Law: Meaning, Features, Sources and Types of Law!

State is sovereign. Sovereignty is its exclusive and most important element. It is the supreme
power of the state over all its people and territories. The State exercises its sovereign power through its
laws. The Government of the State is basically machinery for making and enforcing laws.

Each law is a formulated will of the state. It is backed by the sovereign power of the State. It is a
command of the State (sovereign) backed by its coercive power. Every violation of law is punished by
the State. It is through its laws that he State carries out its all functions.

I. Law: Meaning and Definition:

The word ‘Law’ has been derived from the Teutonic word ‘Lag, which means ‘definite’. On this basis
Law can be defined as a definite rule of conduct and human relations. It also means a uniform rule of
conduct which is applicable equally to all the people of the State. Law prescribes and regulates general
conditions of human activity in the state.

1. “Law is the command of the sovereign.” “It is the command of the superior to an inferior and force is
the sanction behind Law.” —Austin

2. “A Law is a general rule of external behavior enforced by a sovereign political authority.” -Holland

In simple words, Law is a definite rule of behavior which is backed by the sovereign power of the State.
It is a general rule of human conduct in society which is made and enforced by the government’ Each
Law is a binding and authoritative rule or value or decision. Its every violation is punished by the state.

II. Nature/Features of Law:

1. Law is a general rule of human behavior in the state. It applies to all people of the state. All are
equally subject to the laws of their State. Aliens living in the territory of the State are also bound by the
laws of the state.

2. Law is definite and it is the formulated will of the State. It is a rule made and implemented by the
state.
3. State always acts through Law. Laws are made and enforced by the government of the State.
4. Law creates binding and authoritative values or decisions or rules for all the people of state.
5. Sovereignty of State is the basis of law and its binding character.

6. Law is backed by the coercive power of the State. Violations of laws are always punished.

7. Punishments are also prescribed by Law.

8. The courts settle all disputes among the people on the basis of law.
9. In each State, there is only one body of Law.
10. Legally, Law is a command of the sovereign. In contemporary times laws are made by the
representatives of the people who constitute the legislature of the State. Laws are backed by on public
opinion and public needs.
11. The purpose of Law is to provide peace, protection, and security to the people and to ensure
conditions for their all-round development. Law also provides protection to the rights and freedoms of
the people.
12. All disputes among the people are settled by the courts on the basis of an interpretation and
application of the laws of the State.
13. Rule of law, equality before law and equal protection of law for all without any discrimination, are
recognised as the salient features of a modern legal system and liberal democratic state.
Sources of Law:

The meaning of the word source is origin. Sources of law means origin of law from which rules of

human conduct come into existence. Those things which directly and indirectly play roles in the

formation and development of laws are called sources of law. There are various sources of law. They
are: -

Direct Sources of Law: (Primary sources of law)

 Constitution

 Legislation

 Precedent

 Custom
 Convention

Indirect Sources of Law: (Secondary sources of law)

 Professional Opinion

 Juristic writing

 Reasons

 Religion
 Equity, Justice and Good Consciences

IV. Types of Law:

Broadly speaking there are two main kinds of Law:

(i) National Law i.e. the body of rules which regulates the actions of the people in society and it is
backed by the coercive power of the State.

(ii) International Law i.e. the body of rules which guides and directs the behavior of the states in
international relations. It is backed by their willingness and consent that the states obey rules of
International Law. It is a law among nations and is not backed by any coercive power.
National Law is the law by which the people are governed by the state. It stands classified into

several kinds:
1. Constitutional Law

2. Ordinary Law:

It is stands classified into two sub types:

2 (a) Private Law

2(b) Public Law:

It stands again sub-divided into two parts:

2(b) (i) General Public Law

2(b) (ii) Administrative Law

1. Constitutional Law:
Constitutional Law is the supreme law of the country. It stands written in the Constitution of the State.

The Constitutional Law lays down the organization, powers, functions and inter-relationship of the three

organs of government. It also lays down the relationship between the people and the government as well

as the rights, freedoms (fundamental rights) and duties of the citizens. It can be called the Law of the

laws in the sense all law-making in the State is done on the basis of powers granted by the Constitutional
Law i.e. the Constitution.

2. Statute Law or Ordinary Law:

It is also called the national law or the municipal law. It is made by the government (legislature) and it

determines and regulates the conduct and behavior of the people. It lays down the relations among the

people and their associations, organizations, groups and institutions. The legislature makes laws, the
executive implements these and judiciary interprets and applies these to specific cases.
Ordinary Law is classified into two parts:
2 (a) Private Law and

2 (b) Public Law.

2 (a) Private Law:

Private Law regulates the relations among individuals. It lays down rules regarding the conduct of the

individual in society and his relations with other persons. It guarantees the enjoyment of his rights. It is
through this law that the State acts as the arbiter of disputes between any two individuals or their groups.

2 (b) Public Law:

The law which regulates the relations between the individual and the State is Public Law. It is made and
enforced by the State on behalf of the community.

Public Law stands sub divided into two categories:

2(b)(i) General Law, and

2(b)(ii) Administrative Law.

2(b) (i) General Law:

It lays down the relations between the private citizens (Non-officials or who are not members of the civil
service) and the State. General Public Law applies to all the citizens in their relations with the State.

2(b) (ii) Administrative Law:

It lays down the rules governing the exercise of the constitutional authority which stands delegated by

the Constitution of the State to all the organs of government. It also governs the relations between the

civil servants and the public and lays down the relations between the civil servants and the State. In

some States like France, Administrative Law is administered by Administrative Courts and General Law

is administered by ordinary courts. However in countries like India, Britain and the USA the same courts
administer both the General Law and Administrative Law.
Clarifying the distinction between Public law and Private law, Holland writes: “In Private Law the

parties concerned are private individuals alone and between whom stands the State as an impartial

arbiter. In Public Law also the State is present as an arbiter although it is at the same time one of the
parties interested.”

The Command of the Sovereign: Relevance of Austin's theory of law in the Nepalese Legal System

Jurisprudence, per se can be said to be the theoretical study of law. It is a subject so wide that over the
centuries it has attracted thousands of scholars who have attributed various schools to this particular
subject, where each school can be said to be different in one way or the other. One among them is John
Austin and his "command of the sovereign" theory, more famously known as the imperative theory of
law.

Austin's idea of Jurisprudence

John Austin (1790-1859) was an English legal scholar, whose main idea was premised on the opposition
of the school of Natural Law. He vehemently argued against the age old traditional view of law being in
consonance with the principles of morality. For him, human legal systems should be studied in an
empirical and objective manner, free of subjective interpretations of morality and goodness.

For him, the science of jurisprudence is concerned with "positive law", with laws "strictly" so called. He
classified the subject into two broad headings, "general jurisprudence" and "particular jurisprudence".
The difference between the two lies not in their meaning but to the extent of the area that they deal with,
where general jurisprudence deals with more or less all the established legal systems and particular
jurisprudence with any particular legal system or part of it. To take an example, offences against human
body is one of the fundamental legal concepts present in all systems of law. General jurisprudence will
seek to explain this concept without referring to any specific system whereas particular jurisprudence
will explain it with regards to a specific system.

This idea of Austin did not exist without its fair share of criticism. Other legal scholars like Sir Erskine
Holland questioned the practicability of his ideas of general jurisprudence on the ground that his idea
essentially said that for a matter to be dealt with in general jurisprudence, it had to be common to all
systems. Moreover, Holland also mentioned that the slaw itself can never be particular although some
specifics maybe.
Austin's theory of Law
"Law is the aggregate of rules set by men as politically superior, or sovereign, to men as political
subjects"

To put it in simple words, law has three elements as per Austin, 'command', 'duty' and 'sanction'.
Example, any particular statute which lays down certain rules (command) to be followed, which has
been brought into force by the sanction of the supreme law making authority like the Queen-in-
Parliament (sovereign) and the violations of which attract penalties (sanction), fits Austin's definition.

