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The Law as a Social Construct

What Is The Philosophy Of The Law?

The Law is an institution that has evolved through the years to cater to the needs of society. It is a vast oceanic expanse that stretches its arms to affect the lives of the common in ways one cannot fathom. It is the protector of the weak, not only physically but also economically when it delivers justice in an impartial manner.

The law was never looked upon as a social construct since the natural instinct of delivering justice brings thoughts of violence and not a civilized approach which brings us to the differentiation of natural law and positive law and how it shapes our society and the way we behave in socially acceptable manner within the legalities set by the rule of law. The law is never abstract. It always works for a certain society without which there is no use of the existence of the law. Law, however, is also a normative social practice: it purports to guide human behavior, giving rise to reasons for action.[1]

There have been the concepts given by Legal Positivists who see the eyes through a mainly Utilitarian view and who are of the opinion that the Law is a construct by man but it makes one wonder of the possibility of the law, that has evolved over the years, being regarded as a man made concept since no man has lived even a quarter of the lifetime of the law.

We must acknowledge the presence of the law and its longevity since the Magna carta in 1214. As Oliver Wendell Holmes Jr. has rightfully said that the Law is nothing less than a Zeitgeist, which literally translates from German as 'ghost of time'.[2]. Since it has stood the test of time and has molded into the needs of the changing times, it has now become stronger and more perfect than what it was but still it needs to be perfected as it is nothing less than a diamond in the rough.

Lawyers are considered as social scientists who shape the law envisioning an ideal sense of society and that is how they formulate law, thus evolving it into its more ideal end product.[3] The law has predicted the future through the doctrine of precedents and it is through this format of its functioning held it as a social construct. The flexibility it provides can be seen through the way it changes depending upon the situation but due to the repeating nature of History we find cases which are held to be similar as precedent. This being the exact reason why Oliver Wendell Holmes Jr. compares Law to the Greek Oracle Sybil.

The Legal Positivist approach

The main insights of legal positivism is that the legal conditions are all legally and socially valid and are determined by social facts that is claimed by two theories- The Social Thesis and The Separation Thesis. Naturalists disagree with The Social Thesis as it consists of social non normative facts. The Separation Thesis is an important negative implication of the Social Thesis, maintaining that there is a conceptual separation between law and morality, that is, between what the law is, and what the law ought to be.[4] The important thing to note is that both Theses when properly understood pertain to legal validity and one agrees with the Naturalist view point while the other disagrees.

Legal Positivism, for that matter, takes a very philosophical stance towards the Law. For example, we can take golf as a social construct as it involves people in a discussion and exercise and other social activities but the Law is not to be taken only as a social construct. There is the fact that the Law is vaster and the definition of the subject demands more complexities than that of a social construct. I would than want to question why there is no philosophy for other social constructs just like the Law. Is there a lack of intellectual curiosity for other social constructs?

When we look at things like Golf,[5] a certain lifestyle or some choices as social construct then we must consider the Law as a social construct for it is the Law that shapes our behavior and it is constructed by judges, lawyers and others who have envisioned what a perfect society might look like while framing and debating over the law.

H.L.A Hart mainly agrees with John Austin in his positivism theory but his theory has not been shown kindness to. The theory has been criticized and exposed it's less looked upon fallacies.
Hart also gives a distinction on the law's sociological and legal perspectives of law which has been influenced by Max Weber and that is a quintessential to understanding the Law. It has various aspects to it and one must not accept either and not bother about the rest.

The Law has shaped the society and broadened its tolerance and capacity or diminished it and is a weapon which in no way can be called powerless.
Dworkin, as positivism's most significant critic, has rejected the positivist theory on every conceivable level. Dworkin denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its moral merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of the political organization of a legal system, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects[6]

Hart's Concept of Law & Indian Constitution

The Indian legal system is an evolved system of both primary and secondary rules. Primary rules of obligation in the Indian legal system include customs which are recognized by courts and various statutes. This is evident from the changing status of customs. Although before independence the Privy Council in Collector of Madura v. Matoo Ramalinga[7] ruled that in Hindu law a clear proof of custom overrides the written text of law, the situation has changed after independence. Only the customs which are recognised and accepted by Parliament or the courts have the force of law.[8] If a common belief of society is not enforced the law loses its validity in the eyes of the society and a sentiment of general disregard arises towards the system.

Hart contends that while public morality should be enforced because its absence amounts to nuisance to another person, care should be taken while enforcing private morality and a balance has to be maintained between individual liberty and morality. According to Hart, the private morality should be made effective by means of persuasion, dialogue and debate rather than coercion. The Indian legal system does not totally approve of Hart's theory in this regard. In fact the Indian Constitution is not only formal text but also a dream and an instrument to bring about social reform. It was a post independent India's hope to turn into the best features of the developing nations.

Thus, Article 17 penetrates into private lives of citizens by abolishing untouchability in any form. Under the Protection of Civil Rights Act, 1955 passed by Parliament under Article 35 of the Constitution, discrimination on the ground of untouchability has been made a punishable offence not only in public places but also in privately owned places of worship and the State Governments are empowered to impose collective fines on the inhabitants of an area involved in or abetting the commission of offences related to untouchability. In Saroj Rani v. Sudarshan Kumar Chadha[9] in the Supreme Court enforced private morality.

