Law maybe defined as a set of rules governing human conduct. It has been regarded as a divinely ordained rule or tradition of old customs or a code or system of rules imposed upon man by the society. Austin defined law as a command of sovereign backed by sanction while Savigny defined it in terms of popular consciousness. Justice Holmes defined it as a judicial process. But neither of the definition is complete because law is not dependent upon a supreme authority to proclaim it to get its authority as Austin proclaimed, customary law is well established. Similarly, customs alone do not originate law, it is dynamic in nature. Further, law is not dependent upon courts to declare its validity; it can exist without that as well.
Austin separated law as ‘it is’ from law as ‘it ought to be’. He separated it from morality. However, law cannot be completely separated from morality. It cannot be devoid of the popular consciousness. The natural law school, having sages and priests as its principal exponents, defines law as a Divine command and it consists entirely of positive morality.
However, law is a combination of positive morality, it needs to be accepted by the popular notion of the society, and it needs some sanction and should be recognized in the court of law as not being against public policy. It is a dynamic body that adapts itself according to the needs of society while not changing so fast so as to make life difficult. Neither should it be so static that it stifles life.
The Sociological school studies law in terms of its ends or functions. The purpose of law is to bring about social order. Law seeks to bring harmony and order in the society and is a means to an end and not an end in itself.
Thus, law is a body of rules guiding the human conduct in a society. Its purpose is to bring about social order. Law is not only based on the preconceived notions of good but is also dynamic enough to adapt according to the needs of the society.
Sources of law
The term ‘source’ means the place or point from which something springs out or originates. The source of law maybe defined as the historical fact out of which the rules of human conduct originate and acquire obligatory characteristics. Three main sources of law have been universally recognized and they are; custom, legislation and judicial precedent.
(1) Custom: customs are an important source of law with various personal laws being largely dependent upon the same. The Historical School of Law considers customs as the true source of law. However, to gain validity as a law, customs need to fulfill certain conditions such as:
(a) Antiquity
(b) Reasonableness
(c) Exercised as of Right
(d) Not opposed to statutory law
(e) Not immoral
(f) Not by analogy
(2) Legislation: legislation or law making process is the formal process of creating new legal norm, by a formal and express declaration by some authority which is recognized by the courts of law as adequate for the purpose. According to Sir Henry Maine, legislation is the last agency of social reform. Legislation maybe supreme or subordinate depending upon the body laying down the rules.
(3) Judicial precedent: judicial precedents are the former judgements of the superior courts that are binding upon the subordinate judiciary in subsequent cases based on the similar act or circumstance.
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