Tutorial-1: Explain the nature and function of law in the modern society.

Sem-2

Problem-: Explain the nature and function of law in the modern society.

Solution:

The concept of the functions of law is of major importance in the modern society. It is
needed to explain the nature of law, to explain disciplines associated with law, to
correctly interpret and apply law, to pinpoint the interaction of law with social norms and
institutions, to determine which general principles to which the law should conform or
deviate, and to explain the law within the context different jurist. This tutorial aims to
contribute to the elaboration of the comprehensive reasoned scheme of the functions of
the law.

The law and the legal system are very important in any civilization. In modern times, no
one can imagine a society without law and a legal system. Law is not only important for
an orderly social life but also essential for the very existence of mankind. Therefore, it is
important for everyone to understand the meaning of law.

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, we say the laws of gravitation, or optics or mechanics, as well as the
laws of nature and of nations.

Law is technique, but art as well, the art of good and equity - jus est ars boni et aequi."
Law is a set of rules established and guaranteed by the state, having as purpose the
organization and discipline of human behavior in key relationships in society, in a climate
specific to protection of essential rights and freedoms.

It is possible to describe law as the body of official rules and regulations, generally found
in constitutions, legislation, judicial opinions, and the like, that is used to govern a society
and to control the behavior of its members, so Law is a formal mechanism of social
control. Legal systems are particular ways of establishing and maintaining social order.

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Tutorial-1: Explain the nature and function of law in the modern society. Sem-2

Law is a social science grows and develops with the growth and development of society.
New developments in society create new problems and law is required to deal with those
problems.

II: DEFINITION

(i) : According to Blackstone Definition

"Law in its most general and comprehensive sense means a rule of action or actions
whether animate or inanimate, rational or irrational. Thus we say, the law of motion,
gravitation, nature of nation.

According to A Dictionary of Basic Legal Terms, law is the regime that orders human
activities and relations through systematic application of the force of politically organized
society, or through social pressure, backed by force, in such a society. This definition of
the law, while true, is too abstract and long for our needs. We should therefore think of
the law in more basic terms as rules that govern and guide actions and relations among
and between persons, organizations, and governments. This is the short and easily
understandable definition that we will use.

(ii) : Austin definition of Law

In the widest sense, Law is a rule laid down for the guidance of an intelligent being by an
intelligent being having power over him". Or "It is the aggregate of rules set by men as
politically superior or sovereign to men as politically inferior.

(iii) : Professor Hart

Hart defined law as a system of rules, a union of primary and secondary rules

(iv) : Glanville Williams

"Law is the cement of society and also an essential medium of change. Knowledge of law
increases one understands of public affairs. Its study promotes accuracy of expression,
facility in argument and skill in interpreting the written word, as well as some
understanding of social values".

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Tutorial-1: Explain the nature and function of law in the modern society. Sem-2

(v) : Thomas Hobbes

"Law is the formal glue that holds fundamentally disorganized societies together."

Secretary of State for the Home Department ex p Khan, R v (1985) CA

[Justice - judicial review - legitimate expectation]

A and his wife, both Pakistani nationals wanted to adopt a child, aged 5 1/2, born in
Pakistan of a close relative. A sought advice and was handed a letter issued by the Home
Office which declared the legal position. A commenced the necessary procedures along
the lines indicated by the letter for such cases. Owing to an administrative muddle the
entry application for the child was refused.

Held: By sending the circular letter the Secretary of State had effectively made his own
rules. The categories of unreasonableness were not closed and an unfair action would
seldom be a reasonable one. The Secretary of State had misdirected himself according to
his own criteria and had acted unreasonably. A won.

II: LAW IS A COLLECTION OF RULES

When speaking of the law we imply usually the entire collection: law rooted originally

in the day-to-day unwritten customs of the people, but later on the law was being created

by a special body, exactly by the legislation. Law is for measuring the human conduct.

The larger is the community (which may be a group or even a state) the more complex

and numerous will be the rules. Members of the society want to live and work together,

so they need the law (rules or orders)

III: FUNCTIONS OF LAW

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The law serves many purposes and functions in society; basic function of law is keeping
the peace. Four principal purposes and functions are establishing standards, maintaining
order, resolving disputes, International order and Moral order.

(i) : Establishing Standards

The law is a guidepost for minimally acceptable behavior in society. Some activities, for
instance, are crimes because society (through a legislative body) has determined that it
will not tolerate certain behaviors that injure or damage persons or their property. For
example, under a typical state law, it is a crime to cause physical injury to another person
without justificationdoing so generally constitutes the crime of assault.

(ii) : Maintaining Order

This is an offshoot of establishing standards. Some semblance of order is necessary in a

civil society and is therefore reflected in the law. The lawwhen enforcedprovides
order consistent with societys guidelines.

(iii) : Resolving Disputes

Disputes are unavoidable in a society made of persons with different needs, wants,
values, and views. The law provides a formal means for resolving disputesthe court
system. There is a federal court system and each state has its own separate court system.
There are also various less formal means for resolving disputescollectively called
alternative dispute resolution (ADR).

(iv) : International order

In many respects the international law is very important. For example: Regulation of the
use of the sea, or even space Crimes against humanity Regulation of world trade The
protection of the environment Prevention of torture in war Independent international
courts, etc.

