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The Importance of Law Chapter 1 of the second edition of Letters to a Law Student deals with the quest ion of why anyone would want to study Law, and in the course of so doing defends the importance of law, and by extension the work that lawyers do. The object of this section is to provide a gateway through which you can explore on the Inter net in greater detail exactly why law is such an importance force in our civilis ation. The functions of law Law can be said to perform four different functions, each of which is of huge im portance to our welfare. (1) Defending us from evil The first and most basic function of law is to defend us from evil that is, thos e who would seek to harm us for no good reason. This function of law underlies 2 0th century developments in International Law such as the Nuremberg Trials and t he creation of the International Criminal Court. (2) Promoting the common good Law is not just concerned with bringing evil people to account for their actions . A community made up of people who bear no ill-will to anyone else and are simp ly concerned to pursue their own self-interest needs law because there are situa tions where if everyone pursues their own self-interest, everyone will be worse off than they would have been if they acted differently. (This is the reverse of the invisible hand phenomenon where if everyone pursues their own self-interest, everyone in the community is made better off, as if everyone s actions were guided by an invisible hand to achieve that end.) So a community of self-interested acto rs needs law: (i) to solve Prisoner s dilemma situations; (ii) to distribute into pr ivate hands property that would otherwise be exploited by everyone, thereby avoi ding a tragedy of the commons situation arising; (iii) to prevent people acting on their natural desire to extract an eye for an eye in revenge for actual or percei ved wrongs that they have suffered at other people s hands. (3) Resolving disputes over limited resources As every family knows, in any community there will always be disputes over who s hould have what of a limited number of resources. Law is needed to resolve these disputes, as exemplified by the famous story of the Judgment of Solomon. (4) Encouraging people to do the right thing It was thought even from classical times that law performed a fourth function th at of encouraging and helping people to do the right thing. For example, Aristot le (384 BC 322 BC) argued that people needed the discipline of law to habituate them into doing the right thing, from which standpoint they could then appreciat e why doing the right thing was the right thing to do. Up until the 20th century , this view of law was accepted by law makers, with the result that the UK legal system contained a large number of morals laws that is, laws that were designed p urely and simply to stop people acting immorally, according to the lights of Chr istian teaching on what counted as immoral behaviour. However, in the 20th centu ry, the harm principle propounded by John Stuart Mill in his book On Liberty , accord ing to which the law should not sanction people for acting immorally unless thei r conduct involved some harm to others, gained more and more popularity, and res ulted in the abolition of large numbers of morals laws . These trends triggered wha t is now known as the Hart-Devlin debate over the extent to which it is legitima te for the law to enforce morality. Lord Devlin at the time, a judge in the Hous e of Lords, the highest court in the land argued that law should enforce moralit y so as to preserve the cohesiveness of society. Professor H.L.A. Hart at the ti me, the most famous legal philosopher in the world based his position squarely o n Mill s harm principle, though subject to the caveats that the law might legitima

tely prevent someone acting immorally if doing so involved harm to himself or wo uld cause offence to others. Hart s views are set out in his widely read book Law, Liberty and Morality . Hart is thought to have won the debate but his concessions that it might be legitimate to make it illegal for someone to engage in immoral behaviour that will (i) harm himself or (ii) offend others, seem to make little sense. The same point can be made about those morals laws that survived the 20th c entury cull: if law does not have a role to play in encouraging us to do the rig ht thing, why is it illegal to have sex in public, or to have sex with animals, or to dig up dead bodies, or to take hallucinogenic drugs, or to help someone ki ll themselves? The rule of law Whether or not law has a role to play in encouraging us to do the right thing, n o one doubts the continuing importance of law in performing the first three func tions set out above. As a result, there is a widespread acceptance that the heal th and wealth of nations is crucially dependent on how far the rule of law is ma intained and observed in those nations. See for example, this World Bank website , or this United Nations website, or this website maintained by the American Bar Association, or this essay on the importance of observance of property rights a nd the rule of law to a country s development. As a result, a lot of attention is paid to indexes that attempt to chart how far countries around the world respect such things as the rule of law and private property rights. For examples of suc h indexes, see World Justice Project and International Property Rights. Critics of the law Having said all that, it should be acknowledged that numerous criticisms are mad e of the benefits that are supposed to flow from the existence of law, and the o bservance of the rule of law. For example, some point out that the fact that a society respects the importance of the rule of law and private property rights is no guarantee that that societ y will be particularly just (or even that wealthy). The rule of law, it is argue d, is compatible with great oppression, inequality and poverty; a point summed u p by Anatole France s famous observation that The law, in its majestic equality, fo rbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread. Others take this point further and argue that in the wrong hands, law can become an instrument of evil, a means by which a country s rulers can rob people of thei r property and oppress minorities. It is also argued that even if law is not actually used as an instrument of evil , it can become its accomplice by doing such things as: (i) hamstringing public officials (such as the fictional Jack Bauer of the Ameri can TV series 24 ) from doing what is necessary to prevent terrorist atrocities; an d (ii) granting people rights and encouraging them to exercise them, thereby foste ring a damaging culture of complaint and compensation culture that alienates peo ple from each other, and discourages people from helping other people for fear t hat doing so might result in their being sued. Conclusion All legal systems do harm of one kind or another. Some of that harm is intended: in order to achieve its goals, a legal system always has to limit people s freedo m. Some of that harm is an unintended side effect of the legal system s attempting to achieve its goals: for example, harms (i) and (ii), above. What is important is: (1) that our legal system do more good than harm; and (2) that our legal sy stem not do any unnecessary harm. I don t have any doubt that (1) is true of our l egal system; at the same time, I don t have any doubt that (2) is not true. So the verdict on our legal system must be Good, but could be better . How our legal syst em could be improved is a matter of debate. A good starting point for students i nterested in joining that debate would be Michael Sandel s Harvard lectures on Just

ice , which are available here. pearsoned.co.uk