Concept Of Law

Concept Of Law

There have been several attempts to produce a universally acceptable definition of law. Lord Lloyd once said that no such definition could be produced. While McCoubrey and White said that the question “what is law?” has no simple answer. Glanville Williams, on the other hand, said that the meaning of the word “law” depends on the context in which that word is used. Sir Ivor Jennings was of the view that any effort to define ‘law’ is an effort of futility, therefore, the readers should be more focused on understanding the concept of law rather than adhering to any particular definition of law.

Views of Jurists and Political Philosophers about the ‘Law’

Legal theorists have spent a great deal of time and energy in elucidating the concept of law. Some ancient jurists think of it as dictates of reason, some pre-modern jurists consider it as commands, and some modern jurists think of it as whatever is habitually obeyed is law.

Following are some specimens of thoughts of various jurists and political philosophers about the concept of law:

Law is an embodiment of ‘Reason’, whether in the individual or the community. (Plato)

Law is a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. (John Austin)

A body of rules fixed and enforced by a sovereign political authority. (John Austin)

Law is a system of norms that prescribe sanctions. (Hans Kelsen)

So far as a Judge is concerned, if a definition is necessary, all that he has to see is that the law which he is called upon to administer is made by a person or authority legally competent to make laws and the law is capable of being enforced by the legal machinery. (Sir Ivor Jennings)

Law is really what the Judge decides. (Justice Holmes)

Law is a body of principles recognised and applied by the State in the administration of justice as rules recognised and acted upon by the Courts of justice. (Salmond)

After reading some thoughts of jurists and political philosophers, one derives more or less the same idea as has been enunciated by the thinkers but in a narrower way. However, given the wide sphere of the phrase, ‘Concept of Law’ this is not so. To reach some destination, B.E. King in his article, ‘Propositions About Law’ (1951) 11 CLJ 31states that we should not concern ourselves with the exposition of law, but with disquisitions about law. Pakistani courts somewhat follow the above-mentioned pattern.

Concept of law in the context of Pakistan

Law is the compendium of ideas and concepts that is designed to cope with disputes coming before the courts and it progresses with the progress of society. Law and its remedies change with the passage of time (PLD 2009 SC 284).

By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his or her life, liberty, property, and immunities under the protection of the general rules which govern society.Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land. (1992 SCMR 2450)

Law is an expression that includes legislative act and subordinate legislation in nature of Rules and Notifications issued under authority of legislative act. (2005 PTD 2256 Karachi)

“Law” means not only statutory and delegated legislation but also the judge-made law. (PLD 1997Kar. 204)

Term law not only included the provisions of the statutes, but also the judicial principles decided by the court through case-law—In case an authority would act in violation of principles laid down by a court in a decided case, the impugned action would be unlawful and without jurisdiction. (YLR 2001 Kar. 2542)

Pakistan is an Islamic Republic. Its ideology is enshrined in the Objectives Resolution of the 7th April 1949, which, inter alia, declares “wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah”. We should, therefore, turn more appropriately to Islamic Jurisprudence for the definition of “Law”. One method of defining “Law” is to know its source. In Shari’at, laws have the divine origin. They are contained in the Holy Quran, and Hadith, namely, precepts and actions of the Holy Prophet (p.b.u.h). The other sources are Ijma’ (Consensus) and juristic deductions including Qiyas, Istihsen, Istidlal and Ijtihad. While juristic deductions are judge‑made laws, ‘Ijma’ is based on the doctrine of Imam Shafi’i that “the voice of the people is the voice of God”, and is the most fruitful source of lawmaking in Shariat. In the present day context, the legislative assemblies comprising of chosen representatives of the people perform this function. Thus, in Islamic Jurisprudence, the will of a sovereign, be he the monarch, the President or the Chief Martial Law Administrator is not the source of law. The people as delegates of the sovereignty of the Almighty alone can make laws which are in conformity with the Holy Quran and Sunnah. (PLD 1972 SC 139)

 Upshot of the whole discussion

While concluding my trivial research on the ‘concept of law’, I have come to conclude that modern concept of law is not restricted to the statutory instrument, it also includes judge-made law, general principles of law and to some extent principles of morality which are universally accepted and altruistic in nature.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Hashim Ali Gill

The writer is a lawyer by profession and is currently pursuing LL.M from the University of Punjab, Lahore. He has a proclivity for administrative law and comparative constitutional law.



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