It is well known that law
being a dynamic concept, it changes with the
evolution of society under different socio-economic and political conditions.
The rapid changes in modern times have given rise to new problems and issues
which are to be tackled by law through pragmatic approach in interpreting law.
While doing so, the modern jurisprudence has to take into consideration the
social ethos and changing patterns of the society which immensely widen its
scope as a science of law.
Nature of Law
The term law
is used in two senses, namely, in abstract and concrete sense.
The term 'law' when used in abstract sense means the system of law, such as the
law of India, the law of defamation, law and justice etc. The law in its
concrete sense means a statute, enactment, ordinance or other exercise of
In the abstract sense, we speak of 'law' or 'the law' whereas in concrete sense,
we speak 'a law' or 'of laws'. Abstract law is 'jus' while concrete law is 'lex'.
It is therefore, obvious that 'the law' and 'a law' are not identical in nature
Definitions of Law
According to Austin, "Law emanates and is enforced by the State. He firmly
believed that there is a confluence of command, sanction and sovereignty in
According to Hegel, "It is the abstract expression of the general will existing
in and for itself."
According to Savigny, "The rule whereby the invisible borderline is fixed within
which the being and the activity of each individual obtains a secure and free
space." He said that law grows with the growth of people, strengthens with the
strength of people and finally dies away as the nation loses its nationality.
According to Ihering, law emphasises on two basic elements, namely social
control and social purpose. In his view "Law is the form of gurantee of the
conditions of life in society, assured by state's power of constraint."
According to Friedmann, "The law consists of norms of conduct set for a given
community and accepted by it as binding by an authority equipped with the power
to lay down norms of a degree of general application to enforce them by a
variety of sanctions."
According to Duguit, '"Law is essentially a social fact which regulates the
conduct of each individual in the community."
According to Parker, "Law is the body of principles enforced and applied by the
state through judicial authorities by physical force in pursuit of justice."
According to Salmond, "Law as the body of principles, recognised and applied by
the State, in the administration of justice."
Classification of Law by Different Thinkers
Different thinkers like Salmond, Austin and Holland have classified law into the
number of categories.
There classification is as follows:
Salmond's Classification of Law
Salmond has given an exhaustive classification of laws. He has referred to nine
kinds of laws, which are as follows:
Austin's Classification of Law
- Imperative Law:
It means "a rule which prescribes 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." 'Austin' was the main exponent of
imperative theory of law, which defines law as a command of the sovereign which
persons are obliged to obey. It may be either divine or human.
The human laws
may be of three kinds-civil law, law of positive morality and law of nations
which is also called 'International law'. Civil law consists of commands issued
by the State to its subjects and enforced by its physical power. The law of
positive morality consists of rules imposed by society upon its members and
enforced by public ridicule or disapprobation. International law consists of
rules imposed upon State by the society of States and enforced partly by
international option and partly by the threat of war. Imperative law has two
Firstly, the command of the sovereign must be general and
addressed to a particular person, secondly, the observance of law must not
depend upon the pleasure of people, but it should be enforced by some authority.
- Physical or Scientific Law
Physical laws are laws of Science which are expressions of the uniformities of
nature. There is perfect uniformity and regularity in these laws and are not
subject to change. For example, law of gravity, law of motion, law of
- Natural or Moral Law
Natural law is based on the principles of right and wrong. It includes all forms
of righteous action. Natural law has also been called universal law or eternal law.
It is also called 'rational law' because it is based on reason. It embodies
the principles of morality and is devoid of any physical compulsion. Hugo Grotius made use of natural law to formulate International law.
writers who based their legal philosophies on natural law principles are
Aristotle, Cicero, Kant, Locke, Pufendorf, etc. Natural law embodies the
principles of natural justice of which legal justice is more or less imperfect
expression. Legal justice and natural justice represent two intersecting
circles, i.e. justice may be legal but not natural or moral or it may be moral
but not legal or it may be both legal and moral.
The three consequences of
natural law are as follows:
- It is in a position to render a human law void if it is repugnant to
- During medieval period, natural law helped in development of judicial
and legal process. Natural rights of an individual acquired great importance
in this period.
- It has given strength to the international law to develop as a law.
- Conventional Law
According to Salmond, conventional law means, "any rule or system of rules
agreed upon by persons for the regulation of their conduct towards each
It is a form of special law. For example, rules of a club or a co-operative
society or any voluntary organisation are instances of a conventional law.
According to some writers, law of nations which we call as International law is
also a kind of conventional law because its principles are expressly or
impliedly agreed upon by the member States.
- Customary Law
There are many customs which have been prevalent in the community from time
immemorial even before the states came into existence. They have assumed the
force of law in course of time.
