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Concept of Law and State
Concept of Law:-
The concept of law is among the first to have occupied legal theory and one that at some stage most legal scholars are bound to face in some form. Further, in the view of several influent legal theorists the problem of the concept of law is a question that ideally precedes all other questions of law because many legal problems have their root precisely in the nature of law[1]. Enquiry into the concept of law is not only of theoretical significance, however. Once we determine the nature of the legal phenomenon we can have an adequate approach to the question of what is law and what is not law. This determination will in turn impact directly on the way cases are decided and on the outcomes of judicial decisions. It certainly can make a practical difference how judges go about deciding cases, and even more significant in this sense are the actual decisions they make.
Further, legal practitioners, as well as the public at large, will seek to have the law applied to the controversies arising from the daily affairs of society. An understanding of the concept of law is thus preliminary to any knowledge of whether and to what extent pre-existing laws can be used to settle a given legal dispute, as well as to any knowledge of whether on particular occasions judges are bound to apply previously enacted legal norms or are free to decide the dispute by filling a gap in the system. Finally, the appeal to law takes a special claim on us, since most of us consider ourselves and others to be under a general obligation to obey the law, even in the face of particular provisions that are found to be objectionable or altogether wrong. But we cannot fulfill this putative duty unless we have an understanding of what the law is. It therefore proves necessary, for legal theorists and practitioners alike, to have a grasp of the concept of law.
In legal theory, the debate on the concept of law has focused on the interrelation that holds among three elements to one another: authoritativeness, social efficacy, and material correctness[2]. These elements have been differently interpreted and weighed against one other and hence variously combined to form a number of different concepts and conceptions of law. At one extreme we find the view that all but denies the authoritative component and social efficacy of law (radical natural law theory); at the other extreme we have a pure positivist concept of law that disregards the idea of correctness as completely inessential. But most conceptions sit somewhere in the middle of this spectrum. At the risk of oversimplifying a large body of literature by compression, it may be said that the various legal conceptions, for all the significant differences of detail that intervene between them, can be grouped under four basic concepts of law: these are concepts theorized within natural law theory, legal positivism, legal realism, and interpretive. Let us look at each of them in turn.
First, the idea of law embraced by natural law theory is based on the claim that a definition of law must incorporate the notion of material correctness. By material correctness is meant justice. It follows that the law must take in and fulfills the ideal of justice, understood to be a component of public morality. In maintaining that some standards of public morality should enter into the definition of law, natural law theorists accept the connection thesis, i.e. the claim that there is a conceptual, or necessary, connection between law and (critical) morality.
They therefore articulate an “ethical” concept of law. Stated otherwise, if a norm is to be a legal norm, it will have to pass an ethical test: moral validity is a necessary condition of legal validity. Accordingly, there are conceptually necessary moral constraints on what can count as law: an unjust norm duly enacted by a putatively legal authority is not fairly characterized as law. In the words of William Blackstone, the “law of nature, being co-evil with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original[3].”
Historically the main antagonist of natural law theory has been legal positivism, the dominant approach to legal studies in Europe for the past two centuries. Many theories of law, rather than just one, have come under this umbrella. But the differences, sometimes significant, are internal to a single, overarching theoretical perspective, and one cannot help but see that the many versions of legal positivism have some tenets in common. The positivist concept of law has developed around a cluster of ideas, the most basic of which are the social fact thesis, the conventionality thesis, and the separability thesis[4].The social fact thesis makes out the law to be a social artifact, on the reasoning that the law’s existence depends exclusively on social facts, such as the sovereign’s capacity to “receive habitual obedience from the bulk of a given society[5],” or gain the fact of officials’ accepting a certain kind of rules[6]. The conventionality thesis asserts that the criteria of legal validity are established by social convention among the officials of a given community. The existence of a convention, in turn, is made possible by a convergence of behavior and attitude. Hence, law is said to exist in a given society in that, within that society, behaviors and attitudes converge. The separability thesis, in fine, affirms a conceptual distinction between law and morality; in other words, it is not necessarily true that the criteria of legal validity consist, either partly or entirely, of moral standards. This thesis grounds the positivist concept of law on only two defining elements – due enactment and social efficacy – so that any reference to moral correctness becomes a merely contingent possibility: what is law depends exclusively on what the authorities have enacted and on what is socially efficacious[7].
While all forms of legal positivism endorse these views, and in essence see the law as a normative coercive order whose validity does not necessarily rest on moral standards, different versions of legal positivism take different stands on more specific elements. In particular, a distinction can be made between exclusive and inclusive legal positivism. Exclusive (or hard) positivism, a view theorized by Joseph Raz and defended by Andrei Marmor and Scott Shapiro, understands law as a necessarily independent of morality, in that all law is source based: law is no more inclusive than the social grounds it is based on. This position finds its justification in a specific conception of authority. Exclusive positivism regards authorities as mediating institutions that make a practical difference.
