Introduction

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.

 

Origin of law

A civil code that was possibly divided into twelve volumes existed in ancient Egyptian law as early as 3000 BC. By the 22nd century BC, an ancient Sumerian king named Ur-nammu created the first law code, which was composed of casuistic statements (if…then…) and was based on the concept of Ma’at, which was characterised by traditional rhetorical discourse, social equality, and impartiality. King Hammurabi codified and carved Babylonian law into stone in 1960 BC, furthering its development. Hammurabi distributed several copies of his legal code as Stelae around the Babylonian realm; this is how the codex came to be known. Hammurabi.

Ancient China and India each had unique schools of legal thought and practise and represent distinct legal traditions. When India joined the British Empire, common law replaced Islamic law and the influential Hindu treatises The Arthashastra and the Manusmriti, which date from 400 BC and 100 BCE respectively. Singapore, Hong Kong, Malaysia, Brunei, and Brunei have all embraced common law. Japan was the first nation to start updating its legal system in accordance with western norms by importing elements of the French Civil Code, but mostly the German Civil Code. Similar to how ancient Chinese law lost way to westernisation in the dynastic final years, six private law codes largely based on German law in Japan were adopted.

The development of Islamic law and jurisprudence was one of the main legal systems that took place during the Middle Ages. “Hawala” was an early informal transfer method during the classical era of Islamic law and jurisprudence. It is mentioned in texts of Islamic jurisprudence as early as the 8th century. Later, the Hawala itself had an impact on the creation of the “Aval” in French civil law and the Avallo in Italian law. Greek teachings had a significant influence on Roman law.

Nature of law

What is the nature of law? In the modern era, this subject has taken centre stage in legal theory and philosophy, and it is the main focus of modern analytic legal theory. The goal of this entry in the legal theory Lexicon is to provide a summary of the “what is law” controversy.

Historical way

In the past, there have been two opposing theories put forward as to what law is. Natural law theory, which is generally characterised as stating that there is an intrinsic connection between law, morality, and justice, offers the traditional response.

Modern way

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.

A revised set of positions are at the centre of current discussions about the essence of law. Analytical legal positivists like H.L.A Hart, Joseph Raza, and Jules Coleman are advocates of legal positivism. John Punis defines the natural law tradition, and the late Ronald Dworkin’s work exemplifies the new position of interpretivism..

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

Laws provide the standards by which we should live if we wish to be a part of society. Humanity has had laws or other means of self-government ever since the dawn of civilisation. Law established guidelines and restrictions for society so that we might live in freedom, provided justice for those who had been harmed, and shielded 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.

Kinds of law

Law is used in different senses. The use of the term “law” is made in various senses. It denotes different kinds of rules and Principles.

Blackstone says “law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of action whether, animate, rational, irrational. Thus we say the law of motion of gravitation of optics or Mechanics, as well as the law of nature and nations” it is helpful in understanding the different senses in which “law” is used in various fields of knowledge.

Kinds of law by Sir Jhon Salmond

Sir John Salmond refers to eight kinds of law

1. Imperative law

2. Physical or scientific law

3. Natural or moral law

4. Conventional law

5. Customary law

6. Practical or technical law

7. International law, and

8. Civil law

1. Imperative law

Imperative law means a rule of action imposed upon by some authority which enforces  obedience to it. In other words it is a command enforced by some superior power either physically or in any other form of compulsion.

Kinds of Imperative law:-

There are two kinds of imperative law, Divine or human

1. Divine laws

2. Human laws

1. Divine laws are consists of the commands imposed by God upon men either by threats of Punishment or by hope of his blessings.

2. Human laws are the laws by analogy Sir Jhon Salmond classifies Human Laws into four sub classes

1. Imperative law imposed and enforced by State is called “Civil law”

2. Imperative law imposed and enforced by members of society is “Moral law”

3. Those imposed and enforced by different institutions or autonomous bodies like Universities, airline companies etc they are called “Autonomic law”

4. Those imposed upon States by the society of States are called “ International law”

2. Physical or scientific law

Physical laws are the expressions of the

1. Uniformities of nature and General Principles Expressing the

2. Regularity, and

3. Harmony observable in the activities and operations of the universe.

They are not the creation of men and cannot be changed by them. Human laws change from time to time and from country to country but physical laws are invariable forever. The uniform actions of human beings, such as law of psychology, also fall into this class they express not what man ought to do, but what they do.

