LAW

Law is one of the central products of politics and the prize over which many political struggles are
waged. State is sovereign. Sovereignty is its exclusive and most important element. It is the supreme
power of the state over all its people and territories. The State exercises its sovereign power through its
laws. The Government of the State is basically machinery for making and enforcing laws. Each law is a
formulated will of the state. It is backed by the sovereign power of the State. It is a command of the State
(sovereign) backed by its coercive power. Every violation of law is punished by the State. It is through its
laws that he State carries out its all functions.

The word ‘Law’ has been derived from the Teutonic word ‘Lag, which means ‘definite’. On this
basis Law can be defined as a definite rule of conduct and human relations. It also means a uniform rule
of conduct which is applicable equally to all the people of the State. Law prescribes and regulates general
conditions of human activity in the state.

1. “Law is the command of the sovereign.” “It is the command of the superior to an inferior and force is the
sanction behind Law.” Austin

2. “A Law is a general rule of external behaviour enforced by a sovereign political authority.” -Holland

In simple words, Law is a definite rule of behaviour which is backed by the sovereign power of the
State. It is a general rule of human conduct in society which is made and enforced by the government’
Each Law is a binding and authoritative rule or value or decision. Its every violation is punished by the
state.

Features of Law

Law has the following features:

1. Law is a general rule of human behaviour in the state. It applies to all people of the state. All
are equally subject to the laws of their State. Aliens living in the territory of the State are also bound by
the laws of the state.

2. Law is definite and it is the formulated will of the State. It is a rule made and implemented by
the state.

3. State always acts through Law. Laws are made and enforced by the government of the State.

4. Law creates binding and authoritative values or decisions or rules for all the people of state.

5. Sovereignty of State is the basis of law and its binding character.

6. Law is backed by the coercive power of the State. Violations of laws are always punished.

7. Punishments are also prescribed by Law.

8. The courts settle all disputes among the people on the basis of law.

9. In each State, there is only one body of Law.

 10. Legally, Law is a command of the sovereign. In contemporary times laws are made by the
representatives of the people who constitute the legislature of the State. Laws are backed by on public
opinion and public needs.

11. The purpose of Law is to provide peace, protection, and security to the people and to ensure
conditions for their all round development. Law also provides protection to the rights and freedoms of the
people.

12. All disputes among the people are settled by the courts on the basis of an interpretation and
application of the laws of the State.

13. Rule of law, equality before law and equal protection of law for all without any discrimination,
are recognised as the salient features of a modern legal system and liberal democratic state.

Development of Law

A historical survey of the manner in which legal principles have developed will add clearness to
our knowledge of state evolution and will further explain the nature of law. In the static civilizations of early
times law was viewed as something permanent and immutable, like the “law of the Medes and Persians.
The conservatism of tradition and the belief in divine sanction gave a fixity to law which made change
difficult.

But no set of customs is satisfactory to the needs of a changing civilization hence old laws
required modification, and new laws had to be created. Such changes were accomplished mainly by the
following means:

 Conquest:

The mingling of customs resulting from conquest and subjugation resulted in the suppression of
some and the modification of others. This process of assimilation took place wherever various peoples
came into contact.

 Interpretation:

New generations do not always interpret old customs in the same way as their ancestors, and
those who enforced the accepted traditions frequently exercised discretionary powers that modified the
earlier rules. Legal fictions of various kinds were often created to modify ancient laws that worked
injustice. The opinions of learned men who made a special study of the law were given particular weight
in its interpretation. When a special judicial department arose, its decisions became of prime importance
in interpreting the law, and the courts became in actual fact lawmaking bodies. They adjusted the existing
law to individual cases and found new legal principles for cases where no law existed.

 Codification:

When written law replaced the earlier traditional, customary rules, codes were often drawn up.
Sometimes these were intended to make the law more definite, sometimes to reconcile the conflicts of
rival interests and customs, sometimes to adjust the law to changing conditions in the state, sometimes to
harmonize the conflicting rules and interpretations that had accumulated during a long period. For
whatever reason created, the great codes of law modified the earlier legal system by the omission or
alteration of earlier rules and by the addition of new provisions. The jurists who prepared the code
consciously or unconsciously wrote many of their own legal ideas into it. Once made, the code acquired a
certain sanctity, and further development took place through its interpretation.

 Administration:

With the growth of governmental machinery, the executive department developed a power that
amounted to the formulation of new law. By issuing decrees and ordinances the heads of the state filled in
the details of law and adjuster it to new conditions. Dictators, set up in time of war or crisis, frequently
found it necessary to break with the old customs and to formulate new regulations. In this way executives
gradually assumed the right to modify ancient customs and to make new laws when needed.

 Legislation:

In the fully developed state a special lawmaking organ appears which no longer pretends to
interpret existing law, but which baldly proclaims that it is formulating new law. With the growth of its
powers the old idea that the law is a fixed system was replaced by the idea that the duty of the state is to
create new law whenever social needs demand it. Legislation became the chief function of the state, and
this process of lawmaking gradually superseded all the others. The executive and judicial departments,
more important in the earlier states, were reduced to the position of agents of the legislature, which to a
large degree exercised the sovereign power of the state.

Sources of Law:

1. Custom:

Custom has been one of the oldest sources of law. In ancient times, social relations gave rise to
several usages, traditions and customs. These were used to settle and decide disputes among the
people. Customs were practiced habitually and violations of customs were disapproved and punished by
the society. Initially social institutions began working on the basis of several accepted customs.