Authoritative directives are then supposed to inform subjects of what they are supposed to do in such a way that they do not have to evaluate the underlying moral reasons that justify the directive. Thus, a directive that requires subjects to evaluate the underlying moral reasons, such as is true of moral rule of recognition, is not doing the job that authority is supposed to do. Hence, on this conception, we are required to identify authority on its own grounds and without relying on external (moral for example) considerations. To the extent that law is authoritative, then, we will have to regard it as independent and conceptually separate from morality. A directive can never be made legal in virtue of moral evaluations without thereby undermining the authority of law.
For the law consists not only of a set of norms, but also of the justification of settled norms, and justification can neither be equated with social facts nor be entirely captured by conventions. Interpretivism therefore articulates a radically non-positivist concept of law, a concept that Alexy expresses so: “the law is a system of norms that (1) lays claim to correctness, (2) consists of the totality of norms that belong to a constitution by and large socially efficacious and that are not themselves unjust in the extreme, as well as the totality of norms that are issued in accordance with this constitution, norms that manifest a minimum social efficacy or prospect of social efficacy and that are not themselves unjust in the extreme, and, finally, (3) comprises the principles and other normative arguments on which the process or procedure of law application is and/or must be based in order to satisfy the claim to correctness[8].” In summary, then, the law is to be understood as a valuable activity with a social existence.
Concept of State:–
Thought the state is a necessary and a universal institution, no two writers agree on its definition. There have been many different view about the nature of the state and hence its incompatible definitions. Some writers define the state as essentially a class structure, other regards it as the one organization that transcends class and stands for the whole community.
‘Some interpret it as a power legal system , other as a welfare system, some view it entirely as a legal construction, either in the old Austinious sense which made it a relationship of governors and governed, or, in the language of modern jurisprudence, as a community ‘organized for action under legal rules’. Some identify it with the nation, others regards nationality as incidental or unnecessary or even as a falsifying element which inhibits the state in its natural functions’[9].
‘A numerous assemblage of human being, generally occupying a certain territory, amongst whom the will of the majority, or of an ascertainable class of person, is by the strength of such a majority : or class, made to prevail against any of their number who oppose it’[10].
‘The marks of an independent State are that the community establishing it is permanently established for a political end, that it possessed a defined territory and that it is independent of external control’[11].
‘When people is settled in a the politically organized people of a definite territory[12],’ and ‘it is the people organized for law within a definite territory’[13].
‘An association which, acting through law as promulgated by a government endowed to this end with coercive power, preserves within a community territorially demarcated the universal external conditions of social order’[14].
‘A territorial society divided into the government and subject claiming, within its allotted physical area, a supremacy over all other institution’[15].
‘Is that system of interaction to be found in all adaption (both internally and vis-à-vis other societies) by means of the employment or threat of employment, of more or less legitimate physical obligation’.
‘A community of person, more or less numerous, permanently occupying a definite portion of territory, independent, or nearly so, of external control, and possessing an organized government to which the great body of inhabitants render customary obedience’[16].
Elements of the State:-
The State must, therefore, possess the elements of:-
1) Population
2) Territory
3) Government
4) Sovereignty
1) Population:-
It is the people who make the State, without them there can be none. But population must be large enough to make a State and sustain it. The member of one single family does not make a State; there should be a series of families. No limit, however, can be placed on number of the people constituting the State. Differences in population, other things remaining the same, do not make any difference in the nature of the State, although opinions as to its sixe have varied from time to time. It should be large enough to self-sufficing and small enough to be well governed. Similarly increase or decrease in population makes no difference in its Statehoods.
2) Territory:-
In practice there can be no State without a fixed territory. Just as every person belongs to a State, so does every square yard of earth. There is no State without its proper territory, large or small, and no territory that is not part of some State, large or small. And as far as we personally concerned, it is our connection with a particular territory that normally creates our membership of a State. The occupation of a fixed territory is also essential, otherwise the State could not be readily identified and held to account if one attempts to conquer or violate the integrity of another.
3) Government:-
The purpose for which people live together cannot be realized unless they are properly organized and accept certain rules of conduct. The agency created to enforce such rules of conduct and to ensure obedience is called Government. Government is the focus of the common purpose of the occupying a definite territory and it is through this medium that common policies are determined, common affairs are regulated and common interested promoted. Without Government the people will be just babel of tongues with no cohesion and means of collective action. It is the prerequisite of human life and, as such, government is an essential element of the State. The State cannot and does not exist without a government, no matter what form a government may assume.
