Typical attributes of law and the legal process; kinds of sanction

1. What an “attribute” question wants

Society has many rules: of etiquette, religion, games, clubs and families. The question is what marks off legal rules from the rest. The answer is a list of features that law typically has. No single feature is decisive; it is the combination that matters.

2. The typical attributes of law

1. Normativity. Law states what ought to be done, not what is done. It is a standard of conduct, and its breach does not disprove it (unlike a law of science).
2. Generality. Law addresses classes of persons and situations: “whoever commits theft”, “every company”. A one-off order to an individual is not law in this sense, though a court decree applies law to an individual.
3. Authority. Law comes from a source the community recognises as entitled to make it: a legislature acting under the Constitution, a court, or a custom the courts accept.
4. Sanction. Breach has an organised consequence (section 3 below).
5. Institutions. Law is made, applied and enforced by specialised bodies: legislatures, courts, police, prisons, registries. This is what Hart meant by the union of primary rules (duties) and secondary rules (rules of recognition, change and adjudication).
6. Certainty and publicity. Law must be knowable in advance; secret law cannot guide conduct. Acts are published in the Gazette.
7. Consistency and system. The rules fit together in a hierarchy; a lower rule inconsistent with a higher one is invalid.
8. Purpose of justice. Law claims to be just. Even a positivist accepts that laws are constantly judged by this standard and reformed when they fail it.

3. Sanctions: authoritarian, authoritative and regulated

All rules are backed by some pressure, but the kind of pressure differs. Three ideas are used in the course readings to show what is special about legal sanctions.

• Authoritarian sanction. Pressure imposed by sheer power, whatever its legitimacy: the order of a dictator, an occupying army, or a gang. It may be obeyed out of fear, but force alone does not make law. Austin’s “command backed by sanction” is criticised precisely because it cannot tell the tax collector from the gunman.
• Authoritative sanction. Pressure that comes from a source the society accepts as legitimate. The sanction is accepted because the authority is accepted: a fine imposed by a court under an Act of Parliament, the disciplinary power of a university under its statutes. Legitimacy, not force, is the key.
• Regulated sanction. The sanction itself is governed by rules: who may impose it, for what breach, by what procedure, and to what extent. Criminal punishment in India is regulated by the Bharatiya Nyaya Sanhita, 2023 (what is punishable and the maximum punishment), the Bharatiya Nagarik Suraksha Sanhita, 2023 (procedure) and Article 21 (procedure established by law that is fair, just and reasonable). Self-help and lynching are unregulated and therefore not legal sanctions.

Kinds of legal sanction to mention: punitive (fine, imprisonment, community service under the BNS), compensatory (damages), specific (injunction, specific performance), and nullity (a contract made by a minor or a will not properly executed is simply void — Hart’s example of a rule that confers power rather than imposes a duty).

4. Attributes of law and arbitration

June 2025 asked for the attributes “with special reference to arbitration”. Arbitration is a private method of settling disputes: the parties agree to refer their dispute to an arbitrator instead of a court. Test it against the attributes:

• Authority. The arbitrator’s power comes from the parties’ agreement, not from the State. But the agreement is itself recognised by law: the Arbitration and Conciliation Act, 1996.
• Sanction. An award has no force of its own; it is enforced “as if it were a decree of the court” under section 36 of the 1996 Act. So the ultimate sanction is the State’s.
• Regulation. The Act regulates appointment, impartiality, procedure and the limited grounds on which an award may be set aside (section 34).
• Generality. An award binds only the parties; it is not a general rule.

The conclusion: arbitration shows that law does not need a courtroom, but it depends on the legal system for its authority and enforcement. It is part of the legal process, not outside it. International law is the other common example of a system with authority and rules but weak organised sanctions.

5. The nature of a legal system, and its link with law

A legal system is the whole set of valid laws of a State, together with the institutions that make and apply them and the shared practices of officials. Its features:

• Unity. All rules trace their validity to one supreme source: in India, the Constitution. Kelsen’s chain of norms and Hart’s rule of recognition both express this.
• Hierarchy. Constitution, statutes, delegated legislation; Supreme Court, High Courts, subordinate courts.
• Completeness in principle. A court must decide every case brought to it, even where no rule is clear, which is why judicial law-making happens.
• Efficacy. The system as a whole must be generally obeyed.

The link. A single rule is law because it belongs to a legal system: it was made in the way the system recognises and it will be applied by the system’s courts. The system in turn is nothing but its rules and institutions. A rule cut off from the system — a repealed Act, a custom the courts reject — is no longer law, however much it is followed. India also shows plural systems within one State: personal laws of different communities, and recognised tribal customs in the Sixth Schedule areas, all held together by the Constitution.

How this is examined

For the attributes essay, number eight attributes with a line of explanation each and close with the sanctions point. For the January 2026 sanctions question, define each kind with an example and contrast them. For the arbitration version, run the attributes against arbitration as in section 4. The 6-mark notes on regulated sanctions or the legal system need sections 3 or 5 alone.