Commands are expressions of desire given by the politically superior to the politically inferior. This
relationship, consists in the power which the superior enjoys over the inferior because logically unless
this power relationship is established, there appears to be no command. A command is necessarily an
order or a direction which mandatorily has to be followed by the inferior because of the very reason that
it is coming from a superior. It must be noted that not all commands will be laws, for example, transitory
commands on a parade ground will not be considered law. Laws are general commands, like standing
orders of a police barrack which are in force forever.

People have pointed out such a law to be essentially a 'gunman' law because it renders no difference
between law and a car thief who forces me to hand over my car keys while pointing a gun at me. To this,
one has to take a look at the second requirement of Austin, i.e. the command has to come from a person
or body which enjoys sovereign status, something which the car thief will not enjoy.

A sovereign will be someone who enjoys general political obedience. Such a person or body enjoys such
a stature that when they give a command, the politically inferior follows that for the fear of sanction i.e.
punishment. What is important is that the sovereign must enjoy obedience. Such obedience maybe
through conquest, usurpation or democracy, the mode doesn't matter. What matters is that there must be
general obedience, without which the command of the sovereign cannot be said to be effective.

As per Austin, law's are particularly of two kinds, divine law and human law. He necessarily does not
align with the divine law. Laws made by men for men are his area of interest. Even in this, only the laws
which are made by political superiors, they are called positive law. Disobedience of such law attracts
sanctions in the form of "evil consequences".

So, to put it simply, as per Austin, law would be law if it came from the sovereign and a sovereign
would be sovereign if it made the law. It is this relation that is the center point of Austin's theory.

Austin's theory is not without it's fair share of criticism. Various critiques belonging to the other schools
of thought have highlighted specific deficiencies in Austin's theory.
Some of these are:

1. Doesn't take into account laws which existed before the sovereign State:

What his theory fails to appreciate is that there were certain laws even before the State came into
existence. The source of these were religion, custom or even general public consensus. Basically,
the opposing school says that State enforces something because it is law in the sense that it is
 politically independent. However, Salmond, who is not a part of Austin's school doesn't agree
with this criticism. He says that what the rulers used before the State came into existence, that
cannot be termed as "law" but something similar to law.

2. Law doesn't always have to be a command:

Austin's theory relies on law being a command. However, in the real world, not everything will
be command and neither will all orders forbid the doing of something. They also seek to
empower people by certain means to achieve certain results. For example, the laws which give
right to vote, right to profess any religion, right to reside in any part of the country, are
essentially rights and not command although their source of origin is also the political sovereign.

Moreover, these allow me certain rights but do not necessarily come with a sanction. For
example, the sovereign allows me the right to vote but that doesn't necessarily mean that one
would attract a sanction for not voting. Austin's theory fails to appreciate this right as a law.

3. Ethics not considered as a part of law:

By confining law to anything which is a command of the sovereign, Austin has completely
ignored the ethical element of law. He also fails to appreciate that law and justice go hand in
hand and that there is absolutely no guarantee that every command of the sovereign is going to
be just and fair.

These are just some of the criticism's that Austin has received for his theory of law. However, one still
has to appreciate him for trying to separate law from morality and in the end giving us a simple and clear
definition.

The big question that remains is whether or not Austin's theory is compatible with the idea of a federal
democracy like the one present in India. We shall take a look at some of the aspects of Austin's theory
and try to relate them with the Nepalese scenario in order to try and understand its compatibility.

1. General obedience from the politically inferior:

Austin in his theory has assumed that whatever the sovereign commands, the inferiors will obey.
This is the basic idea of his theory. However, in a democracy like Nepal, such an assumption is
fallacial to say the least. Nepal is a democracy, where people have a right to oppose and show
discontent. This right of opposition is the pulse of our democracy and is present even in the
Parliament in the form of an adjournment motion. Even today, the very fact that farmers have a
right to protest regarding laws which they feel are not beneficial to them, this is something which
is not recognized by Austin and his theory but is very well present in India. Hence, this
assumption of having blanket obedience is not something that is present in Nepal and hence we
cannot align Austin's theory on this parameter.
 2. Law is only that which is made by the Sovereign:

Austin's definition accrues law to be only that which is laid down by the sovereign. It doesn't
give legitimacy to the other sources of law which are per se present in Nepal. It doesn't
appreciate sources of law like custom and tradition which for long has received validation in our
Legal system. Things like personal laws whose basis lie in the customs and holy books and not
the sovereign, they will be outside the purview of Austin's theory. Moreover, by confining itself
to the sovereign, Austin's theory would also not appreciate some of the law making powers
which are present right till the lower tiers of administration like the Municipalities and the
Panchayats. It would also keep outside its purview the power of the Indian judiciary to strike
down laws if they are not in order. Hence, this is also something that would go against the idea
of a federal democracy, de-centralization and separation of powers as present in India.

3. Accountability of the sovereign:

Austin's theory accrues unlimited and unchecked power to the sovereign which is polar opposite
to the idea of a co-operative democracy like the one functioning in India. His theory places zero
accountability on the sovereign which is again totally opposite to what we have in Nepal. In
Nepal, even the government in power is answerable to the people's representatives for every
action that they take and by no stretch of the imagination can it be said that they have unlimited
power. For every move they are answerable and this in turn keeps their power under check.
Hence, even on this parameter, Austin's theory doesn't fit.

4. Sovereign to legislate, execute and administer:

Austin's theory places the absolute onus on the sovereign to do everything related to law. This
idea is totally opposite to the idea of a federal democracy and the concept of separation of
powers where we have individual organs to take care of legislation and execution. In fact,
separation of powers has been held to be one of the key provisions of the constitution in
numerous cases. The very fact that Austin's theory does not allow separation of powers renders it
incapable of being compatible with the Nepalese Legal System.

Although Austin's theory of imperative law is well appreciated for a number of reasons, it isn't
compatible by any stretch of the imagination with the system of democracy as is followed in India. It's
non-acceptance to principles of federalism, co-operation, separation of powers and accountability
renders it incapable of fitting into the framework of law and justice of the largest democracy in the
world.
Law and society:

Law and society are identified with one another. Nothing can clarify with no of them. Society turns into

the wilderness without the law. Law likewise should be changed by the progressions the general public

countenances, in light of the fact that without the vital changes law can't keep pace with society. Without

the control of the law, the general public turned into the wilderness or possibly primitive. Along these

lines, to keep the general public tranquil, we have to make an amicable connection among law and
society.

The following are the roles of law in society:

1. Law is an instrument of regulating human behavior.

2. Law is an instrument of social control.

3. Law is an instrument of social change.

4. Law is an instrument of environmental protection.

5. Law is an instrument of social welfare.

6. Law is an instrument of justice.

7. Law is an instrument of social engineering.

8. Law is an instrument of development

Legal system reflects all the energy of life within in any society. Law has the complex vitality of a living
organism. We can say that law is a social science characterized by movement and adaptation. Rules are
neither created nor applied in a vacuum, on the other hand they created and used time and again for a

purpose. Rules are intended to move us in a certain direction that we assume is good, or prohibit

movement in direction that we believe is bad.

So, we can say that rules had to be change according to the roles of the society. Law also reflects the

society. Such as, in Saudi Arabia law are based on Quran and Sunni. In Bangladesh property act,

marriage act and many other acts based on the Quran and Sunni. Also when emergency arise, then

according to the social condition the law is also changed by the Government. So, we can say that, the
relationship between law and society are interrelated.
Difference Between Law And Morality

This difference between law and morality may be put in a tabular form as follows:

Law Morality

1. Concerned with external acts of man 1. Concerned with both the external acts
and not motives. and internal motives.

2. Is the concern of the state. 2. Is the concern of conscience.

3. Is concerned with a part of man’s life. 3. Is concerned with the whole of man’s
life.

4. Violation of law is punishable by the 4. Its violation is not punishable by the

state. state.

