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Central India Law Quarterly
Definition And Meaning Of Law
DEFINITION AND MEANING OF LAW Miss Atasi Roy* Etymological Definition implies only the expression of actual content of the term. But the meaning conveys a more extensive idea. It extends to a wide area which may entertain exact or inexact words. So, in this respect the term definition is narrower than the term meaning. It is very much applicable in case of scientific definitions which are scientifically proved, e.g. Definition of Valency, Definition of Photosynthesis etc. But in case of hypothetical science no definition is possible unless the theory is sought to be verified by experiment. Similarly, in the arena of legal science law could not be defined within 'four corners of a particular subject' except some statutory meaning. Prof. Wittengenstein aptly remarked "Definition of a word as given so much denoting what it stands for by showing the ways in which a word is used in the context of a particular language."' He tried to apply logically perfect word in every field of work related to this world. Various attempts have been made to define the term 'law' from natural law to modern interpretation of Law. Now we will make an endeavour to analyse such theories about law. Meaning of law under different theories of law Natural Law ~hebry:- Natural Law thinkers were primarily concerned with the philosophical foundation of law. They stressed on the theory of natural right which a person acquires by birth. Human Dignity and Equality were the basic precepts of Natural Law theory. In this respect we may classify the period of natural law theory as under:- 1. Ancient theories: Prevalent in Greece, Rome; Ancient Hindu period. 2. Mediaeval Theory : With the propagation of Christianity. 3. Renaissance Theories :developed during the period of Renaissance, the age of Reason. Part-Time Lecturer in Law, University of Burdwan 8 Ufe Member of Central India Law Institute. Jabalpur. 1. - - L Wlttengenstein Phi\olosophical Investigation. Referred in Jurisprudence -LLYOD, PP. (52-63). Vol. X:l] MEANING OF; LAW 71 Ancient Theories Greco-Roman Period: Greek thinkers systematically sang in the praise of democratic ideals and pivotal centre of this democratic idealism was "Glorification of Man." The greatest champion of this idealism was Socrates. He preached his noble ideals through the medium of "Free Dialogue." similarly' Plato and Aristotle also said that man is a part of nature and creatures of God and man can discover the "eternal principle of Justice" as rules of "Natural Law." Likewise in Roman Period, Roman thinker Cicero exposed the "idea of universal Character of the Law of Justice." Later another noted thinker of this period Seneca was very inspired by the sole sentiment of humanity and vehemently attacked the institution of slavery. It is equally noteworthy to mention the classical concept of Hinduism and Buddhism towards philosophical expression for the respect of Humanity. They adopted the doctrine of "Basudhaib Kutumbakm" and the "doctrine of Ahimsa" respectively to adhere to the inner spiriiual beauty of Human being. Thus they adopted universal concept of Human Dignity which should have the mission of universalisation of loke, compassion, brotherhood and respect for humanity. In mediaeval Europe, the Thomists stressed on the principle of sanctification and emancipation of Man. For them, the state is no longer a common life where the individual can complete himself. Man should transcend the limits of the state and reveal himself into the physical world. Renaissance was the totality of the elements furnished by the antiquity and Christianity and these elements were crystallised in the Renaissance period. The leading philosopher of this period was Rousseau who advocated the affirmation of individualistic credo by taking into account the society as a whole. In this respect we may mention Rousseau's 'Social Contract Theory.' Transcendental Philosophy lmmanuel Kant (1724-18041, who was the propounder of German Transcendental idedism, says that knowledge and experience are preordination and not aposteriori nation. So, law should have some apriorinotions. But at the same time he cautiously says that such notions must be subject to Laws of Causality. Laws of Causality always presuppose a cause and effect relationship of every action. Kant also stressed on the point of reasons. That is to say every action must have some reasons and that shoukl be tested in the rational world. Kant assumed that reconciliation should be made between philosophical world and the intelligible (noumenal) world. For him man is a part of nature. So man should conceive something from the nature that should be tested in the emperical world with respect to reality. . In modern times, Prof. Rawls has also been influenced by Kantian philosophy. He says "Justice is deemed to consist of universal rules determined by the imaginary being of original position." These rules are to be applied to reality as "Standards of Justice." In addition, he also added the expression "architecturii character of law" which shall be qualified by the addition of reflective Equi~ibrium.