4) Sovereignty:-
Like definitions of the State, are many and varied. Bodin defined it as the ‘supreme power over citizens and subject, unrestrained by law’. Hugo Grotius defined it as ‘the supreme political power vested in him, whose acts are not subject to any other and whose will cannot be overridden’. Duguit says that sovereignty is the ‘commanding power of the State, it is the will of the nation organized in the territory of State; it is the right to give unconditional orders to all individuals in the territory of State’.
To lineup the connection between Law and State the main aspect which comes between or may be a common one between them is ‘Sovereignty’.
Relationship between Law and State
Importance of Sovereignty in Relationship of Law and State:-
There is confusion between legal theory and political practice. The legal theory of sovereignty vests ultimate legal power in some definite person or body of persons. The authority of the sovereign is supreme and it possesses the power to enforce obedience to its will. But where is that ultimate authority to be found? There is not one single answer to this question. Not only does it vary from country to country, but it will not be always the same in the same country.
In Britain, parliament is sovereign and what it enacts is law. An Act of Parliament cannot be called into question in any court of law. Nor can it be declared invalid, for no law exists in Britain higher than that made by Parliament. But a recent Act of Parliament takes precedence over a less recent one and supersedes any earlier statutory provisions inconsistent with it. In the United States Congress is not sovereign.
It is delegated agency and its acts can be pronounced unconstitutional by the Supreme Court. It is he constitution which is supreme there and the sovereign power is exercised by the constitution-amending authority. In a totalitarian State sovereignty will belong to the executive, since both legislative and judicial power are subservient to it. Hitler retained the Reichstag as a subservient organ whose function was merely to record a formal of Nazi policy. And on Court in Germany could question the legality of the policy endorsed by the Reichstag.
The legal sovereign, in all democracies, must ultimately bow to the political sovereign. But what is this political sovereignty and where is such a sovereign? The problem of the real location of political sovereignty has not yet been solved. Finally there is the confusion between the actual authority and its source. “It is one thing to say”, writes Soltau[17]. This they obviously cannot do; government is the action of the few. And when Rousseau said that the people actually govern, he introduced in their governance that mystic element of General will which made it possible for his disciples to justify the omnicompetent and omnipotent State where sovereignty rested in the hands of a small number of men who make up the government.
Because of this confusion and the unreality of the elaborate justification of the omnicompetent and omnipotent State, Laski and the others have suggested that the theory of sovereignty should be kept out of political discussion. But dropping of sovereignty does not simplify matters. It is impossible to drop it, because it exists and since it exists we cannot avoid controversy. Indeed, one of the most effective means of getting to the character of any system of government is to find out where sovereignty can actually be located and how it is really exercised. To know it is know the different forms in which sovereignty is expressed.
Legal Sovereignty:-
The sovereignty of the State may further be observed at from two points of view; Legal and Political. Legal sovereignty is the conception of sovereignty in terms of law, and it refers to that person or body of person who, by law, have the power to issue final commands. In every State there must be some authority which is definitive and visible in the sense that it should knowledge all and the people may appeal to it as the final authority.
Such an authority is known as legal sovereign and the authority of the legal sovereign is supreme and final over all individuals and associations. No individual or group of individuals has the legal right to act contrary to the conclusions of the sovereign power, even if such decisions override the prescriptions of divine law[18], the principle of morality, or the mandates of public opinion. The courts recognize and apply only that law which emanated from the legal sovereign and disobedience to such a law is accompanied by punishment.
The authority of the legal sovereign is absolute and its will is illimitable, indivisible and inalienable. Law is simply the will of the sovereign. There is no one to question its validity. Within the sphere of law, there is, as Hobbes bluntly said, no such things as an unjust command. The authority of the sovereign being limitless, he has the legal right to will whatever he may happen to wish.
All rights enjoyed by citizen are granted and enforced by the legal sovereign and there can be no rights against him. This implies that if the legal sovereign can grant rights, he can take them back or even annual them.
This analysis is a lawyer’s opinion on sovereignty. The lawyer is not interested in the content of the law, ie. its benevolent content or the value component of the law. He is only interested in the legal source from which it comes. According to Ritchie, “the legal sovereign is the sovereign of the lawyer as lawyer, a sovereign that lawyers and courts refuse to look at.” But behind the legal sovereign is another power unknown to the law. It is the political sovereign, disorganized and unable to express the will of the state in the form of a legal order, but to which the legal sovereign must ultimately bow.
