ON THE DEFINITION AND NATURE OF LAWS
| Date | 01 November 1945 |
| DOI | http://doi.org/10.1111/j.1468-2230.1945.tb02893.x |
| Published date | 01 November 1945 |
| Author | John P. Humphrey |
I94
MODERN
LAW
REVIEW
Nov.,
1945
the matter, in this case German law, may provide that the legatee
cannot claim a fixed sum at all, but
a
proportion of the estate to be
ascertained in relation to the extent to which the testator's funds may
have been transferred to this country. This, therefore,
is
a
problem
of the proper law rather than
a
problem of the rate of exchange.
F.
A.
MANN.
ON THE DEFINITION AND NATURE
OF
LAWS
HE
more abstract
a
thing
is
the more difficult
it
is to define;
and the concept of law is no exception to this rule. From the
very earliest times, thinkers, both professional and lay, have
attempted to define the law. But after centuries of thought and
writing, they are still far from agreement.
It
is hardly
an
exaggeration
to say that one can find
as
many definitions of law as there are jurists.
We do not intend here to add to this confusion or even to discuss the
nature of the law. Our purpose
is
relatively modest
:
to define and
discuss the nature of laws.
A
law
is
a
relatively concrete thing which
can
be isolated and analysed.
A
law may be defined as a rule of human conduct that emanates
from
a
source recognized as competent by the legal order and which
prescribes the imposition of a sanction or penalty in the event of
disobedience.' In primitive communities, and to some degree
in
developed societies also, the laws emanate directly from the people,
i.e. from the undifferentiated mass of the subjects governed by them.
It
follows that no particular person or organ can be identified as
their source. Such laws are called customs.
In the modem State, nearly all laws emanate from some organized
body or authority having competence, either directly or indirectly,
under the constitution.2 Thus the laws may be enacted by some such
specialized legislative organ as
a
parliament or by some organ which
is
primarily concerned with some other governmental function, e.g.
a iaw court. Or they may be enacted by some subordinate body or
authority to which an authority which itself possesses competence
under the constitution has delegated legislative powers. Such laws
are usually called statutes (when they emanate from a specialized
legislative organ), judgments (when they emanate from a court), and
regulations, by-laws, orders
or
decrees (when they emanate from some
other organ). Unlike customary laws all of them emanate only indirect-
ly from the people or subjects that they govern.
It
is possible by the
ux
of purely juridical techniques, namely, by
referring to some higher norm, to prove the legal validity within the
1
It
will
be
noted that this
is
a definition
of
a
law not
of
the
law.
*
By
constitution we here mean the fundamental law
of
the land whether
it
is
T
embodied in a
'I
written constitution
"
or not.
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