~ Here Prof. Rawls entails the concept of reality by introducing the expression "Reflective Equilibrium.' t addition he also puts an emphasis on the balancing n nature of law with respect to reality. At the same time fie also admits the archaic character of law by using the expression "imaginary being of original position." For him "the original position is the ethical decision- making procedure for the evaluation of insfltutions. It is conceived as impartial and consequently, fair to ail."3 Analytical Positivism , Another Theory of Law is Analytical Positivism. The French Mathematician & philosopher Auguste Comte (1798-1857) was a propounder of this theory. This theory says that human thinking shall be devoid of Theological elements, Metaphysical elements & Hypothetical elements. Theological elements mean science of the nature of God and foundations of religious belief. Metaphysical elements express abstract ideas about the nature of existence. Hypothesis always presupposes philosophical foundation of any concept rather than definite or certain 2. f - Matters o Jushce -M.W. Jackscm, pp. (10-15) 3. - Rawts, Theory pp. f 2 & 120. Referred in Matters of Justice M.W. Jackson, pp. (!4-26). - - -- -- - --- - . Vol. X:l] MEANING OF CAW 73 knowledge. But according ta thinkers of positive law, law should eschew such notional elements from the domain of legal science. Hence law is positive. We may classify positive theory of law into two categories- (1) Classical Positivism and (2) Neo-Positivism. Bentham, Austin are in the classical positivism, on the otherhand Kelsen and Hart are in Modern Positivism. Positivism P Classical Neo (Bentham, Austin) Kelsen, Hart Classical Positivism Bentham was one of the founders of utilitarian school of law. He believed in the concept of Hedonism, which implies a moral theory based on "sensibility." Thus he invented the pleasure and pain theory. For him an individual should achieve maximum pleasure by eliminating pain. So, law should allow maximum individual action with general free individual action. Thus law will disapprove pain and approve maximum pleasure of an individual in the society. So, according to Bentham such approval acts as a sanction behind law. The end of law should serve the optimum individual happiness by ignoring suffering of an individual in the society. Thus an individuals volition took a central theme in Bentham's theory. Austin says law is the aggregate of rules established by political superiors. Political superiors always represent (individual) group of individuals Constituting Sovereign Government and such Government would be obeyed by the bulk of individuals of a given society and thus wields power over the sub-ordinate authoriiies. According to Austion law is the command of the Sovereign. Command of the sovereign acts as the sanction behind law. For Austin law must have four characteristics namely Command, Sanction, Duty and Soverignty. Neo-Positivism Kelsen and Hart also ernphasised on the concept of "Sanction." But they used the term "recognition" instead of "Command." According to Kelsen, there are three main characteristics of law. They are namely:- 74 CENTRAL INDIA LAW QUARTERLY (1) There must be unityof 'JuristicCognition.' (2) Law is science. (3) Law must be pure. For him such "Juristic Cognition" will be the recognition behind law. Kelsen says legal order must have a hierarchical structure that is to say one norm receives its recognition from another norm. In this respect he used a term "Grundnorm" or basic norm from which all laws receive their recognitions. In national aspect constitution is the 'Grund norm', which acts as the basic or substratum of legal system of the Country. According to H.L. A Hart, a developed legal system must have primary rules and secondary rules. Secondary rules serve as a machinery for recognition of primary rules and they make provision for the implementation and enforcement of primary rules. In short, we may say Primary rule is the substantive rule and Secondary rule is the procedural rule. Pure Theory of Law Kelsen (1881-1973) was the believer ~f positivism. He said that law is pure and free from all notional elements like philosophical, Historical, Hypothetical and Sociological etc. For Kelson law is science. The reason is that law is a fact and science is also a fact. So law shall have no hypothetical elements. Law is independent of other disciplines of knowledge. But the question is, how is it possible? Even science is also dependent upon another branch of sciences e.g. both wave theory or corspuscular theory is essential to interpret "light theory." To explain the definition of photosynthesis the help of photo-chemistry is essential. It is also applicable to the field o legal science, e.g. the concept of crime is a f subject of criminology. It is also dependent upon another faculties of knowledge. Because modern psychiatry and neurology are widening the scope of continuous inquiry about an individual in order to find out social enticements for illegal behaviour of human being. Apart from this, science has also some pre-conceived ideas. We know that scientists have always started from a hypothesis which is sought to Vol. X:l] MEANING OF LAW 75 be verified by experiment. In this respect we may mention t h i quotation of Henri Poincare. So, we may say, if law is science, law may have some hypothetical elements. P. Folque very rightly says "Both wave theory and Corpuscle theories are used to interpret phenomena of light, and both physical-chemical and psychological those of the mind. Why should jurisprudential study of law be forbidden the benefit of complementary principle by an attempt to banish from its domain all theorie's except pure (that is analytical) theories for instance those of ethical or sociological ~oncern.