Meaning of Law – The state is in charge. Sovereignty is the only and most significant aspect of it. It is the state’s absolute power over all of its people and territories. The State’s sovereign power is exercised through its laws. The state government is essentially a system for enacting and executing laws.
Each legislation represents the state’s expressed will. It is backed by the state’s sovereign power. It is a State (sovereign) command backed by its coercive authority. The state punishes any violations of the law. The State performs all of its functions through its laws.
What is law all about?
The word ‘Law’ comes from the Teutonic word ‘Lag,’ which meaning ‘certain.’ On this premise, law can be defined as a set of rules governing human behavior and relations. It also refers to a set of consistent rules of conduct that apply to all citizens of the state. The state’s general circumstances of human activity are prescribed and regulated by law.
1. “The sovereign’s command is the law.” “It is the superior’s command to an inferior, and the sanction behind Law is force.” —Austin
2. “A law is a general rule of external conduct imposed by a sovereign political authority.” -Holland
In simple terms, law is a set of rules for behavior that is backed by the state’s sovereign power. It is a government-created and enforced universal guideline of human conduct in society. Each Law establishes a legally binding rule, value, or conclusion. Every infraction is sanctioned by the state.
Nature/Features of law
1. A general rule of human behavior in the state is called law. It is applicable to all citizens of the state. All are subject to the laws of their respective states in the same way. Aliens who reside on the state’s territory are likewise subject to its laws.
2. Law is definite, and it is the State’s expressed will. It is a state-created and enforced rule.
3. The state always acts through the legal system. The state government is in charge of making and enforcing laws.
4. Law establishes for all citizens of a state binding and authoritative values, decisions, or rules.
5. State sovereignty is the foundation of law and its binding nature.
6. Law is backed by the state’s coercive power. The consequences of breaking the law are always severe.
7. Penalties are also imposed by law.
8. All disputes between people are settled by the courts on the basis of the law.
9. There is only one body of law in each state.
10. From a legal standpoint, A sovereign’s command is law. In today’s world, laws are formed by the representatives of the people who make up the state legislature. Public opinion and public needs are used to support laws.
11. The purpose of law is to provide people with peace, protection, and security, as well as to create conditions conducive to their overall development. People’s rights and liberties are also protected by the law.
12. All disputes between people are resolved by the courts through the interpretation and application of the state’s laws.
13. A modern legal system and liberal democratic state are defined by the rule of law, equality before the law, and equal protection under the law for all without discrimination.
Sources of the Law:
One of the oldest sources of law is custom. Social relationships gave rise to a variety of usages, traditions, and customs in ancient times. These were employed to resolve and decide conflicts between people. Customs were followed religiously, and customs infractions were frowned upon and penalized by society. Initially, social institutions operated on the basis of a number of established customs.
Gradually, the State arose as an organized political entity of the people charged with maintaining peace, law, and order; naturally, it began to operate by enforcing norms based on customs and traditions. In truth, the majority of laws arose from the State’s conversion of conventions into authoritative and obligatory norms. Custom has shown to be a valuable source of law.
2. Morality and Religion:
When humans began to observe, enjoy, and dread natural forces, religion and religious rules emerged spontaneously in every culture. These were revered and venerated as superior heavenly entities (Gods and Goddesses).
Religion began to regulate people’s behavior by using “Godly sanction,” “fear of hell,” and “potential fruits of paradise” as justifications for implementing religious regulations. It forced people to adopt and follow religious rules. Several religions have stepped forward to develop and prescribe specific standards of conduct. Morality rules appeared in society as well. These were used to describe what was good and what was terrible, as well as what was right and wrong.
A society’s religious and moral precepts provided the State with the required substance for regulating people’s conduct. Several moral and religious standards were translated into laws by the state.
As a result, religion and morality have been significant sources of law.
3. Legal Framework:
Legislation has evolved as the primary source of law since the formation of legislatures in the 13th century. The State has traditionally relied on customs and the King’s decrees or orders to regulate people’s behavior. Later on, the legislature was established as a governing organ. It began the process of changing the people’s customary rules of behavior into specific and enacted rules of behavior.
As the sovereign, the King began to provide his consent. Soon after, legislation became the primary source of law, and the legislature was designated as the Legal Sovereign, or the State’s law-making organ. Legislation has become the most powerful, prolific, and direct source of law in modern times. It has come to be viewed as the primary mechanism of transforming the State’s will into legally binding norms.
4. Legislation Delegated:
The legislative of a State finds it necessary to delegate some of its law-making responsibilities to the executive for a variety of reasons, including a lack of time, expertise, and rising demand for law-making. Under this system, the executive establishes laws and rules. Delegated Legislation is the term for it. Delegated Legislation has been a significant source of law in recent years. Delegated Legislation, on the other hand, is always subject to the Legislature’s higher legislative power.
