Nature of Law
What should be the nature of law? To study this, one should make the basis of the evolution of the law according to the course of time, definition, and remarks given by different schools of law or the explanation given by them on the law. In fact, there are diversity, flexibility, complexity, changeability, and rigidity of the nature of the law. It should have the most leading and powerful capacity as well. Law should have a directive, principles on the fundamental and property rights of the individual by maintaining peace and order in the state. The nature of law has been given below:
1. Natural School of Law
It’s very hard to define what is natural law? Or what kind of law is natural law? Many natural laws have been evolved while defining it and explaining it. Several attempts have been made to define and explain and find the scope of natural law in different periods. Nevertheless, the universal definition of natural law is not there to this point in the world. It is beyond possibility as well. The different principles and their diverse nature or form have turned natural law into the “illusive web.” Therefore, despite lacking a definite and uniform definition, from the prestigious assumption its nature can be understood. Natural law is related to human nature, wisdom conduct, and justice. The rules about human conduct have been founded by god’s grace and so are mandatory and compulsory to all people.
Equality is the law of nature that is connected with natural law. -Natural law involves the form of wisdom. Hence, it is an intellectual law. In other words, wisdom, good faith common sense are the natural law since wisdom, good faith and common sense are god’s given things. Natural law is, therefore, supposed to be godly command in the natural school of law. At the moment this school of thought explains the law, not as the command of god or rule of wisdom but the organized form of the free will of the as a whole. Therefore, there is no debate on that the nature of law. According to this school of thought, the law is God’s granted and full of wisdom.
2. Analytical School of Law
The principal founder of this school of law in Austin. Other followers of this school are about Salmond and Heart. According to Austin “Law is the command of the sovereign.” Without the command of the sovereign, there is no law. As the sovereign is the supreme commander, the law violators are subject to punishment. But all the commands of the sovereign can’t be the law. Only that command which comprises three conditions is the law. The three conditions are as follows:
a) Each law is the sovereign command. Therefore it involves punishment.
b) Law is made by a sovereign because the sources of law are sovereign,
c) The command of sovereign holds mandatory nature since it compels people to conduct decently.
In this way from this school of law, it is understood that the nature of law is the sovereign command. It is rigid and definite in nature. Law is mandatory. Therefore, everyone should follow it.
3. Historical School of Law
In fact, the Analytical school of law studies the present condition of law ignoring the history of the law whereas the historical school of law studies presents exiting law on the basis of its history. It goes with to find out, what were the active causes to form the law? And what causes are responsible to give form the extent law? The founder of this school of law is Savigny. To him, the law is not a command; neither it is an object to be made. In every society, a law in itself is established as there are culture, language, rituals, and usages. As a culture, language and society are the genuine product of society, so is the law. Therefore, the law is made according to the consciousness level of the society. Since the law is the product of the common consciousness of the society. Therefore, as per this school of thought law is not constituted by any legislative body rather it is discovered. It is said, the law is not in itself of sovereign nature but of national nature and the organized and mutual relations of the community developed law. The nature of law reflects the consciousness level of that community. This type of law evolves according to the development of the people of the society. Therefore, the nature of the law, though it is the genuine product of a community, it bears national character.
4. Socialist School of Law
This school analyses and explains the law on the basis of social, economic structure, and relations. This school is known as an economic or Marxist school. The founders of this school are Karl Marx and Frederic Angels. Marx has analyzed the social evolution of law from an economic perspective while explaining the social evolution of human history. In conclusion, he has described that law is not an essential and inevitable object in society. To him, the law is the means of exploitation constituted by a sovereign body of a minority group. That is to say, the law is an artificial concept to formalize and legalize the social mode of production. The political system runs and protects social-economic relations and activities. To patronize such protection, it is politics that constitutional law and takes help from it. In the end, according to this school of thought, while studying the nature and character of law only in the communist rule, there are classless people and there will be the end of the state and there will be the end of law also.
5. Pure Theory of Law
Hans Kelson is a professor of constitutional law at Vienna University in Austria. Therefore, the pure theory of law founded by him is known as the Vienna doctrine in legal studies. Kelson has used the term law to mean legal system. That is why he says that law is in the form of a chain between different institutions which is the system of human custom and usages. According to him, the nature of law is obligatory to all, because of the sanction. Like Austin, Kelson also believes that normative is the essential element of the law. However, law receives normative power from the sovereign body. But on this ground, he sharply differs from Austin. In his view, the normative law is inherent in itself. Each law prior to forthcoming law is the source of normative to make individual follow the law. To know what is law? One needs to make free the law from justice, ethics wisdom, and co-justice. Kelson also has the concept that only after freeing law from economics, history, psychology, political science and sociology, it is known what is pure law. To him, the law is not a whim but a science. Actually, it is not the scope of this science (law) to study how is law? And what is law? Law is a science that has a certain and objective. Law is not a natural science rather it is theoretical science. That is why according to this school the type and nature of law is pure well as it is understood that it is theoretical science.
6. Sociological School of Law
The sociological perspective tries to relate law with social values and customs. By avoiding social values nobody can develop a society that is backed up by this school of law. The pioneers of this school believe that law cannot remain isolated and aloof from the influence of morality and social values that help to develop society. The scholars of this school believe that law is the reflection of social elements. They regard that the study of law shall be guided by social events and the cause of those events. The founders of this school are: Ihering, August Comte, Ehrlich and Roscoe Pound. To them “law is the tools to harmonize different competing social interests.” Law works as the equilibrium point to bring balance to different social interests and addresses them judicially. As society is changeable so are the social interests. Therefore, the law is the object to work as the tool of social structure. Finally, the school believes that the nature of law is associated with social structure and events.
7. Realist School of Law
According to this school, the nature of law has been connected to the decisions and precedent by the court. This school comprises; American Realist School and Scandinavian Realist of Law. These two schools of law have the same opinion related to law. The major propounders are Holmes, John Chapmen Gray, Hager, Strom, and Oliver Crona. They say “Law is what the judges decide.” Therefore, to them, the law is the prosecution of judges and law officer members in the court. They believe that law is what the court prosecutes. In this way, the nature of law can be given below:
i. The nature of law is flexible.
ii. It is dynamic and rigid.
iii. It is democratic and autocratic.
iv. The nature of law is social, religious, political, cultural, and economic.
v. The nature of law is related to the divine, human wisdom, and moral elements.
vi. The nature of law is related to society and the individual.
vii. Law has a binding mandatory nature.