This article has been written by Ms. Ayushi Notani, a 1st year BBALLB(HONS) student from Vivekananda Institute Of Professional Studies.
INTRODUCTION
Law is present in our daily lives and in everything we do.We cannot think a second without Law. Law is one of the most important elements that transform humans from mere beasts into intelligent and special beings. Law tells us what is right and wrong how we,humans, should act to achieve a peaceful society while enjoying individual freedoms.
DEFINITION OF LAW BY VARIOUS JURISTS
- JOHN AUSTIN (ANALYTICAL SCHOOL)=He is the Father of English Jurisprudence. According to him,”Law is the command given by politically superior(king) to politically inferior(people).” He developed logically a structure of legal system in which he gave no place to values, morality and justice.
- JEREMY BENTHAM(ANALYTICAL SCHOOL)= According to him only those laws should be approved if the laws are increasing the happiness and it should be disapproved if they are increasing pain.
- H.L.A HART(ANALYTICAL SCHOOL)= According to him law and morality correlate with each other. There should be some content of morality. According to him, the law consists of primary and secondary rules.
- SAVIGNY(HISTORICAL SCHOOL)= Law is the product of general consciousness of people. It mainly deals with customs followed by different communities and spirit of people. It does not come from deliberate legislation, it comes from the will of the people.
- SIR HENRY MAINE(HISTORICAL SCHOOL)= He concluded that development of law is similar in all societies. Law must change according to changing needs of the society.
- ROSCOE POUND(SOCIOLOGICAL SCHOOL)= Laws should be used for the welfare and development of the society. Law should be used to solve the problem of the society.Laws should be used for creating balance and harmony in the society.
- EHRLICH(SOCIOLOGICAL SCHOOL)= Acording to him, society is the centre point. Law is derived from activity and action of the people.According to him there are two laws living law and formal law. Living law is derived from the activities of the people and formal law is made by the legislature.
- L.L FULLER(NATURAL SCHOOL)= According to him, Law is linked with morality. Law must be communicated to the people. It should be clearly stated.Body of law should be free. It should be constant, no day to day changes. New laws must be applied in a prospective manner.
FUNCTIONS OF LAW
Functions of Law have been changing with time and pace. Law set the standard in which we should live in if we want to be a part of society. Law set up rules and regulations for society so that we can enjoy freedom, give justice. They also depend upon nature of state where the law is applied. However, at present in a welfare and democratic country, there are several important functions of law that are as follows-
- To run society in a proper way
- Welfare of the citizens
- What to do and what not to
- Upliftment
- Make just society
- Rules and regulations
- Lay down procedures
- Basic principle
- Maintain discipline
- Make society livable place
- Regulates conduct of citizens
- Rights are protected
- Deliver justice
- Control of political system
- Protection of fundamental rights
TYPES OF LAW
1)MUNICIPAL LAW=It is the law of state regulating the conduct of individuals and ideal with the relation between individual and state. It is of command and sanction. It is a centralized acting horizontally.Will of the state empowered by sovereign authority.Stronger law.
2)INTERNATIONAL LAW=It is the law of nations, regulating the relations between member states of the family of nations. It is nature of consent and consensus. It is a centralized acting vertically. Common will of the states.Weak Law.
3)PUBLIC LAW=It deals more with issues that affect the general public or the state itself. Penal sanctions are more severe. Ensures the public interest of the general population.
4) PRIVATE LAW= It focuses more on issues affecting private individuals or corporation. Private entities or organization are the main parties involved. Sanction usually include the payment of damages. Secure private interests and freedom of the individuals.
5) PROCEDURAL LAW=It regulates the affairs inside the court.It governs the institution and prosecution of civil and criminal proceedings. It regulates the conduct and relations of courts and litigants in respect of litigation.
6) SUBSTANTIVE LAW= It regulates the affairs outside the law. It defines the right and the remedy. It determines the conduct and relations of the parties in respect of litigation.
7)CIVIL LAW= Less grave than criminal. Infringement of private right. It creates a private liability against an individual or an organization. It deals with acts related to individuals which harm caused can be repaid by compensation or monetary relief.Eg- Negligence, Tresspass etc.
8) CRIMINAL LAW= More grave than civil law. Infringement of public right. It creates a liability for the preparatory against society and the victim. It deals with a crime that causes damage to a person which is an offence against society as well. The relief of crime committed is to charge the person with imprisonment.
9) COMMON LAW= Common law is not codified. The main source of common law is judicial precedents or case laws. Judges make rulings, set precedents and moderate between the conflicting parties.
LAW AND MORALITY
LAW= It is a set of rules and regulations that are created and are enforceable by social or governmental institutions to regulate behaviour. The law is deliberately changed by Parliament and/or the courts.Sanctions are invariably imposed for violations of legal obligations.Law must be followed as necessary for proper functioning of society.
MORALITY= It is a body of system of values and principles derived from the code of conduct. Morals cannot be intentionally changed, rather it develops slowly. There is no official sanction for unethical behaviour. Being good in itself that why people follow them.
SOURCES OF LAW
- CUSTOM= Custom in law is the established pattern of behaviour that can be objectively verified within a particular social setting. It is a habitual course of conduct observed uniformly and voluntarily by the people.The birth and growth of custom is attributed to natural consequence of organized living of people.To trace the origin of custom is to trace the origin of society itself. It has its roots. Custom did not take origin from any legislative assembly or council. It is recognized as a major source of law . Custom grows up gradually in any households and daily relations. According to Judicial Committee of India custom is a rule which in particular family or district , class or tribe has form long usage obtained force of law.Some of the essential conditions that are required in order to validate a custom are given- Reasonability, Must not be opposed to public policy, Custom must be peaceful in its practice, Must be general or universal, Certainity etc.
- PRECEDENT=Precedents is a judgement of a court of law in India which is cited as an authority to decide a similar set of facts which can be used by courts for future decision making. Precedents which are enforceable by law are called judicial precedents. In every country, there is one supreme authority who has exclusive judicial power and whose declared law is binding upon all other courts . In india, Supreme Court is having such authority. Article 141 of the Indian Constitution makes it clear that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The High Court is the highest tribunal of the State. The decision of the High Court are binding on all the subordinate courts.
- LEGISLATION= The term legislation is derived from two latin words- legis meaning law and latum meaning to make, put or set. Legislation means the making or the setting of law.Legislation as a source of law is a very strict conceot according to which only the law making by an authorized body or defined person will be ermed as legislation. Legislation as a source of law is gaining more and more importance in modern times. Historically also legislation has always been recognized as an important source of law as compared to other sources.
CONCLUSION
It can be implied by common sense that law helps us to survive as a society and it is convenient. Convenient is comfortable and humans look for comfort above all things apart from happiness. Also law helps in getting rid of the social barriers that exist in our society.Through law e survive yet thrive. Hence, law is necessary in a society.
REFERENCES
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