The Meaning and Nature of Law

Remember the old story of the blind men and the elephant. One feels the trunk and says an elephant is like a snake; another feels the leg and says it is like a pillar; a third feels the ear and says it is like a fan. Each is partly right, and each mistakes a part for the whole. Definitions of law are like that. The theologian touches law's moral purpose, the positivist its commanding authority, the judge its application in court, the historian its roots in custom, the sociologist its social function. This note sets out the major definitions with their authors, explains the nature and functions of law, and then shows what 'law' means in the Indian Constitution, where the question is not academic but decides cases.

Figure: Three great conceptions of what law is: law as command (Austin), law as norm (Kelsen) and law as rule (Hart)

1. The Word Law and Its Senses

In ordinary speech 'law' covers very different things: the laws of physics, the laws of cricket, the moral law, the law of the land. Many languages mark a distinction English lacks. Latin separates jus (law in the abstract, right) from lex (a particular enactment); German has Recht and Gesetz, French droit and loi. In jurisprudence the word ordinarily means the law of the State, which Salmond calls civil law (the law of the land, not civil as opposed to criminal).

Salmond listed eight kinds of law to show how wide the word runs: imperative law, physical or scientific law, natural or moral law, conventional law, customary law, practical or technical law, international law and civil law. Only the last is the proper subject of jurisprudence in his sense. These kinds, together with Austin's division of laws properly and improperly so called and the main classifications of law, are explained in Note 8.

2. The Definitions, School by School

The safest way to learn the definitions is by school, because the definition always follows the definer's view of what makes law binding. Idealist writers look to reason and justice; positivists to a sovereign or a State; realists to courts; the historical school to the people; the sociological school to social function; the modern positivists to norms and rules.

Two warnings. First, do not gloss Salmond as 'law is whatever the courts will enforce'. Salmond's definition speaks of principles recognised and applied by the State in administering justice; the court-centred prediction view belongs to the American realists' forerunners, Holmes and Gray. Second, do not say Savigny defined law as 'the will of the people'. Savigny opposed the idea that law is willed or made at all. For him law grows silently from the people's common consciousness, as their language does.

3. The Three Great Conceptions

Three modern answers dominate the question of what law essentially is, and the figure above sets them side by side. For Austin, law is the command of a determinate sovereign who is habitually obeyed and obeys no one, backed by a sanction; duty is the liability to that sanction. For Kelsen, law is a norm: an 'ought' addressed to officials, which directs a sanction if certain conduct occurs. Law is a coercive order, but the sanction is not the ground of validity; each norm is valid because a higher norm authorises it, up to the presupposed Grundnorm (Note 12). For Hart, law is a system of rules. A society with only primary rules of obligation suffers from uncertainty, a static quality and inefficiency; secondary rules of recognition, change and adjudication cure these defects, and their union is the key to the science of jurisprudence (Note 11). Each theory answers a weakness of the one before: Austin cannot explain custom, powers or a sovereign bound by a constitution; Kelsen explains validity but rests on a presupposition; Hart grounds the system in the actual practice of officials.

4. Law in the Indian Tradition: Dharma

Classical Hindu thought did not have a word for law in the narrow Western sense. Its central idea was dharma: the order that sustains the world and society, covering religious duty, morality, custom and what we would now call law. The part of dharma concerned with disputes and their settlement was vyavahara. The sources of dharma were the Shruti (the Vedas), the Smritis (such as Manu and Yajnavalkya), sadachara (the practice of the virtuous, that is, custom) and, last, what is agreeable to one's own conscience. Two features matter for jurisprudence. First, dharma is wider than State law: it binds by conscience, not only by sanction. Second, the king was himself bound by dharma; his duty (rajadharma) was to uphold it, not to make it at will. The Brihadaranyaka Upanishad describes dharma as the power even above the ruler. That is why dharma is often compared with natural law, and why Austin's picture of an unlimited sovereign fits classical India poorly (see Note 44).

5. What 'Law' Means in the Indian Constitution

For an Indian lawyer the meaning of law is a live constitutional question. Art. 13 makes void any law inconsistent with the fundamental rights, so everything turns on what counts as 'law'. Art. 13(3)(a) gives an inclusive definition: 'law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. The inclusion of custom is striking. An Austinian would not treat custom as law until the sovereign adopts it; the Constitution deliberately brings custom and usage within the reach of fundamental rights. Art. 13(3)(b) then defines 'laws in force' to include laws made before the Constitution and not repealed. Three cases show how the meaning of 'law' shaped Indian constitutional history.

6. The Nature of Law

7. The Functions and Purposes of Law

Law first keeps order and security, replacing private vengeance with public adjudication. It protects rights and liberty, both against other persons and against the State. It aims at justice, which Ulpian described as the constant and perpetual will to render to each his due (Note 21). It promotes welfare: the modern State uses law for health, education, labour protection and social security. Finally, it is both an instrument of social control and of social change. Pound described law as a highly specialised form of social control and made social engineering its task (Note 14). In India law has been used deliberately to change society: Art. 17 abolished untouchability, the Hindu Code legislation of the 1950s reformed marriage and succession, and later amendments gave daughters coparcenary rights (see Vineeta Sharma, 2020, and Note 41).

8. Coercion, Authority and Legitimacy

Force is behind law, but force is not enough to explain it. A gunman's order, Hart pointed out, is coercive but is not law, because it lacks authority, the recognised right to command, and it creates no obligation, only being obliged. A legal system that is obeyed only through fear is unstable; one that enjoys legitimacy, the belief that its authority is rightful, is obeyed willingly and needs its sanctions only at the margin. This is why Weber classified legitimate authority into traditional, charismatic and legal-rational types (Note 6), and why the Indian Constitution rests the authority of all law on 'We, the People'.

9. Frequently Asked Questions

Q. Why is law so difficult to define?
A. Because law has many aspects (moral purpose, command, judicial application, custom, social function, normative structure) and each school fixes on one. The definition therefore reveals the definer's theory: compare Aquinas, Austin, Salmond, Holmes, Savigny, Pound, Kelsen and Hart.

Q. Is personal law 'law' under Art. 13?
A. In State of Bombay v Narasu Appa Mali (Bombay High Court, 1952) it was held that personal law is not 'law' or 'laws in force' under Art. 13, so it cannot be tested directly against the fundamental rights. The view has been questioned in later judgments, but custom or usage having the force of law is expressly included by Art. 13(3)(a).

Q. How did the meaning of 'law' in Art. 21 change?
A. In A.K. Gopalan (1950) 'law' meant State-made law, whatever its content. In Maneka Gandhi (1978) the Court held that the procedure established by law must be just, fair and reasonable, reading Arts. 14, 19 and 21 together.

Q. How is dharma different from law?
A. Dharma is wider: it covers religious duty, morality, custom and legal rules, binds by conscience as well as sanction, and binds the king himself. Law in the positivist sense is the narrower body of rules made or recognised by the State.

See also: Note 8 (classification and Salmond's kinds of law), Note 9 (natural law), Note 11 (analytical school), Note 12 (Kelsen), Note 22 (sources of law), Note 44 (Indian jurisprudence).