Legal Theory Lexicon 065: The Nature of Law

Introduction
What is the nature of law? This question has occupied center stage jurisprudence and
philosophy of law in the modern era, and has been the central occupation of contemporary
analytic jurisprudence. This entry in the Legal Theory Lexicon aims to give an overview of the
"What is Law?" debate.
Historically, the answer to the question, "What is law?," is thought to have two competing
answers. The classical answer is provided by natural law theory, which is frequently
characterized as asserting that there is an essential relationship between law and morality or
justice. The modern answer is provided by legal positivism, which, as developed by John
Austin, asserted that law is the command of the sovereign backed by the threat of punishment.
Contemporary debates over the nature of law focus on a revised set of positions. Legal
positivism is represented by analytic legal positivists, like H.L.A. Hart, Joseph Raz, and Jules
Coleman. The natural law tradition is defended by John Finnis. And a new
position, interpretivism is represented by the work of the late Ronald Dworkin.
In some ways, the title of this Lexicon entry is misleading, because of our focus on the "What is
law?" question as it has been approached by contemporary legal philosophers. There are other
important perspectives on the nature of law that focus on law's functions rather than the the
meaning of the concept or the criteria of legal validity. For example, the sociological tradition
includes important work on the nature of law by Max Weber and Niklas Luhmann. These
issues are discussed by Brian Tamanaha in the article cited in the Links section at the end of
this entry.
This Lexicon entry maps the territory of the "What is Law?" controversy, and provides
introductory sketches of the major positions. As always, the Lexicon is written for law
students, especially first-year law students, with an interest in legal theory.
Natural Law Theory
Natural law theory is strongly associated with classical and medieval thought, especially
Aristotle, Roman jurisprudence, and St. Thomas Aquinas. There are several challenges
associated with the task of explicating natural law theory, and one of the most important tasks
of this introductory entry is simply to identify these challenges.
First, there are two interrelated but distinct views that are called "natural law theory." One is a
view about the nature of morality: this view asserts that there are natural moral laws, and it is
not essential to this view that it take any particular stand on the "What is law?" debate. A
second view that is called "natural law theory" is a theory about "law" as an institution or
practice--that is the view that is implicated in the "What is law"" controversy.
Second, contemporary understandings of "natural law theory" have been strongly influenced by
the legal positivists critique. When the positivists articulated the theory they were criticizing,
their articulations of natural law theory were neither charitable nor true to the natural law
tradition. When Holmes referred to a "brooding omnipresence in the sky" he was not offering
a sympathetic or charitable reading of the natural law tradition.
For the purposes of this broad overview, we might use the latin phrase lex injusta est non lex as
a starting point. Natural law theory could be understood as affirming something like the
following:
An unjust "law" is not a true law.
This formulation differs from a literal translation--an unjust law is not a law. Formulated in
that way, natural law theory seems to be committed to a contradiction: something which is a
law (but also is unjust) is not a law. The quotation marks around "law" and the phrase true
law make it clear that natural law theory is asserting something else, that something which
might be called a "law" is not in fact a law if it is unjust. Usually, this notion is accompanied
by some explication of the characteristics that are required for status as a "true law," a "focal
case of law," or perhaps "valid law."
Legal Positivism
It is difficult to know where the positivist tradition begins. Hobbes's theory of law shares some
characteristics with the theories offered by Jeremy Bentham and John Austin--both of them
clearly in the positivist tradition. Jeremy Bentham developed a very sophisticated version of
legal positivism, but for a variety of reasons, the more influential and widely known view was
that of Bentham's student, John Austin, the author of The Province of Jurisprudence
Determined (1861).
Austin's theory was that a given rule was a law if and only if the rule was the command of the
sovereign to subjects of that sovereign backed by the threat of punishment. A sovereign is
some person or institution who is habitually obeyed in a well-defined territory, but who or
which does not habitually obey any other person or institution.
Austin's positivist theory does an excellent job of explaining the rules of criminal law, which
forbid certain actions and impose punishments on those who engage in the forbidden
actions. But this theory has a difficult time accounting for other aspects of law, and especially
for those rules that create legal powers, such as the power to create contracts, trusts, wills, and
so forth. This difficulty is most acute with respect to rules that define the basic institutional
arrangements that define the sovereign itself, e.g., the rules of constitutional law in the United
States.
