DISCUSSION: Why Law?


B. Kalyani M. Jayasekera

 

For by the Fundamental Law of Nature, Man being to be preserved, as much as possible, when all cannot be preserved, the safety of the Innocent is to be preferred.” — John Locke[1]

Why Law? This question raises some other questions:  why we need law? What is the importance of law? Why is law necessary to mankind? To find the answers for these questions, we must discuss the approach of  various law schools to this question. Therefore we have to basically study the approach of the natural law school, legal positivism, legal realism, critical legal studies etc.

Aristotle and St. Thomas Acquinas had grounded their natural law doctrine on a picture of man, according to which the human being strives for perfection and has in himself the potentialities for a full and complete development as a rational and social being; this development, unless interrupted by morbid or ‘unnatural’ impediment, will result in a full maturing of his true ‘nature’. Thus ‘nature’ is, under this theory, more or less identified with the highest potential of human being.[2] So in their view law must be alive in the world to shape the individual in the highest potential of a human being

Not only that, with Hobbes, Locke, Spinoza, Montesquieu and other representatives of the classical natural law, a conception of man emerges which is based on mere observation of his characteristic traits and a study of the casual laws that determine or influence human behavior.[3]Therefore the natural law scholars also agreed to keep a law in society.

The ideas of the proponents of Positivism of law were different from those of the  natural Law school scholars. Positivists said, Legal positivism is the group of legal theories which represent the view that law is comprised of the rules and operative machinery found within a state’s jurisdiction so long as it has been legitimately imposed, and in its purest and extreme sense, regardless of religious or moral content. The fact that this law is imposed, or posited, resulted in the name Positivism.[4] Positivists therefore recognize that law is basically necessary to the society to establish rules which are legitimately imposed.

The Pure science of law says “the law from the metaphysical mist with which it has been covered at all the times by the speculations on justice or by the doctrine of ius naturale“.[5] Mainly Hans Kelsen states a legal system exists in order to impose obligations on certain individuals; to know whether in a particular case an obligation exists, we ask whether the individual, if he disobeys a rule, would suffer a sanction.[6] So what Kelsen’s theory says is that law is needed to the society to impose obligations on individuals and to impose sanctions on those who disobey.

The historical school considered every members of community has an instinctive sense as to what is right and proper, although naturally he may have no views on matters which are beyond his experience. He has an idea of law in direct relationship to the life of community and thus laid the foundation on which the modern sociological school has built.[7] This view express that law is the guiding principals of  one’s surroundings within which one has to behave and his movements are shaped by what is recognized as right or wrong within his communality or society.  So Law being the guiding principles of a society is needed to the society to meet these ends of right and wrong.

Sociological school also discussed the importance of law. Dean Pound mentioned “I am content to think of law as a social institution to satisfy social wants – the claim and demands and expectation involved in the existence of civilian society, by giving effect to as much as we may with the last sacrifice, so far as such wants may be satisfied or such claim given effect by ordering of human conduct through politically organized society.”[8] So, this theory shows one aspect as to why we need law to the society, which is to satisfy social wants by ordering human conduct.

The Scandinavian Realists say law is indispensable for the maintenance of human society. Thus law is needed to a society and it needs no basis, no higher explanation or justification. Its content should be determined by the requirement of social welfare. Rights and duties are by-products of the maintenance of law and not things are protected by the law, nor can they explain or justify the law itself.

When we finally come to the conclusion of the analysis of these scholars’ discussions, which should take the space of a dozen of pages to describe, there are existing laws that regulate the action and general welfare of its people and the country itself. Basic function of legal institution is to establish a common relationship of order. As a form of communication, laws drive people to be involved and participate in one’s society in relationship. The law is necessary because it provides the people the opportunity to be an active and effective member of the community. More so, law is necessary because it is the one that defines the limitations and boundaries of a certain organization or country. Also, laws are necessary because it has the ability to secure the rights of each individual, especially in the context of political and civil rights being and to be implemented.

Law is more concerned with protecting people than punishing them. Law is wherever we are at any time shaping and protecting the individual. That is, when we are at home some domestic laws are working. When we go to out to walk some human right laws, some municipality laws are working. So law is Important to protect our rights. We can see in the day to day activity how law affects our everyday life, that things like walking along the road, driving a vehicle, disposing garbage, smoking at a public place, putting a radio on,  to name a few activities, are all affected by the law in some way or the other.

………………..

B. Kalyani M. Jayasekera is studying LL.M at South Asian University, New Delhi.

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


[1] Locke J., The Second Treatise of Government, chap. 3, ¤16, in Two Treatises of Government, ed. Peter Lasslett (Cambridge: Cambridge University Press, 1988), p. 279

[2] Wild J., Platoe’s Modern enemies and the Theory of Natural Law (Chicargo 1953) , pp.64-76

[3] Bodenheimer Edgar., Jurisprudence; The Philosophy and Method of Law, Universal Law publication Ltd; Fifth ed(2006), Page 33

[5] Kelsen, Law, a centaury on progress, ii. 231; Jones,47 L.Q.R.(1931),62

[6] Paton G.W. & Derham David P., A Text Book on Jurisprudence, Oxford University Press, Fourth Ed, pp 15

[7] Ibid 6, pp 19

[8] Pound R., Introduction to the philosophy of Law, Rew. Ed.(New Haven 1954),p. 47

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