According to Salmond:
any rule of action which
is actually observed by men when a customs is firmly established, it is enforced
by the state as law because of its general approval by the people."
the whole of Hindu law of marriage, adoption, succession etc is based on customs
prevalent in ancient Hindu society. There is a difference of opinion among
jurists about the authority of custom as a law. Some regard it as a proper Jaw
while others treat it simply as a source of law.
Particularly, the positivists
do not accept custom as a proper law but treat it only as a source of law. But
historical jurists like Savigny and Henry Maine have recognised customary law as
far more superior to the law 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
The law of nations of the 18th century was named as International law by Bentham in
1780. It consists of rules which regulate relations between the states inter se.
According to Oppenheim, "International law is the body of customary and
conventional rules which are considered legally binding by civilised states in
their inter course with each other." The Permanent Court of International
Justice (PCIJ) in SS Lotus case defined International law as:
are in force between all independent nations."
According to Starke,
International law is defined as "Rules of conduct which States feel themselves
bound to observe and therefore do commonly observe in their relations with each
other, and which also includes:
- the rules of law relating to functioning of international institutions
and organisations, their relations with each other and their relations with states
- certain rules of law relating to individuals so far as the rights and
duties of such individuals are the concerns of the international community.
According to Russel, International law is defined as, "the aggregate of the
rules to which the nations have agreed to their conduct towards one another." Salmond,
however, believes that "International law is essentially a species of
conventional law and has its source in International agreements."
According to Austin, Willoughby and Holland, International law is a mere
positive morality. They do not agree that it is law properly
so-called. Austin defines law as a body of rules for human conduct set and
enforced by a sovereign political authority. In the absence of any binding
force, the validity of International law is solely dependent on the voluntary
acceptance by the States and therefore, it cannot be called as 'law' in true
sense of the term.
Holland also supports to this view of Austin and observes,
"The rules of international law are voluntary, though habitually observed by
every State in its dealings with the rest, can be called 'law' only by
courtesy, Oppenheim defends international law as 'law' and says a Weak law
nevertheless is still a law."
Professor Dias suggests that there is no doubt,
that the respect which States pay to international law is far less than what
individuals pay to municipal law, but still it is called 'law' to inspire a
sense of obligation among States to follow it. Therefore, it is 'law', but
indeed a weak law.
According to Harold Laski, "States consent to the rules of
International law not because they so choose but really because they have no
alternative." In Great Britain, International law is not ipso facto regarded as
a part of the UK law as held by Chief Justice Coleridge in Franconia case.
- Prize Law
That portion of International law which regulates the practices of the capture
of ships and cargo in wartime, as applied by 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. Salmond, however, disagreed with the
view that prize law should be regarded as a branch of International law in
strict sense of the term.
- Civil Law
The law enforced by the state is called 'civil law'. The force of state is the
sanction behind this law. Civil law is essentially territorial in nature as it
applies within the territory of the state concerned. The term 'civil law' is
derived from the Roman word 'jus civile', Austin and Holland prefer to call
civil law as 'positive law' because it is, enforced by the sovereign political
authority. However, Salmond justifies the term 'civil law' as the law of the
John Austin has classified law into following categories: Divine Law and Human
Positive moralities which are rules set by non-political superior e.g.
international law. Law metaphorically or figuratively so-called.
Austin regards only divine law and human law as proper law but does not consider
positive morality and figurative law as law in real sense of the term as they
lack binding force in the absence of a sanction and no evil consequences follow
in the event of their breach or infringement.
Holland's Classification of Law
Holland classified law according to their functions. He classified law into
Sources of Law
- Private and Public Law
Statutes are of two kinds, namely, public and private. The distinguishing
features of a public act is that judicial notice is taken about its existence.
On the other hand, private is one which does not fall within the ordinary
cognizance of the courts of justice and will not be applied by them unless
specially called to their notice. The province of private law is the adjustment
of relations between person and person, whereas the public law deals with
relationship between person and the state. In case of private law, the parties
to a case may either be natural or artificial persons and the state only acts as
an arbiter through its courts. The laws of property, contracts, corporations,
torts, trusts etc are examples of private law. Public law, on the other hand,
seeks to regulate the activities of the state.
The important sub-divisions of
public law are:
- Constitutional law
- Administrative law
- Criminal law
- Criminal procedure.
Broadly speaking, public law deals with the rights and obligations of the state
towards its citizens and vice versa. Private and public law, taken together are
called 'municipal law'. In public law, state is an interested and enforcing
party whereas in private law, state is only the enforcing authority.
