Introduction:
Can we imagine a society without any order or rule or any regulation for either the subject or the sovereignty? What kind of society can it be then? It’s quite easier to answer but difficult to imagine.
What makes the humans different from the other species of this animal kingdom is not just ‘an order governing the humans and their actions’ but also their ‘consciousness towards such orders.’ It is the consciousness towards the societal order that lays the foundation stone of the development of Law.
Law originates whenever the people deem it necessary & they are of the opinion that in order to meet their ends, a social order must exist, governing their actions. This concept of ‘an order’ marks the beginning of the evolution of Law in any society. For any society or a country, the proper functioning of the Law and order is a must. In this present Article we’ll try to focus on the various purposes of Law and its importance in the society.
Evolution of Law
The Civilisations, anywhere in the world does not rests upon the technological innovations or on the various literary compositions. But, on the proper maintenance of the Law and order in the society. Till now, more than a dozen of definitions are available pertaining to the question… ‘What is a Law?’
Citing various arguments, different philosophers or political thinkers have tried to define it.
- According to Salmond: “The Law may be defined as the body of principles recognized and applied by the state in the administration of Justice”.[1]
- According to Austin: “a Law, in the strict sense is a general command of the sovereign individual or the sovereign body. Issued to those in subjectivity and enforced by the physical power of the state. He further states that “Law is aggregate of rules set by men politically superior or sovereign to men as politically subject.” And “A Law is a command which obliges a person or persons to a course of conduct.”[2]
- Ihering defines Law as ‘the form of Guarantee of the conditions of life of society, assured by state’s power of constrain.” He says Law is a means to an end and end of the Law is to serve its purpose which is social not individual.[3]
- Pound defines Law as a social institution to satisfy social wants. He says Law is a social engineering, which means that Law is a instrument to balance between the competing or conflicting interests.[4]
After the primitive stages of our development. The Humans realised the need for an order in the earliest tribal societies. Although most of the earliest tribes concentrated more on their issue of survival via food and shelter, but it was later on felt that the tribes won’t survive unless there exists an order, guiding them.
It was this consciousness towards an orderly society that the early man felt necessary for attaining his ends. And this consciousness on the part of the early men, put forwarded a set of rules for guiding various actions of their day to day lives. This was the beginning of one of the first sources of Law i.e., the Custom. The customs are a set of rules, made after a general acceptance by the members of the tribes/communities for their convenience.
Generally, two assumptions are made with regards to the customs, i.e., the early men obeyed the customs either because they found it desirable and convenient enough do so, or they got accustomed to them or because of their desire for an orderly society. For the earlier societies, custom was itself a Law.
With the emergence of the Religion, a new social order developed. Earlier the Law i.e. the customs, which were just a set of rules, now got coloured with the concepts of ‘faith’. The Law got a divine status. Law was considered to be the command of the Almighty and the Ruler was the only person entitled to enforce it on behalf of the Gods.
It was in this era that the customs got blended with the religion. This inseparable blend of customs and religion gave a new perception of Law. In the human history, till date, the religion and the customs play a vital role in regulating our lives.
In many modern countries, theology plays a major role in the field of Law.
So, after a long history of recognizing the religion and customs by the state as the major sources of Law. The enlightenment of the people in the succeeding centuries paved the way for new principles of Law.
The earlier Laws which were considered to be the mere command of the Supreme Authority, came under severe criticisms, with the growing demands of the men.
Earlier the Law, which was of mandatory nature and which provided no opportunity for the people to have a say upon its desirability or application, was now being questioned on the grounds of Equity, Good Conscience and Principles of Natural Justice.
The people felt that Law was indeed a necessity for maintaining the social fabric and keeping all the elements of the society intact. But every Law, must pass the tests of equity and various other principles of Law. The entire conception of Law changed with the evolution of the Principles of Liberty, Equality and Fraternity. And with this changed the scopes and the purposes of Law.
Purposes of Law
While discussing the various purposes of Law, the first one which strikes, is the ‘maintenance of societal order’. A mere presence of the Sovereign or the Subject is not enough.
