Law & State

 LAW AND STATE

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Law presupposes State. State means an Independent Sovereign Political Unit. In this sense, Uttar Pradesh, Madhya Pradesh are states ans so is Union of India and United States of America. Without State, there can be no Law. Though there may exist rules of Conduct such as morality to govern day to day interactions, transactions and procedures. But without the existence of Political Unit (State) all these rules will only be directory in Nature, there being no Imperative enforcing the same. Such moral rules are imbibed in upbringing of the child and are followed throughout the life without much deviation but it is because of personal volition, and not out of compulsion. For such a group of people to become State, they must organize themselves into a Unit, comprising of a Sovereign Head and recognize his supremacy over the subjects.

Elements of State

State consists of following four constituents –

1. Population

2. Land

3. Government

4. Sovereignty

Population

Population means People or citizens of the State. State presupposes citizenry i.e. Persons belonging to the state. State does make a distinction of US & THEM. State and its Laws have general bias towards its own people while the outsiders (Non-citizens) are endowed with certain disabilities. Though Non-citizens may be conferred certain rights, but their extent is generally limited when compared to those of Citizens. Further there may be rules by which a Non-citizen may be taken up as a Citizen and Citizen be regarded as non-citizen (e.g. if he takes up citizenship of another State). That is to say, although the State makes a distinction, the compartments are not always water-tight.

Land

Land means portion of Earth Surface. Every State must have a definitive territory i.e. Territorial limits to which it may exercise its authority. Although at times, there may be boundary disputes and authority may not be effectively exercised in remote regions, but one must be able to locate the State on the Globe.

Government

Government represents that part of the population which is bestowedwith function of management of the affairs of the State. Its basic elements are

• Legislature – one that makes the laws

• Executive – one that enforces the laws

• Judiciary – one that interprets the law

  Together, the three pillars form the government which look into the daily state affairs.

Sovereignity
Sovereignty is the idea of Supremacy over subjects. Austin has defined Sovereignty in terms – “If a determinatehuman superior, not in the habit of obedience to a like superior, receives habitualobedience from the bulk of a given society, that determinateHuman Superior is Sovereignin that society, and that society (including the superior)is a society political and independent.”

It is worth noting that the above definition was given in Monarchicaltimes, hencethe word Human superior is used. In modern democratic society,this human element need not be a physical human being like King orQueen, it can be Parliament, Constitution or even the People in general themselves under acommon name or identity.

Once a village society developsinto Political unit recognizinga village headman, similar to a Sovereign,and enforces its rules of conduct by virtue of power, aState is born.

LAW

Salmond has defined Law as the body of principles recognized and applied by the State in the administration of Justice.

Law, in common parlance, means rule. It signifies a rule of action, and is applied indiscriminately to all kindsof action, whether animate or inanimate, rational or irrational. It is in this sense terms such as Lawsof Physics etc are used. In thissense, Law may be classified as –

1. Physical or Scientific Law

   These are general principles expressing the regularity and harmony observable in the activities and operations of the universe. e.g. Earth revolves around the Sun.

2. Natural or Moral law

   It is the principles of natural right and wrong, the principles of Natural Justice. It is the reason (sense of right and wrong, just and unjust) by which the world is governed. Cicero has pointed out that there is indeed a true law, right reason, agreeing with nature, diffused among all men, unchanging, everlasting……… It is not allowable to alter this law, nor to derogate from it, nor can it be repealed.

3. Imperative Law

   It means any rule of action imposed upon men by some authority which enforces obedience to it.

4. Conventional Law

   By Conventional law is meant any rule or system of rules agreed upon by persons for the regulation of their conduct towards each other.

5. Customary Law

   It is any rule of action which is actually observed by men – any rule which is the expression of some actual uniformity of voluntary action. Custom is a law only for those who observe it.

6. Practical Law

   Law which consists of rules for the attainment of some practical end may be termed as Practical law. e.g. Law of Health, Law of Style etc.

7. International Law

   International Law or the law of Nations consists of those rules which govern Sovereign States in their relations and conduct towards each other.

8. Civil Law

   This is the State authored law and our primary subject when the term law is used in reference to Justice as administered by Courts and legal procedures.

Administration of Justice

The administration of Justice may be defined as the maintenance of right within a political community by means of the physical force of the State.

The instrument of coercion employed by any regulative system is called a Sanction, and any rule of right supported by such means is said to be sanctioned. A Sanction is not necessarily a punishment or penalty. To punish wrongdoers is a very effectual way of maintaining the right, but it is not the only way. We enforce the rule of right, not only by increasing the thief, but by depriving him of his plunder, and restoring to its true owner, and each of these applications of the physical force of the State is equally a sanction.

Law is logically subsequent to administration of Justice. Courts of Justice are essentially Courts of law, justice in this usage being merely another name for Law. The administration of justice is essentially the enforcement of the law. The laws are the commands laid by the State upon it subjects and the law courts are the organs through which these commands are enforced.

But the administration of justice is perfectly possible without law at all. There is perfect possibility of Tribunals where Justice is not administered according to predetermined principles of Law, but according to unfettered discretion of Judge, in which equity and good conscience and natural justice are excluded by no rigid and artificial rules. Such Courts are Court of Justice and not of Law. Despite the above possibility, Law is desirable for the sake of clarity and impartiality.