The term law has different
connotations. There is natural law, moral law, law of supply and demand
and law of the state. It may mean rules telling us what we ought to do
(moral law). It may also imply that there are certain regularities in
nature or society (natural or scientific law). The first is a normative
view and the second positivist view. The normative view. tends to
argue that laws embody fundamental truth about processes of nature,
while the positivists argue that laws are rules of conduct in a defined
community. They are a system of legal conditions to regulate human
conduct. in society. To Austin it was a command of a sovereign to all
others in society having for its sanction the force of the physical
power of the state. Holland declared: "A law is a general rule of external action enforced by a sovereign political authority". According
to this view law is a relationship between a superior and inferiors
who are in a condition of habitual obedience.
Making
a distinction between the moral and the legal law, some theorists
maintain that the existence of law is dependent on its moral validity;
while. others hold that the validity of law is purely a technical
question. It can only be decided in terms of legal criteria available at
a particular time. A Law is a law, right or wrong, if it has received
the approval of the decision-making body of the state. However, whenever
there is a conflict between enacted law and the moral order, such
enactment sacks legitimacy in the eyes of the people. Barker emphasized
the same idea when he said that every law must ave validity' as well as
value, 'validity' refers to the formal character of law and value' to the
moral sense of the community. If a legal judgement is in accordance with
the law, it has to be accepted. However, acceptance of a judgement rests
on the community's sense of right and justice. In short, a aw has to be
seen in totality in which both legal and moral aspects merge with each
other.
Another aspect
of the debate is the relation between coercion and obligation in a legal
system. positivists maintain that citizens are obliged to bey law.
Those who disobey a law are liable to be punished by the coercive power
of the state. Whatever be the mature of law, the important thing is the
do not have any choice. Such coercive quality is less noticeable in
certain areas of law, as for example in International Law. But
positivists regard coerciveness as the essence of the obligatory nature
of law. This view is contested on three grounds:
(i
Not all laws impose obligation. Many laws confer enjoyment of powers
or rights Such laws are the best example where no coercion is implied.
(ii)
The existence of obligation under law depends on its being morally
valid. Rousseau maintained that our obligation to obey a particular law
can be moral only when we are impelled to obey a system ofl law out of a
sense of duty, perhaps by Promptings of our moral consciousness without
any compulsion from external power. Force reduces human beings to abject slavery. Therefore, it cannot be a legitimate basis of law. Might
can never be the basis of right. Rousseau emphatically declared that to
yield to force may be an act of prudence. In this case, therefore,
legal obligation becomes derivative of political obligation which, in
turn, depends on the general belief about the legitimacy of authority.
(iii)
Law also has to be viewed as a part of the institutional system in
society. Curios do not deliver judgements in isolation. Besides
judiciary, there are other organized social institutions as
legislatures, executive and political parties. The entire legal system
is dependent on them and cannot function in isolation from politics,
society and economy. It is in this sense that legal order is related to
the protection of rights and securing social justice to all. These are
the grounds for imposition of legal obligations and not only the results
of those obligations. Our obligation to obey law largely depends upon
the ends which it fulfills, and the feeling of identity which is
generated in the minds of citizens by upholding a system of justice,
fairness and right.
In
this sense, a law has to combine both what Dworkin has called
"principle" and "policy". While 'Principle' is identical with rights
'policy' is identical with utility. Rights . are claims secured to
individuals as a matter of principle and justice; policies refer to the
collective good of the community as a whole. The system of law should be
such as would combine both. It is in this sense that Positivist view of
law cannot be detached from the moral view.
The
Marxian system has a instinctive view. It rejects the notion at there is
a universal system of law. enin once said, "Law is politics". In
Communist countries, particularly the erstwhile Soviet Union, law is
declared as "class" law and "proletarian" law. The Soviet
system,therefore, viewed law as an instrument for the realization of
class ideology. They also regarded International law- as an instrument
to advance the goals of the Soviet society.
In
view of what has been said, it is difficult to give an exact definition
of law. However, a working definition could be: 'A law is a set of
generally accepted rules and regulations governing interrelationships in
human society seeking to create order and balanced development of all'
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