Table of Contents
BALLB 1st year legal system sample practice question answer papers
What do you mean by law? What is nature? What are various types and sources of law?(BALLB)
Meaning and Concept of Law- Law is in fact a social inevitability. It is found in various societies. Even primitive and undeveloped societies have a law. It is said that it is the result of the State. Through these institutions, the State exercises control over society. In fact, every society is a political organization and in every political organization, the law is inevitable. Normally the true law includes all rules and regulations, directions, and orders of established authority. It is not possible to violate them and those who violate them have faced consequences. It has been looked at as an institution from different angles by social as well as political thinkers.
Maclver and Pages have defined it in the following words “Law is the body of the rules which are recognized, interpreted and applied to a particular situation by the courts of the State. It drives from various sources including customs but it becomes law without the State, which means in the last resort, the courts are, prepared to enforce it is a rule binding on the citizens and residents within its jurisdiction.”
Hobel has defined it as given below-
“The law is a social norm, infraction of which is sanctioned in threat or in fact by the application of physical force by a party possessing the Socially recognized privilege of so acting.”
Max Weber has defined it as given below-
“Law is an order, the validity. of which is guaranteed by the probability that deviation will be met by a physical or psychic sanction by a staff.” Especially empowered to carry out these functions. This staff must have power and power is the probability that in actor an impose, within a social group, his will even against resistance.”
Max Radien has defined law as quoted below- “After all law is merely a smart part of the mechanism of the social management, closely connected with the mechanism of political administration. Not justice or good society, but the convenience of commercial practice, appeasement of individual quarrels and increase of goodwill among the competitors are the purpose of the law.”
Nature of Law- from the definitions given above we get an idea about the functions and the nature of law. Various social thinkers have analyzed the nature of law in various ways. Important amongst these include the following-
(1) Analytical School- According to this school, the law, is to be analyzed and it has to be classified on the basis of its implementation. This school does not organize the dynamic nature of law. Members of this school include the historical development of law. Important members of this school include Bodin, Hobbes, Bentham, Augustine. According to these thinkers, the law is the result of the definite orders of the State and according to Barker it is connected and framed by the highest authority or the sovereign body. All other orders that emanate other sources are not to be recognized as a law because only the orders of the sovereign are treated as law.
(2) Historical School- According to this school law is a thoughtful order of the sovereign but it is the result of the customs and traditions prevalent in the society. This school does not recognize State as the source of law or the former of law but says that its main job is to understand it and implement it. Sovereignty has clarified the attitude of this school regarding the nature of law in the following words –
“Law is the organ o the folk right. It moves and grows like every other expression of the life of the people; it is formed by customs and popular feeling through the operation of silent forces, not by the arbitrary will of a legislature.”
(3) Philosophical school and the nature of law-Joseph Koheler
is recognized as one of the chief exponents of this school of thought. According to Koheler, the law is based on the feeling of justice and it has nothing to do with historical development. Its importance lies only so far as its basic intent is connected. According to Koheler law is the gift of the culture and that is why it has a cultural bias in it. It is responsible for the transmission and diffusion of culture.
(4) Sociological School and the nature of law-Gumplowis, Crabbe, Roscbepound, Holemel, etc. are the main exponents of this school which says the law is the gift of the social forces and so it should be interpreted and analyzed only in the relevance to the social conditions and the social forces. Every society has certain definite needs and the law develops according to these needs. Law, therefore, should be considered as an object for meeting social needs. The rules and regulations that are framed or meeting the needs of the society are recognized as law by the State. According to this School, the origin and development of law do not depend upon the State but on social needs and social conditions. Law is only an agency that grants recognition to this agency created for meeting the needs of society.
Sources of Law- Having seen and studied the nature of the law it would be proper to have a look at the sources from which the law develops. These sources are as follows-
(1) Customs and traditions- Every society has certain customs and traditions which regulate the behavior and life of the members of the society. On the basis of these customs and traditions, the laws are framed by the State. That is why Maclven has said that most of the laws codified by the State are not its gift. They are already present in the society and the State only deletes some and codifies others.
