Law is a vast subject that is constantly changing and evolving. It may look
easy to study and work with, but it takes years to be able to gain expertise in
this field as one never stops learning about law. Laws have been around since
ancient times and are considered the building blocks of a society. Plainly
stated, law is a rule or set of rules that are set up by an authority or the
society itself and are applied on a community or territory. However, no single
definition of law can fully express its meaning universally as law itself is
Experts have struggled to this day to provide a definition that would
cover the whole scope of law as a subject. Nevertheless, there are many
definitions of law that are acclaimed for being the most comprehensive for the
time and circumstances they were provided in, and also being considerably
inclusive of the subject's general scope. Many theories have been deduced in
order to attempt to define or understand the meaning of law. There are several
theories law, given and supported by various jurists. A few of them are
discussed in detail below:
Natural Theory of Law
Natural law theory suggests that law as not formed by human beings, it is rather
something that the nature provides us with in the form of ethics, morality, and
the ability to judge whether any act is right or wrong. It argues that morality
is an innate feature of human beings, inherent by nature and that they do not
have to work as such to acquire or create morality. Hence, laws were formed on
the basis of this innate ability of sense the difference between right and
wrong, not by the force of society or civilizations.
This theory attributes
nature with the origin of law. It is the earliest theory that attempted to
understand the meaning and origin of law and dates back to civilizations such as
ancient Greece. This theory was believed to be true by great philosophers like
Socrates, Plato and Aristotle. Various modern jurists like Hobbes, Rousseau and
John Locke are also known to support natural theory of law.
The natural theory of law is quite plausible to explain the origin of law, from
where the idea of law comes from and the essence of why laws were created.
However, people's ethics and morality differ from one person to another making
the laws differ on a subjective basis. Therefore, it fails to explain law in its
present state, i.e., in the form of rules and statutes that are complied with
uniformly within a territory and differs from place to place.
Positive Theory of Law
This theory is another popular theory that attempts to explain what ‘is' law
rather than what ‘should' be law. This theory is developed by John Austin and
Jeremy Bentham and is widely accepted by many jurists such as Salmond and Kelsen.
The positive theory of law, also called legal positivism follows the analytical
school of thought. It theorizes that:
law is a command of sovereign that is backed by sanction.
First of all, legal positivism credits humans with the invention of law, unlike
the natural theory of law. It suggests that laws are plain commands that are
imposed by a sovereign. The validity of law is not affected by nature. These
commands ought to be followed, irrespective of one's own opinions, judgements or
ethics. Since, these commands are said to be given by a sovereign, this theory
takes in account the political structure of a place or community where people
have been provided with greater political power govern those below them, the
This theory suggests that politics play a key role in
formations of law. If these ‘commands' i.e., laws are not followed through with,
punishments are also awarded as applicable. This further ensures the compliance
of said commands, keeping intact the viability of laws and keeping the society
away from chaos by making deviance or violations subject to sanctity.
This theory has a very clear and easily understandable definition of law that
describes the conventional nature of law. It does not talk about what law could
or should be. It stays true to its analytical approach and analyzes the
structure of law, the noticeable form of law that can be easily related and
understood. However, law has existed before the existence of states and
Hence, this theory falls short in that respect. Another criticism of
this theory is that this theory is shallow, considering sovereign's command to
determine the validity of law. Several laws are accepted to be valid because
they follow natural justice, or corresponds to public policy. Similarly, people
also tend to abide by law to get rewards and benefits, habits, general
acceptance in society or simply out of respect for justice. Thus, sanctity is
not the only reason due to which people obey laws.
Realist Theory of Law
This theory of law was founded by Chipman Gray, Oliver Holmes and Karl
Llewellyn. This theory disregards other traditional theories of law. This theory
deals with the actual working of law. According to this theory, there is no
value of the laws created by the legislative unless they are applicable in the
real world. Only the laws which have applicability in practical cases are
considered to be laws by this theory.
Hence, it not the work by legislation but
the decisions by the judiciary that are actual laws. The judiciary is credited
as the lawmaker and not the legislation by this theory. In plain words, it
states that, “Law is a product of judgements of judges by their social, economic
and contextual influences.”
This theory also puts much value in the human factor in law. It proposes that
law is judgements that are made through interpretation of human mind. The judges
use their own intelligence and conscience to evaluate cases. Different judges
would use different approaches to deliver justice in their best knowledge, hence
interpretation varies subjectively. Thus, legal statutes alone don't deliver
justice, human factors also play a major role in law. This theory is extensively
based on the practice of precedent.
There are many possible criticisms of this theory as it seems very flawed. One
major criticisms id that this theory is exclusively based on litigation. There
are plenty of matters that don't require mandatory interference of courts but
still require laws to govern their fundamentals such as contracts and marriages.
Those laws are also fully valid in practical world. Another major criticism is
the extensive importance given to human factors.
