WHAT IS LAW? and WHY ASK “WHAT IS LAW?”

Introduction:

The term “Law” denotes different kinds of rules and Principles. Law is an instrument which regulates human conduct or behavior. Under Article 13 clause (3), Sub-clause (a), of Constitution of India “law” includes any Ordinance, Order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; “; Even this provision itself includes words laws to state the law, but defination could not provide. So we could generally say that even the term law include a lot in it, but could vast in nature to define, but it represent in it self Justice, Morality, Reason Order, and Righteous from the view point of the society. Law means Statues, Acts, Rules Regulations, Orders and Ordinances from point of view of legislature.

A) MEANING OF LAW

In old English, “Lagu” i.e. law, ordinance, rule, regulation from old norse “lagu” law collective Plural of “Lag” is lalyer, measure, stroke.’Literally’ something laid down of fixed,.

The term law has different meanings in different Places/societies at different times used the different words for law. In Hindhu religion law implies “Dharama” in Mohammandean religion (Islam) it is “Hokum” in Roman its “Jus”, in French, its “Droit” in Arabic, “Alqanoon”,in Persian and Turkish, its “Kunoon”, in Latin its “Legam” in Philipinao its “Batas” in Albanian language its “Ligj”in Czech its “Zakon” in Darnish its “Lor” in Dutch its “Wet” in Italian its “Legge” and in Lithuanian its “Teise” and so on……

Its varies from place to place in sense adultery was an offence in India under IPC Section 497, until the Joseph Shine v. Union of India (2018), So that was not retained in the Bhartiya Nayaya Sanhita (BNS), 2023; But it was never an offence in USA from earlier times. Several Indian state maintin total or partial bans on sale and consumption of alcohol, which is not a criminal offense in most other countries. Many Indian stats have strict laws prohibiting the slaughter of cows and possession/consumption of beef, which is legal in most parts of the world. Many U.S. jurisdictions strictly prohibit drinking alcohol in public, such as on streets or in parks (open container laws), which is not illegal in India. While private couriers are common in India, technically, only the Indian Postal Service has the right to to deliver letters by post, although this is seldom enforced.

Law differs from religion to religion in the sense personal laws viz. Hindu law, Muslim law, Christinity etc. differ from one another. For instance, A Muslim can have four wives living at a time, but a Hindu can have onely one wife living at at time (Monogamy). If a Hindu male marries again during life time of first wife he is declared guilty of the offence of bigamy and is Punishable; The law is subject to change with the change in society and also change in the Goverement/legislative through the amendments/Act. Law is dynamic and relative in nature too…

Generally the term law is used to mean three things:

1. “Legal order”, it means the regime of adjusting relations, and ordering conduct by the systematic application of the force of organized political society.
2. Law means the whole body of legal Percepts whcih exists in a politically organized society.
3. Thirdly, Law is used to mean all official control in a politically organised society. This lead to actual administration of Justice as contrasted with the authoritive material for the Guidence of Judicial action. Law in its narrowest or strict sense is the civil law or the law of the land.

“The law may be defined as the body of principles recongnized and applied by the state in administration of Justice.”

Salmond

B) WHY ASK “WHAT IS LAW?”

Asking “What is law?” is not merely an abstract exercise: it is the first step in understanding what legal institutions do, how judges reason, how legislatures should act, and how society should be organized. The question frames disputes over the source of legal authority, the relation between law and morality, and the normative ambitions of legal systems, whether to preserve order, to deliver justice, to engineer society, or to secure individual autonomy. Jurisprudence therefore treats “What is law?” as a foundational inquiry that shapes doctrinal interpretation, legislative design, judicial reasoning, and critical evaluation of legal outcomes. A rigorous answer must do three things simultaneously: set out competing theoretical definitions; test them against legal practice and doctrine; and show how each definition clarifies (or misconstrues) law’s social purposes. This article performs those tasks by examining classical theories, offering a critical comparison, discussing law’s relation to morality and society, citing relevant case law (Indian and international), and incorporating both Western and Bhartiya conceptions (including the idea of dharma).

I. CLASSICAL DEFINITIONS OF LAW

1. What is Jurisprudence? Meaning, Nature & Scope
2. Sources of Law Explained: Legislation, Precedent, and Custom
3. Rule of Law: Meaning, Principles and Importance
4. Most Essential Debate of Jurisprudence Law and Morality: Understanding the Relationship Between Legal Rules and Ethical Principles
5. What is Justice? Philosophical and Legal Meaning
6. Types of Law: Civil, Criminal, Public and Private

1. Natural Law Theory

Natural law situates law in a moral order discoverable by reason. For Thomas Aquinas, law is an ordinance of reason for the common good, promulgated by one who has care of the community (Summa Theologica). Law’s legitimacy therefore depends on conformity to right reason and justice: an unjust law is, in Aquinas’s phrase, not a true law in the strict sense.