5. Force is the sanction behind laws. 5. Moral conscience is its sanction.

6. Law is definite and precise. 6. Morality is vague and indefinite.

7. Law is objective. 7. Morality is subjective.

8. Law acts within the territory of the 8. Morality is universal.

state.

9. Law is based on expediency. 9. Morality has absolute standards.

10. A legal wrong may be morally right. 10. A moral wrong may be legally right.

11. There is a definite agency to enforce 11. There is no definite agency to enforce
law. morality.

The main difference between law and morality is that law refers to the set of rules and regulations
enforced by the state to regulate the human behavior in society whereas morality refers to the
ethical code of conduct for a human being. Hence, morality stands are the basis for the law while
morality is ensured by living according to the law.
Law and morality are extrinsically related, and they have been used interchangeably since ancient times.
However, we can find differences between law and morality with concern to several prime factors.
Key Areas Covered
1. What is Law
– Definition, Characteristics
2. What is Morality
– Definition, Characteristics
3. What is the Relationship Between Law and Morality
– Outline of Common Features
4. What is the Difference Between Law and Morality
– Comparison of Key Differences
Key Terms
Ethics, Morality, Morals, Law, Sociology
What is Law
Law refers to the system of rules and regulations, created, and enforced by the administrative authority
of a society/country with the intention of regulating human behavior for the common good. Accordingly,
it can be elaborated as fair and just rules of conduct for a community. Moreover, the enforcement of the
body of rules is through a controlling authority.

Hence, the law refers to the rules and regulations in society to maintain the order and decorum in a
particular societal community. Laws, therefore, should be obeyed and respected by all those living in
that society or country. Accordingly, punishments are enforced to those who violate these laws.

There are several rules and laws with regard to several aspects in a country or society. They can be laws
regarding matrimony, laws regarding infrastructure and transport, laws regarding lifestyles, laws
regarding finances and economy, etc. These are created by the state and its institutions. However, these
laws are enforced according to their acceptance by the majority of the people. Hence, they may vary
from society to society and country to country.

Laws can come in the form of state constitutions, treaties, Acts, local laws, statutes, executive orders,
etc. Overall, they govern what a person should and should not do. Consequently, law enforced by the
ruling authority according to the desire of the majority of the people of that particular society regulate
the proper maintenance of the orderliness of that society. Moreover, some necessities in lawmaking are;
 The authority of the state
 The authorized institutions that have the right to formulate laws
 These institutions have been given the authority to do so by the state
 Sanctions/ punishments exist for breaking the law
 The sanctions are imposed by those given state authority to do so.
Therefore, laws mandate its citizens of what should be followed, what should not be followed (what is
right and just) along with the sanctions or penalties for breaking those laws. More importantly, law plays
a central role in the political, social and economic life in the country.

What is Morality
Morality refers to the social principles that define what is morally right and morally wrong. In brief, it is
the ethical code of conduct of a person. The main aspect that defines this right or wrong quality of action
under moral terms is the intention of the person committing that particular action. Therefore, morality is
concerned with both the external acts and internal motives for that action or occurrence.

Hence, social concepts such as ethics, religious teachings, etc. directly influence in creating morality
standard in a certain community or country. Hence, it is these social concepts that formulate morality,
unlike the law that is formulated by the state.

However, morality strongly influences the emergence of laws as well. For instance, the crimes and other
actions identified as illegal under the law are those that are identified as immoral by morality. Therefore,
morality stands as the basis for the emergence of laws.
Moreover, law enforces punishment to those who violate the laws and create discrepancy for the lives of
others while there are no such enforced punishments for those who live in an immoral way or commit
immoral acts. However, morality emphasizes the fact that every immoral action is followed by negative
consequences that the doer will someday have to suffer.

Thus, unlike law, the rules and regulations in morality are not mandates or acts. Instead, they are beliefs
and practices.

Relationship Between Law and Morality

 Morality influences the law, providing ethical reasons as to why the immoral actions are considered
illegal by the law. Hence, morality stands as the fundamental basis for the ideal set of laws in a
country.
 Moreover, morality aims at uplifting the moral standards of the people while the core aim of the law
is also the same thing.

Difference Between Law and Morality

Definition
Law is the system of rules which a particular country or community recognizes as regulating the actions
of its members and which it may enforce by the imposition of penalties. On the other hand, morality is
the set of ethical principles that define what is morally right and morally wrong. Thus, this is the
main difference between law and morality.

Enforcement
Law is enforced by the ruling bodies of a country; state or a community while there is no such a
significant body to enforce moral codes; however, they are followed by those that are taught by the
religious teachings and social ethics. Hence, this is a difference between law and morality.

Constitution
Moreover, another difference between law and morality is that laws creates the constitution of a country
whereas there is no direct connection with the constitution in morality.

Emergence
Besides, morality emerged before the ideal set of laws. Therefore, morality influenced the emergence of
laws in a community or a country.
Sanctions and Punishments
Sanctions and punishments is also a major difference between law and morality. There are direct
punishments for those who violate the law while there are no such enforced direct punishments for those
who do immoral acts.

Effect
Law is direct and rough with punishments whereas morality can be followed or not according to the
person’s choice. However, it is this quality of law that ensures the morality of people. SO, this is another
difference between law and morality.

Conclusion
Law and morality are related since they both share the same aim of uplifting the moral standards and
eventually the life of humans. The main difference between law and morality is that law refers to the set
of rules and regulations enforced by the state to regulate the human behaviour in society whereas
morality refers to the ethical code of conduct for a human being. Moreover, punishments are enforced by
law for the violation of them whereas there is no such enforcement of punishments in morality for
committing immoral acts.

JUSTICE:

Meaning and Concept of Justice

In the most common terms, justice is an ideal representing something that is just and right. It basically
means being just, impartial, fair and right. What is just may depend on the context, but its requirement is
essential to the idea of justice.

For example, the natural law school of jurisprudence believes that justice means the implementation of
religious laws. On the other hand, modern jurisprudence says justice means the implementation of concepts
like equality and liberty. However, in both these examples, justice just means enforcement of what the law
perceives to be right.

In the modern context, justice basically means the recognition and implementation of laws made by
legislatures. Furthermore, in the modern context, unlike ancient states, this function lies largely on judicial
organs.

According to Salmond, laws are the bodies of principles that tribunals recognize and apply while
administering justice. Even Roscoe Pound defines laws to mean principles that public tribunals recognize
and enforce.
Therefore, justice generally means the recognition, application and enforcement of laws by courts. This is
different from the understanding of justice in the ancient period when it was given a religious and moralistic
meaning.

‘‘Justice means to distribute the due share to everybody.”-Salmond

“Justice protects the rights of the individual as well as the order of society.”-Dr. Raphael

Principles of Natural Justice:

1.Nemo Judex in Causa Sua: (the rule against bias)

The first principle of impartiality roughly translated into English means nobody shall be a judge in his
own cause or in a cause in which he is interested. This principle is more popularly known as the
Doctrine of Bias. That is the authority sitting in judgment should be impartial and act without bias. To
instill confidence in the system, justice should not merely be done but seen to be done.

2.Audi Alterem Partem(the rule of fair hearing)

The second principle of natural justice literally means ―to hear the other side or no one should be
condemned unheard.

In simple words, this rule states that both parties must have the chance to represent their viewpoints,
and authorities should conduct a fair trial accordingly. This is a significant rule of natural justice as it
prevents authorities from subjecting any individual to punishment without a sound and valid
ground. This is also called a rule of fair hearing.

Kinds of Justice

The concept of justice and its administration can be of the following types:

1) Public justice and Private justice.

