Thursday, 21 January, 2021
logo
DETOUR

Social Function Of Law and Society



social-function-of-law-and-society

Prem Raj Silwal

 

Law is a set of rules that govern the behaviour of the individuals and society and act as a means of social control to maintain social order and social discipline in society. It controls human behaviour and preserves social values and norms. Law is the most powerful and acceptable formal means of social control in a developed and politically organised society.

Society is the primary and important institution for a social function. Every political and legal system deals with the law for the betterment of society and the social function itself.

 

     Social Control

The social function of law compresses and prevents civilisation, social values, social interest, social role, social ethics and is responsible for peaceful change and larger morality. The major function of law is described in terms of the ultimate motto and goal, which is social control. The major goal of the law is maintaining peace, harmony and order.

Ancient Greek Philosopher Plato states law functions for the maintenance of social harmony. Likewise, another Greek philosopher Aristotle (384-322 BC) emphasizes on distributive and corrective justice to human life. American philosopher Lon L. Fuller (1902-1978) believed that law is the enterprise of subjecting human conduct to the governance of rules.

Many Jurists and philosophers agree that law and its broader social functions are for the betterment of human society. British Philosopher Jeremy Bentham (1748-1832) stated that ˈgreatest happiness of the greatest number of the peopleˈ is the main function of law. He emphasised basically on four functions of law which are to favour equality and maintain security, to provide abundance, to provide subsistence and to produce abundance.

 Furthermore, British philosophers like Thomas Hobbes (1588-1679), John Locke (1632-1704) focussed on political sovereignty for the better security of the people. Locke's function of law is to protect human life, liberty and property of all individuals. American Thomas Pane (1737-1809) states that the function of law is basically to protect the life of people, liberty and pursuit of happiness. His concept was applied in the political change of the USA´s independence in 1776.

French political pioneer Jean Jack Rousseau (1712-1778) emphasised maximum individual freedom and liberty for human beings. He said that man is born free and are chained from everywhere later in life. Immanuel Kant (1724-1804) also states about individual freedom and liberty. Similarly, German philosopher Rudolf Stammler (1856-1938) strongly believes in respect and participation of all with harmony as the function of law.

American Sociologist Roscoe Pound (1870-1964) pressurized on balancing the interest theory as the social function of law. Jurist John Finnis (1940) was concerned with the function of law in common goods.

 Joseph Raz (1939), a 20th Century jurist, emphasised that the consequences of the law are the function of law is actual consequences of the law. German Sociologist Rudolf Von Jhering (1818-1892) states that the main purpose of the law is to protect or reconcile as well as serve to the interests of society, in his book "Law as a means to an end" (1877).

Modern American political Philosopher John Rawls (1921-2002) was a pioneer in the field of equality and justice. His book "A Theory of Justice" (1971) believed that the main aim of the law is to achieve justice and maximization of liberty. British HLA Hart (1907-1992) who wrote "The Concept of Law" (1971) emphasized that law is not a gunman theory.

French Sociologist Emile Durkheim (1858-1917) stated that society requires conflicting and questionable activities for the own good of society.

Many philosophers and jurists emphasised that the function of law is to promote and safeguard human life, liberty, freedom, security and property. But some have denied the social function of law.

German philosopher Karl Marx (1818-1883) stated that law is the tools of exploitation of aristocrats. He further explained that law only protected and promoted the interest of capitalist and ruling class. 

 

     Correlated

In the modern era, law and society are correlated phenomena. Law is all about the protection and promotion of rights of human, person and individual of the society. In a larger sense,  a constitution is a law and legal frame of the country. A constitution is the supreme law of the land. All law and legal provision of State is for the people and society.

The Nepali society is growing and developing with advancement and modernization. In this age, all law and the legal system is being checked by society. Society is composed of different individual beliefs and thoughts. Every law and legal provision is because of the greater function of society. No law and legal provision can run and function without society and social consent.

American jurist Karl Llewellyn (1893-1962) argued that society changes faster than law. That's why the law must maintain social harmony, peace, security, justice and individual freedom.

Basically, the social function of law is concerned with primary and secondary objectives. The primary function of law is concerned with individual behaviour and phenomena and prevents the undesirable behaviour of individual in society.

It regulates criminal and anti-social behaviour in the society, promotes and prevents facilities, legal contract of an individual in society, business and commercial activities and many more. 

The secondary function of law, on the other hand, is concerned with the larger interest of society.

It constitutes of systematic operation of legal system, logical and legal settlement of disputes, implementation of competent courts decisions, enforcement of law and legal provision in the society etc.

 

     Minimum Legal Sanction

The social function principle of law believes in minimum legal sanction for peace and harmony of the society for an individual. Moreover, Social function of law is concerned with the suppression of fraudulent and anti-social behaviour along with the advancement of the social justice, individual freedom, humanity, peace, security and protection of individual and  society.

Law exists in society only for society. So law and society are connected for the betterment of society, social solidarity, social cohesion, social stability and social order with human values.  Law is not just about cohesion and sanction to individual. Rather it is concerned with the legal education to the society where the law is under facilitated control of people and society to achieve their own larger interest and good.

The pathway for goal for the State and people is common. And, the common goal comprises of progress and security of every individual in society. Without society law and legal provision are meaningless.

The social function of law and society are vast concepts and philosophies regarding these ideas always spark debate and controversy among scholars all around the globe. 

 

(An advocate, Silwal is pursuing Ph.D research on Nepali constitution)

 

How do you feel after reading this news?