Hugo Grotius, writing in the early modern period, defended a concept of natural law that retained objective moral content but also sought universal rational foundations for legal obligations between peoples and states; his work helped to secularize natural law by arguing that natural law would hold “even if God did not exist,” because it is rooted in reason and social necessity.

Practical implications: Natural law theory grounds critiques of positive law when statutes or judicial decisions violate core moral standards. It undergirds doctrines that allow courts to refuse to give effect to laws that are grossly unjust, and it informs constitutional commitments to fundamental rights.

2. Analytical Positivism

Analytical positivism separates law from morality. John Austin famously defined law as the command of a sovereign backed by sanctions: law is what a politically superior issues to the politically inferior, enforceable by the threat of coercion.

Austin’s model emphasizes

1. content (commands),
2. source (sovereign), and
3. consequence (sanction).

H.L.A. Hart modernized positivism by refining the notion of law as a system of rules, distinguishing primary rules (obligations) from secondary rules (rules of recognition, change, and adjudication).

Hart’s rule-model explains legal validity as a matter of social practice

1. a rule of recognition that the officials accept
2. while still allowing systematic gaps and discretion within legal systems.

Practical implications: Positivism explains the bindingness of legal rules without appeal to moral merits; it clarifies legislative supremacy, judicial restraint, and the internal structure of legal systems. Hart, in particular, provides tools to analyze legal institutions and to account for the law’s internal point of view to how officials and citizens treat law as authoritative.

3. Historical School

The Historical School, associated with Friedrich Carl von Savigny, argues that law is an expression of the “Volksgeist” or the spirit of a people: legal norms grow organically from custom, history, and social practice, not from rational design alone.[4] For Savigny, transplanting foreign laws or imposing abstract codes divorced from social reality risks injustice and friction.

Practical implications: This school emphasizes legal continuity, the role of custom and local practice, and skepticism about top-down legal engineering. It explains why legal transplantation often fails when cultural and social foundations are ignored.

4. Sociological Jurisprudence

Roscoe Pound advanced a pragmatic and reformist vision: law should be seen as a tool of social engineering directed at balancing competing social interests. Rather than locating law primarily in abstract reason or sovereign commands, sociological jurisprudence studies how law operates in society and how it might be improved to meet social needs. Pound shifted attention from what law is to what law does.

Practical implications: This approach supports empirical evaluation of legal rules, law reform driven by social goals, and the use of interdisciplinary methods (sociology, economics, psychology) in legal design.

5. Legal Realism

Legal realists (American Realists and later Critical Realists) argue that law is what courts actually do in deciding disputes; formal rules are often indeterminate, and extralegal factors  judges’ values, social pressures, institutional constraints shape outcomes. Holmes’s aphorism that “the life of the law has not been logic; it has been experience” captures the realist insistence on empirical description and skepticism about doctrinal predictability.

Practical implications: Realism challenges claims of mechanical adjudication and motivates transparency about judicial reasoning, empirical analysis of adjudicative patterns, and reforms to reduce arbitrariness.

II. CRITICAL COMPARISON FIVE WAYS OF THINKING ABOUT LAW

Theories of law can be compared by focusing on five formulations: command of the sovereign, system of rules, social engineering tool, moral order, and instrument of power. Each emphasizes different features; each has limits.

1. Law as Command of the Sovereign (Austin)

Strengths: Explains coercive enforcement, legislative supremacy, and penal sanctions.
Weaknesses: Cannot account for constitutional rules limiting sovereign power, international law, or decentralized legal orders; struggles with judicial law-making and with the normative force of unwritten constitutional principles.

2. Law as a System of Rules (Hart)

Strengths: Captures institutional structure, recognizes internal legal reasoning, distinguishes legal validity from moral merit, explains emergence of legal systems through internal secondary rules.
Weaknesses: Leaves open the question of why law should be obeyed (the problem of legitimacy), and it may underplay law’s political and power dimensions.

3. Law as Social Engineering (Pound)

Strengths: Links law to social goals, encourages reform for social welfare, and makes law measurable by outcomes.
Weaknesses: Risks technocracy, undervalues principle-based limits, and may be indifferent to rights protection if social engineering prioritizes aggregate welfare.