4. Decisions of the Courts:
Judicial Decision has become an important source of law in modern times. The courts are responsible for interpreting and applying laws in individual instances. People’s disagreements are resolved by the courts in cases that come before them. The parties to the lawsuit are bound by the decisions of the courts – the judicial rulings. These are also accepted as laws in the future. However, not every judicial ruling is a law.
Only judicial decisions issued by the supreme court or courts designated as Courts of Record (such as the Supreme Court and High Courts of India) are recognized and applied as laws. Lower courts can use such judicial rulings to settle their cases.
Fairness and a sense of justice are synonymous with equity. It is also a legal source. Judges evaluate and apply laws to specific instances while making decisions. However, laws do not always match well in every situation, and they may be quiet in other areas. In all of these cases, the judges rely on equity and act in line with their sense of fairness and fair play. Equity is utilized to bring relief to those who have been wronged, and such rulings serve to establish future rules. As a result, equity serves as a legal source.
6. Scientific Analysis:
Scientific commentary on the Constitution and the laws of each state are always included in the works of famous jurists. The courts utilize these to determine the interpretation of the law. It aids in the interpretation and application of laws by the courts.
The jurists not only discuss and explain the existing law, but they also provide recommendations for future standards of conduct. They also point out the flaws in existing legislation and suggest strategies to address them. They provide interpretations that assist judges in interpreting and applying laws to specific instances.
Judges in India have traditionally admired the works of jurists such as Blackstone, Dicey, Wade, Phillips, Seeravai, B.Pi. Rau, D.D. Basu, and others. Jurists who write scientific remarks are always helpful in the development and evolution of the law. As a result, these are also legal sources. As a result, there are various sources of law. Lawmaking via the legislature, on the other hand, is the primary source of legislation in modern times.
Types of Laws
Generally speaking, there are two types of law:
I National Law, which is a set of laws that governs people’s behaviors in society and is backed by the state’s coercive power.
(ii) International Law, which is a set of norms that governs and directs states’ behavior in international relations. The states’ desire and consent to follow the rules of International Law is backed up by their willingness and consent. It is a voluntary agreement between states that is not backed by any coercive force.
The law through which the state governs the people is known as national law. It can be divided into numerous types:
1. The Constitution
2. Common Law:
It can be divided into two categories:
2 a) Personal Law
2(b) Law of the State:
It’s been subdivided into two halves once more:
2(b) I Public Law in General
2(b) (ii) Administrative Law
1. Constitutional law:
The supreme law of the country is the Constitution. It is enshrined in the state’s constitution. The Constitutional Law establishes the structure, powers, functions, and interrelationships of the three government entities. It also establishes the people’s relationship with the government, as well as citizens’ rights, freedoms (basic rights), and responsibilities. It is referred to as the Law of the Laws since all state lawmaking is based on authorities granted by the Constitutional Law, i.e. the Constitution.
Ordinary Law or Statute Law:
It is also referred to as national or municipal law. The government (legislature) creates it, and it governs and regulates people’s conduct and behavior. It establishes the relationships between people and their organizations, groups, and institutions. The legislature enacts laws, the executive executes them, and the court interprets and applies them to specific situations.
Ordinary Law is classified into two parts:
(a) Private Law and
(b) Public Law.
Individual relationships are governed by private law. It establishes guidelines for an individual’s behavior in society and interactions with others. It ensures that he can use his rights. The State functions as the mediator of conflicts between any two individuals or groups through this statute.
The legislation that governs the relationship between the individual and the government is known as public law. It is created and enforced on behalf of the community by the state.
The law is organized into two categories: public law and private law.
2(b)(i) General Law, and
2(b)(ii) Administrative Law.
2(b) (i) General Law:
It establishes the relationship between the State and private persons (non-officials or those who are not members of the civil service). In their interactions with the government, all citizens are subject to general public law.
2(b) (ii) Administrative Law:
It establishes the rules for the exercise of constitutional authority, which is assigned to all government organs by the State’s Constitution. It also regulates the relationship between civil servants and the general public, as well as the relationship between civil servants and the government. Administrative law is managed by administrative courts in some states, such as France, while general law is handled by ordinary courts. In countries like India, the United Kingdom, and the United States, however, the General Law and Administrative Law are administered by the same courts.
“In Private Law, the parties concerned are private persons alone, between whom stands the State as an impartial arbiter,” Holland adds, clarifying the distinction between Public and Private law. The State is also present as an adjudicator in Public Law, despite the fact that it is one of the parties involved.”