3. Practical or Technical law:-

It consists of Principles and rules for the attainment of certain ends e.g. laws of health, laws of architecture. These rules guide us as to what we ought to do in order to attain certain ends.

4. Natural or Moral law:-

It has various other names such as, “the Moral law” “Divine law” “God Law” ‘universal or eternal law and “law of reason” etc. “by natural law is meant the principles of natural right and wrong (the Principles of natural Justice)”.

Natural laws have been called

Divine law:- commands of God imposed upon men.

Law of Reason i.e. being established by that reason by which the world is Governed.

Unwritten law:- (as being written not an brazen tables or a pillar of stone but by the finger of nature in the hearts of people. universal or common law (being of universal validity)

Eternal law (being uncreated and invariable)

Moral law (being the expression of the Principles of morality)

5. Conventional law:-

It is the body of rules agreed upon and followed by the concerned parties to regulate their mutual conduct. It is form of special law and law for the parties which can be made valid or enforced through an agreement.

A Good example of the conventional law is the International law, laws of cricket or any other game, rules of club. It has been father divided into two groups which are:-

1. Rules enforced by the parties themselves but not recognized by the State e.g. the rules of hokey

2. Rules which are recognized and enforced by the State, e.g. contract etc.

6. Customary law:-

Customary laws are those rules of custom that are habitually followed by the majority of the persons subject to them in the belief of binding nature.

According to Salmond, customary law means “any rules of action which is actually observed by men (any rule which is the expression of some actual uniformity of voluntary action) “when a custom is firmly established it is enforced by the authority of the State. Custom is not law by itself but an important source of law only those customs acquired the force of law, which are recognized by the courts.

7. International law:-

According to “Hughes” international law is the body of Principles and rules which civilized States consider as binding upon them in their mutual relations. “ it can be as the name for the body of customary and conventional rules, which are considered legally binding by civilized States in their intercourse with each other”. According to Salmond it is considered of these rules which the sovereign States have agreed to observe in their dealings with one another.

International agreements are of two types:

They are either expressed or implied.

Express agreements are contained in treaties and conventions, while implied agreements are to be found in the custom or practice of the States. International law is of two kinds:

I: Public International law: It prevails universally all over the world.

II: Private International Law: It is enforced only between some of States.

8. Civil Law

It is the law of the States regarding the land “Civil Law” according to the Salmond , is “the law of State of or the law of the land, the law of lawyers and the law of the courts”. Civil law is the positive law, or law of the land which means the law as it exists. It is backed by the force and might of the State for purposes of enforcement. Civil law differs from special law as the latter applies only in special circumstances the other term is used for the civil law is Municipal

Law and national law.

 CLASSIFICATION OF LAW

Etymological meaning of classification is “the process of putting something into category” or the basic cognative process of arranging into classes or categories. For a proper and logical understanding of law its classification becomes necessary. As it elucidates the way of systematic logical structure of the legal order. It explicates the inter relation of rules and their effect to each other. It analysis the law that intern is helpful in codification of laws it is an arrangement of rules in a concise and systematic way.

Original and Meaning of the Classification of Law

Notion of classification is very old. Classification was first made by Roman Jurists. The ancient Hindu Jurists also laid down eighteen titles or heads of “Vyavahara” civil law. The distinguished civil and criminal law and classified crime law under various heads.

There are two limitations in classification of law first; any classification will have only a relative value and no universal principle or rules can be laid down for it.

With the onward march of time, old rule changed their nature and the field of application and new rules based on different Principles come into existence.

Therefore, a new classification becomes necessary. Roman Jurist analyzed law in old times but that classification is Vague to present world.

Second, any classification made keeping in view the law of a Particular community or nation is not applicable to the law of any other Community or nation.

For Example; if one commits a breach of promise to marry, in English law, it falls under contract, but in French law it falls under delict. So, it’s not possible to discuss the classifications given by various Jurists, only a General Classification shall be given which has been adopted by most of Jurists of the modern times.

Classification of Law

(1) International Law, and

(2) Municipal or National law

International law:- The Present form of international law is of recent origin some earlier Jurist were of the view that the international law is not law as it lacked many elements which law should have. Austin and his supporters were of this view. Some says international law is law and it is superior to the municipal law Kelson supports this view.

What is International Law?

The legal Process that concerns legal relations among nations is called international law. Belief and experience some form international law dates from at least the days of the Roman Empire.