4. Law as Moral Order (Natural Law)

Strengths: Provides moral standards to critique unjust law, grounds human rights, and grounds acts of civil disobedience against manifestly unjust rules.
Weaknesses: Can be indeterminate (different conceptions of “right reason” yield conflicting demands); may provoke judicial activism when judges substitute moral judgment for democratic processes.

5. Law as Instrument of Power

Strengths: Reveals law’s role in maintaining social hierarchies, explains law’s discriminatory deployments, and supports critical legal methods that expose ideology within legal language.
Weaknesses: If taken to be the whole story, it feeds cynicism and leaves little room for legal reform through institutional channels.

No single account exhausts the complexity of law. Analytical models bring clarity; normative models supply critique; sociological and realist tools ground theory in practice. A mature jurisprudence recognizes law’s multi-dimensionality: it is at once rule, policy instrument, source of obligation, and arena of power.

III. LAW, MORALITY, JUSTICE, AND SOCIETY

1. Law and Morality

The relation between law and morality is contested. Positivists insist on conceptual separation: validity is a matter of social facts, not moral merits. Natural law theorists insist that law’s legitimacy inherently depends on moral content. Hart famously engaged with this debate and the Hart-Fuller exchange (over Nazi law and legal validity) demonstrates the stakes: can courts treat manifestly immoral statutes as law, or must there be a moral limit?

In practice, many legal systems instantiate a graded relation: some laws are purely procedural and remain neutral toward morality, while constitutional rights and fundamental norms reflect moral commitments. The Indian constitutional doctrine, for instance, construes certain rights and principles (fundamental rights, rule of law) as carrying moral weight that shapes legal validity.

2. Law and Justice

Justice is a philosophical ideal; law is an institutional mechanism often devoted to achieving justice but sometimes at odds with it. Theories of distributive and corrective justice inform legal doctrines for example, tort law’s corrective function, or constitutional law’s concern for equality. The tension between legal stability and substantive justice explains why reformers often press law to remedy injustices (e.g., anti-discrimination law).

3. Law and Society

Law both shapes and is shaped by social practice. Sociological jurisprudence and legal realism stress feedback loops: law alters incentives and norms; social change prompts legal reform. Custom, religion, economic structure, and social movements will influence legal content and enforceability. Thus, a functioning legal theory must be sensitive to social realities and should draw on empirical research.

IV. RELEVANT CASE LAW  INDIAN AND INTERNATIONAL

1. Maneka Gandhi v. Union of India, AIR 1978 S.C. 597.

Maneka Gandhi expanded the understanding of personal liberty under Article 21 and read due process substantively into the Indian Constitution, illustrating how moral and constitutional principles can shape judicial interpretation beyond rigid positivist commands.

2. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

The Supreme Court read constitutional morality and dignity into sexual orientation rights, striking down colonial penal provisions (Section 377 IPC in their prior application). The case exemplifies courts using moral and constitutional principles to correct laws rooted in outdated social norms.

3. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

Recognizing privacy as a fundamental right, the judgment shows constitutional development by principle-oriented interpretation, demonstrating law’s capacity to evolve with social and moral expectations.

4. Kesavananda Bharati v. State of Kerala (1973):

The Supreme Court of India outlined the “Basic Structure Doctrine,” holding that Parliament has the power to amend the Constitution but cannot alter its essential features (like democracy, secularism, and judicial review).

5. Brown v. Board of Education, 347 U.S. 483 (1954).

Brown shows how law can be used to dismantle legally sanctioned discrimination; it highlights judicial roles in aligning law with evolving standards of justice and morality.

6. Hart-Fuller debate (scholarly) Lon L. Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart,” 71 Harv. L. Rev. 630 (1958); H.L.A. Hart, “Positivism and the Separation of Law and Morals.”

These pieces are essential for understanding how theorists confront the limits of positivist legality in the face of extreme moral wrongs.

7. Marbury v. Madison (1803)

This landmark US Supreme Court case established the principle of “judicial review” the power of courts to strike down legislation that conflicts with the Constitution. It affirmed that the government of the United States is a “government of laws, and not of men”.

8. R v. Dudley and Stephens (1884)

An English criminal case involving survival cannibalism at sea. The court rejected the defense of “necessity,” ruling that killing an innocent person to save one’s own life is murder. The judgment prioritized the high moral view of the sanctity of life over pragmatic utilitarianism.