The following characteristics of legal sovereignty may be noted:-
- The legal sovereign is always definite and determinate.
- Legal sovereignty may reside either in the person of a monarch as in an absolute monarchy, or it may be vested in a body of persons as in a democracy; King or Queen and Parliament in Britain.
- It is definitely organized, precise and known to law.
- It alone has the power to declare in legal terms the will of the State.
- Disobedience to the imperative of the legal sovereign means physical punishment.
- All rights emanate from the legal sovereign and it can take them back or even annul them.
- The authority of the legal sovereign is absolute, illimitable and supreme. It is subject to no control within and without the State.
Political Sovereignty:-
But absolute and unlimited authority of the legal sovereign does not exist anywhere. Not even a despot can act independently and exclusively. His will is actually shaped by the many and varied influences which are unknown to law. All these influences are the real power behind the legal sovereign. As Dicey puts it, “Behind the sovereign which the lawyer recognizes, there is another sovereign to whom the legal sovereign must bow[19]”. This is called the political sovereign, and, according to Professor Gilchrist, the political sovereign is the sum total of the influences in a State which lie behind the law.
As the political sovereign is not known to law, it is unorganized, indeterminate, and not even precise. In modern representative democracies the political sovereign is very often identified with either the whole mass of the people, or with the electorate or with public opinion. But the political sovereign is neither the electorate nor is it identical with the whole mass of the people, nor can it be identified with the public opinion. Taking first the electorate, no one can doubt its political power in a representative system of government.
The legislature dare not disregard the will of the electorate. It may even command the legislature to do its bidding. If it does not, the members of the legislature may be punished at the next election for failure to obey the will of the electorate. Every few years, the electorate creates a new representative chamber, and in doing so it largely determines the nature of parliamentary commands. But on closer examination, it will be found that the electors have no independent opinion of their own. They are influenced by party politics and while casting their votes, they vote for the party rather than for the candidates. The decision of the electorate is also influenced by the religious and case propaganda in a democratic State in significant. Thus, so many influences, visible and hidden, affect the decisions of the electorate that it becomes difficult to say where sovereignty precisely lies.
Political sovereignty, thus, proves to be vague and indeterminate. At many stages it becomes confusing and “the more one searches for this final authority the more it seems to elude one’s grasp[20].” Yet, we cannot ignore its existence. Even Dicey, the nineteenth century constitutional lawyer, could not ignore it. He made the distinction between legal and political sovereignty. In Britain, he said, while Parliament was from a legal point of view the sovereign legislative power in the State, it was, from a political point of view, subject to two practical limitations.
It could not enforce its will if the governed refused to obey and, since it was itself made up of individuals whose outlook was formed by the same social climate as that of their constituents, there were things that it would not, in practice, dream of trying to do, howsoever extensive its legal competence might be, “If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal, but legislators must go mad before they could pass such a law and subject be idiotic before they could submit to it[21]”.
Political sovereignty may, then, mean the electorate plus all other vehicles and influences that mould and shape public opinion. Garner gives it a much wider scope when he says, “In a narrow sense the electorate constitutes the political sovereign, yet in a wide sense it may be said to be the whole mass of the population, including every person who contributes to the moulding of public opinion whether he is a voter or not[22]”. But this definition robs political sovereignty of its connotation as it is widely understood.
Concept of Law and State:-
There are three ways of constructing a theory of the State: we may examine the actual functioning of the State (as in political science), or the ideal of what a State ought to be (as in political philosophy), or the theoretical basis of the lawyer’s approach to the State. The last method (the so-called juristic theory of the State) is not meant to present a complete picture of the actual working of the State, but rather the theoretical conception around which the doctrine of law are built. In particular, the juristic theory of the State deals with the relationship of law and State, or (to put the same problem in another way) it asks the question whether the public law is really law. Can a subject have legal rights against the State?
There are three main juristic theories of the relationship between the State and the Law which can tersely be expressed thus: the State is Superior to and creates law; law precedes the State and binds it when it comes into existence; law and the State are the same thing looked at from different points of view[23].
1) State is Superior to Law and Makes it:-
The first theory is illustrated by the work of Austin, who defines law as the command of the sovereign. But when Austin attempts to define sovereignty and the State he adopts a practical test. Firstly there must be a political society of ‘considerable’ numbers, and a superior in that society who is habitually obeyed by the bulk of the members of that community and who is not in the habit of obedience to another superior. Within the community, the superior has a sovereign power to lay down the law.
The relation between subject and sovereign is therefore one of power; the sovereign can have no legal rights against his subjects nor can he be bound by legal duties, for a legal relationship can exist between two parties only when there is above them a sovereign who will enforce the rule of law. Hence constitutional law must be divided into two parts; as against the sovereign body as a whole, constitutional law is mere positive morality enforced by moral sanction alone; but it may be regarded as positive law in so far as it binds particular members of the sovereign body[24].