There should be a guideline for both of them i.e., there should be an order regulating the activities of the various entities of the state and of the general public. The main reason behind this is that, a society devoid of any order or rule will end up being chaotic.
In the absence of law, the social harmony will be disrupted and the Barbarism will prevail. Peoples will then be guided by the rule of the Jungles. And ‘Might is Right’ will trend in such societies.
Law, is the steering wheel of the society. Law was present since hundreds of years, but its maintenance was necessary for keeping the balance between the various elements of the society.
For the purpose of maintaining the Law, sometimes harsh measures are used by the state. But such measures, must always be checked from time to time. The punitive measures are aimed to keep a control over such elements of the society, who have a tendency to inflict harm upon others or who can disrupt the societal harmony.
But as the saying goes, “Power Corrupts”, a system of checks and balance must be involved in the law itself to ensure that it is not misused by those who have the access and ability to do so.
Conferring unfettered discretion to the Sovereign would amount to a despotic rule and similarly providing too much of power to the people will affect the functioning of the social order as there will be a tendency of frequent clashes between the groups.
Hence, the law should be such so as to maintain the balance of the various elements of the society.
The second important task of a law is to establish the standard. Law establishes a framework for the people to follow. It sets out the definite norms of acceptable behaviour in any society for the people to follow. A restriction is also placed upon such actions which will not be acceptable to the society. It actually categorises the variety of activities in two major folds; one, which is acceptable and legal in nature and another, which isn’t acceptable and deemed illegal by the society.
The third purpose of the law is to resolve the disputes between the parties. With the growth of the economic activities of the state, there is a growth in the clashes between the individuals. And such disputes are sometimes simple, sometimes complex.
Earlier, in countries like India, there were scriptures used by the village councils to interpret the laws and to resolve the disputes. But in the contemporary times, the increase in the number of disputes has burdened the judiciary and hence there is a growing demand for the alternative dispute resolution mechanisms in any society.
All of these are the innovations of law, carved out of a process of continuous judicial interpretations and study of the law.
These days, the law puts more emphasis on settling the issues, rather than preferring litigation. Mediation is one such innovation of law. All of these techniques are largely accepted by the countries all over the world, because of its impact upon the individuals & the larger desirability by the people.
And the foremost purpose of the law is to protect the individual liberties and the rights. Since, time immemorial, from the primitive stages of human civilization to this modern world, people were always concerned about their rights. Although, in the ancient times, such values didn’t get the sanction of the state. And the State largely neglected such values and coercive laws were implemented upon the individuals.
But, with the sense of revolution, such attitudes of the state were overthrown by the people. The positivistic approach of the law became subservient to the Theories of Natural Justice & other Marxian principles. The ideas of liberty, equality & fraternity were adorned by the people. And the definitions of law as well as the extent and its applicability changed drastically.
A major emphasis was laid on the principles of Natural Justice. It was also felt that to maintain the social order, laws are required to be rigid sometimes. But such rigidity must respect the liberty and other conferred rights of the people concerned. For any action of the executive, there should be a remedy available to the person concerned in order to provide him an opportunity to present his appeal against such an action.
Conclusion
Law is a string, holding the pearls of the civilisation together. The utility and the essence of law has been felt since the times of primitive societies. Through a gradual process of development, the law has provided various guidelines for determining and safeguarding the interests of both the Ruler and the Ruled.
The Laws can be good or can be bad. And all of this will depend upon the perceptions and the circumstances prevailing in any society. But for any law, to fulfil its objectives, it should conform to the ideals of equity, equality, liberty, justiciability and reasonableness. Only then can such a law be regarded as a law in a true sense.
It’s always important to remember that, for any law to be desirable, both to the Sovereign and to the Subject, it should stand rigid while applying and enforcing the laws without discrimination and, it should be flexible enough to accept the changes around the society.
References:
[1] Jurisprudence-I-Law, University of Kashmir, Department of Law, University of Kashmir,available at http://law.uok.edu.in/, last seen on 29/08/2021
[2] Ibid. at 3
[3] Ibid. at 5
[4] Supra 1, at 5
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