V. INDIAN PERSPECTIVE DHARMA & LAW IN TRADITIONAL THOUGHT

Indian jurisprudential thought offers concepts complementary to the Western schools. The Sanskrit concept dharma encompasses law, duty, moral order, and social role. Dharmashastra literature (e.g., Manu, Kautilya’s Arthashastra) treats law as a normative order grounded in social duties and cosmic order. Several features matter:

1. Embedded Normativity: Dharma is not only coercive rule; it organizes social roles and duties, incorporating moral and ritual obligations into law’s texture.
2. Plural Sources: In historical India, law originated from scripture, custom, rulers’ edicts, and local practice, aligning with Savigny’s emphasis on organic development.
3. Practical Realism: Kautilya’s Arthashastra combines normative injunctions with pragmatic statecraft, resembling Pound’s social engineering and realist concerns for effective governance.

Modern Indian constitutionalism synthesizes these traditions: the Constitution embodies moral commitments (justice, liberty, equality) while retaining mechanisms for democratic law-making. The dharmic tradition thus provides a culturally resonant lens that stresses duty, social order, and the moral purposes of law.

VI. PRACTICAL CONSEQUENCES FOR LAWYERS, JUDGES, AND LEGISLATORS

1. For lawyers: Understand both formal rules and underlying social purposes. Effective advocacy requires doctrinal mastery plus arguments grounded in social policy and moral reasoning where appropriate.
2. For judges: Balancing fidelity to legal sources with moral and social concerns is central. Hart’s rule of recognition explains legal validity; Pound and realism remind judges to be mindful of law’s social effects.
3. For legislators: Code design must respect social realities (Savigny) while pursuing public goods (Pound). Legislatures must also secure legitimacy by reflecting moral commitments and protecting minority rights.

VII. CONCLUSION

Law is neither only rules nor only a living social institution; it is both, and more. The rule-based aspects (posited in positivism and Hart’s schema) provide structure, predictability, and mechanisms for adjudication. Yet law also breathes: it changes through judicial interpretation, social movements, moral evolution, and institutional reform. The Bhartiya idea of dharma and sociological jurisprudence both emphasize law’s moral and social functions; legal realism warns us to attend to how law actually operates.

A fully satisfying jurisprudential account must thus be pluralist: it must preserve analytic clarity about sources and validity (a positivist insight), allow moral critique where justice demands it (natural law insight), recognize cultural and historical rootedness (historical school), evaluate social consequences (sociological jurisprudence), and remain empirically informed about judicial and institutional behavior (realism). Practically, this pluralism equips lawyers and judges to interpret, apply, and reform law in ways that secure legitimacy, fairness, and social utility.

In short: law is rules given institutional form, interpreted and enforced by social agents, justified at least in modern democratic systems by moral and constitutional commitments, and continuously reshaped by social life. It is therefore a living social institution constituted through a web of rules, practices, purposes, and power.

REFERENCES

Books and Major Works

1. Thomas Aquinas, Summa Theologica (multiple editions).
2. Hugo Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1625).
3. John Austin, The Province of Jurisprudence Determined (1832).
4. H.L.A. Hart, The Concept of Law (2d ed. 1994).
5. Roscoe Pound, Social Control Through Law, in The Spirit of the Common Law (1921) and Roscoe Pound, “Law in Books and Law in Action,” 44 Am. L. Rev. 12 (1910).
6. Oliver Wendell Holmes, Jr., “The Path of the Law,” 10 Harv. L. Rev. 457 (1897).
7. Lon L. Fuller, “Positivism and Fidelity to Law — A Reply to Professor Hart,” 71 Harv. L. Rev. 630 (1958).
8. Friedrich Karl von Savigny, System des heutigen Römischen Rechts (The System of Modern Roman Law) (early 19th century).
9. Kautilya, Arthashastra (ancient Indian treatise on statecraft).

Key Cases
10. Maneka Gandhi v. Union of India, AIR 1978 S.C. 597 (India).
11. Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India).
12. K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India).
13. Brown v. Board of Education, 347 U.S. 483 (1954) (U.S.).

14. Marbury v. Madison (1803)
15. R v. Dudley and Stephens (1884)
16. Kesavananda Bharati v. State of Kerala (1973):

Selected Secondary Sources and Debates
17. H.L.A. Hart & Lon L. Fuller debate materials, Harvard Law Review (1958).
18. Roscoe Pound, The Theory of Social Engineering, 3 Colum. L. Rev. 1 (1903).
19. General histories and anthologies of jurisprudence: Salmond, Paton, Dias, Julia Shaw, et al.