What is law? Definitions, the idea of law and legal realism

1. Why law is hard to define

The word “law” is used for very different things: the law of gravity, the laws of cricket, the moral law, the law of a State. Even if we confine ourselves to the law that courts apply, jurists disagree about what makes a rule a rule of law. Is it the command of the sovereign, its acceptance by the people, its justice, or the fact that courts will enforce it? Each answer produces a different definition. Dennis Lloyd begins The Idea of Law with this difficulty and treats the definitions as answers to different questions rather than as rival dictionary entries. That is the right way to present them in an answer.

2. The leading definitions

• Austin (analytical / positivist). Law is “a command of the sovereign backed by sanction.” Three elements: command, sovereign (a person or body habitually obeyed by the bulk of a society and not itself habitually obeying anyone), and sanction (the evil that follows disobedience). Criticism: it leaves out customary law, constitutional law that binds the sovereign, international law and permissive rules (such as the rules for making a will).
• Holland. Law is “a general rule of external human action enforced by a sovereign political authority.” It adds generality and the idea that law governs conduct, not thoughts.
• Salmond. Law is “the body of principles recognised and applied by the State in the administration of justice.” The focus shifts from the legislature to the courts: a rule is law because courts apply it. Criticism: courts apply law, they do not make all of it; the definition is circular if “justice” is itself defined by law.
• Kelsen (pure theory). Law is a hierarchy of norms, each deriving its validity from a higher norm, ending in the Grundnorm (basic norm), which is presupposed. The Constitution of India would be the highest positive norm; the Grundnorm is the presupposed rule that it ought to be obeyed.
• Savigny (historical). Law is found, not made. It grows from the Volksgeist, the common consciousness of the people, like language. Custom is therefore the primary source.
• Roscoe Pound (sociological). Law is a tool of social engineering, a means of balancing competing interests (individual, public and social) so as to satisfy the greatest number of wants with the least friction.
• Natural law writers (Aquinas). Law is “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” An unjust law is, on the strong version, not law at all.

3. Approaches to the idea of law

The February 2025 essay asks for the approaches, which is a way of grouping the definitions.

None is complete. Positivism tells us how to identify valid law but says little about its content. Natural law tells us how law ought to be but cannot by itself tell a judge which rule is in force. The historical school explains custom and personal law well but cannot explain reforming statutes such as the Hindu Succession (Amendment) Act, 2005, which deliberately broke with the traditional Mitakshara rule by making daughters coparceners. A good answer ends by saying that each approach captures one side of law, and that Indian constitutional law draws on all of them: Parliament’s enactments are valid law (positivism), but they must satisfy fundamental rights read as requiring fair, just and reasonable procedure (an idea close to natural law), as held in Maneka Gandhi v. Union of India, 1978 INSC 16, (1978) 1 SCC 248.

4. Legal realism

Legal realism is the view that law is best understood as what courts actually do, not as the rules written in books. Its American founder is Oliver Wendell Holmes, who said in The Path of the Law (1897): “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” He also wrote that the life of the law has not been logic but experience.

• American realists (Holmes, Karl Llewellyn, Jerome Frank) distinguished “paper rules” from “real rules”. Llewellyn was a rule-sceptic: the rules stated in judgments do not fully explain the outcome. Frank was a fact-sceptic: the greater uncertainty lies in how trial courts find facts, and in the personality of the judge.
• Scandinavian realists (Hagerstrom, Olivecrona, Ross) treated law as a set of psychological facts: people behave as if bound because of the feeling of being bound.
• Contribution. Realism made lawyers study the judicial process, statistics of outcomes and the social effects of decisions. It explains why the same words of Article 21 meant one thing in A.K. Gopalan (1950) and something wider in Maneka Gandhi (1978).
• Criticism. If law is only a prediction of what judges will do, a judge deciding a case cannot use law at all, since she cannot predict her own decision. Hart answered that rules give the judge reasons; they are not mere forecasts.

5. The essence of law

The “essence” question asks what is common to everything we call law. Most writers list:

1. Rules of conduct — law guides external behaviour.
2. Generality — it applies to classes of persons and situations.
3. Authority — it comes from a source the society recognises (legislature, courts, accepted custom).
4. Sanction or enforcement — there is an organised consequence for breach.
5. Purpose — order, security and justice.

Lloyd’s point is that force alone is not the essence. A gunman’s order is backed by force but is not law. What makes law different is that its force is authorised and regulated by rules, which is the subject of the Unit II note on attributes and sanctions.

6. Rules of law and precepts of morality

The two overlap: murder and theft are both immoral and criminal. They also diverge: refusing to help a drowning stranger is immoral but generally not an offence, while failing to file a return on time is an offence without being immoral. Law often enacts morality (dowry prohibition) and is in turn judged by it.

How this is examined

For a 10-mark “idea of law” or “approaches” question, give the difficulty of definition, then the five approaches with one definition each, and a conclusion that they are complementary. For the 6-mark notes, “legal realism” needs Holmes’s prediction quotation, the American and Scandinavian branches and one criticism; “definitions of law” needs Austin, Salmond and one other with a criticism each; “law and morality” is best answered with the table and two examples.