Define Law

What is “Law”?
Define Law.
Nature of Law.
Sources of Law.
Theories of Law.
Austin Theory.
Pure Theory.
Types of Law
Growth and Origin of Law.

Law

Law is a system of rules and guidelines which are enforced through social institutions to govern behavior. Laws are made by governments, specifically by their legislatures. The formation of laws themselves may be influenced by a constitution (written or unwritten) and the rights encoded therein. The law shapes politics, economics and society in countless ways and serves as a social mediator of relations between people.

A general distinction can be made between civil law jurisdictions (including Canon and Socialist law), in which the legislature or other central body codifies and consolidates their laws, and common law systems (including Islamic law), where judge-made binding precedents are accepted. Historically, religious laws played a significant role even in settling of secular matters, which is still the case in some countries, particularly Islamic.

The adjudication of the law is generally divided into two main areas. Criminal law deals with conduct that is considered harmful to social order and in which the guilty party may be imprisoned or fined. Civil law (not to be confused with civil law jurisdictions above) deals with the resolution of lawsuits (disputes) between individuals or organizations. These resolutions seek to provide a legal remedy (often monetary damages) to the winning litigant.

It is possible to describe law as the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behavior of its members, so Law is a formal mechanism of social control.

Legal systems are particular ways of establishing and maintaining social order.

Nature of Law

Law provides a rich source of scholarly inquiry into legal history, philosophy, economic analysis and sociology. Law also raises important and complex issues concerning equality, fairness, and justice. "In its majestic equality", said the author Anatole France in 1894, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread." Writing in 350 BC, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual."

What is the nature of law?  This question has occupied center stage jurisprudence and philosophy of law in the modern era, and has been the central occupation of contemporary analytic jurisprudence.  This entry in the Legal Theory Lexicon aims to give an overview of the "What is Law?" debate.

Historically, the answer to the question, "What is law?," is thought to have two competing answers.  The classical answer is provided by natural law theory, which is frequently characterized as asserting that there is an essential relationship between law and morality or justice.  The modern answer is provided by legal positivism, which, as developed by John Austin, asserted that law is the command of the sovereign backed by the threat of punishment.

Contemporary debates over the nature of law focus on a revised set of positions.  Legal positivism is represented by analytic legal positivists, like H.L.A. Hart, Joseph Raze, and Jules Coleman.  The natural law tradition is defended by John Finnish.  And a new position, interpretive is represented by Ronald Dworkin.

In some ways, the title of this Lexicon entry is misleading, because of our focus on the "What is law?" question as it has been approached by contemporary legal philosophers.  There are other important perspectives on the nature of law that focus on law's functions rather than the meaning of the concept or the criteria of legal validity.  For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Luhmann.  These issues are discussed by Brian Tamanaha in the article cited in the Links section at the end of this entry.

This Lexicon entry maps the territory of the "What is Law?" controversy, and provides introductory sketches of the major positions.  As always, the Lexicon is written for law students, especially first-year law students, with an interest in legal theory.

Sources of Law

Source from which rules of law flow or are drawn. Officially, there are two general sources of law in Finland: written law (enactments) and established custom (customary law). In this connection the term laki (written law) encompasses constitutional law, statutes, and government Decrees and similar non-statutory instruments. Nowadays certain rules and regulations directly applicable throughout the European Union have also come to form part of this category of sources. Customary law, in its turn, constitutes a source of law where there are no written enactments and, as an additional requirement, the custom in question is not unreasonable. These legitimate sources of law are classed as mandatory in the sense that they must be taken as a basis in the performance of official functions on pain of dereliction of duty.

Decisions of the Supreme Court and the travaux préparatoires attached to statutes (committee proposals, government Bills and records of parliamentary proceedings) which explain the legislators' intention are deemed to constitute weakly binding sources of law. General principles of law mainly fall into this category. Disregarding these sources in delivering judicial decisions is not dereliction of duty but can lead to the decision concerned being changed by higher authorities. Certain court decisions which serve as precedents contain more detailed information than written law itself on the rule that has been taken as a basis for the decision. Decisions of the European Court of Justice also fall into this category. Decisions of the Supreme Court, in particular, are taken as a basis for jurisprudential interpretations.

All other legal bases to which it is generally recognized as acceptable to look for guidance when seeking the best possible outcome constitute permissible sources of law. These are, inter alia, jurisprudence, comparative arguments and practical reasons.

In addition to these general sources of law, there are many particular forms of the establishment of legal rules. The most important of these is a contract, in which the parties can lay down rules of law for themselves. A contract of employment is one such example. For a term in a contract to have binding effect with respect to persons other than its parties, there has to be some basis such as a provision in a statute. This is the case with, for example, private- and public-sector collective agreements. Modes of regulating individual legal relationships can be even more diverse: for instance, modes of regulation of the employment relationship include, in addition to statutes and contracts or agreements, custom (established practice) and rules laid down unilaterally by the employer.

