Society cannot exist without rules of social order. Hence every civilized society has its publicly recognized authority for declaring, administering and enforcing its laws. Can you for a moment visualize a State without law and any enforcement system (if such state ever existed).
Suppose the Nigeria Police Force were to
observe one day public holiday? What would you find?
The
state of normlessness or lawlessness is shade or two worse than the perpetual
state of warfare and reign of terror and fear. This is a mirror of the state of
nature whereas Thomas Hobbes stated in The Leviathan: “each man was his own
master; personal force alone determined each man’s position. Life in these conditions was “solitary, nasty,
brutish and short”.
This leads one to appreciate the fact that the society cannot
exist without rules of social order – law. The picture of a State without law
helps to bring to the fore, what the functions of law would be in the society.
At the
end of this article you should be able to evaluate whether or not law is an
instrument of class, domination or a way to mystify power relation, evaluate the
purpose and functions of law vis-Ã -vis and prospects that it would “wither
away” at certain stage of development.
Functions of Law in the Society
However, Law is the most institutionalized
means of social control in the society.
1. Concept of Man
2. Protection of Interests
3. Preservation of Life
4. National Security and Public Safety
5. Social Welfare of State
6. Maintenance of Justice and Fairness in Society
7. Law as a
Transforming Agency
8. Advancement of Economic Growth, advances economic
growth
9. Promoting Of Socio-Cultural Development
10. Law Promotes Legal Order
11. Moulding Future Conduct
12. Intervention between State and the Citizens
13. Law Enforces Its Supremacy
1. Concept of Man: Man, by nature, is passionate, covetous and if he is left to himself, the world would resemble the devils workshop, where the logic of the first would reign.
The
original state of man was one of disorder, force or violence. Bodin and man is
the most criminal creature made by God - Schophenhauer. Man is a sinner and
what he produces (overt act) is part of the original sin and man’s spirit of
rebellion strikes against almost all authority and every institution in
contemporary culture.
St. Augustine
Seneca expressed the view that in his primitive state, men lived together in
peace and happiness, having all things in common; there was no private
property, there was no coercive government. Order was of the best kind for men
followed nature without fail and the best and the wisest men were their rulers;
who guided and were gladly obeyed as they commanded wisely and justly.
As time
passed, the primitive innocence disappeared; men became avaricious and
dissatisfied with the common enjoyment of the good things of the world and
desired to hold them in their private possession.
Avarise
rent the first happy society asunder and the kingship of the wise gave place to
tyranny so that men had to create laws which should control their rulers.
In essence,
men agreed to give up voluntarily their unfettered individual rights and submit
to the authority of a sovereign, a “Leviathan”.
There is no agreement as to whether this social contract arose from fear and force (Hobbes) or in an atmosphere of enlightenment and reason (Locke and Rousseau).
What perhaps is less controversial was the
felt need to prevent or put an end to reign of warfare, terror and fear
and to maintain or usher in security, convenience and an ordered community.
2.
Protection of Interests: Von Ihering has said that,
“the purpose of law is the protection of interests”. But what is “interest and
whose interest? The good of the individual is not itself an end, but only a
means of securing the good of the society.
In
essence, the society is a higher conception than the individual so that the
individual can desire the common interest in addition to his own.
Andrei Vyshinsky’s view is that law and the state are one so that any criminal act is a danger to the regime and the state. He thought that emphasis on individual was a mere cloak to shroud the exploitation of workers by the bourgeoisie.
In
the western philosophy, function of law is to hold a balance between interests
of the individual and those of the state.
3.
Preservation of Life: According to Sohn, law is
the sum of rules, which regulates the life of the people, or creates social
order and organization that are necessary for preservation of life and ordered
control of the life of the community.
He explained
that the private law governs the rights and duties of individuals while public
law regulates the relationship between the individual and the state.
Von
Ihering sees the function of preserving life from the angle of striking a
balance between egoistic and altruistic motives. He said that the purpose is
the universal principle of the world.
The purpose of human
violation is the satisfaction derivable from acts. The purpose of law is the
protection of interests. It is the function of law to regulate the combination
of egoistic and altruistic motives; to reconcile the interest of the individual
and the collective interests of society. Law therefore should be moulded to
serve practical purposes.