Collectively considered, the sovereign is above the law, but a member of the House of Commons is individually bound by an act of parliament though he is a member of the body which creates the law. If sovereign consist of only one person, constitutional law is only positive morality. Rules of the game can hardly be considered to bind a person who can change them at any minute, though it is true that, if he is always changing the rules to suit himself, he may find it difficult to persuade the others to play with him. The word ‘unconstitutional’, Austin points out, is often merely a vague term of disapprobation, since the conduct criticized may involve no actual breach of the law.
The lawyer’s view of sovereignty is based on practical considerations rather than on any theory of values- ‘the English Sovereign is merely the “person” who has the last word in a particular connection[25]’. The fact that there is England an omnicompetent legislature and a strong centralized organization of justice which recognizes the power of parliament has obviated the necessity of theoretical debates since the settlement of 1689. The particular problem of the relationship of Church and State, which has produced so many theories of sovereignty, was settled on England at a fairly early date. To an England lawyer the concept of the sovereignty of parliament merely means that the courts will recognize as law rules made by parliament in the form of legislation[26].
But it is not easy to find out who has the ‘last word’ in federation. The legislature is bound by the constitution, and in most cases a court has power to decide whether a particular statute is constitutional or not. Hence the court is the ultimate authority in one sense; but only in narrow sense because, firstly, the power of court is purely negative, since it can reject but not initiate legislation, and, secondly, the electorate normally has the ultimate power of amending the constitution.
But there is no need for any one person or body to have the ‘last word’ on every point. So long as the system provide a method of settling the law on each particular issues, it matters not in theory how many ‘authorities’ there may be, provided there be some practical means of resolving conflicts. The legal theory of the State becomes increasingly difficult the more this ultimate power is divided, but that does not prove that in practice it cannot be divided. The constitutional law of an absolute dictatorship is simple; ‘whatever pleases the emperor has the force of law’; and in England it comparatively easy, since the legally unrestricted power of king in parliament prevents deadlocks arising from a division of powers. But in a federation constitutional difficulties may prevent effective actions, for power may be so divided that a particular reform can be achieved only by the co-operation of the states and the central authority; indeed, there may be some powers which cannot be exercised even by this co-operation. The difficulties of waging modern war have made this point apparent in every federation[27].
2) Law is anterior to State and is binding on the State:-
The second theory regards law as more fundamental than, and as anterior to, the State. Hence the law may bind the State. Some turn to the medieval solution of natural law- the sovereign has absolute power over positive law, but it is bound by ius naturale. In the Middle Ages even a royal justice such as Bracton could ‘fearlessly proclaim’ that the king was bound by law[28]. We cannot impose on the Middle Ages an Hegelian theory of the State, for the Church still exercised over the State an undefined control. Moreover, baronage claimed vague rights of judging the king in his own court, although there were no effective means of bringing this about save by resolution. Modern constitutional theories may attempt to bind the government by the creation of a higher law which can be amended only by referendum. Declaration of rights may be inserted in constitution to place certain interest beyond the reach of arbitrary interference by chance majorities.
Ihearing considered that law in the full sense was achieved only when it bound both ruler and ruled. But, as Ihearing regards the State as the maker of law, we may well ask how the creator may be bound by the creature of his fancy? Ihearing solved the problem by what is really a political argument; law is the intelligent policy of power, and it is easier to govern if the State voluntarily submits to the law it has created. This is merely an argument of expediency- we can do everything with bayonets but sit on them- and, while it undoubtedly contains much truth, it is of little service to juristic theory.
Jellinek develops this doctrine into a theory of autolimitation- the State is the creator of law, but voluntarily submits to it. But if the State is bound only because of its own consent, why cannot that consent be withdrawn at any time? A more radical attach is made on the problem by Karbbe and Duguit, both of whom deny that the State creates law. Once we postulate that law is created by a source other than the State, it is easy to see how the State can be bound. Karbbe places the source of law in the subjective sense of right in the community[29]– he is not merely making the obvious point that the moral ideas of a community are reflected in the legal system under which it lives; he goes further and asserts that any statute which is opposed to the majority sense of right is not law. Hence the legislature, executive and the judiciary are but subordinate instruments through which the community expresses its sense of values. Karbbe thus treats as the source of law an instinctive sense of right- he rejects all definitions which emphasize the general will of the community for he fears that once law is made to depend on will, an attempt will be made to invoke the superior will of a sovereign with power to crush the discordant individuals wills of the community.
