Humaira Tahir

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1. Introduction
2. Meaning of Law
3. Juristic Views on Law
4. Derivation of Law

Law German Term Lag Fixed or evenly

5. Definition of Law
 According to Cicero
Law is the highest reason implanted in the nature
 According to Austin
Law is the aggregate of rules set by men as political superiors to men as
politically subject”

6. Development of Law:
A historical survey of the manner in which legal principles have developed will add clearness to
our knowledge of state evolution and will further explain the nature of law. In the static
civilizations of early times law was viewed as something permanent and immutable, like the
“law of the Medes and Persians, which altereth not,” or the customs of England traced back to
the “time whereof the memory of man runneth not to the country”? The conservatism of tradition
and the belief in divine sanction gave a fixity to law which made change difficult.

7. Causes of change in Law

But no set of customs is satisfactory to the needs of a changing civilization hence old laws
required modification, and new laws had to be created. Such changes were accomplished mainly
by the following means:

(a). Conquest:
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The mingling of customs resulting from conquest and subjugation resulted in the suppression of
some and the modification of others. This process of assimilation took place wherever various
peoples came into contact.

(b). Interpretation:

New generations do not always interpret old customs in the same way as their ancestors, and
those who enforced the accepted traditions frequently exercised discretionary powers that
modified the earlier rules. Legal fictions of various kinds were often created to modify ancient
laws that worked injustice.

(c). Codification:

when written law replaced the earlier traditional, customary rules, codes were often drawn up.
Sometimes these were intended to make the law more definite, sometimes to reconcile the
conflicts of rival interests and customs, sometimes to adjust the law to changing conditions in the
state, sometimes to harmonize the conflicting rules and interpretations that had accumulated
during a long period.

(d). Administration:

With the growth of governmental machinery, the executive department developed a power that
amounted to the formulation of new law. By issuing decrees and ordinances the heads of the
state filled in the details of law and adjuster it to new conditions. Dictators, set up in time of war
or crisis, frequently found it necessary to break with the old customs and to formulate new
regulations. In this way executives gradually assumed the right to modify ancient customs and to
make new laws when needed.

(e). Legislation:

In the fully developed state a special lawmaking organ appears which no longer pretends to
interpret existing law, but which baldly proclaims that it is formulating new law. With the
growth of its powers the old idea that the law is a fixed system was replaced by the idea that the
duty of the state is to create new law whenever social needs demand it. Legislation became the
chief function of the state, and this process of lawmaking gradually superseded all the others.
The executive and judicial departments, more important in the earlier states, were reduced to the
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position of agents of the legislature, which to a large degree exercised the sovereign power of the
state.

8. Sources of law:

The foregoing summary of the methods by which early law was changed and expanded suggests
some of the sources from which legal ideas have been derived. These may now be outlined as
follows:

(a). Custom:

Rules of conduct resting upon general acceptance, resulting either from accidental habits, from
evident utility through successful experience, or from general desire for order and justice, were
the only laws known in early states. Evidently no direct action of the state was involved in the
creation of such rules they grew up through common usage and acceptance. As long as social
relations were simple, and common interests few, all knew and followed the accepted customs,
which were handed down through oral tradition by the elder members of the group. To the
sanction resulting from immemorial custom was often added religious authority, since law and
religion were not distinguished, and all rules were supposed to have a supernatural sanction.
Many of the customs grew out of religious practices and superstitious fear of angering the gods
or of arousing evil spirits gave powerful support to all early rules.

(b). Judicial decisions:

Under changing conditions, such as resulted from new environment, new methods of life, or
contact with other peoples, several difficulties arose. Numerous controversies led to doubts as to
the relative validity of conflicting customs, and many cases arose concerning which custom
furnished no rule. The evils of uncertain public opinion and the injustice of the strong, when
customary rules were absent, led to an additional source of law, namely, adjudication, or judicial
decision.

(c). Scientific commentaries:

The writings of great jurists have sometimes contained legal principles which have been
incorporated into the law. Lawyers and judges attach importance to their carefully considered
opinions. The influence exercised by the juris consults in Rome, and by Coke, Blackstone, and
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Kent in modern times, are examples. Unlike judges, whose decisions apply to particular cases,
the commentators deal with abstract principles and what lawmakers and courts deal with in piece
meal fashion legal science views as a complete system capable of scientific treatment.

By collecting, comparing, and arranging in logical form past customs, decisions, and laws,
writers on law are able to arrive at general principles which may serve as the basis for further
enactment, to indicate the gaps that need filling, to point out discrepancies, and, in so far as their
ideas are enforced by the courts, to create law.