These deficiencies in Austin's theory prompted H.L.A. Hart to develop a more sophisticated
version of legal positivism. One feature of that theory is the distinction between primary rules
(which would include criminal prohibitions) and secondary rules (which allow for the creation,
alteration, and termination of primary rules). Hart replaced the notion of a sovereign with that
of a rule of recognition--a social rule that specifies what counts as a law and what does not.
Moral Facts, Social Facts, and Legal Content
The contemporary approach to these issues is the product of almost sixty years of thinking
within the tradition that is sometimes called "analytic jurisprudence." Beginning with the work
of H.L.A. Hart in the 1950s, through is publication of The Concept of Law in 1961, and
extending through Ronald Dworkin's critique of Hart, and the reformulation of the positivist
tradition by both Joseph Raz and Jules Coleman, the basic issues and questions have gone
through several transformations.
One useful way to get get at the heart of these developments is to conceive of the debate about
the nature of law as centrally concerned with the relationship between social facts, moral facts,
and legal content. Our question is "What determines legal content?," where "legal content" is
simply understood as the content of the legal norms.
 One answer to this question takes the form: It is necessarily the case that only social
facts determine legal content. This is exclusive legal positivism--a view that is
strongly associated with Joseph Raz.
A second answer to this question takes the form: It possibly the case that moral facts
determine legal content, but only if social facts give the moral facts this role. This is
inclusive legal positivism--and this view is most strongly associated with Jules
Coleman.
A third answer to the question takes the form: It is necessarily the case that moral facts
determine legal content. This view would include natural law theory and
interpretivism--the view that is strongly associated with Ronald Dworkin.
By framing the "What is law?" debate in terms of the relationship between social facts, moral
facts, and legal content, the conceptual space we get precise mapping of the conceptual
space. In the rest of this Lexicon entry, we will take a somewhat less shallow look at the three
options.
Inclusive and Exclusive Legal Positivism
Exclusive legal positivism is the view that only social facts can determine legal
content. Joseph Raz famously argued for exclusive legal positivism based on the premise that
law claims authority, that authority consists in displacing other reasons for actions, and
therefore law must displace moral reasons for action. (That was a very short and inadequate
summary of a long and complex argument.)
Inclusive legal positivism is the view that moral facts can play a role in determining legal
content, but only if there are some social facts that give the moral facts this role. For example,
a constitution might include an clause that make a moral conception of human equality a legal
rule. This would give the morality of equality a role in determining legal rights, but this role
would exist because a social fact (the Constitution) made it so.
Contemporary Natural Law Theory
The positivist critique of classical natural law theory resulted in a major restatement by John
Finnis. Finnis's theory is subtle and complex and no thumbnail sketch can do it full justice, but
for the purpose of the Lexicon, one of his ideas can serve to illustrate the flavor of his
theory. Finnis argues that the natural-law claim that an unjust "law" is not a true law can be
explicated via the idea of the "focal meaning" of "law." This argument that concedes that
unjust enactments are "laws" in a sense, but that that the focal sense of "law" is limited to laws
that are not unjust. Finnis's position has both critics and defenders, but his magisterial
book Natural Law and Natural Rights is must reading for anyone interested in contemporary
natural law theory.
Interpretivism
The final view is "interpretivism," strongly associated with Ronald Dworkin. For Dworkin,
social facts, such as constitutions, statutes, and court decisions, do not directly determine legal
content. Instead, Dworkin believes that the content of the law is given by the theory that best
fits and justifies the legal materials. Dworkin makes this theory vivid by imagining a judge,
Hercules, who is able to construct a grand theory of political morality that provides a
constructive interpretation of the entire institutional history of a given society. Because this
theory is a theory of that institutional history, it is constrained. For example, the best
constructive interpretation of the institutional history of the United States will have to
acknowledge that our federal legislature is bicameral and that it includes a Senate with equal
representation of each state. But this constraint does not require a perfect match between a
literal interpretation of every legal text and the content of the law. So some precedents may be
categorized as mistakes, and some statutory or constituitonal provisions may be given a
constructive interpretation that makes them morally more attractive but does not follow every
jot and tittle of the text.
Conclusion
This very brief introduction to the "What is law?" debate is necessarily incomplete and
shallow. But I hope that it gives you a general sense of the various positions that have been
taken on the nature of law.