- General and Special Law
The territorial law of a country is called 'General law'. It consists of all
persons, things, acts and events within the territory of a country which are
governed by it. For example, Indian law of crimes and law of contracts are the
general laws of the country because they have general application throughout the
territory of India. General law consists of those legal rules of which the
courts take judicial notice whereas the special law consists of those legal
rules which courts will not recognise and apply them as a matter of course but
which must be specifically proved and brought to the notice of the courts by the
Salmond has rightly pointed out that the true test of distinction between the
general law and special law is judicial notice. Besides the general law, there
are certain kinds of special laws which the court are bound to know. They are
called 'jus specile'. The maxim 'ignorantia juris non excusat' applies to
special laws in the same way as it applies in case of general laws.
The examples of special laws are the Bombay Prohibition Act, The Maharashtra
Ownership of Flats Act, Tamil Nadu Gambling Act, The Calcutta Police Act etc.
There are several kinds of special laws, namely:
- Local law
- foreign law
- conventional law
- autonomic law
- martial law
- International law
- mercantile law etc.
- Substantive and Procedural Law
According to Salmond, substantive law is that which defines a right while
procedural law determines the remedies. Procedural law is also called 'law in
action' as it governs the process of litigation. Substantive law is concerned
with ends which the administration of justice seeks to achieve while procedural
law deals with the means by which those ends can be achieved. For example, Law
of Contract, Transfer of Property Act, Negotiable Instrument Act, crimes etc.
are substantive laws whereas the civil procedure or criminal procedure is
- Antecedent and Remedial Law
Antecedent law relates to independent specific enforcement without any resort to
any remedial law. The law relating to specific performance of a contract is the
best example of antecedent law. The remedial law, on the other hand provides for
a remedy. For example, law of torts, writs etc. come within the category of
- Law in Rem and Law in Personam
Law in rem relates to enforcement of rights which a person has against the whole
world or against the people if general, whereas law in personam deals with
enforcement of right available against a definite person or persons. For
example, law of inheritance, succession, ownership etc comprise the subject
matter of law in rem while the law contract, trust etc.
In the modern Jurisprudence the term 'sources of law' is broadly used in two
senses. Sometimes it is used in the sense of state or the sovereign from which
the law derives its force and validity. In other sense, it is used to denote the
causes of law or the contents or matter of which law is composed. Dr C K
Allen asserts that the true sources of law are agencies through which the rules
of conduct acquire the character of law because of their certainty, uniformity
and binding force.
According to Fuller, the 'sources of law' includes the
material from which the Judge obtains rules for deciding cases. In this sense,
it includes statutes, judicial precedents, customs, opinions of legal experts,
According to natural law philosophers, the 'law' has a divine origin. It is a
gift of God contained in Holy Books. Vedas and Smritis are sources of law
according to Hindu Jurisprudence as they have originated from the sages. In the
same manner, Quran is the word of God and therefore, a positive source of Muslim
law. The Hadis contains the precepts of the Prophet as inspired and suggested by
John Austin, the exponent of analytical school of Jurisprudence refers to three
different meanings of the term 'sources of law'
- Firstly, the term refers to the authority from where the law emanates, namely,
- Secondly, it may refer to historical material from which the existence of rules
of law may be known, e.g. the Code of Manu, Commentaries of Yajnavalkya, Code of
- Thirdly, the term sometimes refers to the causes which give the rules of
society, the force of law e.g. legislation, custom, equity, law etc.
Thus, Austin's three meanings, of 'sources of law' may include:
- direct authority;
- historical documents; and
Duguit rightly pointed out that law is not derived from any single source and
the real basis of law is public service.
Ehrlich writes, "At present as well as any other time, the centre of gravity
of legal development lies not in legislation, not in juristic science not in
judicial decisions, but in society itself."
According to Salmond, "Legal sources are those sources which are recognised
as such by the law itself, while historical sources are those sources which
lack formal recognition by the law. The legal sources of law are
authoritative and historical sources are unauthoritative."
Kinds of Sources of Law
Some of the important sources of law are as follows:
Binding Force of Judicial Precedents
The term 'custom' has been defined in the Webster's New International Dictionary
as a long established practice considered as in written law and resting for
authority on long consent, a usage that has, by long continuance has acquired a
binding force in law.
According to Herbert Spencer, "'before any definite agency for social
control is developed, there exists a control arising partly from the public
opinion of the living and more largely from the public opinion of the dead."
Thus, it is a tradition passing on from one generation to another that
originally governed human conduct. This tradition is called 'custom'.
According to Salmond, "Custom is to society what law is to the state. Each is
the expression and realisation to the measure of men's insight and ability of
the principles of right and justice."
Nature and Origin of Custom
Custom has its origin in the usage or practice of people in doing certain things
in a certain way and one of its characteristics is that it is not consciously
formed. Usage developing into customary law is the oldest form of law making and
in its early stages depends for its validity on willingness of those who
generally follow the usage to submit to it.