(d). Legislation:

The declared will of the state in legislation is the chief source of law in modern states, and is
tending to supplant the other sources. Customary rules and general principles of equity are being
incorporated into definite legislative enactment, codification of laws narrows the field of judicial
decision and the commentaries of jurists are used mainly as a basis for more scientific
legislation. Rigid custom, which sometimes caused ancient states to stagnate, has been replaced
by a zeal in lawmaking which sometimes threatens to go too far in the other direction.

At the same time, the earlier sources still serve as direction against over legislation. Custom and
habit prevent too radical changes. Laws no longer needed become obsolete, usages grow up
outside the legal system, interpretation by the courts gives attention to the precedents of the past
and public opinion constantly influences both the formulation and the administration of law. Past
tradition, as well as the needs of the present, affects the creation of law.

9. Merits of Law :

 General
 Fixed
 Equality
 Reliable
 Enforcement of rights
 Followed by customs
 Punishable
 Legal entitlement
 Administration of Justice
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10. Demerits of Law :

Rigid
Not easy to amend
Complex
Not general
Not easy to understand
11. Modem Schools of Jurisprudence:

The study of jurisprudence or the science of law, may be approached by different methods,
depending upon the point of view and the emphasis desired. Among the most important modern
schools of legal Study are the following:

i. The analytical:

The method of the analytical jurists is based on the absolutist and idealistic philosophy that came
down through Plato, Thomas Aquinas, and Kant, and found its political expression in Bodin,
Bentham, and Austin. Recent writers who follow the analytical method include T. E. Holland in
England and W. W. Willoughby in the United States. This school seeks to explain the law as it
is, examining its content critically in order to discover its fundamental principles and theories. It
pays especial attention to clear definitions and to logical distinctions. It emphasizes legislation as
a source of law, views lawmaking as the deliberate and conscious command of the state, and
insists on the absolute and unitary nature of the state’s sovereignty.

Analytical jurists see chiefly the force behind legal rules. To them the sanction of law is
enforcement by the state. thing that lacks a legal enforcing agency is law. This method is more
applicable to individual systems of law than to a comparative study, and to highly developed
systems of law than to more primitive forms. Analytical jurists tend to regard the law as static
rather than progressive, and they are not interested in its historical evolution.

As a result, they have sometimes reached absolute conclusions without examining an adequate
amount of material. While this method has been much criticized as being too formal and rigid, it
has, nevertheless. by its clear cut analysis, improved the law by removing inconsistent and
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ambiguous elements and by its association with the utilitarian theory of the greatest happiness of
the greatest number, it has reformed the law in the interests of general welfare.

Ii. The historical:

The historical school of jurists draws upon the Hegelian philosophy of a fixed ideal but
constantly evolving details. Its point of view is retrospective. It studies the origin and
development of law, investigates the causes of change and growth, and views the law as the
resultant of the forces and influences of the past. From this point of view, law is not the
deliberate creation of a lawmaker, but the result of the slow development of society through
many centuries. The chief exponents of this doctrine were Saving in Germany and Sir Henry
Maine.

F. W. Maitland, and, more recently, Sir Frederick Pollock in England! While this method
overemphasizes legal history and undervalues legal philosophy, and tends to be conservative
because of its reverence for the past and its distrust of deliberate efforts at reform, it has
contributed elements of value. It furnishes the background for legal analysis, and it points out
that legal systems are constantly changing and need modification to meet new conditions.

iii. The philosophical:

The jurists of the philosophical school the interested in the law as an abstraction, rather than in
the actual law of the past or present. Their concern is with the development of the ideas of justice
as an ethical principle and with the creation of an ideal system of law. In the eighteenth century
they believed in a law of nature which could be discovered by human reason. In the nineteenth
century they were interested in metaphysical discussions of existing laws and in attempts to
create perfect law through codes and legislation. In the twentieth century they gave chief
attention to social interests and ideals and to the formation of theories of social justice. The
leading modern exponent of the philosophical method was Professor Joseph Kohler, in Germany.

iv. The comparative:

The comparative study of jurisprudence is an expansion of the historical method its exponents
believe that by examining and comparing all legal systems and practices, past and present, they
can arrive at more reliable generalizations than can be obtained otherwise. This method draws
largely on the other social sciences for material, and was much influenced by the developments
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of the second half of the nineteenth century in Darwinian biology, in comparative philology, and
in anthropology. While the program of this school is ambitious and much remains to be done, it
has made valuable contributions to our knowledge of the nature of law. One of the leading
exponents of this method Was Sir Paul Vinogradoff of England.

v. The sociological:

The most recent school of legal investigation includes a group of jurists who hold divergent
views on many points, but who are in agreement on certain fundamental principles. The
sociological jurists draw largely on modem development in in psychology and sociology and on
the practical philosophy of pragmatism. They believe that law is the product of social owes and
should serve social needs.