Theories of Law

There are many theory of law.  Such as

a)    Austin Theory

b)    Pure Theory

c)    Authoritarianism‎

d)    Divine command theory‎

e)    Legal doctrines and principles‎

f)    Legalism (Chinese philosophy)‎

g)    Natural law‎

Here Austin theory of law and pure theory of law describe below

a) Austin theory of law

The theory of legal realism, like positivism, looks on law as the expression of the will of the state but sees it as made through the medium of Courts. Law no doubt is the command of the sovereign, but the sovereign to the realist is not the Parliament but the Court. Austin says that law is a command which obliges a person or persons to a course of conduct. It is laid down by a political sovereign, and enforceable by a sanction. According to Austin, positive law has three main features:

I.          Command
II.         Sovereign
III.        Sanction

b) Pure theory of law

The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and philosopher Hans Kelsen (1881–1973). (See bibliographical note) Kelsen began his long career as a legal theorist at the beginning of the 20th century. The traditional legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand. He found both of these reductions endeavors seriously flawed. Instead, Kelsen suggested a ‘pure’ theory of law which would avoid reductionism of any kind. The jurisprudence Kelsen propounded “characterizes itself as a ‘pure’ theory of law because it aims at cognition focused on the law alone” and this purity serves as its “basic methodological principle”

Types of law

There are mainly two types of law.

1. Criminal law and

2. Civil law

Criminal Laws

designed to protect society as a whole from wrongful actions (police can take action) 

1.    Public order (peaceful and safe community)

o    drug use

o    public decency (sleeping on the streets)

o    carrying of weapons in public

o    dry areas

o    rioting

o    protest marches (staying non-violent)

o    assault

o    defamation (writing things about people that are not true which harm their character)

2.    Property

o    arson

o    trespass

o    larceny (theft)

o    littering

o    vandalism

o    intentional damage

3.    People

o    passive smoking

o    rape

o    murder

o    harassment

o    suicide

o    sexual abuse

4.    Traffic/road laws

o    drink driving

o    speeding

o    illegal use of an aeroplane

o    driving in an unregistered vehicle

o    wilful damage of vehicles

o    not wearing a helmet

o    stopping for pedestrians

o    correct indicating

Civil laws

help to solve problems which occur between individuals or groups (trained legal personnel and courts help solve)

1.    Contract law (agreements, responsibilities)

o    not allowed to break a contract

o    marriage

o    fishing licences

o    misleading advertisements

2.    Employment law

o    reason for firing someone

o    fair duties as an employer

o    equal opportunities

o    not to work over 40 hours in any one week (appropriate overtime penalties)

o    wrongful dismissal

o    age discrimination

3.    Family law

o    abuse of children

o    catering for kids until they are 18 years old

o    domestic violence

o    custody of children

o    registration of birth

o    maintenance issues

4.    Law of Torts

o    compensation (dog biting)

o    accidents involving other animals

o    others injuring themselves on your property

Growth and Origin of Law

The history of law is the history of our race, and the embodiment of its experience. It is the most unerring monument of its wisdom and of its frequent want of wisdom. The best thought of a people is to be found in its legislation; its daily life is best mirrored in its usages and customs, which constitute the law of its ordinary transactions.

There never has existed, and it is entirely safe to say that there never will exist, on this planet any organization of human society, any tribe or nation however rude, any aggregation of men however savage, that has not been more or less controlled by some recognized form of law. Whether we accept the fashionable, but in this regard wholly unsupported and irrational theory of evolution that would develop civilization from barbarism, barbarism from savagery, and the existence of savage men from a simian ancestry, or whether we adopt the more reasonable theory, sustained by the uniform tenor of all history, that barbarism and savagery are merely lapses from a primordial civilization, we find man at all times and under all circumstances, so far as we are informed by the records which he has left, living in society and regulating his conduct and transacting his affairs in subordination to some rules of law, more or less fixed, and recognized by him to be binding upon him, even though he has oftentimes been in rebellion against some of their provisions.

The recognition of the existence of law outside of himself, and yet binding upon him, is inherent in man's nature, and is a necessity of his being. And this is as much as to say that the very existence of human society is dependent upon law imposed by some superior power. While from our present standpoint the ultimate finite existence is that of the individual, and all true philosophy recognizes that society exists for the individual, and not the individual for society, yet it is also true that the individual is intended to exist in society, and that he must in many things subordinate his own will to that of society, and inasmuch as society can not exist without law, it is a necessary deduction of reason that the existence of law is coeval with that of the human race.

For, if the origin of law were to be sought in compact, a similar compact would suffice to abrogate it; and if it depended on the force of the majority, the wrongfulness of disobedience to its behests would depend entirely upon its discovery and manifestation to the world.

Suppose two shipwrecked men thrown upon a desert island, far removed from all human society, far removed from all its agencies and instrumentalities for the prevention and punishment of crime, and one in wantonness kills the other, is the act any less a crime, because it may never be discovered, because it may never be reached by the avenging arm of justice, because the social compact has never been in force in that remote region of the earth. Our conscience and our common sense rebel against the inference of any distinction between such a crime and that of the ordinary murderer within the pale of civilization.