08 April 2012 Written by  Tesfaye Abate

FUNCTIONS OF LAW

Why we need law? What functions does law have in your localities? As the issue of definition of law, there is no agreement among scholars as to the functions of law. Jurists have expressed different views about the purpose and function of law. It is well known that law is a dynamic concept, which keeps on changing with time and place. It must change with changes in the society. Law, in the modern sense, is considered not as an end in itself, but is a means to an end. The end is securing of social justice. Almost all theorists agree that law is an instrument of securing justice. As Salmond rightly pointed out, “law is a body of principles recognized and applied by the State in the administration of justice.”  Even Hobbes and Locke recognised the positive role of law when they said, “the end of law is not to abolish or restrain but to preserve or enlarge freedom and liberty.” For Kant, the aim of law is the adjustment of one’s freedom to those of other members of the community. Bentham gave a very practical version of the purpose of law, which according to him, is maximization of the happiness of the greatest number of the members of the community.

According to Holland, the function of law is to ensure the well-being of the society. Thus it is something more than an institution for the protection of individuals’ rights.

Roscoe Pound attributed four major functions of law, namely: (1) maintenance of law and order in society; (2) to maintain status quo in society; (3) to ensure maximum freedom of individuals; and (4) to satisfy the basic needs of the people. He treats law as a species of social engineering.

The Realist view about the purpose and function of law is that for the pursuit of highest good of the individuals and the state as such controlling agency.

The object of law is to ensure justice. The justice may be either distributive or corrective. Distributive justice seeks to ensure fair distribution of social benefits and burden among the members of the community. Corrective justice, on the other hand, seeks to remedy the wrong. Thus if a person wrongfully takes possession of another’s property, the court shall direct the former to restore it to the latter. This is corrective justice. Rule of law is sine qua non for even-handed dispensation of justice. It implies that every one is equal before law and law extends equal protection to everyone; judges should impart justice without fear or favour and like cases should be treated alike.

It must, however, be stated that justice alone is not the only goal of law. The notion of law represents a basic conflict between two different needs, namely, the need for uniformity and the need for flexibility. Uniformity is needed to provide certainty and predictability. That is, where laws are fixed and generalized, the citizen can plan his/her activities with a measure of certainty and predict the legal consequence of his/her conducts. This is even more necessary in case of certain laws, notably, the law of contract or property. Uniformity and certainty of rules of law also bring stability and security in the social order.

Today the following are taken as important functions of law.

A)    Social control – members of the society may have different social values, various behaviours and interests. It is important to control those behaviours and to inculcate socially acceptable social norms among the members of the society. There are informal and formal social controls. Law is one of the forms of formal social controls. As to Roscoe Pound, law is a highly specialized form of social control in developed politically organized society. Lawrence M. Freedman explains the following two ways in which law plays important role in social control:
first, law clearly specifies rules and norms that are essential for the society and punishes deviant behaviour. “Secondly, the legal system carries out many rules of social control. Police arrest burglars, prosecutors prosecute them, courts sentence them, prison guards watch them, and parole broads release them [Steven; 2003: 19]

B) Dispute settlement

Disputes are un avoidable in the life of society and it is the role of the law to settle disputes. Thus, disagreements that are justiceable will be resolved by law in court or out of court using alternative dispute settlement mechanisms [Steven; 2003: 20].

C) Social change

A number of scholars agree about the role of law in modern society as instrument to social change. Law enables us to have purposive, planned, and directed social change [Steven; 2003: 20-21]. Flexibility of law provides some measure of discretion in law to make it adaptable to social conditions. If law is rigid and unalterable, it may not respond to changes spontaneously which may lead to resentment and dissatisfaction among the subjects and may even result into violence or revolution. Therefore, some amount of flexibility is inevitable in law [Biset; 2006].

RELATIONSHIP BETWEEN LAW AND STATE

What relationship do you envisage between law and state? [A note taken from Paton; 1967: 301-311]

There are three main legal theories with regard to the relationship between law and state. They are: the state is superior to and creates law; law precedes the state and binds it when it comes into existence; law and the state are the same thing looked at from different points of view.