~ Historical School Von Savigny and Henry Maine were the chief exponents of this school. Savigny, the noted German thinker in the field of legal science., says that law is the product of historical facts and which is sanctioned by common consciousness of the people. In this respect he employed the specific term "Voulkszeist" which signifies the "Common Consciousness' of the people. Savigny also believed in the existence of organic development of law in the society. Henry Maine propounded his thesis by stating that "The movement of the progressive societies has hitherto been a movement from status to contract theory." Maine stressed on the disintegration of individual status. For him status is static. So an individual divests himself in the society by sharing his will and interest with the collective interest of the society. Maine also believed that progressive societies are always manifested by assertion of individual's free and independent expression of desires. So, we may say that Maine's thesis throws light on the development of sociological school in future. Sociological School The thinkers of sociological school founded the theory on the adjustments and compromises of conflicting of individual interests with the collective interests of the whole society. For Pound there are three kinds of interests: (1) Individual interests, (2) Public interests and (3) Social interests. For him Individual intereqts imply claims, demands or expectations, immediately in the individual life. Public interests speak about the claims, demands or expectations involved in life of a politically 4. P. Folque La Dilectique, 3rd Edn. 1956, "on the principle of complementarity in Pholosophy of Science. Referred in legal system & Lawyer's Reasoning by Julius Stone, pp. (122-123). 76 CENTRAL INDIA LAW QUARTERLY [I 997 organized society, and social interests imply claims, demands, expectations involved in social life in a civilized society. Roscoe Pound also says that law is an instrument of social engineering. As an architect law builds and rebuilds the socrety. Law is the product of society. It is true, society is not static. It is dynamic. So, law is changing with the needs of changing society. With the march of civilization, many scientific and technical inventions have been made and such technological advancements in every sphere of activities have turned the society into more complicated and , hyperstructured. Such hyperstructurisation of the society needs new legislation in order to meet the new challenges of ,the society. . Environmental laws, laws relating to Consumer Prokction and Wealth laws are the inevitable outcome of social progress. So, law is an instrument of social control as well as social progress. Pound also said that the end of law would be promoting, maintaining, furthering society and the means would be "Social Engineering." Legal Realism Realism is not an isolated idea from the sociological school. Rather it is characterised as the most "radical wing of sociological approach." "Law is what judges administer." We may classify the concept of realism under two heads: American s neaw Scandinavian American Realism Cardozo believed that the precedent should be the rule in the administration of Justice. Holmes and Gray also supported the concept of Cardozo that law is the body of principles recognised by the state in administration of justice. So they emphasized on the courts role in making law. For them statute is not law until the court interprets it. Jerome Frank (1889-1957), another noted thinker of this thought presented the most realistic view in this regard. He expressed his doubt in the role of judges in giving judgements by them. Thus he invented the theory of "Skeptism." For him psychological and emotional element may influence the judgements given by the judges and thus it may result in. "rules skeptic" which may lead to "Fact Skepticq and ultimately it gives "Result Skeptic." Rules Skeptic--Fa skeptfc--Re& skeptic. He a& said that sometimes innumerak errors enter into -the determination of facts by the trial courts. Not only that, he said that there may be "perjured witnesses, Coached witnesses, biased witnesses, witnesses mistaken in their observation of the facts as to which they testify, or in their memory of their observations, missing or dead witnesses, missing or destroyed documents, crodced lawyers, stupid lawyers, stupid jurors, inattentive jurats, trial judges VIFho are stupid, bqpled and biased or fixed or inattentive to the te~timany."~ t b s e factors may interfere into the A4 administration of jwtjce and may divert the aim of justice to the people who are seeking justice in the court of law. Scandinavian R d i s m ' scandinavian Realism has akbd another new dimension by introducing two facts, social facts and psycho1ogicalfacts. Hagerstrom (1868-1939), Lundstedl (1882-1955). Owe C m and A# Ross are the four propounders of this s c W . Magerstm denied objective values. for him there are no things like W zd e s and "goodness" in the world. They are br n s" - only the emotional expression of appnwal or &approval of anythig. tn this respect; h i approach is very m h realistie that there are no emotional overtones h his thesis, Lundstedt W m e n t i y -oppased all metaphysical elements in law. For hkn law acts as an instrument for application of organised force. Olivecroha's appmch towads law is more flexible than Hagerstrom and Lundsledt. He approaches his theory from the stand point d bindingness. f o r him "bindingness" atways implies psychobgml bindingness, e.g. a person mLtst not put his hand in the fire, because he may receive burn. So, a person should not ignore law, because he may be punished. Anotbrer jurist M Ross approaches his theory by taking into consideration the "Vahdity of Law.' Valid Law" he says 'means the abstract set of normative ideas which serves as a scheme of interpretation for the phenomena of taw in action --- the test of validity is that, on t h i hypothesis---that is accepting the system of norms as a scheme of interpretation---wecan comprehend the action of the judge (the decisions of the courts) as meaningful responses to given ~ondiiions~within "certain limits and predict them." So, Alf Ross admitted 5. - Frank "Modem & Ancient Legal pragmatism': Referredin htroductionto the PtrHosophy of Law. pp. (124-1281, by Bodenheimer. 