Definition of law

What is law in the legal sense? Blackstone said the law, in its most general and broadest sense, is “the rule of action that is determined by a superior and that the subordinate is bound to follow” He defined civil law as “a rule of civil conduct laid down by the supreme power in a State, which commands right and prohibits wrong”. There are two main concepts in Blackstone’s definitions: (1) the concept of “senior”, and (2) the concept of order. Is Blackstone’s definition correct in any of these aspects?

Is the law a law laid down or given by a superior to a subordinate, or by a sovereign to a subordinate person? This concept of Blackstone would exclude all international law, as perhaps it should, but has been criticized for this reason. It would also exclude constitutional law and all laws adopted by the people of a country, as in the United States. Such constitutions, and thus all laws in such jurisdictions, are adopted by the sovereign people for their own control and not by some superiors for other subordinates. Since Blackstone’s definition does not include laws of this kind, the reasonable conclusion is that there is no such law, but that this definition is inadequate.

Is the law an order? Even Austin had difficulty fitting his definition with “laws explaining the meaning of existing positive laws, and laws repealing or repealing existing positive laws”. How can it be better applied to any common law than this?

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In the United States, the law is not an order as far as all civil laws that differ from criminal law are concerned. The law does not order people not to commit trespass and other torts; nor promisors to fulfill their undertakings, except perhaps in rare cases where injunctions and specific measures of observance are available. There are policemen, judges and other officers of the law in the state, but they generally do not order anyone to do anything in relation to civil law. They can give advice to people. Over time they can bring people to court for a civil crime they have committed. But they don’t dictate to people how they should treat each other. As far as criminal law is concerned, Blackstone’s concept appears to be closer to the truth. It may be easy to think that the state is ordering people not to commit certain criminal acts. Nevertheless, the real concept of criminal law is not that of something that is ordered not to be done. In this regard it is like civil law, as will be explained further. 6 The definition of blackstone is therefore inadequate in both respects. Leon Dugit was right when he said, “The law is not an order of a sovereign state, but a by-law governing a group”

What, then, is the correct definition of law?

From what has been said above, it is worth noting that the law is a scheme of social control. It is not a simple thing that is “ordered from senior to junior”. It’s a complicated trick; a connected combination of things. This is a plan. Firstly, this scheme is a form of social control. This is not a plan for personal control. The person is free to control his conduct, unless he influences others. He may choose his profession, his place of residence, and control his conduct in a thousand other ways, without any interference from the law, provided that he alone is concerned. But if his conduct affects the lives of his companions, there is a possibility of control by law.

Secondly, it must be borne in mind that, although legislation is a scheme of social control, it does not seek to control all social relations. It controls them only to the extent that social interests require such control. As human beings come into closer contact with each other, their needs or social interests become greater. Kant has rightly said that if a person were alone in the world or on a deserted island, he would not call anything “his” (proprius). What is true for external things is also true for personality. A lonely man will have no desire for other men. Therefore there will be no social interests.

But the more people come into contact with each other, the more social interests they have. People in rural areas do not have the same social interests as people in urban communities. People in small urban communities do not have the same social interests as people in big cities. As social life becomes more complex, more social interests have to be recognised. There were not as many social interests as there are today in the early history of the world. There were not as many social interests as there are today in the early history of our country. Previously, the defence of peace was considered to be the only social interest. Later, social interest was vested in maintaining the status quo. This was a paramount social interest in Greek, Roman and English history before the nineteenth century. Many social interests have emerged in modern times.

What social interests will be recognized is determined (in theory) by the sovereign power, – in the United States, by the majority of the people of the state, as they express through their representatives and judges in the legislatures. Determining a new social interest is often a difficult matter. Society is made up of many conflicting and overlapping groups, such as capitalists, labourers, farmers, consumers, producers, etc. Representatives may be driven by self-interest and judges may be influenced by bias and favoritism. In such circumstances, it is often difficult to decide what constitutes a social interest. What is the social interest in matters such as tariffs, child labour, alcohol and drugs, for example? Yet, in the complex modern world, if many social interests were not recognized and protected, life would become unbearable. Mankind will quickly destroy itself because of war, degradation, ignorance and laziness. Therefore, law is a scheme of social control, the purpose of which is to protect the social interests which the society protects in some form or the other.

However, to understand the nature of law it is necessary to know not only what its purpose is, but also how it serves its purpose. In fact, the bulk of the scheme of social control known as legislation is made up of the means by which it serves its purpose. We have already seen that the law does not protect social interests like a policeman by sending someone to see that everyone respects them. The plan is much more complicated. What is the nature of this scheme? To find the answer to this question let us examine the phenomena of law; let us keep our feet on the ground; let us obtain accurate data; so that, after we have received the data we can tailor our definition to the facts, rather than first drawing up a definition and then trying to make the facts consistent with our definition.