Austin explains that state is superior to and creates law when he defines law as the command of the sovereign. According to Austin, there must be a political society of ‘considerable’ numbers, and a superior in that society who is habitually obeyed by the bulk of the members of that community. Within this community, the superior has a sovereign power to lay down the law. Collectively considered, the sovereign is above the law, but a member of the legislature is individually bound by the law.  Do you agree with this proposition? Reason out

The theory of sovereignty has been of service as a formal theory, but some writers go farther and seek to justify sovereignty as a moral necessity instead of as a convenient hypothesis. For example, Hegelianism treats the state as a supreme moral end being a value in itself; it is not bound by the rules of ethics that apply to individual person. This theory ‘grants to state absolutism the virtue of moral truth’. ‘The state is the divine idea as it exists on earth’. Do you share this idea?

This theory has been carried farther by the Naizi and Fascist conceptions, which regard law as but the will of the Leader. These doctrines treat law as an instrument of executive action, not as a check upon it: law is a weapon to achieve the ends of state policy, not a chain to hamper the executive.

According to the second theory, law may bind the State. The sovereign has absolute power over positive law, but is bound by ius naturale. Ihering considered that law in the full sense was achieved only when it bound both ruler and ruled. Ihering regards state as the maker of law and he argues that law is the intelligent policy of power, and it is easier to govern if the state voluntarily submits to the law it has created. Then, Jellinek develops this doctrine into a theory of auto limitation-the State is the creator of law, but voluntarily submits to it.

However, Krabbe and Duguit deny that the State creates law. Once we postulate that law is created by a source other than the State, it is easy to see how the State can be bound. According to Krabbe, the source of law is the subjective sense of right in the community. He asserts that any statute, which is opposed to the majority sense of right, is not law. The legislature, executive, and the judiciary are subordinate instruments through which the community expresses its sense of values.

How can a sense of right be effective unless persons are willing to put their wills at the service of the ends they desire?

What is the gist of the third theory on the relationships between law and state?

Kelsen illustrates the third type of theory that law and the state are really the same. The state is only the legal order looked at from another point of view. When we think of the abstract rules, we speak of the law: when we consider the institutions, which create those rules, we speak of the State. However, the practical importance of Kelesen’s approach is that he emphasizes that law is a more fundamental notion than that of the State. While it is true that law cannot exist without a legal order that order may take forms other than that of the state. Hence, the theory is wider, and therefore more acceptable, than that of Austin. A legal order may be created in the international sphere even though no super state is set up.

What is state? The normal marks of a state are a fixed territory, population, and competence to rule which is not derived from another state. Kantorowicz, defines the state as a juristic person endowed with the right to impose its will on the inhabitants of a given territory, of which right it cannot by law be deprived without its own consent.

It may be argued that the law being an instrument of the state is created and established along with it. No state has ever been without system of law, however crude it may have been. In like manner, system of law has been without a state defining either directly (i.e., through enactments) or indirectly (through recognition) the law is and assuring its validity and guarantying its endowment through the special machinery at the disposal of the state only. That is why law is generally defined as a set of general statements aimed at regulating choices in possible human behaviour that is defined or recognized, published and sanctioned warded by the state.

The definition of law in terms of the State possesses some advantages. It gives a clear-cut and simple test. It supplies an easy manner to show a conflict between various juridical orders for example between Church and State. If only the State can provide positive law, then the Church can have only such legal rules the state grants it. It gives an easy answer to the problem of validity of law, since law is valid for the simple reason that it has been laid down by the sovereign. It is easy to mark the moment when primitive rules become law, for we have only to ask whether there is a determinate sovereign body that has issued a command.

DIFFERENCE BETWEEN LEGAL NORMS AND NON-LEGAL NORMS

According to Black’s Law Dictionary [2004: 1086], norm is “a model or standard accepted (voluntarily or involuntarily) by society or other large group, against which society judges someone or something”. Thus, norm connotes a standard that is accepted by society voluntarily or in voluntarily. The society can judge someone or something against the norm. For example, the standard to determine a given behaviour as right or wrong is norm.