But there are many faults in Karbbe’s theory. How can a sense of right be effective unless men are willing to put their wills at the service of the ends they desire? Moreover, Karbbe uses the term ‘law’ in a sense very difficult from that of the lawyer- his theory would be true only if the judge could ignore all statutes and precedents and base his decisions purely on what he conceived to be the sense of right of the majority of the community. Thus he says that a statute ceases to be law when it is no longer acceptable, that constitutional provisions are void if they require a majority of more than half the electors before amendment can be made.
From this angle a statute and a decision of a court are but experiments- either would create a rule of law only if and when that rule is accepted by the community. Although the ethical basis of Karbbe is far removed from the positivism of Duguit, in essence they both take the same view of the relationship of the state and law. Rules derived from the facts of solidarity, for the state is merely a convenient term for the organizations of such public services as the dictates of solidarity demand.
Accordingly, to these theories public law is positive law in every sense of world. It binds the ruler who lacks power to change the law by his mere violation. Hence law is not organized power, as in fascist theories, but rather a check on the arbitrary exercise of power by the executive. Karbbe emphasizes the hackneyed dictum that there should be a government of laws and not of men[30], but he employs the term ‘law’ in a sense very difficult from that of the normal use. It has been reiterated again and again in this work that law is a result of social forces of the community, but the acceptance of this doctrine does not lead to Karbbe’s result that some statutes are not law.
The lesson of legal history is that law functions best if adequate organs are set up to create, declare, and enforce it- law cannot be left to be determined only by a vague sense of rights. Efficiency demands that power be placed at the service of law and that institution are set up to draw the boundaries of legal rules as sharply as possible. We can best sources the effective protection of the subject, not by denying power to the State nor by inventing paradoxical theories of law, but by spreading the basis of political through a wide franchise. The ultimate sanctions of ‘constitutional law’ as against the ruling body are extra-legal- ‘revolution, active, and passive resistance and the pressure of public opinion[31]’.
In English writing, the same problem has been discussed under the heading of the rule of law. Dicey found three meaning in this phrase; firstly, the supremacy of regular law over arbitrary power; secondly, equality before the law in the sense that officials must obey it and are subject to the jurisdiction of the ordinary courts; thirdly, the facts that the law of the constitution is the result of decisions of the courts as to the rights of private individuals[32].
These are undoubtedly the characteristics of the English legal system, but they result from the political struggles of the past and are not logical deductions from a rule of law. For law may have a varying content; it may protect the subject against despotism or give the most ruthless power to a tyrant. It is not enough for the democrat to demand a rule of law- everything depends on the nature of that law. Every legal order which functions has a rule of law; this applies to a Nazi state as well as democracy. What democratic liberals desire is that the power of government should be restrained so as to protect as far as possible the ‘personal freedoms’- this is a noble ideal, but not one that is necessarily secured by a rule of law[33].
There is however, a growing movement among western nations, and other influenced by them, to achieve more than that and attach a more specific and demanding meaning to the phrase ‘rule of law’. The nineteenth-century movements for constitutional reform, based in the main on eighteenth-century thinking, did not proceed on any Diceyan kind of notions about the rule of law. They sought to fetter governmental powers by laws which would protect individual human values. It is seen today that economic questions must be solved before such ideas can be implemented fully; that men must eat before they can enjoy freedom from tyranny. Further there has been a growing school thought, often based on revived ‘natural law’ notions, which seeks to find in the concepts of law itself fundamental aspects requiring limits to be placed upon the exercise of power by governments of whatever kind[34].
3) Law and State are same:-
Kelsen illustrate the third type of theory that law and the State are really the same. The State is only the legal order looked at from another point of view. Human individuals alone can act, and legal force is imputed to their behavior only if it is accordance with a rule of law. Just as men personified world forces and created a deity, so the jurist has personified the hierarchy of norms and created a state[35].
When we think of the abstract rule, we speak of the law; when we consider the institution which those rules creates, we speak of the state. But the practical importance of Kelsen’s approach is that he emphasizes that law is a more fundamental notion than that of the State. While it is true that law cannot exist without a legal order, that order may take forms other than that of the State. Hence the theory is wider, and therefore more acceptable, than that of Austin. A legal order may be created in the international sphere even though no super-state is set up.
The three theories relating to the relationship of law and the State have now been discussed. Logically, each may be defended, but, if we examine actual sates, we discover that no one solution will apply to all. Just as law may serve many purposes, so the relationship between law and State may vary[36]. It is possible to conceive of a state which recognizes a fundamental law, which it is beyond the power of any authority to alter. Such a legal order might prove impracticable as conditions changed, but an unalterable fundamental law is not beyond the bounds of imagination. At the other extreme a sovereign parliament may have no limits whatever on its exercise of legislative powers.
