BY Noor UL Shahbaz
Lord Llyod: “Since much juristic ink has flowed in an endeavor to provide a universally acceptable definition of law, but with little sign of attaining that objective” (Introduction to jurisprudence, p. 42). The term law is something difficult to define. A uniform definition of law is far from reality because at various times jurists have their own approaches to study law from different perspectives. The sources, nature and ends are some of the factors which influence the definition of law. The philosophy of law is commonly known as jurisprudence. Normative jurisprudence asks “what should law be?”, while analytic jurisprudence asks “what is law?” The law is legislation created and enforced through social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and the art of justice. The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. Some say it is a rule defining correct procedure or behavior in a sport.
H.L.A Hart in “The Concept of Law” argued that law is a “system of rules”; Austin said law is “the command of a sovereign, backed by the threat of a sanction”. Austin’s definition of law has been criticized on many grounds. Critics belonging to the historical school concede that in modern societies where there are established States, laws may be in the nature of command, but there existed laws even prior to the existence of the State. The laws which existed at that time were not commands of the state. It had its source in custom, religion or public opinion and not in any authority vested in a political superior. It means law is prior to and independent of political authority and enforcement. A State enforces it because it is already law. It is not correct that it becomes law because the State enforces it. Further, the element of sanction in Austin’s theory may be true in a monarchial police State, but it cannot be applied to a modern democratic country whose machinery is employed for the service of the people. The sanction behind law is not the force of the State but the willingness of the people to obey the same. To define law in terms of sanction is like defining health in terms of hospital and disease. Force can be used only against a few rebels and not against the whole society. If law is opposed by all the people, no force on earth can enforce the same. If everyone decides to challenge law, it is bound to fail in its objective and no sanction can enforce the same.
Dworkin describes law as an “interpretive concept” to achieve justice in his text titled “Law’s Empire”; and Raz argues that law is an “authority” to mediate people’s interests. Ulpian defined law as, “the art or science of what is equitable and good”. In his “Treatise on Law” Aquinas argues that law is a rational ordering of things which concern the common good that is promulgated by whoever is charged with the care of the community. Savigny’s central idea of his theory on law was that law is an expression of “will of the people”. It doesn’t come from deliberate legislation but arises as a gradual development of common consciousness of the nation. The essence of Savigny’s “Volksgeist” was that a nation’s legal system is greatly influenced by the historical culture and traditions of the people and growth of law is to be located in their popular acceptance. Since law should always confirm to the popular consciousness i.e. “Volksgeist”. Hence, law is not the result of an arbitrary act of a legislation but developed as a response to the impersonal powers to be found in the people’s national spirit. Savigny in his own words view “Volksgeist” as, “The foundation of the law has its existence, its reality in the common consciousness of the people.
We become acquainted with it as it manifests itself in external acts, as appears in practice, manners and customs. Custom is the sign of positive law.” A law cannot be law unless accepted by the people. Since law is always for the betterment of the people hence it should also be supported and accepted by them. The sole purpose of law is betterment of the people and by saying it we are bound to create the situations whereby we can achieve common good for all. Meaning thereby manifestation of our consciousness through external acts must create the stable surrounding in which public interest can survive. Hobbes: according to him, “Law is the speech of him who by right commands somewhat to be done or omitted”. If we will elaborate this definition, an act or omission is two essentials which are ultimate directives of the authority from whom it emanates. Here we can understand that, between two persons one cannot perform an act which is injurious for other, simultaneously there must not be an omission on his part that will prove injurious to the same person as well. Our acts and omissions must not be in conflict with or repugnant to the interest of other persons. In a social order rule of compatibility plays an important role and that compatibility becomes a basis for regulation of our social order. Hobbes further says that “Law was brought into the world for nothing else but to limit natural liberty of particular men in such a manner as they might not hurt but assist one another and join together against a common enemy. Here I want to quote Plato, he says, “Mankind must either give them a law and regulate their lives by it or live no better than the wildest of the wild beasts”. Salmond definition of law also certifies the element of common consensus by way of defining law as, “the body of principles recognized and applied by the state in the administration of justice”. In other words it consists of rules which are recognized by common consensus for not injuring the interests of people. It arises out of popular practice. Its legal character becomes patent when it is recognized and applied by a court of law in the administration of justice. Aristotle recognizes that, legal order can subsist only if the citizens are law abiding. He thus characterizes law as a kind of common agreement. Obedience is a precondition of the power of law. Obedience reflects regulation of action of every kind. When we talk about regulation of actions we have to reach at a common consensus which will be beneficial for all and not repugnant to anyone’s interest.
Conclusion: Although it is very difficult to define and understand the term law in all its perspectives but jurists have with their enlightening writings defined law depending upon the nature and scope of it. My analysis has reached to the conclusion that it is the consent or common consensus of people that becomes the laws for a State, although in present times “wish of State” supersedes the “will of people” but it can be said that any wish that is repugnant to the will of people is not the law and it is bound to fail.
Noor UL Shahbaz,M.A, LL.M (GOLD MEDALIST),Guest Lecturer and former acting Principal at Sopore Law College, can be reached at im1415151819@gmail.com