4. National
Security and Public Safety: Emergency
powers to incarcerate persons who commit or are suspected of having committed
an offence, and to stop and search without warrant any receptable suspected to
contain explosives, firearms and ammunition, exist for purposes of national
security and public safety.
Moreover,
both the military and the police have powers to order the detention of “trouble
maker” whose freedom is reasonably considered prejudicial to the society.
5. Social
Welfare of State:
(i) The
Constitution and various statutes enhance freedom. It is by Law Slave Trade and
Slavery extraction of executive bride price or discrimination against Osu caste
were abolished.
Law
frowns at arbitrary arrest and detention, and guarantees right of freedom of
movement, speech and association. Writ of habeas corpus or Fundamental Rights
Enforcement Proceedings are provided by law where ones freedom is curtailed
wrongfully.
(ii) Tax
laws provide money for social amenities.
(iii)
Traffic laws provide for orderliness on the highways
(iv) Law
of contract encourages business transactions and allows them to strive.
(v) Law
of tort protects proprietary rights and freedom of property, and commands
compensation, damages or other remedies in case of trespass.
(vi)
Arbitration laws and rules of courts provide ways of setting disputes when they
arise.
(vii)
Law Performs normative and social functions by pointing to direction of wrong
committed by members of the public and helping or supporting state
functionaries, operators and machinery of society.
6.
Maintenance of Justice and Fairness in Society: Some writers equate law with justice, contending that Law ought to
be just. Jus Naturale, jus gentium and Equity and its body of rules were
developed out of the desire and search for justice, fairness and good
conscience, for all peoples.
Kelsen denies
there is a natural law or immutable principles of justice to which the judge or
legislator can appeal. Nevertheless, “justice is an absolute requirement” and
the judges in applying the law must be fair, impartial and devoid of personal
prepossession or idiosyncrasy.
Furthermore,
legal history has shown that:
(i) Some
basic standards are common to every society. Every society criminates murder,
theft, rape.
(ii)
Province of law and morals is uncertain in certain ‘marginal’ forms of belief
e.g. incest, abortion, infanticide.
Both law
and ethics are relative. This explains why incest which was not criminal before
1907, suddenly became one in 1908. Suicide in England (not in Nigeria) was
criminal in 1960, but it ceased to be so in 1961.
Homosexual
conduit is now an ex-crime in so far as it is between consenting adults.
Wandering used to be a crime in Nigeria until comparatively recent times. Only
three out of Ten Commandments are crimes yet all the commandments both crimes
and non-crimes are very important to Christian civilization.
The
Constitution provides that no one may be condemned unheard and for equal opportunity
and reasonable time for defense and very importantly for fair trial. The
provision is available for all – both high and low, rich and poor, the saint
and the offender and even the tiresome zealot in the minority group.
One must
recognize that there appears to be some dichotomy between “Justice according to
Law” and “Justice in the Law” (in theory or practice). The common desire is
that the law ought to be just.
7. Law as a Transforming Agency: Notion of law changes from society to society, from one generation
to another even within the same society. The reason is that it tries to
maintain the established social order and at the same time, effect social
change to meet modern requirements of a new society, taking cognizance of and
responding to new learning, new facts, different set of prejudices, disparity
in sets of questions people ask daily, in sets of values, economics, education,
social achievement and ideological orientation and very importantly quest for
ideals of justice and for a transformed and better society.
Roscoe
Pound says that the chief end of law is social control and a legal system
attains the ends of the legal order by “social engineering” which meant,
satisfying, reconciling, harmonizing and adjusting overlapping and often
conflicting and competing interests in the society, namely individual
interests, public interests and social Interests.
In this
way, law seeks to conserve societal moral welfare and safety as well as
regulate the process and smooth ordering of society.
8. Advancement
of Economic Growth, advances economic growth by:
- Conferring
legal tender on local currents
- Securing
indigenous participation in or ownership of raw materials.
-
encouraging the drive towards egalitarianism
-
fostering the interest of local entrepreneur e.g. Nigerian
9.
