Laws protect life and property, laws maintain peace and order in the society. Laws are essential for all. Man is a social animal and while living in society he cannot act entirely according to his will. Rules regulating the relationships in the society are essential. It is also essential to have a body that may enforce these rules and punish those who violate them. This body is the state. Law is made and enforced by the authority of the state in the society and through the laws the state regulates the various relationships in the society, protects the life and property of the people, maintains peace and order and also punishes those who violate them. It is through the law that the will of the state is expressed and fulfilled.
Man has to act according to law. He cannot act otherwise. Peaceful life is not possible in the society in the absence of laws. It is the law that regulates various relationships in the society, protects the life and property of the people, maintains peace and order, defines and protects individual liberty.
Definitions
Various definitions of law are given below :
Woodrow Wilson, “Law is that portion of established thought and habit which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of government.”
John Austin, “Law is a command given by a superior to an inferior.”
Holland says, “Law is the general rule of external human action enforced by a sovereign political authority.”
T.H. Green, law is “The system of rights and obligations which the state enforces.”
Features of law
On the basis of the various definitions of law it can be said that laws are the rules which the state recognises and enforces in respect of various relationships in the society and which are applied in the administration of justice. Following are the main features of law :
Laws exist in the state, not outside the state. There can be no law without the state.
Law is concerned only with the external actions of individuals. It is not concerned with his internal actions. It regulates only external behaviour of the individuals.
Laws are made, recognised and enforced by the state.
Laws are definite and universal. Laws are applicable to all the members of the society. Law is not made for a particular individual.
Laws are made to regulate the various human relations in the society for social good, for peace and order, for the protection of life, property and liberty of the people.
Law has the force of the state behind it. If an individual violates the law, he is liable to be punished by the state.
Sources of law
Generally the laws are made by the legislative wing of the government, but there are some other sources also, which make the laws. Following are the main sources of law :
Customs and Traditions : Most of the laws have their origin in customs and traditions. It is the most ancient source of law. In the beginning the members of the society maintained their relations on customs and traditions. Customs and traditions are those rules which have developed with the passage of time on account of their usefulness. When some disputes arise about these customs and traditions, due to changing circumstances the government has to step in. It defines them, makes them certain and gives them the shape of law. No government, however despotic, can dare to make laws against the customs and traditions. Most of the laws are based on customs and traditions. Common law of England is based on customs and traditions.
Religion : Another important source of law from the ancient times has been religion. It plays an important role in the life of man. People do not obey a law which is against their religious beliefs. A custom or tradition when supported by religion is obeyed most. In ancient times laws were made according to religious beliefs. There was a time when even the kings had to seek recognition from religious head. There used to be Priest Kings. Even today many laws are based on religion, particularly laws relating to marriage, divorce, succession and inheritance. India has Hindu Law, Muslim Law, etc.
Judicial Decisions : In modern times judicial decisions are an important source of law. Law courts decided disputes that are presented before them, according to the laws. While doing so they have to interpret the laws and make the laws clear and definite. Sometimes through inter-pretation of laws, they give a new shape to the laws. Decisions and interpretations given by the law courts become precedents and take the shape of law for the people and the law courts for future cases. Through its decisions judiciary creates many new laws.
Equity : Equity is another source of law from ancient times. Many times the court has to hear novel type of cases about which there is no law in force. Such cases are decided by the court on equity, which means fairness, justice, honesty, impartiality. That case is decided on the basis of what appears to be just to the court in the circumstances of the case and the laws in force. The decision given on equity, becomes law for similar types of cases for future.
Scientific Commentaries by jurists: Eminent jurists, advocates, scholars and experts on constitutional law give their opinion and commentaries on existing laws, their positive and negative points, scope of amendments in the laws, and desirability of some new laws. These commentaries have their impact on the politicians, law-makers and even on the judiciary. These commentaries play an important role in making, unmaking or changing the laws.
Legislature : In the modern times, legislature is the most important source of law. Every government has its legislative wing which makes new laws, unmakes outdated laws and also makes changes in the laws according to the need of time. In democracies the legislatures are composed of members elected by the people. These elected representatives make laws according to public opinion and have to give due considerations to the customs and traditions, religious beliefs and need of time. Thus people themselves make the laws through their representatives.
Kinds of law
Following are the main kinds of law.
International law
International law is that body of rules, regulations, customs and traditions, decisions, agreements and practices, which regulate the relations between states themselves. It is applicable to the states, not to the individuals of the states. It contains the rules of war, rules of peace, rules of neutrality, etc. Some scholars do not accept International Law as law proper and in the strict sense of the word.
Municipal law
Municipal Law is that law which is enacted by the state and regulates relations between the individuals, between the individuals and their associations and between the individuals and the state and it is enforced within the territory of the state. It is also called National Law. It is enforced by the government and is applied by the law courts in administration of justice.
