DISCUSSION: Why Law?

Prity Pathak

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We hold from the God a gift. This gift is life-physical, intellectual and moral life. But life can’t maintain itself alone. The God has entrusted us with the responsibility of preserving, developing and perfecting it. For the accomplishment of these, he has provided us a collection of marvelous faculties and he has also given us a variety of natural resources. By the application of our faculties to these resources we can convert them into products and use them.

Life, faculties, production or we can say, individuality, liberty, property, these three gifts from God precede all human legislation and are superior to it. Life, liberty, property don’t exist because men have made the laws. On the contrary, it is the life, liberty and property caused the men to make laws. Now question arises, what, then is the law and why do we need it?

“Law is a system of rules and guidelines which are enforced through social legislation to govern behaviour.”[1]

According to  BLACKSTONE, “Law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of actions, whether animate or inanimate, rational or irrational. Thus there is a law of gravitation, of optics, of mechanics, as well as the law of nature and of Nations.”[2]

If we take the definition of BLACKSTONE, we can say that law touches our life every day. But many of us will not accept it. We’ll ask how this can be. Because we belief that, law is there to punish offenders only. This is far from the truth. Law is more concerned with protecting people than punishing them. The law is constantly working for us that are from the time we wake up in the morning until, we go to sleep. For example going to  the toilet, taking bath, having breakfast, watching T.V or  being driven to college/office, all are regulated by law in some way or the other way. Going to the toilet or taking bath need sanitation or health law, because if the water is not neat and clean, may cause disease. Similarly having breakfast require food laws or we take example of watching T.V, it also required laws i.e. censorship or Broadcasting laws. Driven to college/office there also law help us, because when someone drive on road he/she must follow the Traffic rules, if someone violate the rules, again laws come into picture like MOTER VEHICLE ACT,COMPENSATION ACT,INDIAN PENAL CODE, Cr.P.C etc. Even laws work for us, when we don’t come in existence or on this Earth, like MEDICAL TERMINATION OF PREGNANCY ACT 1971, THE PRE-NATAL DIAGNOSTIC TECHNIQUES ACT 1994, and Trust Laws. It is only because of law i.e. sec 13 of TRANSFER OF PROPERTY ACT 1882; transfer for the benefit of unborn person is valid.

Even if, we take an example of a game we can understand why we need laws. A game is played by some persons .They do’nt know how to play and what to do? In the middle of the game they are told to stop because they are playing wrong. This game can’t be enjoyed by them and they will feel hurt. Similarly in society also if there is not any consistency, or certainty, it will not run smoothly. Only Laws bring consistency uniformly clarity and precision in society.

“If individual knows law before hand, the results of his particular actions on his part thus become predictable”.[3] Like one person enters into an agreement with other. There must be some laws which look into the agreement and here comes the contract Act, Transfer of Property Act, Registration Act, Negotiable instrument Act, Sales of goods Act etc.

In the similar game example, some persons, who were wearing glasses asked not to play anymore only because of they are wearing glasses. This shows unfair behaviour in form of discrimination against those persons. Here again law comes into picture and declares such behaviour unconstitutional under Articles 14, 15, 16 etc of Indian Constitution.

SALMOND’s define law “as the body of principles recognised and applied by the state for the administration of justice.”[4] He further opines that though every man wants others to be righteous and just towards him, he himself being selfish by nature may not be reciprocal in responding justly. This is why some kind of external force is necessary for maintaining an orderly society. And to provide this external force we need the law.

One of the main objectives of law is to balancing the conflicting interest of society. Interest may be private, public or social.

Private interests include interest of physical integrity, reputation, religion, volition, marriage, relation between husband and wife and parents and children, rights of inheritance, freedom of association. These are safeguarded by laws of torts, contract, constitutional law, family laws. For example art.19, 24, 25, 26 etc of Constitution, s 125 of criminal procedure code. s. 494,497,498A etc of IPC

Public interests are interest in the preservation of state & protection of natural environment, territorial waters, and natural resources. These are protected by laws like Environment protection Act, Public liability Act, Maritime laws. Here also we can say that laws not only protect our present generation but also future generation (concept of sustainable development).

Social interests are interests in the preservation of peace, general health, social institutions such as religion, political and economic, protections of weaker sections of society. These are protected by social security legislations like payment of wages Act, minimum wages Act, contract labour Act, Employee insurance Act, Equal remuneration Act, Maternity benefit Act, Consumer protection Act etc.

We need law, to ensure the greater good for the greater number of people. If people are not bound by laws, our society will be full of citizen doing what they like to do for their own needs and desires. This will lead to anarchy and chaos in society. Law ensures a fairly well organized and safe society.

 


[1] Luban, Law’s Blindfold,23

 

[2] Paranjape N.V,Jurisprudence & Legal  Theory( 5th edition)p.132

 

[3] 3.Sarkar A.K,Summary of Salmond’s Jurisprudence,27

 

[4] 4. Paranjape N.V,Jurisprudence & Legal  Theory( 5th edition)p.164

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Prity Pathak  is studying LL.M at South Asian University

 

N.B: The write up has already been submitted as Term Paper.

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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.

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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

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

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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.