In Saroj Rani v. Sudarshan the Court upheld Section 9 of the Hindu Marriage Act providing for restitution of conjugal rights. The provision has been challenged for infringing the right to personal liberty under Article 21 of the Constitution. The Supreme Court overruling the decision of the Andhra Pradesh High Court held that marriage is a sacred institution and the provision helps to reunite the couple by giving them a chance to reconsider. Morality can be a ground for restrictions on many of the freedoms guaranteed to the citizens under the Constitution.

Natural Law and Positive Law

The difference between laws of the wild and laws of the society. There has always been a difference between Natural Law and Positive Law and it clearly reflects on why we approach the Law as a social construct. It is the difference that is often used by the defense in cases of cannibalism in isolation. The state we were in before we entered into a civilized society. The state of nature is also described as the state the human mind works in when it is in vulnerability and separated from the sensibilities of civilization.

The difference in being in civil society is that we are bound by the Law set down in codes or precedents by the State and in Nature we are at the mercy of Nature and Survival instincts and the rule of might.[10] In the midst of the Natural Law, most of us are at the mercy of the ones that are the mightier and civilized positive law doesn't apply as the jurisdiction ends when you are once you are not surrounded by society.

The fact that there's exists a difference proves the fact that Law is a social construct with more precision. We have the conscious acceptance of the Law that prevails in Nature and the Law that exists in the which we think of as courts, lawyers, sometimes also as a society and that decides what how one should behave and how one must b in all senses. These thoughts and these mindsets are provided by the form of society and how it determines how we behave at a grassroot level.

This is why we can say that the Law is a social construct that has been man made through the centuries and the Law has kept evolving according to evolution of the society and the people that live in it. The Natural Law on the other hand has not changed and has always been the rule of the mightiest. It always has been the same as what it was and will always remain until man can control Nature and other natural phenomenon like rain, thunder, lightning and other such with technology and then perhaps Natural law shall cease to exist and new laws will be enforceable. Till then it is undecided and unpredictable just like her usual self.

Law and Morality

The blurred lines of two of society's most difficult to adhere to subjects. Law and Morality are both in a way social constructs and it is always unclear whether they are mixed or to be kept separate like oil and water. Law and Morality are both by nature advisory and to be adhered to by people living in society. The morals can change and is subjective to every person.

It depends upon the upbringing of a person and the thoughts and mindset of the person. It can also depend on the immediate society's views which the person is frequently influenced by but it will change person to person and is never exactly the same. The Law is a mixed with Morality since the people who write the Law adhere to their own morals and write the law in the grammar morals are being said.

Law on the other hand must be free from morals as it must remain the same for each person if it has to be fair and just. Its just nature doesn't allow it to change but when it becomes miscible with morality there is a defiance to adherence with it. Not every person wishes to adhere to the same ideas of morality as another person. The Law, must appear same for everyone and should be very neutral in its appearance to each and every other person.

It can be different from morality but cannot invariable rise above the needs of society and must cater to the different minds that reside there. It must look into welfare and justice however separate it is from the clutches of morality. as if it doesn't appeal to the needs of society it loses its validation and becomes a text which is no longer referred to. An analog can be drawn to the Sultan of Turkey who decides the Law but must keep in mind traditions of his people and their rituals in order to command their respect and validation as their supreme sovereign.

Morality is often changed and is ever changing but the Law has the power to change it since the Law is above morality but the Law takes time to change and changing morality also takes time. Both are slow processes which are difficult but must happen for the greater good.

In the Navtej Singh Johar V Union of India case, which spoke about the issues of the LGBTQ+ community, the introduction on page 11 talks about a social morality and a constitutional morality. The law although arisen from the needs of society must have a distinction from the localized morality of society.[11] This is discussed on how they are apart but then again two sides of the same coin.

What is the Law?

After the complexities of analyzing the Law as a social construct we still are left with a major question as to what really is the Law? To answer this question one must blend empirical, conceptual and political opinion that makes the answer more meaningful than what a simpleton might suggest to be as a rule of regulation. Augustine has famously questioned.

Remove justice, and what are kingdoms but gangs of criminals on a large scale? The Law is the Sovereign that rules the people in a just and fair manner. It has been installed by the social system of society for protection against the Natural Law and has been kept there to guarantee safety in the State.

The Law changes people and gives them a code to live by and to perform their duties in a manner that is more duty bound and in co-operation with others than to live for themselves. The Law protects the innocent and sets examples for the people to look up to and strive to not being. The people who are at fault are given a chance at rehabilitation and mending their ways because the Law is just and as it is a social construct it is to some extent merciful.

"The quality of mercy is not strained.
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes." [12]

The Law provides a profession for a lot many people and is a passion for some of them. It is not only in litigation or advocating that the Law is charming but also in the teachings and the students who learn it. It is a complex and rather difficult subject but there is a quality that provides a different edge for some.

I would like to conclude with the belief that although we consider the law to be a social construct it is fairly a divine subject. It does adhere to society in order that people relate to it but the authority it has over people is not ordinary and unlimited to the limited mind of a human being.

  1. Marmor, Andrei and Sarch, Alexander, The Nature of Law
  2. OWH Jr.,The Path of the Law
  3. Nicholas McBride, Letters to a law Student
  4. Marmor, Andrei and Sarch, Alexander, The Nature of Law
  5. Law as a Social Construction and Conceptual Legal Theory, D. Priel
  6. Green, Leslie, Legal Positivism
  7. (1868) 21 MIA 397 (PC)
  8. (2002) 2 SCC (Jour) 1
  9. (1984) 4 SCC 90
  10. The Speluncean Explorers, L.L Fuller
  11. W.P. (Crl.) No.76 of 2018
  12. The Merchant of Venice

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