WHAT IS ADMINISTRATION OF JUSTICE? EXPLAIN ITS KINDS. DISTINGUISH

BETWEEN CIVIL AND CRIMINAL JUSTICE.
INTRODUCTION:-Administration of Justice:- According to Salmond : -The administration
of justice implies the maintenance of right within a political community by civilized substitute
for the primitive practice of private vengeance and violent self-help. This has been criticized
on the ground that it is not the force of the state alone that secures the obedience of law. There
are a number of other factors such as the social sanctions, habit and convenience which help in
the obedience of law. In civilized societies, obedience to law becomes a matter of habit and in
very rare cases the force of the state is used to secure it
According to Austin: Law is the aggregate of rule set by men as politically superior, or
sovereign, to men as politically subject. It means law is command of sovereign. In his
definition Command, duty and sanction are the three elements of law.
The fundamental difference between the definitions of the two jurists is that whereas in the
definition of Austin, the central point of law is sovereign, in the definition of Salmond, the
central point is Court. In fact, both the definitions are not perfect and present two aspects of
law.
Salmond : Points out that men do-not have one reason in them and each is moved by his own
interest and passions. The only alternative is one power over men. Men is by nature a fighting
animal and force is the ultima ratio of all mankind. As Hobbes puts it without a common
power to keep them all in awe, it is not possible for individuals o live in society. Without it
injustice is unchecked and triumphant and the life of the people is solitary, poor, nasty, brutish
and short. Salmond says however orderly a society may be, the element of force is always
present and operative. It may become latent but still exists.
KINDS OF ADMINISTRATION OF JUSTICE
The administrative of justice may be divided into two parts:-
1) Civil.
2) Criminal.
1. Administration of Civil Justice: The wrongs which are the subject-matter of civil
proceedings are called civil wrongs. The rights enforced by civil proceedings are of two kinds
(1) Primary and (2) Sanctioning or remedial rights. Primary right are those rights which exists
as such and do not have their source in some wrong. Sanctioning or remedial rights are those
which come in to existence after the violation of the primary rights. The object of the civil
administration of justice is to ascertain the rights of the parties and the party who suffers from
the breach of such rights is to be helped by way of paying damages or getting injunction,
restitution and specific performance of contract etc.
2. Administration of Criminal Justice:- The object of the criminal justice is to determine the
crime of a person who is charged with the doing of an offence. The criminal court after
proving that the offender is guilty of the offence charged awards him the punishment of fine,
imprisonment as prescribed by criminal law. A convicted person is awarded physical pain.
Thus the main purpose of the criminal justice is to punish the wrongdoer.
DIFFERENCE BETWEEN CIVIL AND CRIMINAL ADMINISTRATION OF JUSTICE
Civil Administration of Justice
In the civil case the suit is Filed in the civil court. Criminal Administration of Justice
In the criminal cases the proceedings Is filed in the criminal court.
The main remedy in civil Cases is damages. The main remedy in criminal cases is to
Punish the offender.
In the civil cases, the court Follows the procedure Prescribed in Civil Procedure Code. In the
criminal cases, the court follows the procedure laid down in criminal Procedure Code.
In civil cases the action is taken By the injured party and the Suit is established by himself By
giving evidence. In criminal cases the proceeding is taken by the state and the injured party
is called out as a witness by the state.

Introduction:- Play an important role in the development of law. In the ancient society there
was no difference between law and morals. The Vedas and suteras which are the main ancient
sources of law are based upon morals. In the western society also the position was the same.
The legal system of Greek was also based upon the doctrine of natural rights, which was in fact
founded upon morals. So the Roman law also recognised the doctrine of natural law, which
was founded upon morals. In the middle period also morals were the basis of law. In the 17th
and 18th centuries natural law theories become very popular which were also based upon
morals. However in modern times it was only Austin who discarded morals from law. He said
that law is a command of sovereign. But after him there came the Historical School that
recognised morals as the part of law.
 DIFFERENCE BETWEEN LAW AND MORALS
When the Austin did not give any place to morals in law then there came a question of the
difference between law and morals. Later on the courts tried to make difference between law
and morals. In the modern times there is clear difference between law and morals. In every
developed and civilized society the following are the differences between morals and laws:-
MORALS LAWS
1.The morals are concerned with individual and are the laid down rules for the moulding of his
character.