Public justice is basically that kind of justice which the state administers through its tribunals and courts. It
explains the relationship between courts and citizens of a state. Courts usually enforce laws that the states
make under public justice.

On the other hand, private justice regulates the legal relationship between individuals. It is limited to people
enforcing concepts of justice amongst each other without approaching courts.

For example, let’s imagine that A and B entered into a business transaction in which A paid money to B as
promised. B, instead of selling goods to A for the money, refused to fulfill his obligation. If A and B decide
to settle their dispute through means of arbitration or negotiation, it is private justice. However, if A
approaches a court and sues B, we refer to that as public justice.
2) Civil justice and Criminal justice
In terms of the subject matters of justice, we can categorize it as civil and criminal. Civil justice generally
refers to private wrongs that affect specific people or entities.

For example, breach of a contract between two parties will affect only one of them. Trespassing of property
is another example. The remedy of such civil wrongs is generally to approach civil courts.

Criminal justice, on the other hand, affects society in general even if specific people are victims. For
example, the murder affects specific victims only but the law treats it as a crime against society.

Another feature of criminal justice is that it relates to laws made by a legislature. Only acts that are defined
as crimes can be the subject matter of criminal justice.

3) Distributive and corrective justice:

Distributive justice is a type of justice which is associated with the fair distribution of the available
means and resources among the individual. It can be defined as the social justice for the allocation of the
resources. Distribution of available resources can be done in the grounds of equality, equity, needs based
approach etc.

Corrective justice is a type of justice which deals with maintenance of status quo by protecting the
things wrongfully taken and resorting the goods to individuals so wronged. Corrective justice is also
known as remedial justice. It is primarily concerned with the reversal of the wrong which have been
done.

Law and Justice:

The concepts of law and justice are often confused and misinterpreted by many. While the two are
strictly connected, they are not the same thing. Justice is a broad concept that is based on equality of
rights, fairness and morality. Conversely, law is a body of regulations and standards set up by
governments and international bodies and is (or should be) based on the idea of justice. Laws are written
norms that regulate the actions of the citizens and of the government itself in all aspects, whereas justice
is a principle that may or may not be universally recognized.

What is Law?

Laws are rules and guidelines established and enforced by the government and its entities. They vary
from country to country and there is a body of international laws that applied to all states that decide to
ratify certain treaties or conventions. National laws are principles and norms that regulate the behavior
of all citizens and of all individuals under the government’s jurisdiction. Laws are created by the
government thorough a long and complex process, and once established they are implemented by
governmental entities and interpreted by lawyers and judges. Laws establish what citizens, business, and
governmental agencies can or cannot do. Although there is a set of written legislations, the judiciary
system has the power to interpret them and to enforce them in all different situations. Laws vary from
one country to another (or even from one state to another in the United States): that is why lawyers can
only operate in the country where they passed the national exam.
What is Justice?

Justice is a broad and somehow abstract concept based on equality of rights, fairness, kindness, dignity,
moral and ethics. In a just world, we would not have:

 Discrimination;
 Violence;
 Abuses;
 Poverty;
 Slavery; and
 Injustices in general.

Therefore, all laws should be based on the idea of justice and all governments should enforce national
laws in a just and equal way. Unfortunately, this is not always the case and laws are often broken, non-
respected and/or enforced in biased and partial ways. Furthermore, justice supersedes national
legislation and applies to all individuals without discriminations or limitations.

Similarities between Law and Justice

The concepts of law and justice are fairly similar as most laws are thought to be just and fair. Some of
the main similarities between the two include:

1. Both concepts regulate human behavior and aim at creating a more just and equal environment;
2. Law should be based on the idea of justice and should be implemented and interpreted in a just
manner – without discriminations; and
3. Both are based on the ideas of morality, equality, order and fairness.

Difference between Law and Justice

Although the two concepts are strictly linked, there are key differences that cannot be overlooked:

1. The term law refers to an existing and concrete set of written regulations established by the
government in order to regulate and control the actions of the citizens. Conversely, justice is not a
universally recognised concept and is subject to interpretations. Justice is often depicted a woman
wearing a blindfold– representing equality and fairness, and applying laws and regulations to all
individuals without discrimination. Yet, there is no common understanding of justice and there is no
unique book or text to refer to; and

2. Laws can vary from country to country and the process with which they are created can change as
well. For instance, in democratic countries, laws are adopted following a long debate and an even longer
process of checks and balances; conversely, in authoritarian countries, laws are decided and established
by the ruling party (or by the ruling person) without seeking the support of the majority. Conversely, the
idea of justice is more or less consistent across all countries: moral values and ethics tend to supersede
borders and geographic divisions.

Law vs Justice

Building on the differences outlined in the previous section, we can identify few other aspects that
differentiate law from justice.
Difference between Law and Justice: Comparison Table
Law Justice

Laws apply within one country and to

all individual under the government’s Justice is the underlying
jurisdiction. Furthermore, principle upon which all laws
international law applies to all should be based. Yet, there is no
countries that ratify certain covenants implementation of justice as such,
Implementation or treaties. National laws are enforced but laws and norms can be
by the government and its bodies implemented and enforced in a
(police, judiciary, etc.) while just and fair way by judges,
international law is enforced by governments, lawyers and
international organizations and international bodies.
tribunals.

Justice is not created; it is a

Laws are created by politicians
broad concept that unites
through a long process of checks and
universal ethical and moral
balances and can be approved (or not)
standards. Although it is not
Creation by the country’s population. The
universally recognised, the idea
creation of a law follows a different
of justice is based on values and
process depending on the country,
principles that are intrinsic to the
and can last few days or even months.
human nature.

Summary of Law and Justice

The terms “law” and “justice” refer to two similar yet different concepts. The ideas of law and justice
often go hand-in-hand but refer to two different ideas. Law is a system of regulations, standards,
principles and norms created by a country’s government in order to regulate the life and the actions of
the citizens. Laws are found in written codes and are enforced by the government and its bodies,
including security forces, police, judiciary, etc. Conversely, justice is a more abstract concept based on
the idea of equality of rights, and fairness. All laws should be based on the idea of justice and should be
implemented and enforced in a just way without discrimination of sex, gender, age, color, race, religion,
language or any other status.

Person:

The term ‘person’ is derived from Latin word ‘persona’ which means a mask worn by actors playing
different roles in a drama. In modern days it has been used in a sense of a living person capable of
having rights and duties. Now it has been used in different senses in different disciplines. In the
philosophical and moral sense the term has been used to mean the rational quality of human being. In
law it has a wide meaning. It means not only human beings but also associations as well. Law
personifies some real thing and treats it as a legal person. This personification both theoretically and
practically clarifies thought and expression. There are human beings who are not persons in legal sense
such as outlaws and slaves (in early times). In the same way there are legal persons who are not human
beings such as corporations, companies, trade unions; institutions like universities, hospitals are
examples of artificial personality recognized by law in the modern age. Hence, the person is an
important category of concept in legal theory, particularly business and corporate laws have extensively
used the concept of person for protection as well as imposing the liability.

Definition of ‘Person’
The term ‘person’ is derived from the Latin term ‘Persona’ which means those who are recognized by
law as being capable of having legal rights and being bound by legal duties. It means both- a human
being, a body of persons or a corporation or other legal entity that is recognized by law as the subject of
rights and duties. Savingy has defined person as the subject or bearer of right. But Holland has criticised
this definition on the ground that persons are not subject to right alone but also duties. He says: the right
not only resides in, but is also available against persons. There are persons of incidence as well as of
inherence. Kelson rejected the definition of personality as an entity which has rights and duties. He has
also rejected the distinction between human beings as natural persons and juristic persons. He says the
totality of rights and duties is the personality; there is no entity distinct from them. However, Kelson’s
view has been criticised for the reason that in law natural person is different from legal persons who are
also capable of having rights and duties and constitute a distinct entity. Salmond’s definition seems to be
more correct than the earlier definitions. In the words of Salmond: “So far as legal theory is concerned, a
person is any being whom the law regards as capable of rights and duties. Any being that is so capable is
a person, whether a human being or not, and no being that is not so capable is a person even though he
be a man.” Salmond further explains that the extension of the conception of personality beyond the class
of human beings is one of the most noteworthy achievements of the legal imagination.