We have seen that one of the natures of law is that it is a norm. The general statement of a legal norm is not a mere rendition. In fact, all social norms differ from the mere resumption of a philosopher or a doctor, etc. True such propositions made by philosophers and medical doctors may be useful addresses; but nobody is bound to follow them. In contrary, legal norms are binding. In fact, the essence of the legal norms is that members of the society are bound to behave in accordance with the law. That is why we usually refer to statements about what will happen to an addressee who behave in accordance with the law attached to the general statements. These are what we call sanctions. Sanctions answer the question: How does the community or group in case the norms are not obeyed? What are the guarantees to ensure that the norm will be adhered to?  Sanctions are various types but their common objective is to form norm and to follow the prescribed norms. Even permissive norms are protected by sanctions; though in their case the sanction is addressed to the person permitted to do the thing but to the rest of the world commanding everybody else not to interfere with the rights of the person so entitled.

To summarize, normativity means the choice, which the rule presents with respect to the described human behaviour; the mandatory character of the norm as well as the possibility of enforcing the norm where it is ignored. Of course, law is not only social norm that has this character of normativity. Essentially, all kinds of social norms have it because it is only this character of normativity that converts any general statement into a norm. Hence, in as far as this character of normativity is concerned, legal norms differ from the other social norms mainly by the number of persons they address themselves to and by the nature of the sanctions they apply. Every legal norm is formally structured; and the three formal elements of a norm’s structure are the premise (hypothesis), the disposition and the sanction. The premise describes the social circumstances or the situations or events, which are the background for the social behaviour that the norm has in mind, and this includes a description of the addressees themselves. The dispositive element describes the kind of human behaviour envisaged and preferred by the norm as well as the choice that norm makes in this respect. It is said that it is this element that contains the essence of the norm. The sanction is that part of the norm that describes what will happen if the norm is disobeyed.

However, note should be made of the fact that we do not find all the three formal structural elements in one formulation of a single legal norm (i.e., one paragraph, one article, etc.). Often also we see that provisions of criminal code only embody half of the dispositive element and the sanction alone, leaving the rest for inference. It therefore means that complete comprehension of a single norm implies the linking together of various provisions of the law that often belong to different branches of the legal system. That is why it is said that it is always necessary to have a comprehensive understanding of the whole legal system in order to correctly apply even one norm.

We can observe that law is a set of norms regulating, in a general and binding manner, the general behaviour of person, there by organizing, protecting and develop certain social relations. Do you agree with this? Why or why not?

Both legal and non-legal norms are normatives, that means both need to create and develop human behaviours.

Non-legal norms have been inexistent before state is created while legal norms have come into existence with the coming into being of state. Thus, societies have been used to be regulated by non-legal norms fo0r example, at the time of communal society. But legal norms were gradually emerged.

What are the relations between legal and non-legal norms?

What is the distinction between law and ethics? Law tends to prescribe what is considered necessary for the given time and place. Ethics concentrates on the individual rather than upon society; law is concerned with the social relationships of the society rather than the individual excellence of their characters and conduct. Ethics must consider the motive for action as all-important; whereas law is concerned mainly with requiring conduct to comply with certain standards, and it is not usually concerned with the motives of persons. It is too narrow, however, to say that ethics deals only with the individual, or that ethics treats only of the ‘interior’ and law only of the ‘exterior’, for ethics in judging acts must consider the consequences that flow from them and it is not possible to analyse the ethical duties of person without considering his/her obligations to his/her fellows or his/her place in society. It is  equally misleading to concentrate upon those aspects of the law which are concerned directly with conduct and with ‘exterior’ factors in person’s social relations, to the exclusion of those which, explicitly or implicitly, are aimed at intention, motive and the ends which persons seek[What is Law: 33-7].

Law, in elaborating its standards, must not try to enforce the good life as such; it must always balance the benefits to be secured by obedience with the harm that the crude instrument of compulsion may do. There are many ethical rules the value of the observance of which lies in the voluntary choice of those who attempt to follow them. Nevertheless, there are other rules, which it is essential for law to enforce for the well-being of the community. Ethics thus perfects the law. In marriage, so long as love persists, there is little need of law to rule the relations of husband and wife-but the solicitor comes in through the door, as love flies out the window. Law thus lays down only those standards, which are considered essential, whatever be the motive of compliance. In one sense law may be a ‘minimum ethic’, but frequently law has to solve disputes  on which the rules of ethics throw very little light-where two persons, neither guilty of negligence, have suffered by the fraud of a third, who is to bear the loss? Ethics may suggest that the loss should be equally divided, but this is not a very practical rule for the law that requires definite rules for the passing of title and the performance of contracts.