According to Holland, "Usage is the
spontaneous evolution by the people or part of them of rules of conduct, the
existence and general acceptance of which is proved by their regular
According to Savigny the main founder of German historical school,
"Custom is essentially a product of natural forces associated with popular
spirit of acceptance by the people. When people repeat the same action again and
again, it assumes the form of 'habit' and when habit continues to be in practice
for a long time, it becomes custom."
Kinds of Custom
It is not necessary that a custom should be practised all over the country.
There may be a custom which is practised authoritatively only in a particular
locality. Broadly speaking, there are two kinds of custom, namely, legal
custom and conventional custom.
According to Salmond, a legal custom is one which is operating per se as a
binding rule of law, independently of any agreement on the part of those subject
to it. A legal custom is one whose authority is absolute. A conventional custom
is one which operates only indirectly through medium of agreements, whereby it
is accepted and adopted in individual instances as conventional law between the
Conventional custom is one whose authority is conditional on its acceptance and
incorporation in agreements between the parties bound by it. Usually
conventional custom is referred as usage and legal custom as custom simpliciter.
A valid legal custom should have existed from time immemorial; such antiquity
is, however, not needed to support the validity of usage. Conventional customs
are implied, if they are not in conflict with the general law of the land. In
case of conflict, however, such usage may be made applicable by the express
agreement between the parties.
Legal customs are of two kinds, namely, local
custom and general custom. A local custom is a usage which has obtained the
force of law and is binding within a particular area. In practice, a plaintiff
or defendant relying upon a local custom must plead it and give particulars of
Essentials of a Valid Custom
The custom must have existed since time immemorial. The custom must have been
continuously in operation without any interruption. This does not mean that
custom should have been continuously exercised but that at all times, it must
have been possible to exercise it lawfully. If it were legally unenforceable for
even a short time it would not be recognised as a valid custom. The custom must
have been exercised peaceably, openly and as of right.
The basis of custom is
that it is exercised by consent and any secret or forciable exercise cannot be
with consent. Furthermore, an exercise of a right which depends on the granting
of permission cannot be a valid custom, for clearly, if there had been a right,
permission would have been necessary. The custom must not be unreasonable in the
eyes of law. The period for ascertaining whether a custom is reasonable is the
period of its inception.
The element of certainty evinces the existence of a
custom therefore, a custom cannot be said to be in existence from the time
immemorial unless its certainty and continuity is proved beyond doubt. A custom
to be legally recognised as a valid custom, must be observed as of right. It
means that custom must have been followed by all concerned without recourse to
force and without the necessity of permission of those who are adversely
affected by it.
It must be regarded by those affected by it not merely as an
optional rule but as an obligatory or binding rule of conduct. If a practice is
left to individual choice, it cannot be treated as a customary law. A custom
must not be contrary or inconsistent with a legislative enactment.
enactment can reject a custom and it must necessarily yield where it militates
against or is inconsistent with enacted law. Allen in his 'law in making'
observes, "Age cannot whither an Act of Parliament and at no time so far as
I am aware has it every been admitted that a statute might become
inoperative through obsolescence."
The custom must be consistent with other customs, otherwise they cannot at all
be good. It must not conflict with other established customs. Custom must apply
to a definite locality. Local customs apply only to the things or inhabitants.
Judicial precedent is another important source of law. It is a distinguishing
feature of the English legal system because most of the common law is unwritten
and owes its origin to judicial precedents. Precedents have a binding force on
judicial tribunals for deciding similar cases in future. A precedent is a
statement of law embodied in the decision of a Superior Court, which decision
has to be followed by the court and by courts subordinate to it. As such the
theory of precedent plays a significant and important role in the jurisprudence
of every country.
According to Salmond, the doctrine of precedent has two meanings,
namely, in a loose sense precedent includes merely reported case-law which
may be cited and followed by the courts, in its strict sense, precedent
means that case-law which not only has a great binding authority but must
also be followed.
Holdsworth supports the doctrine in its loose sense. It is true
that in common law countries, new laws and law reforms have increasingly been
brought about through Acts of Parliament, usually inspired by the policies of
the Government of the day, but even then the development of case law still
remains a potent source of law.
A statement of law made by a judge in a case can
become binding on later judges and other subordinate courts and in this way may
become the law for everyone to follow. Whether or not a particular decision,
i.e. precedent becomes binding depends on two main factors, namely it must have
been pronounced by a court which is sufficiently senior. It is only the ratio decidendi i.e. reasoning behind the decision which is binding.
to Jeremy Bentham, precedent is a Judge-made law while Austin calls it as
judiciary's law. Keeton holds precedents as those judicial pronouncements of the
court which carry with them certain authority having a binding force.
Kinds of Precedents
Broadly speaking, precedent may either be authoritative or persuasive. An
authoritative precedent is one which has a binding force and the judge must
follow it whether he approves it or not. Authoritative precedents are the
decisions of superior court of justice which are binding on subordinate courts.