78 CENTRAL INDIA LAW QUARTERLY [I 997 another characteristic that is the "predictability." Law must have some predictability. It is interesting to note that Ross was the believer of realistic approach. But at the sametime he emphasis4 on 'Prediction' that is purely a hypothetical element. Theory of Behaviourism In recent times the doctrine of behaviourism has added a new dimension in legal theory. Glendon Schubert is a propounder of this theory. For Schubert sometimes judge's personal position and status in the society may influence the judgements given by them. Thus, Prof. Schubert has invented the theory of mathematical production of judicial behaviourism. Shubert clearly points out "What a judge believes depends upon his political, religious and ethnic affiliations; his wife; his economic security and his social status, the kind of education he has received, both formally and informally and the kind of legal career that he followed prior to becoming a judge. His affiliations, marital and socioeconomic status, education and career. will in turn be largely influenced by where he was born and to whom and when. From the point of view of predicting judicial decision making, it is not assumed that judicial decisions are a direct function of judicial attributes. Decisions are a direct function of attitudes, and attitudes are a direct function by attributes, thus decisions are affected by attributes only through attitudinal variable^..."^ Theory of Existentialism Modern philosopher Prof. Jean Paul Sartre in his theory of Existentialism says law is not an external compulsion but it is a part of self realisation. So, a man abides by the laws as a part of natural phenomena. For Prof. Sartre law is the natural outcome of universal rules that should be felt psychologically by Human being. He aptly says "Nature can not be denied without man destroying himself.... so man can not reject society, profession, state, marriage, family, without being blown to the winds and he can find himself only if he enters into them."7 So, all actions of this universe are orderly interrelated. We can not ignore such chain of 6. - Mathematical Prediction of Judicial Behaviouralisrn Glendon Schubert 1964, Referred in Introduction to jurisprudence by Lord LLOYD of HAMPSTEAD & M.D.A. Freeman, pp. (787-791). 7. - Karl lnsper Philosophic 838 (2nd Ed. 1948), referred in the Legal Theory by Friedman - Page 200. actions of the universe and this eternal principle has also been reflected in our social life. We know, that there are some eternal laws which govern the whole universe in an orderly manner. If any disarrangement of the order occurs it would lead to destruction of the universe. So, we can not deny such orderly relationship for our existence in the universe. Similarly there should be some social order for our existence in the society. Man should realise such principle as a part of self-realisation." He logically deduces this relationship, e.g. "nature" can not be denied without man "destroying himself." On the otherhand we may say that we can feel our existence by "creation" that is the gift of nature. Similarly, in our social life, man can not reject society, family, customs, for their existence in the society. So, man should realise the necessity of law for their existence in the society. Thus Prof. Sartre has admitted natural elements, sociological elements and psychological elements in his theory in order to explain the concept of "Existentialism." Concluding Remarks From the above discussion we may form an opinion that it is difficult to define law and the concept of law has some evolutionary history which exhibits various movements by myriads of vicissitudes of social ferments. All the various forms of manifestations of social life including law are product of evolutionary and dialectical process and it reveals itself in "Thesis", "Antithesis" and "synthesis." "Thesis", sets human spirit which becomes the idea of an epoch. Against this thesis, an antithesis is set up and from the struggle synthesis is developed by absorbing elements of both and reconciling them. We may cite an example of law on Dialectical basis, especially in the field of Land Reforms, e.g. accumulation of land in the hands of some chief and feudal lords- is Thesis, the demand of access to the fruits of toil and labour in the successive phases is an antithesis and the struggle which leads to some solutions that continued for sometimes is synthesis. So, Law and Society, these two terms are intrinsically and inextrically interlinked. This concept is very much applicable in case of social legislation. We may interpret law in the social mosaic. Law is not independent of other societal elements. From this we may aver that law could not be 80 CENTRAL INDIA LAW QUARTERLY [I 997 defined within one or two sentences. Hence, instead of Defining law, we may ask what is the 'Meaning of Law'? References: Legal Theory-Dr... Friedman, Columbia University Press, First Ed., New York. Introductionto the Philosophy of Law Edgar Bodenhe~mer. Jurisprudence- R W.M Dias Introductionto Jurisprudence by Lord LLOYD of Hampstead& M.D.A. Freeman Legal System & Lawyer's Reasoning By Julius Stone. Ideal element in Law-Roscoe Pound. Matters of JushcsMichael W Jackson. Legal Theory-Philip Soper Ethics-K.N. Kar Enforcement of Human Rights (in peace & war and the Future of Humanity) - Dr Nagendra Singh.