Law and ethics are also interconnected. What are today regarded as purely religious were once enforced by law; conversely, modern law will enforce many rules designed to save the individual from him/herself in a way that would have seemed absurd to a disciple of LAISSEZ-FAIRE. There is no immutable boundary to the area of the operation of law.

Another important difference between law and ethics is that a person is free to accept or reject the obligations of ethics, but legal duties are heteronymous, i.e., imposed on the individual without his/her consent. If a rule of ethics, which is in accord with positive morality, is broken, there may be the effective sanction of the pressure of public opinion, but ethical rules are in advance of the views of a particular community are imposed by no earthly force.

What is more, it has been suggested that law creates both duties and rights whereas ethics can create only duties. This, however, may easily become a mere matter of terminology. If Ayalew is under a duty to support his father, why cannot we say that the others have ethical right to be supported? This right will not, of course, be enforced merely because it is decreed by ethics, and nether will breach of the duty to be punished, but logically even in case of ethics it is hard to conceive of a duty unless there is a corresponding right.

Furthermore, ethics deals with the absolute ideal, but positive morality is made up of the actual standards, which are adopted in the life of any particular community. Positive morality therefore (like law), emphasizes on conduct rather than the state of mind; it is also similar to law in that it is imposed on the individual from without, for it has behind it the effective, if unorganized, sanction of public opinion. How many persons would rather break the law than wear the wrong tie with a dinner jacket? Here we see the sanction behind a mere rule of etiquette, and the fear of ridicule or social ostracism protects strongly the more important rules of positive morality.

In general, there are similarities and differences between law and morality. Their similarities, according to Hart [1986: 168], are:

1)      they are alike binding regardless of the consent of individual bound and supported by serious social pressure for conformity;

2)      compliance with both legal and moral obligation is considered as a minimum contribution to social life. This is because as we have already discussed compliance with legal norms enable the members of the sociality to live together. The same holds tree with respect to moral obligations.

3)      Both law and morals include rules that are essential for life in general even though they also include special rules applicable to special activities. Thus, the members of the society are required to comply with those rules to live to gather. Thus, prohibition to violence to person and property are found in both law and morals.

What are the differences between law and positive morality?

Various tests have been suggested to distinguish a rule of law from a mere dictate of positive morality. Firstly, a rule of law is imposed by the State; secondly, while there may be a sanction behind the rules of positive morality, it is not applied by organized machinery, nor is it determined in advance… Third, some argue that the content of law is different from that of social morality: but, while it is true that law, having a different object, covers a different scope, there is no immutable boundary to its operation. Law, positive morality, and ethics are overlapping circles, which can never entirely coincide, but the hand of person can move them and determine the content that is concerned to all or two or confined to one. Ethics condemns murder, because it is once accepted by both positive morality and law.

We do find a close relationship between the rules of law and rules of positive morality, for the latter determine the upper and lower limits of the effective operation of law. If the law lags behind popular standards it falls into disrepute; if the legal standards are too high, there are great difficulties of enforcement… The close relationship between law and the life of the community is shown by the historical school, and if we admit that positive morality influences law, it must be recognized that law in its turn plays a part in fixing the moral standards of the average person. Fourthly, it has been suggested that the method of expression should be used as a test-rules of positive morality lack precision, whereas rules of law are expressed in technical and precise language. There is much truth in this, but the distinction is only relative; for early law is fluid and vague, and some social usages may be expressed very precisely, for example, the modes of address of those bearing titles.

Theoretically, there may be some difficulty in determining the exact distinction between positive morality and law. In practice, however, the legal order provides machinery for the determination of difficult cases. If a sick relative, dependent on Ayalew for the needs of life, is so neglected by Ayalew that death results, is this a breach of a legal duty or merely an infringement of positive morality?

Last modified on Wednesday, 02 May 2012 13:05