Persuasive precedent, on the other hand, is one which the judges are under no
obligation to follow, but which they may take into consideration. Thus,
authoritative precedents are the legal sources of law while persuasive
precedents are merely historical sources.
Persuasive precedents may be of
various kinds, namely:
Foreign judgments, Decision of superior courts to other parts of British Empire,
Judgments of the Privy Council when sitting as the final court of appeal from
the colonies, Judicial dicta, Authoritative text books and commentaries.
Once a decision is overruled by any subsequent ruling, it loses all its binding
authority. But there are certain other circumstances which also destroy or
weaken the binding force of judicial precedents either partially or totally.
They are as follows:
Binding Elements in Precedents
The Ratio Decidendi
- Ignorance of Statute:
A precedent is not binding, if it be rendered in ignorance of any statute or
any other rule having the force of statute. It is also not binding, if the
court had the knowledge of the existence of the statute, but it failed to
appreciate its relevance to the matter in hand due to negligence or
- Inconsistency between Earlier Decision of the Court of the Same Rank:
A court is not bound by its own earlier decisions which are conflicting with
each other. The conflict may arise due to inadvertence, ignorance or
forgetfulness in not citing earlier decisions before the court. In such a
case the earlier decisions are not binding on the court.
- Inconsistency between Earlier Decision of Higher Court:
A precedent loses its binding force completely, if it is inconsistent with
the decision of a higher court. Thus, the Court of Appeal in Young v.
Corporation limited, observed that it is bound to follow its own previous,
decisions as well as those of courts of co-ordinate jurisdiction. However, the
court is bound to refuse to follow a decision of its own which, though not
expressly overruled, cannot, in its opinion, stand with a decision of the House
of Lords or if it finds that there is inconsistency between its earlier
- Decision of Equally Divided Court:
There may be cases where the Judges of Appellate Court are equally divided.
In such a case, practice is to dismiss the appeal and hold that the decision
appealed against is correctly decided. But, this problem does not arise
nowadays because Benches are always constituted with uneven number of
In India, however, where the judges in a Division Bench of a High Court are
equally divided, the practice is to refer the case to a third judge whose
decision shall be treated as final unless it is set aside by the Supreme Court.
- Precedent Sub Silentio:
A decision is said to be sub silentio when the point
of law involved in it is not fully argued or not perceived by the court. The
decision in Gerard v. Worth of Paris Ltd, is a good illustration to explain a
precedent sub silentio.
- Erroneous Decisions:
The decisions which are founded on misconceived principles or in conflict
with the fundamental principles of law lose their binding force totally.
- Affirmation or Reversal on a Different Ground:
When a higher court either affirms or reverses the judgment of the lower
court on a ground different from that on which the judgment rests, the
original judgment is not deprived of all the authority, but the subsequent
court may take a view that a particular point which the higher court did not
touch, is rightly decided.
- Abrogated Decisions:
A decision ceases to be binding, if statute inconsistent with it is
subsequently enacted. So, also it ceases to be binding if it is reversed,
overruled or abrogated. If a decision is wrong or irrational, it may be
abrogated by a subsequent enactment or decision of a higher court.
Each judge in a case will give his judgment and it is not that every part of the
judgment that acts as judicial precedent. It is therefore important that a judge
who is using a case as a precedent should be able to recognise that part of the
previous judgment which is binding upon him. The portion of a previous judgment
that is binding is called the 'ratio decidendi' (the reason for deciding). This
consists of the portion of law which was essential to the judge in coming to his
decision. Thus, three shades of meaning can be attached to the expression 'ratio
decidendi', which are as follows:
- The first is the translation of it, it is the reason for deciding.
- Secondly, it may mean the rule of law preferred by the judge as the
basis of his decision.
- Thirdly, it may mean 'the rule of law' which others regard as being of
Pronouncements of law, which are not part of the ratio decidendi, are called as
'obiter dicta' and they are not authoritative or binding on subordinate courts.
Obiter dicta may be defined as more casual expressions by the court which carry
no weight. In the course of judgments, a judge may make various observations
which are not precisely relevant to the issues before him. For instance, he may
illustrate his reasoning by reference to hypothetical situations.
by the court by the way of statements of law which lay down a rule, but which is
unnecessary for the purpose in hand, are called 'obiter dicta'. These dictas
have the force of persuasive authority and are not binding upon the courts.
The courts may seek help from them but they are not bound to follow them.
Obiter dicta literally means something said by the judge by the way, which
does not have any binding authority. Goodhart defines obiter dictum as, "A
conclusion based on a fact the existence of which has not been determined by
The term 'legislation' is derived from Latin words, legis meaning law and latum
which means 'to make' or 'set'. Thus, the word 'legislation' means 'making of
law'. The term 'legislation' has been used in different senses. In its broadest
sense, it includes all methods of law-making. However, in its technical sense,
legislation includes every expression of the will of the legislature, whether
making law or not.
