NATURE & SIGNIFICANCE OF LAW
The theory or the philosophy of law is called Jurisprudence. The word "Jurisprudence' comes from the Latin word 'Juris prudentia' which means the skill of law. Law is a dynamic subject that changes with the changing socio-economic and political conditions of a society. Law is used in two senses, namely, abstract and concrete sense. Law in an abstract sense (jus) means the system of law (law of any country, law, and justice). Law in a concrete sense means any particular statute or enactment (e.g. Indian Penal Code, 1860, Indian Evidence Act, 1872).
Different Jurists and thinkers have defined and analyzed the nature of the law differently. According to John Austin, "Law emanates and is enforced by the State. He firmly believed that there is a confluence of command, sanction, and sovereignty in law". According to Salmond, "Law as the body of principles, recognized and applied by the State, in the administration of Justice". According to Duguit, "Law is essentially a social fact which regulates the conduct of each individual in the community. According to Hegel, "It is the abstract expression of the general will be existing in and for itself."
Law has been classified differently by different thinkers. According to the eminent jurist Salmond, laws are of nine different kinds which are as follows---
> Imperative Law: These are rules which prescribe a general course of action imposed by some authority which enforces it by superior power either by physical force or any other form of compulsion. The command of the superior must be generally enforced by some authority. The observance of law does not depend upon the pleasure of the people. Austin was an exponent of this kind of law.
> Scientific laws: These are uniform laws of nature which are not subject to any changes. These laws are characterized by regularity and uniformity—E.g. Law of motion, the law of gravity, etc.
> Natural/Moral laws: These are universal & eternal laws. These laws embody the principle of natural justice. These laws are based on principles of right and wrong and are rational because they are based on reasons.
> Conventional laws: According to Salmond, conventional laws means 'any rule or system of rules agreed upon by person for the regulation of their conduct towards each other'. It is a form of a special law. For instance, the rules of a club or a cooperative society are conventional laws.
> Customary law: Customary laws are all the practices that are prevalent in society from time immemorial. Positivist does not consider customs as a proper law but regards them only as a source of law. Whereas jurists of historical schools have recognized customary laws more superior to the laws of the state.
> Practical or technical law: Practical laws are rules meant for a particular sphere by human activity. The laws of sanitation and health, building construction and architecture, etc. may be included in this category.
> International law: According to Jeremy Bentham "the law of nations of the 18th Century which consists of rules which regulate relations between the state's interest was named as International law". According to Oppenheim "International law is the body of customary and conventional rules which are considered legally binding by civilized states in their intercourse with each other.
> Prize Law: The portion of international law which regulates the practices of the capture of ships and cargo in wartime as applied by the courts is called 'prize law'. It is meant for administering justice between the captors of ships or cargos and the persons interested in the property seized.
> Civil law: Civil law is derived from the Roman word 'jus civile'. The law enforced by the state is called civil law. The force of the state is the sanction behind the law. Civil law is essentially territorial as it applies within the territory of the state concerned.
According to Holland, Law has been classified into five categories:
> Private & Public Law: Public laws are those which deal with the relationships between a person and the state. E.g. Constitutional law, criminal laws. Private laws deal with relationships of person and person—E.g. contracts, torts, etc.
> General & Special laws: General laws are those laws which have general application within the territory of a country. Indian Penal Code, Constitution of India are examples of general laws. Apart from these, there is another category known as 'jus special' which means special laws like Tamil Nadu Gambling Act, Assam land laws, etc.
> Substantive & Procedural Law: Substantive law is concerned with the ends which the administration of Justice seeks to achieve whereas procedural laws deal with means by which the ends can be achieved. According to Salmond "Substantive law deals with right whereas procedural laws deal with remedies" Indian Penal Code is an example of Substantive law, and the Criminal Procedure Code is an example of Procedural law.
> Antecedent law & Remedial law: Antecedent law relates to independent specific enforcement without any resort to any remedial law. The law relating to specific performance of the contract is an example of antecedent law. The remedial law, on the other hand, provides for a remedy. Law of tots is an example of remedial law.
> Law in Rem & Law in Personem: Law in Rem means enforcement of rights of a person against people general whereas Law in Personem means enforcement of rights against a particular person.
A law generally derives its source from any of the important sources which include Custom, Precedents, and Legislations.
> Customs: Customs are practices of people in doing certain things in a certain way that are not consciously formed. Customs are of two kinds legal customs and conventional customs. A valid legal custom is much stronger than a conventional one because its existence is from time immemorial, whereas a conventional custom is a mere usage. There are certain essentialities to verify the validity of a custom:
1. The existence of custom should be from time immemorial.
2. Customs should not be unreasonable in the eyes of law. It should not be inconsistent with the existing legislative enactment.
3. Customs should be an obligatory or a binding rule and if left to individual choice cannot be regarded as customary law.
4. The element of consent should be there, which is free from force or coercion.
> Precedent: Judicial Precedents are a statement of law embodied in the decision of the superior courts which are followed by the court and courts subordinate to it. In the English legal system, it is an essential feature because most of the laws are unwritten and owes its origin to judicial precedents. Judicial precedents are either authoritative or persuasive. Authoritative precedents are binding force, and a judge is bound to follow it whether he approves it or not. Persuasive precedents are those which are not obligations to follow, but a judge may consider those. Foreign Judgements, Judgement of Privy Council as Court of Appeal from colonies, Judicial dicta are kinds of Persuasive Precedents.
> Legislation: Legislation is another important source of law. Legislation which is derived from two Latin words 'legis' and 'latum' which means law and to make/set respectively. Legislation, therefore, means lawmaking. It connotes the will of the legislature. The legislation is divided into two categories- Firstly, Supreme Legislation & Secondly, Subordinate Legislation. Supreme legislation is those which are proceeded from the supreme authority of a State. Whereas subordinate legislation has proceeded from any subordinate authority which includes executive legislation (laws/bylaws/ordinances framed by administrative authorities), judicial legislations (judicial order/decree), municipal legislation (bylaws for water tax, urban land cess, etc.), Autonomous legislation (laws framed by autonomous bodies like universities, corporations, etc.).
Law has become an essential medium for every civilized nation. Every nation has set its laws or framed its rules based on the general principles of Jurisprudence. In the present day context, no matter whether a nation has a written or unwritten Constitution, but Constitutionalism has become the basic element symbolizing the development of a nation. (Constitutionalism is the noble idea associated with the legal theories of John Locke which refer to a limited government, freedom from the arbitrary rule). Constitutionalism ensures maximum enjoyment of rights for its citizens, encourages the rule of law, and also promotes an accountable & transparent government. Undoubtedly, our country's lengthiest Constitution is pride, but at the same time, it is equally important for us to ensure that the essence of Constitutionalism in our country is not threatened by any means.
References:
Tripathi, Dr B.N Mani, (1968) Jurisprudence, 17th Edition, Allahabad Law Agency, 2006