2.Morals are mainly concerned with the internal conduct of the nature of a person.
3.The morals are an end in themselves.
4. The observance of morals is a matter of individuals conscience.
5. Morals are considered to be universal in nature and value. 1. The laws are mainly
concerned with the society as a whole and lay down the rules for relationship of individual with
each other and with the state.
2. Law is concerned with the external conduct of the individuals.
3. Laws are meant by which the evils ends. The justice is achieved.

4 The observance of law is concerned with duty towards the state.

5 Law is concerned only with a particular state and society which differ from place to place &
from time to time.

DIFFERENCE BETWEEN LAW AND MORALS

When the Austin did not give any place to morals in law then there came a question of the
difference between law and morals. Later on the courts tried to make difference between law
and morals. In the modern times there is clear difference between law and morals. In every
developed and civilized society the following are the differences between morals and laws:-
MORALS LAWS
1.The morals are concerned with individual and are the laid down rules for the moulding of his
character.

2.Morals are mainly concerned with the internal conduct of the nature of a person.
3.The morals are an end in themselves.
4. The observance of morals is a matter of individuals conscience.
5. Morals are considered to be universal in nature and value. 1. The laws are mainly
concerned with the society as a whole and lay down the rules for relationship of individual with
each other and with the state.
2. Law is concerned with the external conduct of the individuals.
3. Laws are meant by which the evils ends. The justice is achieved.

4 The observance of law is concerned with duty towards the state.

5 Law is concerned only with a particular state and society which differ from place to place &
from time to time.
RELATIONSHIP BETWEEN LAW & MORALS
In the ancient society there was no difference between laws and morals, but in modern times
various theories of law separate morals from laws so many differences as pointed out above
came into picture. In spite of these differences there is a clear relationship between law and
morals. For this purpose it can be noticed from the following three points :-
1. Morals as the basis of law:- In the ancient society morals were the basis of all laws. All the
rules originate from the common sources i.e. morals. The reason behind them was in the form
of supernatural fear. The state picked up those rules which were necessary for the society of
the state.
The state put its own sanctions behind their rules and enforced them and these rules were called
laws. The rules for which the state could not ensure their observance wee known as
morals. Thus laws and morals have common origin. We cannot totally separate law from
morals. Queen v/s Dudley: It was held that moral are the basis of law on the ground of
morality, it was not necessary to kill the boy for saving their lives. One cannot take the law
into ones own hands. The rule is that none has the power/right to take anothers life to save his
own.
2. Morals as the list of law:- It has been argued that the law must conform to morals. It means
the law must be based upon morals and it should not be against morals. The Roman law was
based upon natural law and Christian morals and principles say that any law that is against
morals is invalid. The natural law theories were enforcing which were also according to
morals.
In the modern times the laws which are not in conformity with morals are not good
laws. However in practice to a great extent law conforms to morals. Laws cannot depart from
morals due to many reasons. The conformity of law with morals is a very important factor
even in the modern times.
3. Morals as the end of Law:- Sometimes morals are considered as the end f law. Justice in its
popular sense is based upon morals. The word used for law conveys an idea of justice and
morals in the same area of law. Sociological school says that law always has a purpose. Law is
a means to get the end. This aim of law is to secure social test of law. This can be done
properly in the contest of socially recognize values which are closely related to morals. Thus
ultimately morals become the end of law. In India the legal system is engaged from the
personal laws and local customs. In addition to this there are certain other factors like public
opinion, political, ethical, social and economical ideas which are directly or indirectly under
the influence law. CONCUSION:- So morals also have influence to a great extent in the
development of law. Morals also check the arbitrary powers of the legislature. All human
conduct and social relations cannot be regulated and governed only by law. A considerable
number of them are regulated by morals. Thus we can say that the morals are the very
important factor in the development of law. Morals are basis of law.
6 Professor Hart claims of make a fresh start in legal theory. Discuss.
INTRODUCTION:- Hart is one of the great jurists of that time. He belongs to analytical
school. HLA Hart was the Principal and Professor in Brasenose College Oxford His theory
about the law named as concept of Law. He talks about the realty. His theory mainly based on
primary and secondary rules and also based on the relationship between law and society. His
theory described about two words i.e. Pre-legal world and Legal world.
DEFINITION AND MEANING: Sir HLA Hart define Law, that law is the system of rules, a
union of primary and secondary rules. He means to say that law is the system of rules and
these rules are primary which are pre-legal rules and secondary which are legal rules and the
main based of his theory on the relationship between Law and Society.
Body : Sir HLA Hart theory talks about the two words. These words are:-
Concept of Law

