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
1. - -
L Wlttengenstein Phi\olosophical Investigation. Referred in Jurisprudence -LLYOD,
Vol. X:l] MEANING OF; LAW 71
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
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
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.'
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
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
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)
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
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.
(Bentham, Austin) Kelsen, Hart
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.
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
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
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
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
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
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
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."
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
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
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
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
Mathematical Prediction of Judicial Behaviouralisrn Glendon Schubert 1964, Referred
in Introduction to jurisprudence by Lord LLOYD of HAMPSTEAD & M.D.A. Freeman, pp.
Karl lnsper Philosophic 838 (2nd Ed. 1948), referred in the Legal Theory by Friedman
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
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
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'?
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
Enforcement of Human Rights (in peace & war and the Future of Humanity) - Dr