Persons can be classified into (a) natural person, and (b) legal or artificial or juristic or fictitious person.
There are some natural persons who do not enjoy the status of legal persons and vice versa.

Following are the differences between natural person and legal person:
Natural Person
1. A natural person is a human being and is a real and living person.

2. He has characteristics of the power of thought speech and choice.

3. Unborn, dead man and lower animals are not considered as natural persons.

4. The layman does not recognize idiot, company, corporation, idol etc. as persons.

5. He is also a legal person and accordingly performs their functions

6. Natural person can live for a limited period i.e. he cannot live more than 100 years.

Legal Person
1. Legal person is being, real or imaginary whom the law regards as capable of rights or duties.

2. Legal persons are also termed “fictitious”, “juristic”, “artificial” or “moral”.

3. In law, idiots, dead men, unborn persons, corporations, companies, idols, etc. are treated as legal
persons.
4. The legal persons perform their functions through natural persons only.

5. There are different varieties of legal persons, viz. Corporations, Companies, Universities, President,
Societies, Municipalities, Gram panchayats, etc.

6. Legal person can live more than 100 years. Example: (a) the post of “American President” is a
corporation, which was created some three hundred years ago, and still it is continuing. (b) “East India
Company” was established in sixteenth century in London, and now still is in existence.

PROPERTY:

The concept of property occupies an important place in human life because it is practically impossible to
live without the use of material object which constitutes the subject matter of property. Property may be
classified into corporeal and incorporeal property, movable and immovable property, real and personal
property, public and private property. There are four important modes of acquisition of property -
possession, prescription, agreement, inheritance.

2) Meaning of Property –

The term property is derived from the Latin word 'properietate' and the French equivalent 'proprius'
which means a thing owned with the exclusive right of possession,enjoyment and disposition.. The
concept of property and ownership are very closely related to each other. There can be no property
without ownership and ownership without property. The term Property is not a Term of Art. It has been
used in a variety of senses. In its widest sense, Property includes all the legal rights of a Person of
whatever description The property of a man is all that is his in law. In the narrower sense, the property
includes the proprietary rights of a person and not his personal rights. Proprietary rights constitute his
estate or property and personal rights constitute his Status or personal and condition. In another sense,
the term property includes only those rights which are both proprietary and real. In Modern Times
intellectual or intangible property has become very important. Examples of such property and copyright,
patent, trademark etc.

3) Definition of Property –

Some important Definitions of Property are as follows –

(a) Locke - According to Locke, " Every man has a property in his own person." every individual has
the right to preserve his property, that is his wife, liberty and estate."

(b) Bentham - According to Bentham "property is nothing more than the basis of s certain expectation of
deriving thereafter certain advantages by a thing the reason of the relation in which we stand towards it.
There is no image, no visible lineament which can property the relation that constitutes property. It
belongs not to physics, but to metaphysics. It is altogether a conception of Mind. To it, all or any of
these physical circumstances failed to assist in conveying the idea of property."
Kinds of property –

Property is essentially of two kinds Corporeal Property and Incorporeal Property. Corporeal Property
can be further divided into Movable and Immovable Property and real and personal property.
Incorporeal property is of two kinds-rights in re propria and rights in re aliena or encumbrances.

1) Corporeal and Incorporeal Property –

(I) Corporeal Property – Corporeal property is the right of ownership in material things.Corporeal
property is always visible and tangible. Corporeal property can be perceived by senses. It can be seen or
touched. Examples -A House, Land, Car, Bike etc Corporeal property may be divided into two classes1.
Movable Property (Chattels) and Immovable property. (Land and buildings) 2. Real Property and
Personal Property

(II) Incorporeal Property - Incorporeal property also called as intellectual or conventional property. It
includes all those valuable interests which are protected by law. Incorporeal property is intangible. It
cannot be perceived by Senses. Examples - Patents, Copyrights, Trademarks etc.

Incorporeal property is divided into two classes- (a) Jura in re propria Over Material things (for example
patents, copyrights, trademarks etc) (b) Jura in re Aliena encumbrances, whether over material or
immaterial things, for example, Lease, Mortgages and Servitude etc.

2) Movable Property and Immovable Property - All Corporeal Property is either movable or immovable.
In English law, these are termed as chattels and land respectively.

(I) Movable Property - Movable property is one, which can be transferred from one place to another
place with the human efforts.

(II) Immovable Property - "Immovable property includes land, benefits arising out of land and things
attached to the earth or permanently fastened or anything attached to the earth." Movable property
includes corporeal property which is not immovable.

According to Salmond immovable property (i.e., land) has the following elements-

➢ A determinate portion of the surface of the earth.

➢ The ground beneath the surface down to the Centre of the earth ➢ The column of space above the
surface ad infinitum.

➢ All objects which are on or under the surface in its natural state for example-minerals natural
vegetation, or stones lying loose upon the surface.

➢ An object placed by human agency on or under the surface of the land with the intention of
permanent an annexation, for example, House walls, Doors, Fences, etc.

3) Real and Personal Property - In English law, the property has been divided into the real and personal
property. This division is identical to a great extent with that of immovable or movable. The division
into real and personal is not based on any logical principle but is a result of the course of legal
development in England. a) Real property - The real property includes all rights over land with such
additions and exceptions, as the law has deemed fit. b) Personal property - The law of personal property
includes all other proprietary rights whether they are in rem or in personam.

4) Public property and private property - Having regard ownership property is either public or private -
(a) Public propertyPublic property is that owned by the public as such in some governmental capacity.
Public property is used as a designation of which are Public Juris and therefore, are considered as being
owned by the public. The entire state or the community and not restricted to the domain of private
person or that which belongs to a state or political constituents like provinces etc. (b) Private property -
The private property is that which is owned by an individual or some other private person.

Modes of Acquisition of Property:

According to Salmond, there are four kinds of acquisition of property those are possession, prescription,
agreement and inheritance.

I) Possession - A possession is the objective realization of ownership Possession means Physical

Control over a thing or an object. It is Prima facie evidence of ownership. The property which belongs to
no one i.e. Res nullius, belongs to the first possessor of it and he acquires a valid title to it against the
world. A property which is already in possession of someone else, when acquired by possession, gives a
good title to the possessor against all third persons except the true owner. Even as against the true
owner, the possessor is entitled to maintain his possession until evicted in due course by law. In such a
case of adverse possession, there are in fact two owners the ownership of one is absolute and perfect,
while that of the other is relative and imperfect and often called possessory ownership by reason of its
origin possession. If a possessory owner is deprived of its possession by a person who is other than the
true owner, he has the right to recover possession of the same. If Property belongs to nobody, the person
who captures and possesses it has a good title against the whole world. In this way, the birds of the air
and the fish of the sea are the property of that person who first catches them.

II) Prescription - According to Salmond: "Prescription may be defined as the effect of lapse of time in
creating and destroying rights; it is the operation of time as a vestitive fact. Prescriptions are of two
kinds-Positive or acquisitive prescription and negative or extinctive prescription.

(a) Positive or Acquisitive Prescription Positive Prescription means the creation of a right by the lapse
of time. For example, right of way is acquired by continued de facto use of it, undisputedly and openly
for a period Prescribed by law.