Promoting Of Socio-Cultural Development:
Law
contributes to the following:
(i)
Advancement of workers social security and better working conditions. Examples
National Provident Fund, Cooperative Societies,
Community Banks, Factories Act, Workers Compensation Acts.
(ii)
Advancement of Education
Universal
Primary Education (UPE), Universal Basic Education
(UBE),
National Open University of Nigeria (NOUN) etc. See also various universities
legislations.
(iii)
Liberalization of divorce. See Matrimonial Causes Act
(iv)
Improved general living conditions e.g. Motor Traffic Legislations, Price
Control Law, Rent Control Laws, NEPA and its semi-autonomous status.
10. Law Promotes Legal Order: Law originated from customs in the form of rules for settlement of disputes, e.g.-Rights to claim from Insurance Companies
- Rights
of workmen and next of kin.
11. Moulding
Future Conduct:
- Law
teaches how to organize affairs and avoid litigation
- Guides
human behaviour determinately or indeterminately
- Guides
people’s decision to act or omit to act.
Arouses
Expectation e.g. Rule of law for Africa (Delhi Declaration (1959)),
Lagos Law (1961), The Constitution (1999)
Fear of
sanction of supernatural nature or of the penal sanctions control peoples
actions and behaviour. Both in pre-literate societies and modern, the law has
continued to speak and warn against its own violation.
12. Intervention between State
and the Citizens: It is both in the interest of the government and all
persons in Nigeria that the law is even handed between them. See the Constitution;
Sec. 6 Aggrieved persons have access to the writ of habeas corpus and Fundamental
Human Rights Proceedings.
Law also
encourages Arbitration and Peaceful Resolution of disputes. It discourages
self-help.
The Rule of law assures that everything is done according to law; that government is conducted within the framework of recognized rules and principles which restrict discretionary powers and that disputes as to the legality of acts of government are decided by judges who are wholly independent of both legislatures and executives.
See Garba v. Federal Civil Service Commission where the Supreme Court held that:
“The military in coming to power is usually faced with the question as to whether to establish a rule of law or rule of force. While the latter could be justifiably a rule of terror, once the part of law is chosen, the mighty arm of government, the militia, which is an embodiment of legislature and executive, must in humility bow to the rule of law thus permitted to exist.”
The rule
of law knows no fear. It is never cowed down. It can only be silenced. But once
it is not silenced by the only arm that can silence it, it must be accepted in
full confidence to be able to justify its existence.
13. Law
Enforces Its Supremacy: Law is superior to the
State, the Executive and the judiciary and to all other norm. It deters one
from doing what it proscribes, confers rights, and imposes responsibility on
government and citizens. It commands its own obedience.
Conclusion on 13 Basic Functions of Law in Society
You have
had an exciting on the function of law in the society as espoused in various
schools of thought. You also learnt of the conflicting views of human kind,
different categories of interests and different facets of security or
insecurity and of a felt-need for ‘order’ and for ‘justice’. You should
critically be thinking of law as an instrument of change in your community and
in Nigeria.
The functions
of law in the society are infinite. Law ensures survival of the society, sustains
accepted standards of public morality of the day, provides the substratum for
social-economic emancipation, a desire to live, and necessity for living in
society. Pollock states: Order, not compulsion is the fundamental character of
law. Whatever the stage of civilization, every community has its means for
declaring, administering, and enforcing the law, and publicly appointed or recognized
bodies (e.g. Courts of Justice), which administer such rules. It
is a sad commentary therefore that the society still experiences immorality,
disorder, and different kinds of crimes.
The reason perhaps
is that the ruling minority creates laws in accordance with the ideology of its
class, which is not in harmony with the socio-economic reality and the desires
of majority. Coercion has proved ineffectual in sustaining such laws that do
not conform to the common fundamental desires of the people.
Moreover, a
government determined to abandon democratic courses often finds ways of
violating the laws. So are human beings, in response to varying motives and
circumstances.
Nonetheless, laws
have continued to be of great value in preventing a steady deterioration in standards
of freedom and encroachment on individual rights.
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