Society has evolved and so did the laws governing it. In the highly developed states of the modern world the citizen is cared for and governed by laws from the cradle to the grave. In fact, even before his birth, the citizen is protected by law, for instance the laws pertaining to abortion protects the fetus. Similarly, after the demise of thecitizen the law sees to it that his will is enacted. So a brief overview of the main theories and concepts that underlie such a pervasive element of our life should be of a great interest.
The layman associates the word law to different entities, depending on the context. For instance the word law is sometime used to refer to a system that includes the government, police, the courts; and it is saidthat the law will catch up with the criminals. Sometimes it is used to refer to a process and thereby, only the courts and the judicial proceedings are implies, and it is common to heat “let the law follow its due course”. And some other times it only means the written corpus of law, and it is often overheard, “what law is applicable in these circumstances”.
In the broadest sense the wordlaw means a ‘set of rules’, such as the scientific laws that are working sets of rules that have been proven true by laboratory experiments and is contrasted with theories and hypotheses, that are respectively, sets of rules partially proven by experiments or not yet tested. However, formal law is more of a sociological phenomenon, as it governs the social interactions between humans, and is moreappropriately contrasted with folkways and mores . Folkways are such social rules that if not obeyed may bring informal sanctions and inconveniences as the fear that the spirits are going to haunt the one who desecrates a tomb. Mores are social rules if violated may bring about informal social sanctions as swearing the one who rudely jumped the queue. Whereas, laws are the formal rules of societyif violated brings about sanctions from the state or controlling authority. To this effect, the legal philosopher John Austin, the father of the school of analytical jurisprudence defined law as “Commands, backed by sanctions, from a sovereign to whom people have habit of obedience”. After we have seen that law exists in the human society, we will tackle the pertinent question of, ‘how lawactually appeared in society?’
“… As long as Robinson leads a solitary life, he has little to do with laws”, said a French legal author (Terré, p7) and indeed a solitary individual requires nothing more than habits to regulate his behaviour, so as to maximise his limited supply of mental and physical energy. However, as Robinson meets Friday a new behaviour regulating phenomenon emerges- rules.Technically, when there are only two persons on a desert island law cannot exist. This is because for the existence of law it is necessary to have a third impartial party to judge between the two contentious parties in case the law is broken. Accordingly, the Romans believed that the legal principle that “no person may judge his own case” was so fundamental, self-evident and natural that they calledit ‘natural justice’.
When some families assemble together in one place, the some of the habits of the individuals are crystallised into customs and then into rules. These rules will not be termed as formal laws as long as the whole community does not recognise a central controlling authority who may be the chief of the village, the king or the state itself. This central authority is a salientcomponent of the definition of law, as testified by John Austin’s definition and by the Encyclopaedia Americana’s (vol17, p71) description that reads “law comprises all the principles, rules, and enactments that are applied in the courts and enforced by the powers of the state”. So law appear in society when the society is large enough and has a central controlling authority.
Natural law is a...