NATURE OF

LAW

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 Definition of Law
 Law can never de defined.
 But Jurists have tried to define law, as it is
essential.
 Various definitions under various Schools of
law.
 Law is social science and grows and develops
with the growth and development of society.
 Definition of a particular time cannot remain
valid for all times to come.
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 Justinian says “Law is the King of all
mortal and immortal affairs, which ought
to be the chief, the ruler and the leader of
the noble and the base and thus the standard
of what is just and unjust, the commander
to animals naturally social of what they
should do, the forbidder of what they
should not do.”
 Ulpian defines, “The art or science of what
is equitable and good.”

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 Emanuel Kant says “the sum total of he
conditions under which the personal
wishes of one man can be combined with
the personal wishes of another man in
accordance with the general law of
freedom.”
 Savigny says, “the rule whereby the
invisible borderline is fixed within which
the being and the activity of each
individual obtains a secure and free
space.”
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 According to John Austin “Law is the
aggregate rules set by men as politically
superior or sovereign, to men as
politically subject.” In other words, law
is the command of the sovereign. It
imposes a duty and is backed by a
sanction. Command, duty and sanction
are the three elements of law.

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Criticism of Austin’s Definition
 Laws before State
 Generality of Law
 Promulgation
 Law as Command
 Sanction
 Not applicable to International Law
 Not applicable to Constitutional law
 Not applicable to personal law
 Disregard of ethical elements
 Purpose of law ignored
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 Question of Law,
Question of Fact, Mixed
Question of Law & Fact,
Presumption

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 Question of Law
 All questions which arise for
consideration and determination in a court
are of two kinds:
 Questions of law or
 Questions of fact
 Questions require an answer in court of
justice is either one of law or one of fact.

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 Question of law
 As per Prof Salmond, The term question of law is
used in three distinct senses. It means-
1. In the first sense,
i. a question which the court is bound to answer
in accordance with a rule of law;
ii. A question which has already been
authoritatively answered by some rule or
principle of law, and which the courts consider
to be binding on them irrespective of their
opinion in the matter.
iii. All other questions are questions of fact.
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 In this sense every question which has not been
pre-determined and authoritatively
answered by law is a question of fact.

• The question whether a child accused of crime

has sufficient mental capacity to be criminally
responsible for his acts is one of fact if the
accused is over the age of 9 years in Bangladesh.
It is a question of law if he is under that age.

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2. In the Second sense,
 A question of law is a question as to what the law
is.
 Question of law in this sense arises not because the
law on that question is silent but on account of
the uncertainty and ambiguity of the law.
 When a question arises in the court of justice for
determination of an ambiguous statute, the
question is a question of law, that is, it is a
question as to what the true meaning of the law
is.

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 An appeal on a question of law means the
determination by the court as to what the true
rule of law on this point is.
 In other words, question of law in this sense is
a question which the court is to decide in
order to set at rest all disputes regarding the
same in future.
 An authoritative answer to the question
becomes a judicial precedent which is law
for all other cases in which the same statutory
provision is in question.
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3. In the Third sense,
 The general rule is that all questions of law are for
the judges and all questions of fact are for the
Jury to decide.
 It is true that questions of law are never referred to
the Jury, but question of fact can be referred to a
Judge.
• Interpretation of a particular document is a question
of fact, but quite often it is done by the Judge himself.
Again, the question of reasonable and probable cause
for prosecution in a suit for malicious prosecution is
decided by a Judge although it is question of fact.

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 Question of Fact
 Questions which are not the questions of law
are questions of fact.
 Salmond holds that,
 a question of fact is one which is not pre-
determined by the rule of law, or
 any question which except the question as to
what the law is or any question which is to be
answered by the Jury. Evidence can be led to
prove or disprove a question of fact.

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 Example:

 Whether a theft has been committed or

not is a question of fact.
 But, A question as to what punishment
should be awarded to the accused is a
question of law.

 In case of death of a patient under

operation, the question whether the
operating surgeon was negligent or not is
question of fact.
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 Mixed Questions of Law and Fact
 The courts are quite often required to decide
questions which are, by nature, mixed questions
of law and fact.
 whether a partnership actually exists among
certain partners or not, is a question of fact but
whether the agreement of partnership entered into
by them constitute relationship as partners is a
question of law and not of fact.

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 Transformation of Question
 Sometimes, a question of fact in a case transforms
into a question of law consequent to judicial decision
which becomes a precedent for subsequent cases of
similar nature.
 Example:
 In India, during the Presidential election in 1974, a
question arose whether dissolution of one or more
State Legislatures would result into postponement of
Presidential election till all the State Legislature are
functioning. This question had never arisen earlier, so
it was referred to the Supreme Court for advice under
Article 143 of the Constitution.
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 Answering in the affirmative, the Supreme
Court observed that suspension or
dissolution of a State Legislature shall not
adversely affect the Presidential election
process.
 This question of fact was transformed into a
question of law consequent to the decision of
the Supreme Court in 1974. Now it is a
binding precedent for similar situations
arising in future.

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 Legal Presumption
 A rule of law by which Courts and Judges
draw a particular inference unless and until
the truth of that inference is disproved.
 One fact is recognised by law as sufficient
proof of another fact, whether it is in truth
sufficient for the purpose or not.

 Presumption may be either of law or of facts.

 The Presumption of law may be--
i. Conclusive, or
ii. Rebuttable
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 Conclusive presumption
A conclusive presumption
constraints the courts to infer the
existence of one fact from the
existence of another, even though that
inference could be proved to be false.

 In other words, the law prohibits

leading evidence to the contrary.

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 Thus, the presumption that the child under
the age of nine years is incapable of
committing an offence under section 82 of PC
or a child born during the continuance of
marriage within 280 days after its
dissolution is considered to be legitimate, are
conclusive presumptions of law though it may
be false in particular instances.
The conclusive presumption is called
presumption de jure and it is irrebuttable.
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 Rebuttable Presumption
 A rebuttable presumption is one where the
law requires the court to draw an inference
even though there is no sufficient evidence to
support it. If evidence is given to contradict
such an evidence, it is bound to be rejected.

 A person who has not been heard of for

seven years or more is presumed to be
innocent unless his guilt is proved, are
illustrations of rebuttable evidence and contrary
evidence may be given to disprove this
evidence.
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 Legal Fiction
 As per Sir Henry Maine,
 Any assumption which conceals or tends to
conceal the fact that the rule of law had
undergone any alteration, its letter
remaining unchanged but its operation being
modified.
 A child can be adopted from one family
into other by fiction or a limited company is
closed with legal personality by legal fiction.
In Hindu law, a child in mother’s womb
becomes entitled to family property by
fiction.

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 [State of Andhra vs. K.V.L Narshimha Rao
(1990) 4 SCC 181]
 Legal fiction is one which is not actual
reality and which can be recognised and the
courts accept as reality. Therefore, in case
of legal fiction the court believes something
to exist which in reality does not exist. It is
nothing but a presumption of existence of
state of affairs which in actually is non-
existent.

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