Thus, ratification of a treaty with a foreign State by an Act
of Parliament shall be considered law in this sense. But in strict sense of the
term, legislation means enacted law or statute law passed by the supreme or
subordinate legislature. Jurists have expressed different views about
legislation as a source of law. According to Gray, "Legislation includes formal
utterances of the legislative organs of the society."
TE Holland has interpreted
the term 'legislation' in its widest sense and observed, "The making of general
orders by our judges is as true legislation as carried on by the
crown." Blackstone pointed out that the law that has its source in legislation
which may be most accurately termed as enacted law and all other forms may be
distinguished as unenacted law. In England, the former is called statute law
while the latter as common law.
Blackstone prefers to call them written and unwritten law. According to Austin,
legislation includes activities which result into law-making or amending,
transforming or inserting new provisions in the existing law. Thus, there can be
no law without a Legislative Act.
that legislation is that source of law which consists in the declaration of
legal rules by a competent authority. According to him, the term 'legislation'
as a source of law is used in three different senses. In its strict sense, it is
that source from where the rules of law declared by competent authority are
framed. In its widest sense, legislation includes all methods of law-making. In
this sense, legislation may be either direct or indirect.
Kinds of Legislation
Supreme legislation is that which proceeds from supreme
power of state, which is incapable of being repealed, annulled or controlled by
any other legislative authority. In England, the British Parliament is Supreme
in every sense. However, in India, the Parliament is not supreme because its
laws can be questioned in the court of law, which may declare them ultra vires.
Subordinate legislation is that which proceeds from any
authority other than the sovereign power, and it therefore depends for its
continued existence and validity on superior authority.
Kinds of Subordinate Legislation
Colonial Legislation: The British colonies and other dependencies were conferred
limited power of self-government in varying degrees by the imperial legislature.
The colonies in exercise of this power, enjoyed limited power of law-making.
But, the laws so made by colonial governments could be repealed, altered or
superseded by the imperial legislature, namely the British Parliament. However,
after the passing of the Statute of Westmister of 1931, the self-governing
Dominions under the Crown have been given power to make law independently
subject to nominal supremacy of the British Crown.
Executive Legislation: The Parliament delegates its rule-making power to certain
departments of the executive organ of the government. The rules made if
pursuance of this delegated power have the force of law.
Keeton suggests that these species of subordinate legislation have given rise to
a vast body of rules known as administrative law, which is commonly called
'public law' because it describes the nature of the activity of the executive
department of the government in action. In France, it is known as droit
administratif. According to Sir Ivor Jennings, administrative law is defined as,
"The law relating to administration which determines the organisation, powers
and duties of administrative authorities in the State.
Judicial Legislation:In some cases, legislative power of rule-making is
delegated to the judiciary and the superior courts are authorised to make rules
for regulation of their own procedure in exercise of this power. It is also
called 'judicial legislation' and it should not be confused with judicial
precedents, The Constitution of India has conferred the power of rule-making to
the Supreme Court under Article 145 and the similar power is conferred on the
High Courts under Article 227.
Municipal Legislation: The municipal authorities are allowed within their areas
to make bye-laws for limited purposes such as water-tax, land urban cess,
property-tax, town planning, public health, sanitation etc.
Autonomous Legislation: The state may sometimes allow private entities or
bodies, like universities, corporations, companies etc. to make bye-laws for
regulating the conduct of their business. These bye-laws are framed in exercise
of the rule-making power conferred on these bodies by the state. For example,
Railways have their own rules for the conduct of their business.
Schools of Jurisprudence
The important schools of jurisprudence are as follows
In historical school, there is a basic presumption that there is a link between
the society and law. The law evolves according to the needs of society. The
societal necessities are specific for particular society and therefore,
accordingly the behaviour of society is also specific to that particular
society. This behaviour is based upon particular society. With the variation in
necessities of society, the behaviour also varies. It is found that a particular
behaviour has been consistently practiced in society and followed because of
legal compulsion, such a behaviour will be said to have value at customary law.
The historical school approach to law originated in the beginning of 19th
century. 'Savigny' is considered to be its chief exponent. The basis of
historical approach lies in Roman law. Montesquieu anticipated historical school
and stated that "laws were creation of climate, local situation, accident or
imposture." Maine calls him the first jurist who proceeded on historical
method. Burke warned that "schemes should not be made for the future without
assimilating the lessons of past." According to him, law is a product of a
gradual and organic process. Germany is said to be the cradle of historical
Factors Responsible for the Rise of Historical School
It was a reaction against the plea for universality of law as suggested by the
natural school. It was a reaction against the rationalism which suggested that
what is relevant is the requirements of the present and there should be
reference to the past. It was a reaction against Thebaut's (of Hiedelberg)
proposal for codification. The historical school suggested that by codifying,
law would become static and a law which is derived from local customs cannot be
codified. The Napoleonic conquests in Europe gave rise to an extreme degree of
nationalism. This helped in the growth of historical school.