Pursuant to this policy, let us examine the rule of contracts, which is a phenomenon of law. What do we have in a contract? The first thing we see is that we have a promise, or two promises that are given for each other. But there is nothing magical in a promise. People keep making promises all the time. Most of them are not contracts, and they have no legal consequences. A contract is a promise that has legal consequences. What are they? Clearly the law does not “command” anyone to contract. But after contracting, the law has something to say about it. What is that? First, it says that one person – the promisee – and both persons – if each is the promisee, – have a legal right to the observance of the promise, and that the other party has a correlated legal obligation to fulfill the promise. Why? Because… A promise made in the form of a contract is so important that its non-fulfillment can have bad social consequences, because it can destroy the general security that is necessary for a stable and lasting social order, or perhaps even disturb the peace of the society.

In other words, because there is a social interest inherent in general security, which the law regards as protected. Secondly, we see that if a promisee who has made a contract breaks his promise, the law begins to do only what seems like an “order” at least. It provides the aggrieved person with the facilities of courts and legal process so that he can get something in return for what he should have got, and which he would have got if the other party to the contract had fulfilled his promise. Sometimes the law actually mandates “specific performance”, although it is now too late for the performance to take place at the promised time and, therefore, it is actually “specific reparation”; But generally it adjudicates compensation to the party in lieu of the compensation he should have received and helps him to obtain compensation by execution if it is possible to do so in the event of the financial condition and legal mechanism of the promisor.

What we have just found in the case of contracts is also true of all other phenomena of law. If we consider the whole field of law – domestic relations, property, tort, crime, equity, negotiable instruments, sale, public business, constitutional law and all other branches of law – in pursuance of our policy, we shall (1) have the right or any other capacity to influence the conduct of any other person recognized by law in one person or group of persons, And (2) certain arrangements of law shall be available for the use of the aggrieved person or persons, if he does not receive from the other person what he is entitled to.

We thus see that the law pursues its objectives by a dual system of (1) recognition of the capacity of individuals to influence the conduct of others, and (2) allowing them recourse to the Courts for assistance. These are the third and fourth characteristics of the scheme of social control which is called law.

In the third place, we should note that the law also includes legal competences. Legal capacity or competence is the capacity or competence that is given to a person, by reason of a social interest, through the power of the State, to control the conduct of others. These legal capacities of influence are rights, powers, privileges and immunities. A legal right is the legal capacity to enforce an act or tolerance performed by another person, such as, for example, a contract, property or personal security.

Legal privilege is the legal capacity to act as one wishes in a certain case, as one is not subject to any obligation towards another person, such as, for example, a revocable licence to walk on another person’s land. 1 Legal power is the legal capacity to change or create new legal capacities or obligations for another person or others, such as, for example, the ratification or rejection of a contract or sale. 2 Legal immunity is the legal capacity of another person to be free from legal power or control, as it is his prerogative, such as, for example, the breach by a State of an obligation of a contract. With the exception of infants, insane persons and certain other persons with disabilities, the law has conferred full legal capacity on natural persons, that is, they enjoy all the rights, privileges, powers and immunities known by law. Corporations have only the legal capacity expressly or impliedly granted to them by their incorporation charter.

A sovereign State has legal capacity against individuals, but individuals do not have legal capacity against it, except if it gives its consent. Thus, along with the ability or ability to influence the conduct of others, the obligation to influence such conduct is also correlated. There is a duty associated with every right; With every privilege, no right; With every power, no privilege; And with every immunity, no power.

The most important legal competences are legal rights, and the most important legal obligations are legal duties. Social interests are protected in general by rights and not by powers, privileges and immunities. Just as there are many social interests whose need for protection has been decided by society, there are also many legal rights, which vary according to social interest. Legal rights are classified as precursor (or primary) and curative (or secondary). Preceding rights are classified into public and private, and in rem and in personam.

Remedial rights are all these personams. Private antecedent rights in rem include personal security, control over society and family and dependants, property (both real and personal), freedom of movement, reputation, immunity from fraud, benefits available to the community in general, and privacy; all of which are given in their historical order, that is, in the order in which they are recognized as having legal capacities. Personally private antecedent rights include contracts, quasi-contracts, trusts, deposits, public obligations, and other fiduciary relationships. Remedial rights are classified as preventive and compensatory, and compensatory rights as restorative and compensatory.

Preventive curative rights include injunctions, prohibitions and exemplary reparation. Restorative remedial rights include rectification, revocation, specific execution, mandamus, removal, reimbursement, habeas corpus and right-wrestling. Compensatory remedial rights are rights to some form of reparation, such as nominal, direct, consequential, general, special, etc., which vary according to whether the action for reparation is pre-contractual or criminal. Enough has been said about rights to get some idea of their scope. The curriculum of our law schools is mainly related to these. Most of the law books are about these. If the law had nothing but rights and duties it would be a very complex thing and would have to be called a plan of social control.