The united nation is are of the Primary mechanism that articulate and create international law.

The major sources of international law are multilateral Treaties, international custom and such General Principles as are recognized by civilized nations.

According to some Jurists international law may be divided into two classes.

(1) Public international law, and

(2) Private international law

(1) Public international law is that body of rules which govern the conduct and relations of States with other, really speaking; the term international law is  used for this class of law.

(2) Private international law means those rules and Principles according to  which the cases having foreign element are decided for example, if a contract is made between an Indian and Pakistani and it is to be performed the rule and Principles on which the rights and liabilities of the Parties would be determined would be called Private international law. This class of law is called “Conflict of laws” also. After knowing the field of application of this class of law, it is clear that the adjective “international” is wrongly given to it because it applies to individuals and not to States and these rules and Principles (called Private international law) vary from State to State and thus lacked uniformity. This class of law is enforced by municipal courts which administer municipal law and not international law, so, such a law does not process the characteristics of international law.

In modern times this class of law has gained much importance and every States has made rules for its administration. Therefore, it must be properly classified. It is submitted that it should be given the name “Conflict of Laws” and not private international law and should be treated as a branch of municipal Private law and should be classified as such.

4. The Municipal law, Law of land, Civil law, or law applied within a State is divided into two classes:-

(A) PUBLIC LAW

(B) PRIVATE LAW

A) PUBLIC LAW:- The State activities are largely regulated by Public law. It determines and regulates the organization and functioning of the State and determines the relation of the State with the subject. public law may be divided into three classes:-

(A) Constitutional law

(B) Administrative law and

(C) Criminal law

(A) Constitutional law: By constitutional law is meant that law which determines the nature of the State and the Structure of the Government. It is above and superior to the Ordinary law of the land. Constitutional law is the basic law or fundamental law of the State. The constitutional law may be written as in India or unwritten as in England. In modern times there is tendency to adopt written constitution.

(B) Administrative Law:- Administrative law deals with the structures powers and the functions of organs of the administration, the limits of their Powers, the methods and Procedures followed by them in exercising their powers and functions; the methods by which there power are controlled including the legal remedies available to a person against them when his rights are infringed by their operation.

(C) Criminal law:- Criminal law defines offences and prescribes punishment for them. Its aim is the prevention of and punishment for offences. Criminal law is necessary for the maintenance of order and peace within the State. In civilized societies crime is considered to be wrong not only against the individual (who has been wronged) but a wrong against the society. Therefore, the State initiates the proceedings against the offender, and thus it is always a party in criminal cases.

This is why the criminal law is considered as a branch of public law.

(D) Private Law: – This branch of law regulates and governs the relations of citizens with each other. The parties in such cases are private individuals and the State through its judicial organ adjudicates the matters in dispute between them. In these cases the State takes the position of only an arbiter. But it does not mean that the State regulates all the conducts and relations of the citizens but regulates only such of them as are of public importance and these relations (which State regulates) constitute the civil rights of the citizens. The major part of municipal law consists of this branch of law but in Totalitarian States the public law regulates the major part of the social life.

In the Classification of private law there is great difficulty. Different Jurists have given different classification, a very General classification is as follows:-

1. The law of Persons

2. The law of Property

3. The law of obligations

4. The conflict of laws

The law of obligations is divided into three classes.

(i) Contract

(ii)Quasi contract, and

(iii) Tort

The classification is only substantive law. The procedural law and Evidence are also the branches of the Private law.

A chart Presenting the above classification is as below:-

 Law

State law/national law international law

Public law private law

Constitutional law Administrative law criminal law

Law of Person law of Property law of obligations the conflict of laws

Contract Quasi-contract Tort

Above classification defective: –

The above classification of law has many defects. Many of the classes do not exist in many legal system at all some branches of law which has developed in recent years cannot be put under any one class exclusive.

Conclusion

Jurisprudence deals with the law as its subject. In its broadest meaning, law denotes a system of rules governing the cosmos, things, events, or behaviour. Any rule of action, or any norm or pattern to which acts are supposed to be confirmed, is a law in the broadest sense. It has been attempted by various jurists at various periods to define the term “law,” but it is quite challenging to come up with an exact definition. Old definitions placed a strong emphasis on religious components of life, which are no longer relevant today. Law is a notion that changes with time; its goals and functions have changed over time.