(b) Negative or Extinctive Prescription. Negative prescription is the destruction of a right by the lapse of
time. Example, the right to sue for nonpayment of a debt within a prescribed period is extinguished after
the lapse of that Period.

III) Agreement - Property may also be acquired by agreement which is enforceable by law. The owner
of a right can transfer his rights in property to another with or without consideration. If it is for
consideration it is called a sale and if it is without consideration it is called a gift. It is one of the
important principles of law based on the Maxim "Nemo dat quad habet legime', that is no one can
convey a better title than he himself has, as a general rule. According to Paton, an agreement is an
expression by two or more persons communicated each other to the other of a common intention to
affect the legal relation between them.

An agreement has four essential elements which are as follows –

1) There should be two or more parties to an agreement

2) Mutual consent of the parties

3) It should be communicated;

4) There should be common intention to affect the legal relationship

IV) Inheritance

Another method of acquiring property is by means of inheritance. When a person dies certain rights
survive him and pass on to his heirs and successors. There are others which die with him. Those rights
which survive him are called heritable or inheritable rights. Those rights which do not survive him are
called un-inheritable rights. Proprietary rights are inheritable as they possess value. Personal rights are
not inheritable as they constitute merely his status. However, there are certain exceptions to the general
rule. Personal right may not die in case of hereditary titles. Proprietary rights maybe unheritable in the
case of lease for the life of lessee only or in case of joint ownership. Succession of the property of a
person may be either tested it or it may be intestate i.e. by means of a will or without a will. If the
deceased has made a will, then succession would take place according to the term to the will. But if
there is not will, then succession will take place by the operation of law which is known as non-
testamentary succession. In case there are no heirs of the deceased, his property shall go to the State.

Provision of Property Right in Nepalese Legislation:

In the Part-3 of “The Constitution Of Nepal, 2072 (2015)” property right of an individual is regarded as
the “fundamental right”.

According to the “right relating to property” the Constitution states that-

1. Every citizen shall, subject to laws, have the right to acquire, enjoy own, sell, have professional
gains, and otherwise utilize, or dispose of property.
2. Explanation: For the purpose of this Article, “property” means all type of movable and immovable
property and the word also includes intellectual property.
3. Provided that the state may impose tax on property and income of a person according to the norms
of progressive tax.
4. The State shall not, except in the public interest, acquire, requisition, or create any encumbrance on
the property of any person. Provided that this clause shall not be applicable to property acquired
through illegal means.
5. In the case when the land of a person is acquisitioned by the State according to clause (2), the basis
of compensation and the relevant procedure shall be as prescribed by act.
Part-4 Of The Civil Code,2074 Laws Relating to Property

Chapter-1 General Provisions Relating to Property

251. Deemed to be property: Any cash, goods or work shall be deemed to be a property if such cash,
goods or action can be used or transacted in or the title thereto can be transferred by way of purchase,
sale or otherwise or any benefit can be derived therefrom.

Explanation: Except otherwise provided for in this Act, the term "goods" means a physical property
capable of being purchased or sold.

Further, The Civil Code,2074 states that “property” can be movable and immovable. In the act there are
detail provisions about what items constitutes moveable and immovable property. The Act includes
intellectual property as moveable property.

Ownership and Possession:

Most of us often confuse the terms ‘ownership’ and ‘possession’ and use them as synonyms. However, in
law, both these terms have distinct legal definitions that are quite distinguished. Let us learn about
ownership and possession in jurisprudence and the difference between the two.

Ownership

As per Salmond ownership can be described as the relation between a person and any said object which
forms the subject matter of this said ownership. Ownership also consists of a complex web of many rights
all of which are rights in rem, and not merely rights against persons.

So ownership is actually the sum total of the rights of possession, the right of disposition and even the right
of destruction. There are six essential characteristics of ownership as per the law. They are as follows,

 The owner has the absolute right to possession. It is immaterial if the owner in actual possession of
the object, as long as he has the right of possession.

 The owner has the liberty or the right to use and enjoy the benefits of the said object. No one can
interfere with his right to use the object he owns.

 Ownership also means that the owner has the right to exhaust the object while using it.

 And he also has the right to destroy or alienate the object. This means he can destroy or dispose of
the object during his lifetime or via his will. This right is sometimes restricted by law.

 Ownership is also for an indeterminate duration. Possession or the right to use is for a limited period,
but the ownership of an object is for an indeterminate period of time.

 And finally, ownership is residuary in character. So for example, if the owner leases the object, or
gives it for use, etc. he still remains the owner.
Possession

Salmond defines possession (in legal terms) as the continuous exercising of a claim, to the exclusive use of
an object or a thing constitutes possession of the object. In simpler words, if a person has apparent control
of an object and apparent power to exclude others from the use of the object, then we can say he has
possession. Now it is a de facto relation between a man and an object. So a man can possess a thing he
doesn’t own. Say for example the possession of a property that he has leased from someone (who will be
the owner). And the opposite is also true. One can own some object and not possess it.

Ownership vs Possession:

Ownership Possession

Possession is more the physical control of

Ownership involves the absolute rights and legitimate
an object. The possessor has a better claim
claim to an object. It means to own the object by the
to the title of the object than anyone,
owner.
except the owner himself.

Ownership is the right of the owner against the

As per the definitions, it is the continuous
world indefinite in point of the user, unrestricted in
exercise of a claim to exclusively possess
point of disposition or destroying and unlimited in point
and use the object/thing.
of duration over a thing

Ownership itself gives the owner the right to However, it does not indicate the right to
possession. ownership.

The transfer of ownership is a technical and long Transfer of possession is fairly easier and
process and involves conveyance less technical.

Ownership is essentially a bundle of rights, all rights in It is not a right, just a prima facie
rem. evidence of ownership
Chapter-2 Provisions Relating to Ownership and Possession

266. Ownership to be deemed: If a person acquires the right in any property in accordance with law, his
or her ownership in that property shall be deemed.

288. Right of owner: Any person, in capacity of the owner of any property, shall have the following
right, subject to laws:

(a) To use the property,

(b) To sell or otherwise transfer the title to the property to any other person,

(c) To mortgage or pledge the property in any manner,

(d) To deal in the property,

(e) To take benefits of the property in any manner whatsoever,

(f) To make any kind of physical structure, wall or fence or delimit boundary, in his or her land or
change the form of any property or otherwise protect it,

(g) To use his or her land or part below its surface or goods therein or sky above its surface,

(h) To destroy or dispose of property in any manner,

(i) To institute a legal action in any manner in relation to the acquisition or security of the property.

268. Possessory right to be deemed:

If a person holds a property with him or her lawfully with intention to possess the property, the person
shall be deemed to have the possessory right over such property.

269. When possessory right can be acquired:

(1) The possessory right may be acquired over any property in the following manner:

(a) By holding the property in the capacity of its owner,

(b) By acquiring the property owned by another person, in accordance with law,

(c) By obtaining consent to have possessory right.

(2) Only the possessory right which is acquired in good faith, peacefully or openly shall be deemed to
have been acquired lawfully.

270. Person competent to acquire possessory right:

(1) A person may acquire the possessory right either in person or through his or her agent.

(2) A person who is incompetent or quasi-competent may acquire the possessory right through his or her
guardian or curator.
271. Rights of possessor:

(1) A person, in the capacity of a possessor, shall, subject to law, have the following rights:

(a) To uninterruptedly possess the property in his or her possession, subject to the laws in force or the
contract, if any, entered into in relation to the property,

(b) To use any benefits of the property in his or her possession.

(2) In the event of acquisition of, by a person, the possessory right in bona fide over any property
owned by anyone else, the person shall be entitled to reimbursement from the owner of that property for
essential expenses incurred in the management, maintenance or care of such property while it was under
his or her possessory right.

(3) Notwithstanding anything contained in sub-section (2), the former possessor shall be entitled to
retain such property 148 with him or her unless and until the expenses referred to in that subsection are
reimbursed.

