not always wise but on the whole and in the long run it is wiser than those who administer it."


8CERi,idity of La!  7 The lac! of fle+ibility in law results results in hardship and in$ustice in many cases .'n ideal legal system should !eep changing according to the changing needs of the people. Dowever law is not usually changed to ad$ust the changing needs of the people.There is always advancement of the people and the legal system of the country . 9C (onser-ati-e Nature  7 This is is not desirable for a progressive society .oth lawyers lawyers and $udges favour the continuation of the e+isting law .The result is that very often law is static. ;C ormalism 7 More emphasis is put on the form of law than its substance .'lot of time is wasted in raising technical ob$ection of law which have nothing to do with the merits of the case in dispute.6n$ustice may be done in many instsnces of case where by an innocent person may suffer & croo!ed may profit.