What are the essential marks of the State? Salmond defined the State as an association of human beings established for the attainment of human ends, two of which are primary and essentials- war and the administration of justice. These two purposes Salmond regards as partaking of the same quality- the maintenance of right by the exercise of force; hence he regarded a state as a society organized so as to use force to maintain peace and justice within a given territory[37].
But in what way can we show that the functions chosen by Salmond are more essential than any other activities of the State[38]? The theory of laissez-faire would curtail the state’s sphere of operations, just as modern collectivist conceptions would increase it. If a permanent international order were set up, it may be that war would entirely disappear- however pessimistic we may be, we cannot prove a priori that the carrying on of war will always be a function of the State.
From the purely juristic angle, many say that what distinguishes the State is the fact that legally it cannot, without its own consent, be deprived of its power to rule. Kelsen[39], on the hypothesis that international law is supreme, suggests that the national legal order can be defined as ‘a relatively centralized coercive order whose territorial, personal, and temporal spheres of validity are determined by international law and whose material sphere of validity is limited by international law only’.
A corporation may set up its own legal order, but it is subject to the overriding power of the State. If a powerful corporation within a state set up a legal order which defies the State, nevertheless the State (at least in formal theory) remains supreme, until its legal order is overthrown and a new basis for law set up; in other words, until revolution has been taken place. As we have said, constitutions have an extra-legal origin and the jurist can only accept that which has been created by the wars and struggles of the past.
The normal marks of the State are a fixed territory, population, and comprise to rule which is not derived from another state. Groups existing within the State may not have been created by the State, but the extent of their legal power depends on what is granted by the law. Kantorowicz, therefore, defines the State as a juristic person endowed with the right to impose its will on the inhabitants of a given territory, of which right it cannot by law be deprived without its own consent[40].
Summary:-
- As per the first theory, the State is natural and necessary, but further it was modified to that the State is superior to law and makes it. As per jurist none can make laws but the State. And it was stated by Austin that the law as the command of the sovereign. As the law is the command of political sovereign power.
- As per the Second theory, law is more fundamental than State and the State is bound by it. The State voluntarily submits itself to law. The sovereign is not source of law, but the source of law is the subjective sense of the right in the community.
- As per the third theory, law and State are the same. Law and State are the same but two terms are used for it because we look at it from the different angles. Law and State aim at securing legally recognized and protected interests and expected social ends of the community.
Judicial Interpretation
Judicial Interpretation with Reference to Indian Context:-
In Gopalan the Supreme Court interpreted the ‘law’ as ‘State made law’ and rejected the plea that the term ‘law’ in Art. 21 meant not the State made law but jus natural or the principle of natural justice. However, in this dissecting judgment held that the act was liable to be challenged as violating the provisions of Art. 19. He gave a wide and comprehensive meaning of the words ‘personal liberty’ as consisting of freedom of movement and locomotion. Therefore, any law which deprives a person of his personal liberty must stratify the requirement of Arts. 19 and 21 both[41].
Prior to Maneka Gandhi’s decision, Art. 21 guaranteed the right to life and personal liberty to citizens only against the arbitrary actions of the executive, and not form legislative action. The State could interfere with the liberty of citizens if it could support its action by a valid law. But after the Maneka Gandhi’s decision, Art. 21 now protects the right of life and personal liberty of citizen not only from the Executive actions but from Legislative actions also. A person can be deprived of his life and personal liberty if two conditions are complied with, first, there must be law and secondly, there must be a procedure prescribed by that law, provided that the procedure is just, fair and reasonable[42].
In Maneka Gandhi’s case the Supreme Court has overruled the view expressed by the majority in Gopalan’s case and held that Art. 21 is controlled by Art. 19, that is, it must satisfy the requirement of Art. 19 also. The court observed:
“The law must therefore now be settled that Art.21 does not exclude Art.19 and that even if there is a law prescribing a procedure for depriving a person of personal liberty, and there is consequently no infringement of the fundamental right conferred by Art.21 such a law in so far as it abridges or take away any fundamental right under Art.19 would have to meet the challenges of that Art.19[43]”.
Conclusion
After going into depth of the subject researcher wants to conclude the doctrine research by saying that the Concept of law and state, is a wider scope and it not possible to narrate them in a very short aspect. There are many various aspects which includes in clarifying the concept of relationship between law and State.
The relation between the State and law is very close and intimate. The State manifest or express itself through law and law has its importance or sanctity because it has the sanction of the State.