(V): Moral order

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This function is extremely controversial. There are clear dangers and considerable difficulties in
seeking to equate law and morality, not least because of the problems of determining what the
common morality is on given issue. Nevertheless many rules of law are founded on a moral view
of society. Perhaps the clearest example is the moral imperative not to kill people, reflected in
rules of criminal law which outlaw such activity. Conversely, there may be rules of criminal law,
for example not exceeding speed limits, which many would not regard as morally repugnant, but
which should nevertheless be defined as criminal.

All the functions of law are essential upon the stage in the development of that society.
While many of these functions of law will be common to very many societies, others will
certainly not be. The laws that exist and the ways in which they are used are dependent
on the ideology and politics of the particular country. The functions of law are by no
means always consistent with each other: the role of law in advancing equality, or social
justice may be conflict with its role in supporting current social and economic orders.

IV: ADMINISTRATION OF JUSTICE

According to Salmond: -The administration of justice implies the maintenance of right

within a political community by civilized substitute for the primitive practice of private
vengeance and violent self-help. This has been criticized on the ground that it is not the
force of the state alone that secures the obedience of law. There are a number of other
factors such as the social sanctions, habit and convenience which help in the obedience of
law. In civilized societies, obedience to law becomes a matter of habit and in very rare
cases the force of the state is used to secure it

According to Austin: Law is the aggregate of rule set by men as politically superior, or
sovereign, to men as politically subject. It means law is command of sovereign. In his
definition Command, duty and sanction are the three elements of law.
The fundamental difference between the definitions of the two jurists is that whereas in
the definition of Austin, the central point of law is sovereign, in the definition of
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Tutorial-1: Explain the nature and function of law in the modern society. Sem-2

Salmond, the central point is Court. In fact, both the definitions are not perfect and
present two aspects of law.

Salmond : Points out that men do-not have one reason in them and each is moved by his
own interest and passions. The only alternative is one power over men. A man is by
nature a fighting animal and force is the ultimate ratio of all mankind. As Hobbes puts it
without a common power to keep them all in awe, it is not possible for individuals of
live in society. Without it injustice is unchecked and triumphant and the life of the people
is solitary, poor, nasty, brutish and short. Salmond says however orderly a society may
be, the element of force is always present and operative. It may become latent but still
exists.

Main Kinds of Administration of Justice

Civil Criminal

1. Administration of Civil Justice: The wrongs which are the subject-matter of civil
proceedings are called civil wrongs. The rights enforced by civil proceedings are of two
kinds (1) Primary and (2) Sanctioning or remedial rights. Primary right are those rights
which exists as such and do not have their source in some wrong. Sanctioning or
remedial rights are those which come in to existence after the violation of the primary
rights. The object of the civil administration of justice is to ascertain the rights of the
parties and the party who suffers from the breach of such rights is to be helped by way of

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paying damages or getting injunction, restitution and specific performance of contract

etc.
2. Administration of Criminal Justice: The object of the criminal justice is to determine
the crime of a person who is charged with the doing of an offence. The criminal court
after proving that the offender is guilty of the offence charged awards him the
punishment of fine, imprisonment as prescribed by criminal law. A convicted person is
awarded physical pain. Thus the main purpose of the criminal justice is to punish the
wrongdoer.

From the very design that induces a number of men to form a society which has its
common interests, and which is to act in concert, it is necessary that there should be
established a Public authority, to order and direct what is to be done by each in relation
to the end of the association. This political authority is the Sovereignty; and he or they
who are invested with it are the Law is very important in the society. It is a must in order
for a society to be peaceful and problem-free.
Law is a man-made therefore it is in you if you will follow it or not. If you do not follow
the law, it doesnt mean you will die, so nature has nothing to do on the laws of man. The
law is something that the human has created to modulate the society by introducing
justice, fairness and equality that is set by courts and governments and is applied to
everyone within their jurisdiction. The law can give protection to the victims and will
punish those who have done unlawful actions. You dont have any option where you can
choose from, if you disobey, then, you have to face the consequences.
If a society wont have a system of law on it that will control how the people operates
their lives, then there would not be a society to live in. people will be able to make
decisions that will solely be based on their principles, then they would be able to do
crimes if they want to, steal, murder, damage, bully, rape, trespass, and even terrorize
what and whom when they wanted want to, and nothing would be done about it at all.

Therefore, it will be a disaster if not possible if people in a society will do actions that are
solely base on their principles. If there wont be law, nothing will stop the people on
doing things that they want, with that, they will be free to do revenge and it will be vice-
versa for they know that they could totally get away unto anything they do, even if it is
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bad and unlawful. Eventually, the society will be full of crimes, murders and illegal
actions. If there wont be any rules in a society, then even a simple waste disposal will be
a big problem that could affect the whole world. If not done properly, it may lead to
diseases that can kill the human race. The supply of water could also be affected if there
were no rules. No one will work to maintain the cleanliness of it for they may turn unto
doing things that may give money more easily even though it is not right at all. No one
will cure us when we were ill and help us in times of trouble. In the end, each of the
people will find their own ways to live and survive; itll be like a war zone. This merely
shows how important it is to have a system of law in a society to regulate a good
relationship with each other, even for those with conflicting interest. This is the only
procedure that could ensure that the human rights are respected. If we wont have laws,
our society would not be able to function effectively. Crimes will become everyday
occurrences that children will grow up and will then find it normal, which is not desirable
to happen in our future generation that is why law is very important, it ensures the safety
of our future generations.

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