DISCUSSION: Why law? Why societies need law?


Tesfaldet Hadgu

 

When faced to deal with such issues, one cannot avoid referring back to the Greek philosophers who contributed an immense work on the subject.

“When men have done and suffered injustice and have had experience of both, not being able to avoid the one and obtain the other, they think that they had better agree among themselves to have neither, hence there arise laws and mutual covenants; and that which is ordained by law is termed by them lawful and just” (Plato 1952, 311).1

As can be understood from Plato’s words, that law emerged or developed as a matter of necessity. Societies realized that their peaceful coexistence cannot be ensured unless their relations with each other and their behaviours are properly regulated and controlled by specified enforceable rules.

It is stated that in the making of the human world, nothing has been more important than what we call law. Law is the intermediary between human power and human ideas. Law transforms our national power into social power, transforms our self-interest into social interest, and transforms social interest into self-interest. 2

Although it cannot be claimed that law always served the same purpose and function across generations and time, its central feature remains the same: to control and regulate human behaviour and relations.

There is no area of human life which falls outside the realm of law. It must be remembered, however, that Law is not the only normative domain; morality, religion, social conventions, and so on, also guide human conduct in many ways which are similar to law.3 Yet, due to their non-binding nature, they fall short of providing any enforceable rights and obligations. This is especially true, in modern and complex societies.

Modern societies are challenged to avoid two evils: anarchy and tyranny. And the only solution to this problem is nothing but law. Law, especially the higher law, governs the relationship between private individuals as well as between rulers and the ruled. In general, the need for law can best be described as follows:

  • Law serves :     1.To maintain social order/peace and security;

2. To facilitate economic development;

3. To protect the fundamental rights and privileges of the people; and

4. To promote social change.

In the history of mankind, many theories and schools have emerged and developed to describe the importance, nature and validity of law. Some have ascribed its validity to the divine nature, while others to the sovereign (state). Yet the central objective remained the same: to secure justice with in a society as understood and interpreted in a particular time and place. Not only is disagreement on the nature of law, but also on the benefits and importance law serves to the society. There are some schools of thought who categorize law as nothing but a tool serving to maintain the interests of the rich and powerful classes. So law remains as one of the three instruments of oppression with state and religion. Some point out ,for example, that the fact that a society respects the importance of the rule of law and private property rights is no guarantee that that society will be particularly just (or even that wealthy). The rule of law, it is argued, is compatible with great oppression, inequality and poverty. Others take this point further and argue that in the wrong hands, law can become an instrument of evil, a means by which a country’s rulers can rob people of their property  and oppress minorities.4

Despite such criticisms, law remains to be the most important instrument to protect the fundamental rights of individuals against their government as well as fellow citizens and to  promote stability and thereby contributing to the socioeconomic advancements of the people.

Like one writer said, “law is a little bit like air. It is everywhere and without it, our society would not exist”5

Abraham Lincoln in his writings stated “Let reverence for the laws, be breathed by every  American mother, to the lisping babe, that prattles on her lap-let it be taught in schools, in seminars, and in colleges; let it be written in Primers, spelling books, and in Almanacs; – let it  be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of  justice. And in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and the tongues, and colors and conditions, sacrifice unceasingly upon its altars.” 6

We find such respect and recognition to law, though in different fashion or form, in many societies be they traditional or modern and strives to ensure its efficacy. For instance, under the Eritrean Customary law of “HgiAdkemeMilgae” (Law of AdkemeMilgae), it is stated that “qalhzbi, qalamlaK’yuqal rebi.”7 The direct translation goes like “The word of the public is as final as the word of God/Rabbi”. The word of the public is a law that has to be respected by everyone. This public word or will found its expression in law by which every member is expected to respect it like the word of God.

As was observed by the Greek Philosopher Aristotle that man perfected by society is the best of all animals; he is the most terrible of all when he lives without law and without justice. Thus the purpose of law, viewed as end and not as a means in itself, is to achieve certain objectives that the society at large considers dear and valuable to its existence like justice, equality, and freedom. And hence the need for law persists.

End Note

  1. www.csi.edu/faculty.andstaff_/westools purpose of law
  2. (Allott (2001,19)Wps.pearson.co.uk/ema_uk.he.mcbride
  3. Ibid
  4. Ibid supra 1
  5. http://www.abmm.co.nz/uploads/pdf/is_law_important.pdf
  6. Ibid supra note 1
  7. http://www.ephrem.org/dehai_archive/1995/Dr.Ghidewon A. Asmerom on Eritrean Laws

…………………

Tesfaldet Hadgu is studying LL.M (Semester I) at South Asian University, New Delhi. He belongs to Eritrea.

N.B : The write up has already been submitted by writer as TERM PAPER.

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