Law is the command of the sovereign. It is in and through the State alone that law exists. Only the sovereign has the power to make law and he is himself bound by it. The subject cannot have any right against sovereign. Rules which have not been made by the State are not law. It was contended that law is anterior to the State and is not always made by the State. Law is the will of the leader of the nation. Law is merely an instrument for the prosecution and fulfillment of State policy and is not a check on it. Certain rights have been guaranteed to citizen in democratic countries and those are considered to be binding on the State. The prevalent view is that the State is not only the maker of law but also superior to it.
Law is more important than the State and the State is bound by it. Law is anterior to the State. The rule of law is, clearly, independent of the State and is, indeed anterior to it. The source of law is the subjective sense of the right in the community. The sovereign is not the source of law. It is the community that expresses itself through the organs of the government.
The State and the Law are one and the same thing. They merely indicate legal order. The term State and law are the same thing. These two terms are used because we look from two different angles. When we think in terms of rules, we call it State. When we think in terms of institution created by those rules we call it State. There is no difference between law and State.
The different theories about the relationship of law and State have their own merits. The State bound by some fundamental law is not impossibility. It is possible that in future, law may be considered more fundamental than the State.
[1] For a contrary view, see R. Posner, Law and Legal Theory, Oxford, Clarendon, 1996, p. 3.
[2] See R. Alexy, The Argument from Injustice (1992), Oxford, Clarendon, 2002, p. 13.
[3] W. Blackstone, Commentaries on the Laws of England (1765-1769), vol. I, Chicago, Chicago University Press, 1979, p. 41.
[4] Cfr. K. Himma, “Inclusive Legal Positivism”, in The Oxford Handbook of Jurisprudence and Philosophy of
Law, J. Coleman and S. Shapiro (eds.), Oxford, Oxford University Press, 2002, p. 125-126.
[5] J. Austin, The Province of Jurisprudence Determined, London, Weidenfeld and Nicolson, 1954, p. 221.
[6] See H. Hart, The Concept of Law 2nd ed., Oxford, Clarendon, 1994, pp. 82-91.
[7] On this aspect, see H. Kelsen, Pure Theory of Law, Berkeley, University of California Press, 1967, pp. 44-50.
[8] R. Alexy, The Argument from Injustice (1992), Oxford, Clarendon, 2002, p. 127.
[9] Maclver, R. M. ‘The Modern State, Introduction.’
[10] As per ‘Holland’
[11] As per ‘Hall’
[12] As per ‘Oppenheimer’
[13] As per ‘Woodrow Wilson’
[14] Maclver, R. M. ‘The Modern State, Introduction.’
[15] Laski, H. J. ‘The State in Theory and Practice’, Chap II
[16] Garner, J.W. ‘Political Science and Government’, p.52.
[17] “that all authority comes from the people and another to say that the people actually govern”
[18] Expect in Islamic counties where Islamic law is supreme and unquestionable.
[19] Dicey, A.V., The Law of Constitution (1915), Introduction, pp. xviii-xix
[20] Leacock, S. Elements of Political Science, p.60.
[21] Leslie Stephen, Science of Ethics, p. 143.
[22] Garner, J.W., Political Science and Government, p.160.
[23] G. Gurvitch, L’ Experience juridique, 213
[24] J. Austin, Jurisprudence, i. 267
[25] J.W. Salmond, Jurisprudence (9th Ed.) 689
[26] W.I. Jennings, op. cit. 143
[27] E.S. Corwin, Total War and the Constitution (1947)
[28] Kawasaki v. Bantham S.S. Co., (1939) 1 All E.R. 819
[29] The modern Idea of the State
[30] T.I. Cook, 30 Calif. L. R. (1942), 151
[31] P. Vinogradoff, Historical Jurisprudence, i. 120
[32] Law of Constitution (8th Ed.), ch. Iv.
[33] W. I. Jennings, The Law and the Constitution, Appendix II
[34] Lon. L. Fuller, Positivism and Fidelity to Law- A Reply to Professor Hart, 71 Harv. L.R. (1958), 630.
[35] H. Kelsen, 55 Harv. L.R. (1941) 65.
[36] E. Bodenheimer, Jurisprudence, 57
[37] Jurisprudence, (10th Ed.) 129-30 J.W. Salmond
[38] H. Kantorowicz, 12 Economica (1932), 5
[39] General Theory of Law and State, 351
[40] 12 Economica (1932) 12
[41] A.K. Gopalan v. Union of India, 1950 SC 27
[42] Maneka Gandhi v. Union of India, AIR 1978 SC 597
[43] R.C. Copper v. Union of India, AIR 1970 SC 564.