(2) Religion- Religion is another source that guided and regulates the behavior of individuals. It is recognized not only by society but also State. The provisions of the religions have to be obeyed by peoples as a duty. On the basis of this religion, laws are framed and enacted by State. A typical example of religion acting as a strong source of law is ‘Muslim Personal Law’.
(3) Judicial Decisions- Law codes another agency of the State in the interest of equity and proper justice takes certain decisions that serve as law. These decisions are helpful in solving the problem of the future. Many of the decisions of higher courts today such as the High Court and Supreme Court etc. become law not only for lower courts but also for other members of society. Sometimes on the basis of these decisions laws are enacted and framed by Government and other agencies.
(4) Scientific Commentaries-Jurists and other scholars write certain commentaries on certain laws. These commentaries bring out the facts. Inherent in the law to light in the beginning lawyers and other persons interested in law use them for their own purposes but later on whey they are accepted by courts they become law. The scientific commentaries relate to certain principles and that is why they serve as an important source of law.
(5) Equity- The principle of Equity lays down the decision that is made by the courts in a worthwhile manner. These principles are already present in society. Law courts pronounce decisions on the basis of equity particularly in the case where no law is existent or present. Such decisions serve as an important source of the origin and development of law.
(6) Legislation- In modern society, this is the most important source of law. In democratic societies, it represents the will of the people. Legislators comprise of the representatives of the people and them in order to meet the needs of the society enacts various types of legislators. They draw up various sources enacts various types of legislators. They draw up various sources, enact legislation that may be useful for society.
Theories regarding the origin and development of law- So far we have studied the nature and the sources of law. Out of these sources, law, the custodian of human values, originates and develops. With the development of social structure man becomes conscious of his obligations for preserving those obligations, the law originates. Various social thinkers have come out with various views regarding the origin of Law. Some of the important schools regarding the origin and development of law are as follows –
(1) The American Neo-positivistic school- As the name itself indicates the thinkers of this school law have a positive science. According to this school, the human element is always present in the decisions of the court. Courts, therefore, decisions and laws are influenced by the socio-economic conditions and other conditions of the age. Law is, therefore, changing and dynamic. Their nature is more commercial than personal or hiştorical. The main object of the law is to decide the personal disputes than creating an ideal society. Jeromp Frank, Karllewclyn, Max Radin, etc., are the main exponent of this school.
(2) Upsala School-This school says that those actions and behaviors that go against the social norms are illegal. Legal behavior and action are those that are based on the realism of duty, fear of almighty, and consciousness about rights and duties. This school does not recognize that there is any distinction between rights and duties. According to this school, the rights and duties are one, and the law itself is no force, it only symbolizes the social forces. State according to these schools, is the highest creation of the power and it regulates the behavior of the members of the State. Hagerstrom Olevekrena Gigara etc., are the main exponents of this theory.
(3) The Philosophical School of origin and development of law- According to this school, political powers are the basis of law and it depends not on norms or ideals but on facts. According to Horbath law forces with the object is the mechanism of law. Law in fact is the need of the social forces. It is responsible for the behavior of the individuals. The state takes the last decision in the matter. Sehinlor, Horbath, Huntington, Kelsen, Koying, Hosartgcn, Roscopound, Jeromchall, Julium Stone, etc., are the main exponents of this theory.
(4) Anthropological School of Law- According to the exponent of this school, there was the law at every stage of socio-cultural development. Different societies have different laws according to religious concepts. These religious concepts and the resultant laws controlled and directed human behavior. Human ideas and behavior get transmitted from one generation to the other and so they become cultural patterns. In this manner, laws resort themselves to become inherent in human behavior and so observance of laws becomes their habit. These laws are responsible for the duties and they are also our custodians of fundamental rights.