Pre-legal world Legal world

No legislature Rule of recognitaion

No executive Rule of Change
No court Rule of Adjustice

1. Pre-Legal World :- This pre legal world belongs to old age. According to Sir, HLA Hart
pre legal world there was primitive society. And in this society there was no legislature which
can make the rules. There was no executive also which can change the rules besides this there
was no court also to decide the disputes. In the primitive society there were three defects
which are as under :-
2 Un-certainty :- Since there was no Parliament in the primitive society which causes the
un-certainty in the law.
3 Static character:- In the primitive society there were customs and these customs were
not changed. It means there have static character.
4 Inefficiency :- In the primitive society there were no power of Jurisdiction. It means
that there were no courts followed by the people.
2. Legal World :- This legal world belongs to modern age. According to Sir HLA Hart in
the legal world there are modern society. Because of modern society there are rules of
recognition which means that there is a Parliament/State Executive. The function of the
Executive to change or to amend the rules. In modern age there are courts which decides the
disputes. Judges applies the earlier laws in deciding the disputes. These rules/laws are the
secondary rules. Thus we can say that Law is the union of Primary and Secondary rules. In
other words it can be said that the Law is the journey of rules.
RELEVANCY OF HLA HARTS THEORY
Sir HLA Harts theory concept of Law is the most important theory of analytical school.
Because this theory tells us about the old age and for the modern age. In the old age there were
primitive society which did not have any legislature, executive and court. Therefore only
custom and usages which were not allowed to change them by any person.
The theory of concept of law tells us about the legal world. In the legal world there is a
legislature which makes the rules and these rules are changed or amended by the executive
when it necessary. There are courts which apply the rules on party. So we can say that in
modern age the law is certain not static in character. Sir HLA Hart also gives the place of
Morality in his theory because the moral have an important role in every legal world and these
morals are not changed by passing any Act. We can say that Sir HLA Hart theory, Concept of
Law has the most important place in the theory of Analytical School.
CONCLUSIION:- Sir, HLA Hart theory Concept of Law have no conclusion because this
theory talks about both the pre-legal world and the legal world which updates and tells us that
how the law comes. So we can opined that such best and usable theory needs no conclusion as
it has its self conclusion.

Territorial Nexus and the Parliament

1. Article 245 (2) of the Constitution of India makes it amply clear that No law made by Parliament shall be
deemed to be invalid on the ground that it would have extra-territorial operation. Thus a legislation cannot
be questioned on the ground that it has extra-territorial operation.

2. It is well-established that the Courts of our country must enforce the law with the machinery available to
them; and they are not entitled to question the authority of the Legislature in making a law which is extra-
territorial[1].
3. Extra-territorial operation does not invalidate a law. But some nexus with India may still be necessary in
some of the cases such as those involving taxation statutes[2].

Territorial Nexus and the State Legislature

The Legislature of a State may make laws for the whole or any part of the State[3]. Now, this leaves it
open to scrutiny whether a particular law is really within the competence of the State Legislature enacting
it. There are plethora of cases that have stated that the laws which a state is empowered to make must be
for the purpose of that State[4].

Thus, the Doctrine of Territorial Nexus has been applied to the States as well. There are two conditions
that have been laid down in this respect[5]:

1. The Connection (nexus) must be real and not illusory.

2. The liability sought to be imposed must be pertinent to that connection.

If the above two conditions are satisfied, any further examination of the sufficiency of Nexus cannot be a
matter of consideration before the courts[6].

In various cases relating to taxation statutes, the courts have time and again stated that it is not necessary
that the sale or purchase should take place within the Territorial Limits of the State. Broadly speaking local
activities of buying or selling carried in the State in relation to local goods would be sufficient basis to
sustain the taxing power of the State, provided of course, such activities ultimately result in concluded sale
or purchase to be taxed[7].

There is also a Presumption of Constitutionality that the Legislature is presumed not to have exceeded
its constitutional powers and a construction consistent with those powers is to be put upon the laws
enacted by the Legislature.

Extra-Territorial Operation

It is well-established that the Parliament is empowered to make laws with respect to aspects or causes that
occur, arise or exist, or maybe expected to do so, within the territory of India and also with respect to
extra-territorial aspects or causes that have an impact or nexus with India