(4) If a bona fide possessor of any property not in his or her ownership has attached any goods to such
property, the possessor shall be entitled to detach or take out the goods so attached by him or her from
the property without tempering with such property.

272. Circumstances when possessory right is extinguished:

The possessory right of a person over a property shall be deemed to have been extinguished in any of
the following circumstances:

(a) If the person abandons the property,

(b) If the person transfers the property,

(c) If the property gets totally destroyed or becomes useless.

273. Adverse possessory right to be deemed:

(1) Notwithstanding anything contained elsewhere in this Chapter, if any person has possessed any
movable property or land owned by anyone else, since more than three years ago in the case of the
movable property and thirty years ago in the case of the land as if the property or land were owned by
himself or herself, that person shall be deemed to have adverse possessory right over such property or
land.

Provided that:

(1) No adverse possessory right may be acquired over a government, public, community or trust land
despite the length of the period of possession.

(2) Where a contract or other law provides for separate provisions in relation to any property or 149
land, such provisions shall be applicable to such property or land. (2) If any person acquires the adverse
possessory right over any property pursuant to sub-section (1), the person may obtain ownership over
such property in his or her name. (3) Notwithstanding anything contained in sub-section (1), if a
property or land is possessed without knowledge of its owner, secretly or forcibly, this Section shall not
apply. (4) In computing the period pursuant to this Section, it shall be computed from the date of the
commencement of this Act.

274. Compensation to be paid:

(1) If any person possesses any property forcibly, with mala fide intention or secretly, the person shall
return the benefits derived from that possession and such property to the concerned person and pay a
reasonable compensation for any loss caused to the property due to his or her negligence in the course of
possessing such property.

(2) If any property owned by anyone else is lost or damaged during the continuance of the possessory
right of a person over the property, the person shall pay compensation for such property to the concerned
person.

275. Statute of limitation: A person who is aggrieved from any act done or action taken pursuant to this
Chapter may make a lawsuit within three months after the date of knowledge of commission of such act
or action.

Definition, Nature, Scope & Importance of Jurisprudence

Definition and Meaning

The term Jurisprudence has been derived from the Latin word “Jurisprudentia” in which “Juris” means
law and “prudentia” means skill and knowledge. Hence jurisprudence means-

‘Knowledge of Law or Skill of Law’

It is defined as a study of the fundamental legal principles including

their philosophical, historical and sociological bases, and, an analysis of
legal concepts.

It is a type of investigation into the essential principles of law and the

legal systems (Salmond). It is the science of the first principles of civil
law. Legal concepts like contracts, torts or criminal law consist of a
set of rules. It has no such legal authority and further, it has no practical
application. The jurists have a free approach in their investigations.
Further, the method of enquiry in jurisprudence is different from other
legal subjects.

Jurisprudence study about the law and includes the study of the term law, sources of law and legal
terminologies.
It has been defined by various authors as follows:-
1. Salmond:- Jurisprudence is defined as the Science of Law. In science,
there is a systematic study of Nature and in Jurisprudence there
is a systematic study of Law.
2. Austin:- According to this author Jurisprudence is the philosophy
of Positive Law. And it governesses all actions of human being
which are illegal and unjustified.
3. Gray:- According to this author Jurisprudence is the study of
legal systems of all the countries.
4. Duguit :- According to this author Jurisprudence is knowledge of
just and unjust. And Human law and Divine Law or Natural law.
5. Ulpian: Jurisprudence is the knowledge of things ,human and divine,the science of just and unjust.
6. Cicero: Jurisprudence is the philosophical aspect of the knowledge of the law.

Nature of Jurisprudence

1. It is Uncodified Law
2. It is common law in all countries
3. This law has been developed and not enacted by the Legislative.
4. It is also called legal theory, there is an actual study of the term law in Jurisprudence.
5. There is no scope for amendment and it is developing out of legal knowledge of the people.

Scope of Jurisprudence

There is a wide scope of Jurisprudence and it is related to so many

other subjects that can be explained as follows:

1. Jurisprudence and economics:-

Economics is the science of wealth. People commit many illegal activities for the sake of wealth and law
tries to control illegal activities and to punish the criminal’s same law is studied in Jurisprudence and
therefore Jurisprudence and economics are correlated.

2. Jurisprudence and Politics:-

Laws are enacted by political parties. Who are elected by people called as
Legislatures. Jurisprudence study law enacted by political parties who are in
power and therefore Jurisprudence is also related with Political Science.

3. Jurisprudence and Sociology :-

Sociology is also called as Science of Society. It studies about
the development of Society. Law is the requirement of Society. Which is studied in Jurisprudence and it
is related with Sociology.

4. Jurisprudence and Ethics:- (Ethics means Morality)

Ethics or morality is base of Law. Many Laws have been enacted
by considering morality. But it is not in all the laws. Therefore law
and morality or ethics are also correlated.

Importance of Jurisprudence

1. It is compared with science which shows the importance of Jurisprudence.

2. It studies the legal systems of all the countries.
3. It is called as foundation or base of the law and the study of jurisprudence is much important.
4. It is related to many other subjects which shows the importance
of jurisprudence.
5. It makes a study of term law and sources of law which is necessary.
6. It is like a tool in hands of legal expertise which is helpful in the interpretation of the law.

Jurisprudence comes from the Latin word ‘jurisprudentia’ meaning “knowledge of

Law”. Bentham and Austin had provided the earliest description of this term. Since then, the
spectrum of jurisprudence has grown in many areas and now it covers the whole gamut of law, not just
positive laws. It’s the study of the basic principles of law. The judiciary’s versatility in interpreting the
law to support the State’s social welfare ends has also led to a major expansion of the jurisprudence.

Jurisprudence binds laws to other fields, such as psychology, politics, economics etc. The scale of that
always varies. It is not derived from any legislative act or state assembly. Lord Tennyson calls it
the “topic of Lawless Law”. Related principles such as the roots of law, the need for law, the
importance of law are discussed by related lawyers. This analysis of legal principles is called
Jurisprudence.

Jurisprudence allows us to grasp the more abstract nature of the law. Jurisprudence is an important part
of the law that is based on different hypotheses and interpretations. Jurisprudence speaks of the
relationship between the law, culture, man, nature and other social sciences.

Jurisprudence can also be referred to as a legal philosophy. Jurisprudence offers us an outline and a
much deeper understanding of the law and the role the law plays in society. It deals with legal logic,
bodies of law and legal frameworks.

The subject matter of Jurisprudence holds much importance in the vast field of Law.

Importance of Jurisprudence:-
1. Fundamental significance is of utmost importance under the field of the study of jurisprudence.
Jurisprudence consists primarily of analysis and the process for building and clarifying the
fundamental principles of law. Jurisprudence is not about making the new rules; rather, it focuses
on current rules in the structure and jurisprudence, and its ideas will help lawyers develop a
different, much better procedure and rules while practicing.
2. Jurisprudence can support students too. In students life it has its own scholastic value.
Jurisprudence not only focuses on primary laws but also addresses the social impact of those
laws. Jurisprudence incorporates both theoretical and logical study of legal principles.
3. Jurisprudence frequently reflects on the law and its importance for society. There is discussion of
justice and the articulation of law. It deals with the fundamental principles of the in the eye of
law. It helps a person understand the thoughts of law and its divisions.
4. Jurisprudence is the grammar of law, too. It helps a person understand the language and the legal
grammar. Compared with ordinary language, legal language and grammar are somewhat
different, so Jurisprudence teaches a lawyer’s mind so that he can use proper legal terminology
and phrases.
5. Jurisprudence provides interpretation rules and, as a result, helps judges and lawyers understand
the importance of laws passed by lawmakers.
6. Jurisprudence and its relationship with other social sciences provide students with a broad
spectrum of understanding how law can be related and linked to other disciplines.
7. Jurisprudence teaches people that the answer to a legal problem is not hidden in the past or
awaiting in the future, rather than hidden around them in the fundamentals of legal studies in the
answer to a legal issue.
8. Jurisprudence also discusses political and legal rights, and how the system can strive to balance
them.
Nature of Jurisprudence

Jurisprudence analyses conceptions of law. It also seeks to figure out what the basic concepts of law are.
It not only analyses the already defined laws but also analyses and sets the foundation for new rules. It is
the product of Jurists ‘and Philosophers’ thought. They have the right to view, analyze and comment
about the legal system. As such, it can be viewed as an analytical exercise that does not have immediate
practical application. It sets the tone for legislative change.

