In
countless way, the law itself is the medium to shape politics, economics, and
society as well as a mechanism to serves as a social mediator of relations
between people. In narrowing the scope down the mentioned fields of area, one
must take a narrow scope to a theoretical perspectives on law itself.
The term ‘law’ is used in many
different senses. Thus there are the laws of science, the laws of morality, the
laws of economics, the laws of nature and the law of nations, among other. In
all these senses, ‘law’ simply means any set of uniform principles. When used
in the context of relationships to society in which it works, law denotes a set
of defined principles that govern and regulate human behaviour. In that
context, law is used in a special sense and has a far narrower meaning.
All agree that law is a set of
rules that govern the patterns of behavior in a given society. Beyond this, however,
there is a general disagreement regarding the nature, content, and its
function in society. The disagreement would seem to stem from a number of
factors. Firstly, the law plays only one part in the society’s normative system
that regulates and influences human behavior. Moral and social rules, though less explicit and less formal in their
nature and content, also play a significant role in society’s efforts to control
behavior. It is equally difficult to assign reasons for how law works in
society and why people obey it.
Secondly, at a different times
in a different cultures, law has taken very diverse forms and has been deprived
from very distinct sources. Law in primitive and simple societies, for example, may be taken to
refer to entirely different things when compared to law in a modern society
with developed system of administration of law and justice.
Thirdly, a most scholars may view the
nature of law and its function quite differently from others, dictated perhaps by his own predilections. Some define the law with reference to the ends it
seeks to achieve enforcement of justice, for example, others define it in a
terms of its sources from which it supposedly derives its force and authority
as such as the will of the people as for example, while still others define it
by reference to the authority empowered to enforce it. Factors such as these
have led writers to differ in their approach to the understanding of the true
nature of law, its working and its relationship to other norms.
The natural law view in the
context of law itself differs than positivist view as well as differs than the
view and perspective of Realist and Sociological view in aspect of context of
law.
A great number of philosophers
believe that there are certain higher principles that are superior to the laws
made by man, the principles of natural law. Views have been expressed since ancient times about the source and
authority of such principles and their relation to human laws. Although these
views differ in significant ways, all have a central theme, there exist moral
principles prescribed by nature which can be discovered by men by using
intuition or reason with which they are by nature endowed.
The ‘legal positivism’ is the
view that the study of the nature of law should be a study of law is it
actualyy exist in a legal system, and not of law as it ought to be on moral
ground. John Austin, the best opponen of this view, defines law as the command of the
sovereign authority in a society. A command is the expression of a wish directed
by the sovereign authority requiring a person or persons to do refrain from
doing a certain thing. The command is backed by a threat of evil to be imposed
if the directive is not complied with. The threatened evil for non-compliance
is the sanction behind the directive. A command, a duty to obey and a sanction
are the three essential elements of the law. The law which has these
characteristics is ‘positive’ law.
The realist view on the law is a
school f thoughts that originated in the United States. The best known scholars
of this school are John Chipman Gray, Oliver Wendell Holmes, Jerome Frank, and
Karl Llewellyn. Realism means relating to the real world, the world as it
actually operates. Legal realism means the study of law as it is actually carried out and
enforced rather than law as a series of
rules contained in statutes. Realist approach is thus an important part of the
sociological approach to law.
Gray defines law as a rule of
conduct laid down by the persons acting as judicial organ of the state. Law is
‘what the judges declare’. He emphasizes that the personality and personal
views of a judge play an important role in the decision making process. Judges,
while interpreting a legal rule for applying it to a fact-situation, exercise
their own discretion and judgment and thus not only declare but also make law.
Their decisions are law. He insist that comprises of rules aid down by the
courts and that statutes ad other legal materials are merely ‘sources’ of this
law.
The realist approach has been
accused of causing a great deal of confusion and exaggerating the role of
judges in shaping and making law. It has been argued that law is not what the courts administer but
courts are the institutions which administer the law. If the judges is inclined
to follow the law, it can be very well predicted in most of the cases what the
judge will do. Moreover, law comes first and the courts come later. Defining
the law in terms of what the courts do is like saying that the medicine is what
the doctor prescribes.
At the same time, the
sociological school of thoughts includes a number of approaches which are more
diverse than uniform. A common heading is given to them all for the reason that
all sociological jurist study the effects of law and society on each other. The
common theme that runs through their approaches is that law is an empirical
phenomenon and its nature can be understood only when it is viewed in terms of
its relationship to society.
Some sociologist argue that in
modern societies, legal rules are distinguishable from social and moral rules
because modern societies to appoint a Conciliatory Committee to bring about a
possible compromise in a divorce proceeding.
