Concept of Law and Justice as it was and Understood By various Jurists

In continuation of my previously posted article IMPACT OF DELAYED JUSTICE ON SOCIETY it appears reasonable to explain the concept of law which can be divided in to two branches :-

(1) NATURAL LAW

(2) POSITIVE LAW OR MEN MADE LAW

NATURAL LAW means those rules and principles which are considered to have been implemented by some SUPREME SOURCE , other than any POLITICAL OR WORDLY authority.

Natural law theories may be broadly divided in to four classes:-

(a) Ancient Theories

(b) Medieval Theories

(c) Renaissance Theories

(d) Modern Theories

ARISTOTLE ( 384 to 322 B.C. ) was of the view that man is a part of the nature in two ways –

First - He is the part of creature of God.

Secondly - He possesses active reason by which he can shape his will.By this reason man can discover the eternal princioles of JUSTICE.

The men`s reason being the part of nature the law discovered by reason is called NATURAL JUSTICE.

In Rome STOICS built up on this theory of Aristotle and says that , it is moral duty of men to subject himself to the law of Nature. The law of Nature are of Universal application and are binding on all men. Positive law must confirm the Natural Law.

In India Hindu legal system is perhaps the most ancient legal system of the world, but the frequent changes in the political system and Government and numerous foreign invasions one after the other prevented its systemetic and natural growth.

According to Hindu view , law owes its existence to God . The King is simply  to execute that law and he himself is bound by it, and if he goes against this law HE SHOULD BE DISOBEYED

Reason and Justice have been considered by ancient Hindu SMRATIKARS, as guides in legal matters.They explained ," Decision should not be given by basing it on SHASTRAS alone, there is failure of DHARMA by a judgment devoid of reason."

The dark age of legal system was influenced by St. AUGASTINE. According to him, the union with divine is the end of the law.To attain this end the physical instincts of the body should be suppressed .

" Nature misleads and corrupts man and therefore , it should be overcome and destroyed."

But the Catholic philospher and Theo logicians of the middle age gave a new theory of Natural Law.

They defined law as ," An ordinance of reason for the common good made by him who has the care of the community and promulgated " but during the same process they observed that this human law or Positive law must remain within the limits of that of which it is a part.

It means that posituive law must confirm to the law of the scriptures.

Later on Rationalism became the creed of the age and the development in the field of commerce created new classes in the society which wanted more protection from the STATES.

Colonization caused a rivalry among the STATES , it gave birth to the conception of NATIONALITY.

These factors , combined together , created forces to throw the dominance of the Church and new theories supporting the SOVEREIGNTY OF STATE were propounded.

These theories proceed from the supposition that a SOCIAL CONTACT  is the basis of society.

Implimentation of social contact theory thus are –

(1) The people are the source of political power

(2) The concept of society of social contact theory is INDIVIDUALISTIC.

MODERN THEORIES

IN ENGLAND - Natural law never flourished in the form of theory, its principles found their place in the body of the law.

The Judicial control of Administrative Tribunals , recognition of foreign law in case of conflict of laws is founded on the principle of NATURAL JUSTICE.

Reasonableness in tortis an outcome of Natural law ideas. Many concept of the English law such as QUASI CONTRACT , UNJUST ENRICHMENT , etc. are based on natural law principles .

JUSTCE, EQUITY and GOOD CONSCIENCE which has exercised a great formative influence ion the English law is founded on natural law ideas.

IN AMERICA - The declaration of independence reflects a great influence of the ideas of LOCKE and ROUSSEAU on it.

It says that the ," Right of life, liberty and pursuits of happinessare the inalienable rights of men."

The power of legislation is limited by the principles of NATURAL JUSTICE and the SUPREME COURT has the power of JUDICIAL REVIEW of a Legislation. In determining the validity of ENACTMENTS the principles of natural Justice play a very important part in AMERICA.

IN INDIA - A number of legal principles and concepts have been borrowed from England.

The Indian Constitution embodies a number of principles of natural law .

The FUNDAMENTAL RIGHTS  guaranteed by it are only a Twentieth Century creation of the inalienable rights. It empowers SUPREME COURT and HIGH COURTS to exercise control over the Administrative and Quasi Judicial Tribunals. One of the grounds on which the orders passed by the tribunals may be set aside is the violation of the principles of the natural Justice.

The principles of natural Justice have been embodied in many bother carticles of the Constitution, such as Article 311 which says that no Civil Servant can be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause, against the action proposed to be taken against him.

DEFINITIONS OF LAW OR POSITIVE LAW

The definitions may be divided on the conceptions –

(1) Idealistic

(2) Positivistic

(3) Sociological

IDEALISTIC Concept

Ancient Hindu view was that ," Law " is the Command of GOD and not of any political superior(Sovereign) , the ruler is also bound to obey it and is under a duty to enforce it.

The idea of Justice is always present in Hindu concept of Law.

In modern times  the law , in most part of the world has secularized and it has grown in to independent branch of SOCIAL SCIENCE.

Justice in modern concept means , Legal Justice" and not an abstract Justice.

The most popular definition of this kind is that of SALMOND

" Salmond defines law as the body of principles recognized and applied , by the STATE in the administration of Justice."

In other words , the law consists of rules recognized and acted on by courts of Justice .

POSITIVISTIC concept –

According to AUSTIN," Law is the command aggregate of rules set by men as politically superior, or sovereign , to men as politically subject."

In short it may be termed as , " Command of political sovereign."

The Austin`s definition has been critcized on the following grounds-

(a) because all law is not command.

(b) because much of the law is enabling rather than restrictive.

(c() because it is not the sanction alone that makes the obedience of  law possible but there are other forces also.

Austin`s definition does not cover Customs and International Laws.

SOCIOLOGICAL concept -After discussing some representative definitions given by DUGUIT, IHERING, EHRILICH and POUND it may be observed that there definitions are not comprehensive and are given keeping in view only the legal system of which the jurist giving the definition , had the experience.

IN MODERN TIMES - the concept of STATE and sovergeign have undergone a considerable change thus the concept of law has also changed.

Thus in giving a definition of law these developments will has to be considered .

The law is a social institution hence the following elements must be considered to give a true picture of law –

(1) Law pre supposes STATE . There may be law even withot STATE.

(2) The STATE makers or authorities to make , recognizes or sanctions rules which are called law.

(3) For the rules to be effective there are sanctions behind them

(4) These rules ( called Law ) are made to serve some purpose . The purpose may be a social or it may be imply to serve some personal end of a despot.

CONCLUSION

" For the law , to be in existance , the members of the society must agree upon certain values, such an agreement and its observance by the members is the begining of law."

Gradually society develops and sets up a legal order.

It prescribes  the method of making and enforcing law.

Later on the persons or groups that dominate the legal order at the particular time go on making modifications in the law according to their views.

IN THIS WAY LAW DEVELOPS , " THE LAW MIGHT HAVE BEEN THE IDEAL JUSTICE IN THE BEGINING BUT INTHE COURSE OF ITS DEVELOPMENT IT NO LONGER REMAINS THE SAME AND BECOMES JUSTICE AS CONSIDERED BY THOSE WHO HAVE THE CONTROL OVER THE LEGAL ORDER.