To What Extent Do Austin and Salmond Differ In The Matter Of the Definition Of Law

In oilier words, the law consists of the rules recognised and acted on by courts of justice.” Salmond equates the above definition with civil law, with which ordinary lawyers are professionally con­cerned.

Consequently, it is no objection to the definition that it does not cover international law, for it is not meant to do so. He observes that the definition has the advantage of clearly separating conventions of the constitution which are not regarded as law, from the law of the constitution.

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According to Salmond, law is primarily a means towards the attainment of justice and should; therefore, he defined with reference to his end. Law is merely the instrument while justice is the end, the primary purposes for which Stales exist.

Salmond observes that definitions of the type above suggested are sometimes criticised on the ground that though appropriate to case-law they are not appropriate lo statute law.

A statute, it is said, is law as soon as it is passed; it does not have to wait for recognition by the courts before becoming entitled lo the name ‘law’. The courts recognised a skaldic because it is law; ii is not law merely because the courts recognise

He oilers solution to the above criticism by saying that courts are the organs of the community for declaring and enforcing the law and for creating a certain form of law (Judge-made law). The legisla­ture is an organ of the community for creating another form of law (statute law).

So long as the courts and legislature are working in harmony it does not matter whether we say that a statute is law because the courts recognise and apply it, or the courts recognised and apply statutes because they are law. The statements are simply two aspects of a single truth.

To the same effect are comments made when it is observed that “in definition law by reference to the administration of justice, you have reversed the proper order of ideas, for law is first in logical order and the administration of justice is the second.

The definition runs in a circle for it is not permissible lo say that the law is the body of rules observed in the administration of justice, since this function of the Slate must itself be defined as the application and enforcement of law.”

Objection is taken that the above definition of law based on the function of the court begs the very question it seeks to answer. It is, therefore, defective because it assumes that law is logically subsequent to the administration of justice, but as a mailer of fact courts of justice enforce it since it is law.

To the same effect are the observations of Vinogradoff when he says that the direct purpose for which judge’s act is, after all, the application of law.

Salmond repels the above objection by observing that they are based on a misapprehension of the nature of the administra­tion of justice.

He says that in the logical order of things administration or justice precedes law. Justice is the end, law is merely the instrument and the means for achieving that end, and the instrument must be defined by reference to its end.

He proceeds to observe that in the modern Slate the administration of justice according to law, is com­monly taken to imply the recognition of fixed rules.

It is indeed per­fectly possible for the courts to function without fixed rules at all. There may be a tribunal where the judge docs that which deem just in the particular ease and decides according to equity, good conscience and natural justice, regardless of general principles.

That will be a court of justice which is not also a court of law. There is always some notion of justice independently of legal rules. The total exclusion of judicial discretion by legal principle is impossible in any system.

There is always space residuum of justice, observes Salmond, which is not according to law some activities in respect of which the administra­tion of justice cannot be defined or regarded as the enforcement of law.

Salmond further justifies his stand by observing that “law is law, not because the courts are under any legal obligation to observe it, but because they do in fact observe it.

No rule that is not thus, in fact, observed in accordance with the established practice of the courts is a rule of law, and, conversely, every rule that is thus in fact observed amounts to a rule of law.

It is to the courts of justice, and to them alone that we must have recourse if we wish to find out what rules are rules of law and what are not in the last resort the authority of the law over the courts themselves has its source merely in the moral obligation of the judges to observe their judicial oaths and fulfill their appointed function, by administering justice according to law.

Salmond’s definition of law has been commented upon by other noted writers as well. Paton observes that Salmond’s point really is not that is justice, but that law is an instrument by which justice can be achieved.

Agreeing with Salmond, he observes that “the purpose of law is essential to an understanding of its real nature; but the pursuit of justice is not the only purpose of law; the law of any period serves many ends and those ends will vary as the decades roll by.

To seek for one term which may be placed in a definition as the only purpose of law leads lo dogmatism. The end that seems most nearly universal is that of securing order but this alone is not an adequate description; indeed Ketsen regards it as a pleonasm, since law itself is the order of which we speak.”

Dean Pound has criticised the definition of Salmond as reducing law to a mass of isolated decisions and law in that sense ceases to be an organic whole.

According to Jerome Frank, Salmond unduly restricts law of the rules which Stales enforce to the exclusion of rules enforced by vol­untary association.

Salmond himself confesses that his definition does not cover international law nor does it cover administrative law which is en­forced administratively and not judicially.

In conclusion it may be said to the great credit of Salmond that he has brought prominently the purpose of the law in his definition. Justice being the end of law it is proper that the instrument should be defined with reference to its end. He has associated law with its essential element of right and justice, an aspect which was totally excluded by Austin.

He does not base his definition on the command of the sovereign, and, as such, unlike Austin, included rules which though not reducible to the form of commands are yet laws. The imperative theory of law propounded by Austin excludes- custom, opinion and religion in civil law.

That also ignores the ethical side of law. The definition of law by Sir John Salmond as a body of rules recognised and acted on by courts of justice docs away with the shortcomings of Austin’s conception of law.