Introduction
Law in the broadest sense can be stated as the rules that are imposed by the state upon its members. However, there is no one-size-fits-all definition for the term law and many legal theorists have defined law in various ways.
According to Salmond, “law may be defined as a body of principles recognised and applied by the state in the administration of justice”.
Locke believed that political power originated from the state of nature and that in this state of nature there is equality of right and freedom. It impliedly meant that in this state, no individual is superior or inferior to other individuals. However, this freedom is not absolute it is still bound by the law of nature. The major problem with this state of nature was that if a war-like situation or any dispute over property arises then there was no civil authority that protected the natural rights of an individual.
The state of nature was put to an end by two contracts made by the people, the Social contract and the Political contract. The Social contract was created between the people and by this contract, they surrendered some rights (except life, liberty and property) to certain individuals to establish a government which protected their natural rights. Though certain rights were surrendered to the government, the government in no manner possessed absolute power, their powers were still bound by the laws of nature. This meant that even with the introduction of the entity with multiple people having authority over the commoners, man was still perceived as equal.
Locke also mentioned that every man has the right to his natural freedom without being subjected to the will of another man. This means that no individual has the right to dominate or impose his views and opinions onto another individual.
Man, in a state of nature had sufficient freedom and independence but he consented to give up this right (not fully, certain rights such as life, liberty and property cannot be denied) to the government in order to preserve his life by punishing the wrongdoers. This consent provided by man can be stated as tacit consent, that is, if an individual is residing, participating or enjoying the spoils of a given area then he is said to have provided the implied consent to abide by the rules set out by the government of that said area.
However, the government does not possess absolute power. The power of the government is limited in two ways, Firstly, the government cannot take away any right a human possessed in a state of nature. Secondly, the government can only punish for things that can be punished in a state of nature. This means the government cannot do any act which is contrary to the principles that are allowed for individuals in the state of nature. As the state of nature is bound by the laws of nature and according to the laws of nature man has an inalienable natural right to life
Locke stated that a legitimate government can only be established by the separation of powers. He separated the powers as legislative, executive and federal. The legislative has the power to make laws but these laws are to be in correspondence with natural law.
Functions of Law
Law is, without doubt, an indispensable part of our lives. Imagine a condition of anarchy where there is no law it would have been really chaotic, there would be no fundamentals that each individual should follow and this would lead to slightly superior or well off people having an upper hand.
Law lays down the standard human beings should adhere to so as to live in a society. Following Locke’s principle of the state of nature, no man is above another man and the transition from the state of nature to the current state of affairs there is not much of a difference except for the fact that we are just surrendering some of our rights to a body of authority. This does not give anyone an upper hand over another. Therefore, we can state that in such a situation there is an absolute chance that disputes can arise and law is the only mechanism through which such disputes can be resolved. Similarly, in case of any chaos law sets certain guidelines that have to be followed. Law plays a vital role in ensuring that the rights of the people who engage in any sort of business are protected by guaranteeing equal paychecks, equal working hours etc.
Ideally the law is supposed to protect the individuals but what if law is made to end the life of individuals, what if law is made to enrich the unjust. Should this law not be followed or can this be termed as a state of lawlessness? When the Nazi’s imposed legislations to unjustifiably take the lives of Jews was there a “law” here? These are questions that have no answers because even though it is unethical and even though it is immoral it is still a law created by a superior (state) for its members. Therefore, non-adherence to these laws would have caused a lot of repercussions. In such a situation the primary objective behind the creation of law in itself is grossly violated. This fails the functions that were set out to be fulfilled by the creation of laws.
Classification of law
Law can be classified under various schools of law.
The first is the positivist school of law, under this school of law it is stated that law is the “command of the sovereign” and the law is made from pre-determined sources and ignoring the moral aspects. Therefore what the positivist school says is that the law has to be followed as it is and no scope of emotion should be provided while adjudging a scenario.
Second is the historical school of law, under this school of law it is stated that law is the “product of social consciousness”. This school emphasises on the general will of the people. Therefore as the nation grows the will of the people will also grow and this would cause the growth of the law as well. Local customs, local behaviour etc would come under this.
Third is the natural school of law, under this school of law it is stated that law is “what arises out of the reason and behaviour of human beings”. Natural law provides that man inherently has a level of reasoning capacity and this reasoning capacity acts as the determinate factor that decides if a law is right or wrong.
Fourth is the sociological school of law, under this school of law it is stated that law is “what arises out of the society”. They emphasis on the part that laws are not created by the state in fact they should arise out of the awareness of the people. In this school of law more preference is given to the concept of justice.
Fifth is the school of law dealing with realism, under this school of law it is stated that law is to be considered as a part of reality, that is, it can only be developed out of reality and customs are taken into account in case a law is developed. This school of law is very similar to the school of law relating to realism as law is seen as the law is developed out of the will of the state.
These are not the only classifications of law, they are also classified as:
1. Public and Private law
Public laws deals with the relationship between states and private laws deals with the relationship between private individuals.
2. Civil and Criminal law
Civil law deals with the relationship between citizens and it provides for the remedies of the citizens incase there is a breach. Whereas, criminal law deals with the crimes that happen in the society.
3. Substantive and Procedural law
Substantive law is the part of the law that deals with an area of law whereas procedural law deals with the process the courts must follow to enforce this substantive law.
4. Municipal and International law
Municipal law is the law that has effects on a particular state whereas International law is the law that governs the relationship between two countries.
5. Written and Unwritten law
Written laws are the laws that are validly enacted by our legislature whereas unwritten laws are the laws that are not validly enacted but are merely given as customary principles.
6. Common law and Equity
Common law is the law that is developed by common law courts and it is evolved out of practices, customs etc that governed England. The law of Equity was created to mitigate the effects created by the common law courts.
Conclusion
Law is an intrinsic part of our lives and it is required to ensure that there is no chaos or confusion when disputes occur. A very prominent question that may arise is that if an immoral law is adopted by a sovereign, should it abided by the general public or not. This is a question of giving an upper hand to positive law (law of the sovereign) or the school of realism (following the rationale of humans). The answer may be very subjective as though there are various classifications of law, the interpretation and adoption of the law may vary from each individual. Therefore, law in conclusion is absolutely required but its application may vary from person to person.
This Article is Authored by Anna Mary Mathew, 3rd Year, B.Com LLB (Hons) Student at Tamil Nadu National Law University.