A Municipal law can be of two types—Constitutional law and Ordinary law.
1. Constitutional Law : A constitutional Law is that law which is concerned with the organisation of the organs of the government, their respective powers and functions, their mutual relations, rights and duties of the citizens. Constitution comes under this category. It can be unwritten also as we find in England. Major portion of British constitution is unwritten. It is considered supreme law of the land and generally a rigid method is adopted to amend it.
2. Ordinary Law : Ordinary Law is that law which regulates relations between the individual and individual, between the individuals and their associations and institutions. These are made by the legislature and are enforced by the administration. It is concerned with the maintenance of law and order, protection of life and property of the people, maintenance of human relations in the society.
An ordinary law can be of two types :
Private Law : Private law is that branch of ordinary law which regulates relations between the individuals themselves. It is concerned mainly with matters of marriage, divorce, inheritance, succession, sale, purchase and possession of property, partnership, agreements, loans etc. It is concerned with how an individual has to behave with other individuals in his daily life.
Public Law : Public law is that branch of ordinary law which regulates the relations between the individuals and the government. All criminal laws come under this category, Any law, violation of which, makes the state a party, is a public law. In other words one can say that if a Public Law is broken, the government itself takes action against the law-breaker. A law relating to issue of driving licence, law prescribing the procedure of starting a factory, a law establishing a university, a law prescribing qualifications for doctors, advocates etc. all these are example of public law.
A public law can be of two types :
General Law : A General law is that law which is applicable to both the ordinary citizen, and is also broken by a government servant, if the same law applies to both and the same court can hear the case against both alike it is general law. It is that branch of public law which makes no distinction between the ordinary citizens and the government servants regarding its applicability.
Administrative Law : Administrative law is that branch of public law which makes distinction between ordinary citizens and government servants and make separate provisions of law courts and procedure for the government servants. Administrative law is concerned only with the government servants in respect of their performance of duty, their actions while on duty etc.
Classification on the basis of sources
On the basis of its sources, law can be of four kinds which are given below:
Statutory Law : Statutory law is that law which is enacted by the legislature. Most of the laws are made by the legislature these days and are statutory laws. Law courts give recognition to this law and decide the case according to the statutory laws. Judiciary takes into considerations other things only when there is no statutory law in the case or the statutory law is not clear.
Judge-made law : Judge-made law is that law which takes its origin in the judgment of the court either due to interpretation of law or due to decision based on equity. Such laws are found in all the states even where the judiciary does not possess the power of Judicial Review.
Common Law : Common law is that law which is based on customs and traditions and is given due recognition by the law courts. It can be unwritten also. But when a clear law is passed by the legislature in respect of any portion of common law, it has not more its value. Statutory law takes superior position.
Ordinance : Ordinance is a branch of law which is issued by the executive in anticipation of the approval of the legislature. When the legislature is not in session and the executive finds it extremely essential to enforce a law immediately, it is authorised to issue ordinance. It is put before the legislature when it comes into session. The ordinance comes into force immediately, but if it is not approved by the legislature within the prescribed time, it ceases to be in force.
Qualities of a good law
A law is not always good. It can be bad also. A law is bad if it is not clear and gives many meanings. A law is bad if it is not in the interest of the society but is beneficial to a particular person or a group of persons. A law is bad if it is against the rights and liberties of the people. Thus a law can be bad in many respects.
Following are considered to be the qualities of a good law :
Simple Language : The language and wordings of the law should be simple so that ordinary person may be able to understand it and follow it. If language is not simple, and it is not easily understood, there is possibility of its being violated unintentionally.
Clear : Law should be clear in its meaning. The wordings should be able to give its clear meaning. It should express only that meaning for which it has been made. The language and wording should not give many contradictory meanings otherwise it would create confusion.
Stability : Laws should be stable. These should be made after thoughtful consideration and should not be changed frequently. Frequent changes in the law also create confusion and give possibility of its violation.
Uniformity and Universality : Laws should be uniform and universal. Same laws should apply to all the people alike. There should not be different laws for different people. As far as possible equal laws should apply to all and people should be equal before law.
It should be for the Welfare of the Society : A law should be made for the welfare of the society as a whole, not for the benefit of a particular person, or a group of persons or for a particular section of the society. A law for the benefit of a few is liable to be opposed by the society.
It should be Practicable : Law should be such that it can be obeyed from practical point of view. If it is difficult for the people to follow it practically, it will not be easily obeyed.
It should Change with Time : Laws should change according to the changing circumstances of the society. A law is made according to the need of the time and keeping in view the need of future. But it can become useless or harmful after some time. At that time it should be changed otherwise it would put obstacle in the progress of the society and would be disobeyed.
Supremacy : Law should be supreme in the society. It should be above every individual and all associations of individuals. No person should be above law and it should apply to all. Any person whatever his positions in the society or in the administration, should not be beyond the reach of the law.
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