Jurisprudence binds laws to other fields, such as psychology, politics, economics etc. The scale
constantly shifts. It is not derived from any legislative act or state assembly. Lord Tennyson calls it,
Lawless subject of law. Various concepts like Origin of law, need of the law, the utility of the law are
studied by various Jurists. This study of concepts of law is called Jurisprudence.

Jurisprudence offers answers to multidimensional legal questions. It helps in overall growth of society.
It enhances the capacity of the lawyer to justify rational reasoning. It blesses or hastens a lawyer’s skill
with a sense of philosophy, ethics and morality which helps them move forward in their discipline.
There are also occasions when there are loopholes in the rules; Judges choose the path of Jurisprudence
at those periods. Jurisprudence is the theoretical foundation of the law, and without it; it is not
possible to enforce the law in effect.

Schools of Jurisprudence

1) Philosophical school or Natural law school

The school of philosophy or ethics is concerned primarily with the relationship of law to certain
principles the law is intended to achieve. It seeks to examine the reason for which it has passed a
specific law. It has no historical or analytical substance to it. This school’s most notable jurists
are Grotius (1583-1645), Immanuel Kant (1724-1804), and Hegel (1770-1831).These jurists do not
recognize law either as a ruler’s arbitrary order, or as the development of historical necessity. The law is
for them the product of human reason and its aim is to uplift and ennoble human personality.

2) Analytical or Imperative School (Positivism)

The analytical school is constructive ‘in its approach to social legal issues. It focuses on things as they
are and not what they should be. The positivists’ main concern is the statute, which is currently
considered positum, and not the ideal Law. Legislation, judicial precedents and common law are the
most relevant legal sources.

Analytical school’s motto is “Ubi civitas ibI lex” i.e. “where there is State, there will be no
anarchy”; State is a necessary evil.

The main proponents of this school are: Bentham, Holland, Austin, Salmond, etc:

a) Bentham’s concept of Law:-

Bentham (1748-1832), the founder of Positivism, should be considered the father of analytical
positivism, and not Austin, as is generally assumed (Austin owes much to Bentham, in fact). He was a
codified law (Legislation) fighter. The purpose of Bentham’s work was to ensure the indispensable
implementation of a civil code.
Bentham differentiated expository jurisprudence from censorial jurisprudence (i.e., what the law
should be). His definition of law is imperative, i.e. law is the assembly of signs, statements of will
conceived or embraced in a state by a sovereign.

According to him, the role of law must be to achieve these ends, i.e. providing food, creating wealth,
fostering equality, and preserving security. Bentham’s philosophy of hedonism or pain and satisfaction
principle has been questioned on the basis that suffering and pain alone cannot be the only measure of
the law’s adequacy.

b) Austinian Concept of Law:

John Austin (1790-1859) was a professor at the University of London. He applied empirical method:
Law should be carefully examined and evaluated, and the underlying theory should be discovered and
his area of analysis limited only to the Positive Law (Jus positivism).

Law, so-called simply and strictly law, set by political superiors to inferiors. Thus, the school he
founded is called by different names, logical, positivistic and analytical positivism. Austin is believed to
be the founder of English jurisprudence.

Austin defined law as a rule set for an intelligent being’s guidance by an intelligent being having power
over him. According to him, so-called proper law includes: law of God, laws of man and rules of
positive nature.

According to him every rule, properly named, must have three elements, command, sanction and
sovereign elements. According to him, law is a sovereign’s order, which mandates his subjects to do
or refrain from such actions. If the order is not obeyed, an implicit threat of a punishment occurs.

c) Hart’s Concept of Law:

Professor Hart (1907) can be regarded as the leading representative of British positivism in the
present day. He wrote an important book “The Law’s Definition”, questioning the theory of Austin.
According to Hart, Law consists of laws that are broad-based and non-optional in nature, but at the same
time appropriate for formalization, regulation and adjudication. He said law is a set of social rules that
acquire the character of legal laws (laws arising from social pressure). Law is a set of laws which can be
publicly ascertained. In Hart’s opinion, law is analogous to a legal structure.

According to Hart, there are two types of rules where the primary rule establishes norms of conduct or
imposes duties (i.e. international law), while the secondary rule is the rule under which the primary rules
may be created, added, omitted or changed. The secondary rules are public or private (e.g. Laws,
Constitution) rules which impart power. From these the rules of recognition are derived and provide
authoritative criteria for the identification of primary rules of obligation.

3) Historical School

Law so closely touches real life that seeing the action of laws in their social setting is only normal.
The Functional Approach to Law (Historical and Sociological Schools) emphasizes actual social
circumstances as giving rise to law and legal structures, and is concerned not with the person but with
the associated man. The historical school arose as a response to legal theories promoted by logical
positivists (as they failed to meet people’s needs) and the thinkers of natural law. This school’s motto is
“Ubi societas ibi lex”, that is to say, “where there is culture, there is law.”
4) Sociological School

Auguste Comte was the first to use the term sociology, and is considered the father of
sociology research by some jurists. The approach used by Comte may be called scientific positivism.
He pleads for applying scientific method to sociological research. Society is like an organism and if it is
driven by scientific principles it will advance.

Herbert Spencer introduced the organic theory of society in a scientific analysis.

He applied sociology to the evolutionary pattern of society.

Duguit was influenced by Durkhiem who took inspiration from Comte himself. Durkhiem’s key
argument, on which Duguit focused himself, was that he made a distinction between two kinds of men’s
needs in society.

1. There are certain individual needs that are addressed by mutual assistance and

2. The needs of individuals are varied and met by the exchange of services.

Therefore the most critical aspect of social stability is the division of labor. He called it Unity with
society. This social cohesion grows through the creation of free individual activities.

5) Realist School

Sociological Jurisprudence in America formed an extreme wing under the realist school name. They are
concerned with researching the law as it operates and functions which means examining the social
forces that make a law on the one hand and the social consequences on the other. Instead of abstracting
logical deductions from general rules and the inarticulate conceptual premises underlying a legal system,
they focus more on what the courts can do.

American Realism is not a jurisprudence school but a thinking pedagogy.

Conclusion

Thus in this Article, a difference has been made between Jurisprudence and the law that we usually
practice. Jurisprudence helps lawyers and magistrates discover the true sense of law. We came across
different legal theories and how they were influencing society and the law. Jurisprudence is a major
part of the law and cannot be isolated from it.

There are different types of jurisprudence that are used for the entire study of the law. There is no law
school which is in itself complete. Different schools of law offer different methods of law analysis that
exposes one another to give a better theory of law that can be implemented in different circumstances.
Analytical school focused on the law as it is, and disregards the moral nature of the law. In the Classical
School of Law, the interpretation of law as an instrument of social regulation was lacking.

There are different methods for law study, but their object is the same as understanding the fundamental
concepts of law and legal study.

Since then, and now, the reach of jurisprudence has broadened. Now it includes the whole spectrum of
rules, and not just good laws. The judiciary’s versatility in interpreting the law to support the State’s
social welfare ends has also led to unprecedented expansion of the field of jurisprudence.