They are concerned with the administration of law as well as with the method of its creation, and
believe that the law should be judged by its results, rather than by abstract theories. They
approach the study of law by examining the social ends which the law is intended to serve. They
broaden the relation of law to the other social sciences and attempt to create a general social
theory.

In contrast to the analytical jurist, who found the sanction of law in the command of the state, to
the philosophical jurist, who found its sanction in its inherent justice, and to the historical jurist,
who found its sanction in established habit and custom, the sociological jurist finds the sanction
of the law in the social needs and interests that it serves. This school attacks the idea of a
sovereign state as a creator of law, and views the state rather as the organization which imputes
legal value to the rules that grow out of and best promote social interests.

Law in this sense exists outside of and is of superior validity to the authority of the state itself.
Among the leading representatives of this school are Gumplowicz in Austria. Duguit in France,
Krabbe in Holland, and Roscoe Pound and Justice Holmes in the United States.

12. Classification of Law:

The content of law may be classified from various points of view. Among those which bring out
most clearly its essential nature and which throw additional light on the nature of the state and of
sovereignty, are the following:
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a. As to the nature of a right:

When laws are applied to individuals, it is seen that the state sanctions only such acts as are in
accordance with its will, as expressed or tacitly implied, and punishes, or at least nullifies, acts
contrary to its will. In other words, the state announces what it will protect as legal rights and
what it will enforce as legal duties, and what method it will use in doing so. The maintenance of
rights with their corresponding obligations is, therefore, the purpose for which law exists. That
law which creates rights is called substantive law while that law which provides a method of
protecting rights is called adjective law, or procedure.

The nature of a legal right has already been discussed. There remain to be considered its
component elements, which are the following:

 The person or persons who possess the right or who are benefited by its existence.
 The object, if any, over which the right is exercised.
 The acts or forbearance’s which the person possessing the right is entitled to demand.
 The person or persons from whom these acts or forbear antes can be exacted or whose
legal duty it is to act or forbear.
In this series two terms are persons one entitled to the right, the other obliged by the right. The
other terms may be called the thing and the act. When a right is put into operation, events may
occur which are independent of the persons directly concerned concerned and which yet affect
the right.

The final analysis of a legal right, therefore, shows:

 Persons Either human beings, called natural persons, or groups of human beings or
masses of property to which the law gives tights and duties called artificial persons.
Corporations and the state itself are examples of this latter class.
 Things either material objects, such as real and personal property, or intangible objects,
such as a patent, a copyright, a franchise or a person’s reputation.
 Farts These may be:
(1) Acts, Deliberate outward actions or deliberate forbearance from action on the part of the
persons affected by the right.

(2) Events. Movements of external nature other parts of persons other than those concerned with
the right.
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b. By representative legislature:

These include the national Congress and the state legislatures, which make law in the form of
statutes and the local councils, which make ordinances. The executive may share to some extent
in the lawmaking powers of legislatures through the veto. The greater part of modem law is
made by these bodies.

c. By the electorate:

The voters share in lawmaking in some of the American commonwealths by means of the
referendum. This may be applied to laws submitted to them by the legislature or to laws which
they originate by initiative petitions.

d. By executive and administrative organs:

Executive heads, department heads, and administrative boards and commissions exercise a
limited lawmaking power in the proclamations, orders, and regulations which they issue.

e. By the courts:

The courts make law when they give decisions based on customs or on principles of equity not
previously put into law when, by interpreting the constitutions or laws, they actually change their
formerly accepted meaning and when, by injunctions, they forbid something which would
otherwise be legally permissible.

f. By the treaty making power:

The president, with the consent of two thirds of the Senate, makes treaties, which, once made,
become part of the law of the land.

g. As to the relations governed:

The relations with which the state is concerned include those of person to person, person to state,
and state to state. On this basis law may be divided into the, following classes:
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 a. Private law, which regulates the relation of person to person.
 b. Public law, which regulates the relation of person to state.
 c. international law, which regulates the relation of state to state.
 Constitutional law, which defines the organization of the state and outlines the scope and
manner of exercise of governmental powers. In a word, it locates sovereignty within the
state and thus indicates the source of all law.
 Administrative law, which defines in detail the manner in which the government shall
exercise those powers that were outlined in constitutional law. Or, in a narrower sense, it
is that part of the public law which fixes the organization and determines the competence
of the organs administer the law, and indicates to the individual remedies for the violation
of his rights.
 Criminal law and procedure. In maintaining order the state considers certain offenses,
which affect public welfare and security, as offenses against itself. That branch of law
which defines and forbids the acts that infringe upon the rights of the state and provides
penal consequences is called criminal law. That body of rules defining the method in
which the machinery of the state is set in motion to punish offenders is called criminal
procedure.
Law and Morals:

13. Conclusion