(5) Emile Durkheim’s theory about the origin of Law- Emile Durkheim has also come out with his own theory about the origin and development of law. According to him, laws are the result of social environment and social condition. They are part of society which means that they have developed with the society. Durkheim has classified laws into two groups on the basis of the social unity or social integrity viz., : (1) Repressivc Laws, (2) Restitutive Laws.
(1) Repressive Laws- Repressive laws are to be found in a society that has mechanical solidarity. In such a society these laws are inspired by collective ideals, collective consciousness. In such a society no importance is attached to the situations or conditions of man. Laws are to be applied to all the persons in general and those who break the laws are known as delinquents and have suffered.
(2) Restitutive Law- Pestitutive laws are to be found in a society that has organic solidarity. In such a society individual has importance and is placed according to his special status or situation. In such a society laws although based on equity or justice had taken into account the special circumstances for the individual. Such laws are more to be seen in the field of family, business, and cooperative life.
(6) Max Weber’s theory about the origin of law-Max Weber has made a valuable contribution to the study of law from a sociological angle. According to him, the law is the basis of power and authority. This authority according to Weber is of three forms-
(a) Traditional, (b) Charismatic, (c) Constitutional or legal.
Max Weber said that a particular action is performed according to certain norms and ideals, a system organization is automatically borned. This system or organization has two aspects – (a) Customs and traditions.
(b) Law if somebody acts in a manner that is deviant from the prevalent customs and traditions, his action or behavior is rejected. It means that his behavior shall not get the social sanction. On the other hand, if any action deviates from the path of law, it is suppressed by power and authority. He has further that the present system of law in the various courts is the gift of modern society and civilization.
(7) Gurbitch’s theory of the origin of law- According to Gurbitch, the law is nothing but the result of interaction between philosophy and sociology. At every stage of socialization, there is a moral and factual basis. It is no this basis that the laws are framed and enacted. These morals, situations, or facts are based on the historical situation, cultural pattern, and social values of the society. Gurbitch, therefore, studies the ideals of law on the Plan of reality. He has further said that the laws are framed according to moral experiences, cultural ideology, and spiritual and Samuel experiences. He has been laws as a social institution and made a sociological study of it.
Types of Law- Having studied the origin and development of law, it is quite proper if we cast a glance at the kinds and types of law. Various social and political thinkers have classified law under various heads. Generally, the laws are of the following types-
(1) Constitutional Law- It means that on which the forms and functions are based. The state is itself guided by Constitutional Law. it is this law that determines the relationship between the State and the People. It acts as a check on the powers of the State. The State is prohibiting from transgressing the limits of the constitutional law
(2) Ordinary Law- It means the laws that are based on customs and traditions. Such laws are not enacted and framed by any legislature but develop as a result of customs and traditions and are accepted, by law courts.
(3) Public Law- Under this law all the rights, political and others, of the individual citizens, are described. It is on the basis of this type of law that the functions of the State are carried out. In short, it may be said that it is this law that runs the normal functioning of society.
(4) Private Law- It is that law on the basis of which the personal behaviors of the individuals are regulated and guided. These laws laid down and determined the rights and duties of individual citizens. Laws of contract, the law of torts, etc. are the laws of this type.
(5) National Law- All the laws that are classified under public law and private new formed the national law. All the laws that are prevalent within the limits of the territory of a nation are known as national laws. These laws are applied to all these citizens alike and they have been enforced by the sovereign authority of that State.
(6) International Law- The law on the basis of which the relationship between different nations is regulated and determined is known as International law. These laws are enacted neither by any State nor by any authority. They are based on mutual consent and goodwill. They are more voluntary than anything less.
(7) Administrative Law- Lawson basis of which the administration of government is run is known as administrative law. These laws laid down the regulations on the basis of which the administration shall be run, the Government employees shall act and the citizens shall be treated. It is this law that lays down the poverty of those who transgress the authority of the administrative law.