Law grows with a nation, increases with it and dies at its dissolution. Law,
language, custom and government have no separate existence. Custom precedes
legislation and is superior to, it should conform to consciousness of people.
Law is not of universal application and varies with people and ages. Lawyers are
voices of popular consciousness and their functions are to mould law. Instead of
the individual, emphasis was laid on spirit of people.
The analytical school considers most important aspect of law to be its relation
to State. It takes the law as given by the State, whose authority is
unquestionable. As such it is known as imperative school. The jurists of this
school are concerned with analysis of first principles of the law as they exist
in the legal system, For this reason, this school is called the positive school.
The school is in England and is referred to as English school. As the school was
founded by Austin, it is also called 'Austinian School'. Bentham and Austin are
considered to be the founders of the analytical or positive school. Though,
generally Austin is said to be 'Father of analytical school'.
The analytical school is positive in its approach to the legal problems of
society. Its purpose is to analyse law without being concerned either with their
historical origin or their ethical significance. The emphasis on the systematic
analysis of legal concept has resulted in the school termed as analytical.
The analytical school has made a strict distinction between positive law and
ideal law. This school has analysed the concept of civil law and established its
relationship with other forms of law. Positive law is a general rule of conduct
laid down by a political superior to political inferior. Analytical school has
taken into account the legal sources like legislation, judicial precedent and
customary law and has investigated the claim of each of these sources from which
law flows. This school also analysed the concept of legal rights and legal
liability, both civil and criminal.
Contribution of Austin
According to Austin, 'Law is a rule laid down for the guidance of an intelligent
being by an intelligent being having power over him." He made a distinction
between 'law properly so called' and 'law improperly so called.' According to
him, "Law is the general command of the sovereign backed by sanction."
Types of law as per Austin are as follows
Law set by God or Divine Law
Positive law set by men to men, acting as political superior or in pursuance of
rights conferred by political superior. 'Laws improperly so called' are those
laws which are not set by political superiors, but which are laws by analogy.
The central feature of Austin's theory is of course, the notion of law as
command of the sovereign. Anything that is not command is not law. Only general
commands are laws and only commands emanating from sovereign are positive laws.
There are five elements of his definition of positive law expressed as:
Types of commands according to Austin are as follows:
- expression of wish
- generality and
- a sovereign.
- General generally to members of a class.
- Occasional/Particular A specific act or forbearance.
Bentham, on the other hand, argues that commands are merely one of five methods
by which the sovereign enact, law. In developing his theory of structure of law,
he distinguishes between law which command or prohibit certain conduct and those
which permit certain conduct. Regarding laws in general, Bentham is concerned
with distinction between penal and civil laws.
This school is an offshoot of Historical School in Germany, Friedmann calls it
'Philosophical Historism'. This school is primarily concerned with the relation
of law to certain ideal. The aim of the school is to go into the purpose of law.
The philosophical jurists regarded law neither as a command nor as something
emanating from historical necessity, but as a product of reason.
Thus, it is
essentially concerned with the relation between law and justice, the distinction
between law and morality and their contribution to the ends of justice, the
maintenance of justice in a society and fundamental legal concepts and
principles which have ethical significance. The aim and purpose of this school
and the science of ethics is basically the same, namely perfection of human
Immanuel Kant (German) in his 'Lectures on Ethics', clearly
differentiated between law and ethics. According to Kant, "Ethics concerns
itself with the laws of free action in so far as we cannot be coerced to it but
the strict law concerns itself with free action in so far as we can be compelled
to it." Ethics as a science of human conduct lays down rules relating to ideal
human conduct and the elevation of man's inner life based upon higher and nobler
values of life.
According to Salmond, Philosophical jurisprudence is the common
ground of moral and legal philosophy of ethics and jurisprudence. This school
concentrates its attention on the purpose of law and the need for coercive
regulation of human conduct by legal rules. Law is the means by which the
individual requirement is subordinated to that of the society at large. Another
leading exponent of this school was Hegel. Apart from building on the Kantian
doctrine of freedom of will as being the end of law, Hegel contributed
significantly to philosophical jurisprudence by his development of idea of
The Sociological School
The fundamental postulate of the sociological school is that we cannot
understand what a thing is unless we study, what it does for example, Law in
action. Law is a process of balancing conflicting interests and securing the
satisfaction of the maximum of wants with the minimum of friction. According
to Roscoe Pound, Sociological jurisprudence should ensure that the making,
interpretation and application of laws takes account of social facts. In order
to achieve this end, there should be:
- A factual study of the social facts of legal administration.