This theory tries to justify
and put above common law the approaches and bias of judges. According to this,
laws are subject to an individual, or group of individuals' conscience and
personal choices, leaving laws up to the mercy of their interpretation. Aside
from these, laws exist before judiciary passes judgements on them, and still
have validity in the society. Hence, this is a very imperfect theory.
All the above theories, in addition to many more, have been made as an attempt
to define law, to make it easier to understand. However, the complexity of the
subject cannot be avoided, making all the theories open for criticisms. These
criticisms bring out the anomality in the ‘definitions' and further provide room
for clarification and improvement. This process in itself represents the scope
and growth of the subject being limitless. Law is as vast as human behavior and
imagination. Hence, although there are little chances of having a universal
applicable definition or theory of law that covers all its aspects, efforts in
that direction are still being made to simplify this study.
One of the most important questions to ask is, what is the purpose of law? Lawa
was not around since the origin of mankind. It is believed to have evolved from
communities and civilizations. The general human sense of right and wrong
differs subjectively, however was enough to guide humans through their
evolution. So, what exactly is the purpose of law and what other functions does
Law was established to maintain order. If people were to let loose without any
restrictions and limitations that correspond to unfair or immoral practices, the
society would be in chaos. Human behavior needs to be regulated in order for
civilizations to exist. Further, law sets the standards of code of conduct and
etiquettes that would be the minimum requirements in order to be part of a
society or community. For example, adultery is declared a crime by law and thus,
sets the expected behavior portrayed by married individuals. Law also plays role
in settling disputes by punishing the violators of law. Thus, law works towards
protecting the rights and liberties of people.
For example, a thief would be
punished by law and the rights of the original owner's rights would be protected
by offering the best possible restitution or by the letting him claim damages.
Thus, laws perform various functions. One of the most accurate functions of law
were stated by Roscoe Pond, who treated law as a species of social
Roscoe Pound states that there are four major functions of
- maintenance of law and order in society;
- to maintain status quo in society;
- to ensure maximum freedom of individuals; and
- to satisfy the basic needs of the people.
The most basic and common function approved by
jurists, is to ensure well-being of the society by keeping order. The functions
of law in a society are much clearer than the functions of law in a general
sense, which would rather be termed as the purpose of law.
The main functions of
law in a society are discussed in detail below:
Maintenance of law and order in societyLaws are directives that govern and regulate human behavior and code of
conduct to ensure order. They are made for people within a territory to
abide with. Laws are also responsible for keeping peace of a country intact.
Many countries possess a very diverse population. If the same law is applied
throughout the population, irrespective of their diversity, different needs
and differences in opinions, it would cause conflicts.
Hence, laws are drafted to cater the needs of different pats of the society
and help in maintaining peace in the country. For example, in a secular
country like India, the constitution leaves certain subjects, like marriage,
under people's respective religion. These laws are called Personal laws.
Protection of Fundamental Rights There would be no use of any law that does not work towards protecting and
securing the rights of people. Law is in place to maintain order and benefit
the society. They are written to cater to people's needs and interests. In
cases of crimes, laws punish violators in order to ensure that the basic
rights of the people are protected and further set examples to ensure
security. Thus, one of the most fundamental function of law is to promote
and protect human rights
Control of Political System Law and politics have an obvious relationship. One of the major governmental
functions is to draft and amend laws in the interest of the people. However,
the political system is also subject to law and has to perform its duties
according to law and be responsible for its consequences. Thus, law also
governs and controls the political system by predetermining their duties,
the structure of the system and who qualify to be a part of it.
The regulations of economic activity Law also sets the rules and regulations that must be followed while
performing economic activities such as sale, trade, labor and investment.
Law is needed to have valid and legal business deals and agreements. Laws
such as sales tax, income tax, GST and
customs law are also responsible for government revenue that are used as funds
for investing in the development of the country. Hence, law is also responsible
for governing the economic sector and its counterparts to ensure ordinance.
Regulations of human relations Human relations, such as contracts, agreements, families and marriages also
come under the purview of law. Law plays the function of keeping human
behavior and relations in a check. Thus, it automatically influences human
relations by restricting unacceptable behavior, for example adultery. It is
also responsible for clarifying the correct procedure of entering legal
relationships, its legality and validity. Cases in marriage, like divorces,
are needed to be approved by the law and registered in order to be valid.
Hence, law holds control over the regulation of human relations.
International relations Law is responsible for conducting and making international relations. It
plays an important role in forming economic, diplomatic and strategic
relations with other nations. Visa law is also responsible for allowing
people from other countries to enjoy the services provided by that nation.
Laws are also used against policies and demands of other nations, and
protect and promote the nations interests.
Law has several functions that are all related to providing a uniform code to be
followed. All the functions of law can be traced back to bring orderliness and
provide with knowledge of correct procedures to be followed. The functions of
law are many and cannot be limited to the ones discussed in this paper.