All social interests, which society has understood to be in need of protection, are protected through some of these influence capacities, and only thus; and this is as true in the field of criminal law as it is in the field of civil law. The law confers certain public rights on the State, just as it confers private rights on individuals. The first historically recognized social interest was in the preservation of peace. Its civil protection was conferred on the individual first by the right to personal security, then the right to control of family and dependants and to society, then the right to property and finally freedom of movement, dignity, immunity from fraud, benefits to the community in general and privacy rights Different social interests are not protected in the same way.

Social interests in the preservation of peace, or general security, in so far as it concerns the protection of the material person from direct damage, are protected by private antecedent rights and a homogenous public right in the control of personal security. Similarly, the social interest in the general protection of personality, in so far as it relates to honour and reputation, is protected by a private earlier right to reputation and a homogenous public right. Some social interests are protected only by private rights, as in the case of pledged benefits.

Other social interests are protected only by public rights, as in the case of general morality and the preservation of social resources. Nevertheless, other social interests are not protected by rights, but by privileges, powers or immunities. The social interest in freedom of will is protected not only by rights, such as in cases of refusal of contract or breach of contract, fraud and obtaining freedom of movement, but also by the privilege of evading contract obtained by duress or undue influence. Economic survival is often protected by powers and immunities as well as rights. This appears to be a circuitous path for legislation to pursue its objectives, but since it is the method of legislation, it must be considered when one undertakes to formulate a definition of legislation.

In the fourth place, as we have seen, something more than the recognition of legal competences is necessary to protect social interests. It is not enough to provide people with legal capacities and obligations, rights and duties, etc. Law is a much more complex system of social control. If there are no means of enforcing these rights, powers, privileges and immunities, they will remain empty talk. The law has recognized this, and provided for the enforcement of these, either by authorized self-help, as in the case of self-defence, repossession, admission and distress damage, or under established rules of legal procedure by the Courts, called pleadings, evidence and practice.

The Court is “a tribunal presided over by one or more judges and which exercises the judicial power conferred on it by law” The jurisdiction of the courts is general or limited, original or appellate, and exclusive or concurrent. The United States has a dual system of courts, state and federal. The legal process, or adjective law (because it exists for the original law), determines the methods by which remedial rights can be secured. In those exceptional cases where the law still allows self-help, it indicates the limits within which it can be exercised. In other cases it announces the steps that should be taken to implement and enforce the system of courts of law. Pleadings are written allegations in the court regarding claims and defenses in a case. These are considered a scheme for determining issues between litigants.

“Evidence in legal acceptance includes all the means by which an alleged factual matter, the veracity of which is submitted for examination, is established or disproved” It is information given by the parties concerned, in the form of witness statements, documents or observations made by the Tribunal, to the Tribunal before which the case is being heard, on the basis of which it makes its decision on issues or matters factually disputed. Practice includes all stages of the legal process that are not covered by pleadings and evidence, such as, in a criminal case, indictment, warrant, arrest, preliminary examination, surety, indictment, pleading, panelization of the jury and swearing, opening statement of the State’s counsel, introduction of State evidence, opening statement of the defendant’s counsel, introduction of evidence by the defence, request for instructions, arguments of counsel, Court directions, verdict, new trial, appeal, judgement and sentence.

The legal process itself is not a small scheme, and undoubtedly it is a part of that scheme of social control called law, and it must be included in any definition of the term law.

We have now discovered four concepts as salient features of the law. Two of them have to do with the purposes of the law. And two, with the means by which it accomplishes those objectives. A definition of law that includes all these concepts and none other would seem to be a correct definition. Therefore, law in the legal sense can be defined as follows: law is a scheme of social control, supported and sanctioned by the power of the state, to protect social interests through legal capacities and legal redress.

The result of law is legal justice, which, when complete, can be defined as the adjustment of human relations in such a way that everyone can discharge all their duties and other responsibilities, and everyone has all their rights, privileges, powers and immunities. yes. What these are depends on the social interests whose protection is determined by society. Legal justice is not as comprehensive as social justice. Social justice recognizes more social interests than legal justice. As a result, it recognizes more rights and duties. Social justice does not recognize any privileged class, and it protects groups within nations or as nations, as well as individuals. Legal justice does not go to this extent, but it is moving towards social justice and sometimes it can become synonymous with social justice. Undoubtedly, in reality, the law does not oblige all people to discharge their duties, nor does it ensure that all people acquire their rights, privileges, powers and immunities. The law is not complete.

The reason for this is mostly the fault of the courts and legal process. In England, because of its reformed judicial system and reformed legal process, there is a fair approach to the ideal outcome; but the situation in the United States is far from it. The criminal process here is worse than the civil process. But the defects and failures of the legal process do not change the nature of the law. They merely reflect its imperfection and the need for improvement. The law is only a “plan”.

This plan may fail, at least at some times and in some places, yet the plan persists. The legal justice achieved as a result of this plan may be very weak, yet it is true that the law is a plan for the administration of justice. For this reason the law can be defined not only as a scheme of social control, but as an organized body of knowledge built from a science, namely principles, rules and standards, which deals with the administration of justice. In a specific sense, a law can be defined as a principle, rule or standard according to which justice is administered.

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