- Social investigations as preliminaries to legislation.
- A constant study of means for making laws more effective.
- Study both psychological and philosophical methods of jurisprudence.
- Sociological study of legal history.
- Allowance for the possibility of a just and reasonable solution.
- Administration of justice in English speaking countries.
- The achievements of the purpose of the various laws.
According to Roscoe Pound, jurisprudence is the science of social engineering.
This brings a balance in conflicting interests in society. In order to assess
the word social engineering, he classified various interests that are to be
protected by law, which are as follows:
These are claims or demands or desires involved in and
looked at from the standpoint of individual life. They are concerned with.
Social Interest: It includes
- Personality includes interest in physical person, freedom of will, honour
and reputation, privacy, belief and opinion.
- Domestic Relation:
Property, freedom of industry and contracts, promised advantage,
advantageous relations with others, freedom of association, continuity of
Public Interest: Interest of the State as a juristic person includes, integrity,
freedom of action and honour of State personality, claim of politically
organised society as a corporation to property acquired and held for corporate
Important Pioneers of Sociological Thought
- Social interest in the general security relates to general safety,
general health, peace and order, security of acquisition, security of
- Social interest in security of social institutions like domestic
institution, religious institution, political institution, economic
- Social interest in general morals like prostitution, gambling,
- Social interest in conservation of social resources like conservation of
natural resources, protection of and gaining of dependents and defectives.
- Social interest in individual life.
Some of the important pioneers of sociological thoughts are as follows
First used the term 'Sociology'. Founder of 'Science of Sociology'. 'Organic
Theory' Society is like an organism.
Made a distinction between two kinds of needs in the society namely, common
needs and individual needs. Division of labour. Theory of 'social solidarity'.
No distinction between private and public law. No private rights-'The only right
which any man can possess is the right always to do his duty'. State sovereignty
declines. Decentralisation increases, syndicalism increases.
Law is to be found in social facts and not in formal sources of law. Facts of
Centre of gravity of legal development lies not in legislation, nor in juristic
science, nor in judicial decisions, but in society itself.
According to this school, "Law never is, but is always about to be." This school
further states that law is studied for its social effects. Special stress was
given upon the legal decisions. Realist school is also called the 'left wing of
the functional school'. Realist school is less concerned with the ends of law,
it concentrates upon the study of law as it is in actual working and its
effects. This school originated in USA. Homes and Gray are greatest exponents of
the Realist school. According to Homes, "Law is the prophecies of what the
courts will do infact and nothing more, pretentions are what we mean by the
law." He says that, study of laws on a national system is based on history. The
theory is the most important part of the dogma of law. There is a need for a
legal theory. According to Jerome Frank, 'Certainty of law is legal myth. Judges
should not stick to principles and precedents, they should evolve law case by
Some of the important exponents of Natural School are as follows:
He builds his legal theory on 'social contract'. His view is that political
society rests on a 'social contract'. It is the duty of the sovereign to
safeguard the citizens because the former was given power only for that purpose.
The sovereign is bound by 'natural law.'
Hobbes' theory also proceeds from the 'social contract'. Before the social
contract, man lived in a Chaotic State. According to him, man's life in a state
of nature was one of fear and selfishness. It was solitary, poor, nasty, brutish
and short. The idea of self-preservation and avoiding misery and pain are
inherent in his nature. He desires society also. These natural inclinations
induced him to enter into a contract and surrender his freedom and power to some
authority. Hobbes is the supporter of absolutism. Subject has no rights against
the sovereign and the latter, in no case can be disobeyed.
According to Locke, "the state of nature was a golden age, only the property was
insecure. It was for the purpose of protection of property that men entered into
the 'social contract'. Man, under this contract, did not surrender all his
rights but only a part of them, namely, to maintain order and to enforce the law
of nature. His natural rights as the tight to life, liberty and property, he
retained with himself. The purpose of government and law is to uphold and
protect the natural rights."
According to him, social contract is not a historical fact, but a hypothetical
construction of reason. Before this contract, man was happy and free and there
was equality among men. By the 'social contract' men united for the preservation
of their rights of freedom and equality. For this, they surrendered their rights
not to a single individual sovereign, but to the community to which Rousseau
gives the name of 'general will'. It is the duty of every individual to obey the
'general will' because in doing so, he directly obeys his own will.
The existence of the State is for the protection of freedom and equality. The
State and the laws made by it both are subject to 'general will' which creates
According to Stammler, "All positive law is an attempt at just law" and that is
justice law or justice is a 'harmony' of wills or purposes within the framework
of the social life. The harmony of wills or purposes varies according to time
and place. Law is valid even if it does not conform to this 'just' but attempt
should be made to being it near its aim. This concept has been called by Stammler
as, "natural law with a variable content."