This post is written by Srishti Rajpoot, a 2nd year law student of Gautam Buddha University.
Definition of Law-
Cicero said that law is “the highest reason implanted in nature”.
Pindar called law as “the king of all both mortals and immortals”.
Blackstone writes “Law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of actions, whether animate or inanimate, rational or irrational”.
According to Vinogradoff, law is a set of rules imposed and enforced by a society with regard to distribution and exercise of powers over persons and things.
According to Austin law is the command of sovereign. It imposes a duty and is backed by a sanction.
Holland says law is general rule of eternal human action enforced by sovereign political authority.
Salmond defines law as the body of principles recognized and applied by the state in the administration of justice.
The term sanction derived from Roman law. The term sanction means mere penalty. It can also be some motivating force or encouragement for the purpose of better performance and execution of laws.
Sanction is the genus of which punishment is the species. Sanction consists in the application of the physical force of the state for the enforcement of law. Punishment or penalty is an evil inflicted upon wrongdoer. Punishments are pre-eminently the sanction of criminal law. They are ultimate sanctions. The term sanction is wider than punishment.
A legal sanction may be civil or criminal. Criminal sanction may be capital punishment, imprisonment, corporal punishment, fine, deprivation of civil and political rights, and forfeiture of property. Civil sanctions are damages, costs, and restitution of property, specific performance and injection. Injunctions can be prohibitory and mandatory. Damages can be liquidated and unliquidated.
The presence of sanction shows that underdeveloped stage of civilization. Force is not the only thing which includes men to obey law. That can be due to indolence, defense or respect for law, sympathy or the emotion to subordinate individual will to general will.
If whole society decides to disobey the law, no amount of force can enforce it.
Territorial Nature of law-
The enforcement of law is territorial in the same way as a state is territorial.
The proposition that a system of law belongs to defined territory means that it applies to all persons, things, acts, and events within the territory of state. It does not apply to persons, things, acts or events elsewhere.
A law is said to have extra-territorial operation when it operates also outside the limits of the territory within which it is enacted.
Salmond said that as territory is not a logically necessary part of the idea of law, a system of law is conceivable the application of which is limited and determined not by reference to territorial considerations, but by reference to the personal qualifications of the individuals over whom jurisdiction is exercised, qualifications such as nationality, race or religion.
Purpose and Function of Law-
Law is not static. It must change with changes in society. That is the reason why there is no unanimity with regard to the purpose and function of law.
According to one school of thought, the object of law is to maintain law and order in the country. It has to perform police function.
A school of jurist of which Krause and Ahrens are representatives demand that law should be conceived of as harmonizing the conditions under which human race accomplishes its destiny by realizing the highest good of which he is capable.
The Hindu view regarding the purpose of law is that it should aim at the welfare of the people in this world and also from salvation after death.
According to the Mohammedan law the purpose of law is the discipline of soul, the improvement of morals and the preparation of life, property and reputation.
According to Salmond, the object of law is justice.
Justice is not the only possible or desirable goal of law. The notion of law represents a basic conflict between two different needs, the need for uniformity and need for flexibility. Uniformity is needed partly to provide certainty and predictability. As a matter of fact, no rule can make provision for every possible case. Flexibility is necessary to enable law to adapt itself to social change.
In conclusion, it can be said that purpose of law is to achieve stability and peaceful change in society.
Advantage of law-
- Provide uniformity and certainty to the administration of justice.
- Avoid the danger of arbitrary, biased and dishonest decisions.
- Protect the administration of justice from errors of individual judgment.
- It is more reliable than individual judgment.
Disadvantages of law-
- Rigidity of law
- Conservative nature
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