Gradually, the State emerged as the organised political institution of the people having the
responsibility to maintain peace, law and order; naturally, it also began acting by making and enforcing
rules based upon customs and traditions. In fact, most of the laws had their birth when the State began
converting the customs into authoritative and binding rules. Custom has been indeed a rich source of
Law.

2. Religion and Morality:

Religion and religious codes appeared naturally in every society when human beings began
observing, enjoying and fearing natural forces. These were accepted as superior heavenly forces (Gods
and Goddesses) and worshiped.

Religion then started regulating the behaviour of people and began invoking “Godly sanction”,
“fear of hell”, and “possible fruits of heaven”, for enforcing the religious codes. It compelled the people to
accept and obey religious codes. Several religions came forward to formulate and prescribe definite
codes of conduct. The rules of morality also appeared in society. These defined what was good & what
was bad, what was right and what was wrong. The religious and moral codes of a society provided to the
State the necessary material for regulating the actions of the people. The State converted several moral
and religious rules into its laws. Hence Religion and Morality have also been important sources of Law.

3. Legislation:
 Since the emergence of legislatures in 13th century, legislation has emerged as the chief source
of Law. Traditionally, the State depended upon customs and the decrees or orders of the King for
regulating the behaviour of the people. Later on, the legislature emerged as an organ of the government.
It began transforming the customary rules of behaviour into definite and enacted rules of behaviour of the
people.

The King, as the sovereign, started giving these his approval. Soon legislation emerged as the
chief source of law and the legislature got recognition as the Legal Sovereign i.e. law-making organ of the
State. In contemporary times, legislation has come to be the most potent, prolific and direct source of law.
It has come to be recognized as the chief means for the formulation of the will of the State into binding
rules.

4. Delegated Legislation:

Because of several pressing reasons like paucity of time, lack of expertise and increased demand
for law-making, the legislature of a State finds it essential to delegate some of its law-making powers to
the executive. The executive then makes laws/rules under this system. It is known as Delegated
Legislation. Currently, Delegated Legislation has come to be a big source of Law. However, Delegated
Legislation always works under the superior law-making power of the Legislature.

4. Judicial Decisions:

In contemporary times, Judicial Decision has come to be an important source of Law. It is the
responsibility of the courts to interpret and apply laws to specific cases. The courts settle the disputes of
the people in cases that come before them. The decisions of the courts – the judicial decisions, are
binding on the parties to the case. These also get accepted as laws for future cases. But not all judicial
decisions are laws. Only the judicial decisions given by the apex court or the courts which stand
recognized as the Courts of Record, (like the Supreme Court and High Courts of India) are recognized
and used as laws proper. Lower Courts can settle their cases on the basis of such judicial decisions.

5. Equity:

Equity means fairness and sense of justice. It is also a source of Law. For deciding cases, the
judges interpret and apply laws to the specific cases. But laws cannot fully fit in each case and these can
be silent in some respects. In all such cases, the judges depend on equity and act in accordance with
their sense of fair play and justice. Equity is used to provide relief to the aggrieved parties and such
decisions perform the function of laying down rules for the future. As such equity acts as a source of law.

6. Scientific Commentaries:

The works of eminent jurists always include scientific commentaries on the Constitution and the
laws of each state. These are used by the courts for determining the meaning of law. It helps the courts to
interpret and apply laws. The jurists not only discuss and explain the existing law but also suggest the
future possible rules of behaviour. They also highlight the weaknesses of the existing laws as well as the
ways to overcome these. Interpretations given by them help the judges to interpret and apply Laws to
specific cases.

The works of jurists like, Blackstone, Dicey, Wade, Phillips, Seeravai, B.Pi. Rau, D.D. Basu and
others have been always held in high esteem by the judges in India. Scientific commentaries jurists
always help the development and evolution of law. Hence these also constitute a source of law. Thus,
Law has several sources. However, in contemporary times law-making by the legislature constitutes the
chief source of Law?

Types of Law:

There are two main kinds of Law:

(i) National Law i.e. the body of rules which regulates the actions of the people in society and it is
backed by the coercive power of the State.

(ii) International Law i.e. the body of rules which guides and directs the behaviour of the states in
international relations. It is backed by their willingness and consent that the states obey rules of
International Law. It is a law among nations and is not backed by any coercive power.

National Law is the law by which the people are governed by the state. It stands classified into
several kinds:

1. Constitutional Law

2. Ordinary Law:

It is stands classified into two sub types:

2 (a) Private Law

2(b) Public Law:

It stands again sub-divided into two parts:

2(b) (i) General Public Law

2(b) (ii) Administrative Law

1. Constitutional Law:

Constitutional Law is the supreme law of the country. It stands written in the Constitution of the
State. The Constitutional Law lays down the organisation, powers, functions and inter-relationship of the
three organs of government. It also lays down the relationship between the people and the government as
well as the rights, freedoms (fundamental rights) and duties of the citizens. It can be called the Law of the
laws in the sense all law-making in the State is done on the basis of powers granted by the Constitutional
Law i.e. the Constitution.

2. Statute Law or Ordinary Law:

It is also called the national law or the municipal law. It is made by the government (legislature)
and it determines and regulates the conduct and behaviour of the people. It lays down the relations
among the people and their associations, organisations, groups and institutions. The legislature makes
laws, the executive implements these and judiciary interprets and applies these to specific cases.