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Definitions of Law and its Functions

By Shivani Shrivas | Views 46092 (author-10669-shivani-shrivas.html)

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Law is a vast subject that is constantly changing and evolving. It may look easy to study and work with, but it takes years to be able to
gain expertise in this field as one never stops learning about law. Laws have been around since ancient times and are considered the
building blocks of a society. Plainly stated, law is a rule or set of rules that are set up by an authority or the society itself and are
applied on a community or territory. However, no single definition of law can fully express its meaning universally as law itself is
dynamic.

Experts have struggled to this day to provide a definition that would cover the whole scope of law as a subject. Nevertheless, there
are many definitions of law that are acclaimed for being the most comprehensive for the time and circumstances they were provided
in, and also being considerably inclusive of the subject's general scope. Many theories have been deduced in order to attempt to
define or understand the meaning of law. There are several theories law, given and supported by various jurists. A few of them are
discussed in detail below:

Natural Theory of Law

Natural law theory suggests that law as not formed by human beings, it is rather something that the nature provides us with in the
form of ethics, morality, and the ability to judge whether any act is right or wrong. It argues that morality is an innate feature of
human beings, inherent by nature and that they do not have to work as such to acquire or create morality. Hence, laws were formed
on the basis of this innate ability of sense the difference between right and wrong, not by the force of society or civilizations.

This theory attributes nature with the origin of law. It is the earliest theory that attempted to understand the meaning and origin of
law and dates back to civilizations such as ancient Greece. This theory was believed to be true by great philosophers like Socrates,
Plato and Aristotle. Various modern jurists like Hobbes, Rousseau and John Locke are also known to support natural theory of law.

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The natural theory of law is quite plausible to explain the origin of law, from where the idea of law comes from and the essence of
why laws were created. However, people's ethics and morality differ from one person to another making the laws differ on a
subjective basis. Therefore, it fails to explain law in its present state, i.e., in the form of rules and statutes that are complied with
uniformly within a territory and differs from place to place.

Positive Theory of Law

This theory is another popular theory that attempts to explain what �is' law rather than what �should' be law. This theory is
developed by John Austin and Jeremy Bentham and is widely accepted by many jurists such as Salmond and Kelsen. The positive

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4/12/22, 11:52 AM Definitions of Law and its Functions

theory of law, also called legal positivism follows the analytical school of thought. It theorizes that:

law is a command of sovereign that is backed by sanction.

First of all, legal positivism credits humans with the invention of law, unlike the natural theory of law. It suggests that laws are plain
commands that are imposed by a sovereign. The validity of law is not affected by nature. These commands ought to be followed,
irrespective of one's own opinions, judgements or ethics. Since, these commands are said to be given by a sovereign, this theory
takes in account the political structure of a place or community where people have been provided with greater political power
govern those below them, the general population.

This theory suggests that politics play a key role in formations of law. If these �commands' i.e., laws are not followed through with,
punishments are also awarded as applicable. This further ensures the compliance of said commands, keeping intact the viability of
laws and keeping the society away from chaos by making deviance or violations subject to sanctity.

This theory has a very clear and easily understandable definition of law that describes the conventional nature of law. It does not talk
about what law could or should be. It stays true to its analytical approach and analyzes the structure of law, the noticeable form of
law that can be easily related and understood. However, law has existed before the existence of states and sovereigns.

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Hence, this theory falls short in that respect. Another criticism of this theory is that this theory is shallow, considering sovereign's
command to determine the validity of law. Several laws are accepted to be valid because they follow natural justice, or corresponds
to public policy. Similarly, people also tend to abide by law to get rewards and benefits, habits, general acceptance in society or
simply out of respect for justice. Thus, sanctity is not the only reason due to which people obey laws.

Realist Theory of Law

This theory of law was founded by Chipman Gray, Oliver Holmes and Karl Llewellyn. This theory disregards other traditional theories
of law. This theory deals with the actual working of law. According to this theory, there is no value of the laws created by the
legislative unless they are applicable in the real world. Only the laws which have applicability in practical cases are considered to be
laws by this theory.

Hence, it not the work by legislation but the decisions by the judiciary that are actual laws. The judiciary is credited as the lawmaker
and not the legislation by this theory. In plain words, it states that, �Law is a product of judgements of judges by their social,
economic and contextual influences.�

This theory also puts much value in the human factor in law. It proposes that law is judgements that are made through
interpretation of human mind. The judges use their own intelligence and conscience to evaluate cases. Different judges would use
different approaches to deliver justice in their best knowledge, hence interpretation varies subjectively. Thus, legal statutes alone
don't deliver justice, human factors also play a major role in law. This theory is extensively based on the practice of precedent.

There are many possible criticisms of this theory as it seems very flawed. One major criticisms id that this theory is exclusively based
on litigation. There are plenty of matters that don't require mandatory interference of courts but still require laws to govern their
fundamentals such as contracts and marriages. Those laws are also fully valid in practical world. Another major criticism is the
extensive importance given to human factors.

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4/12/22, 11:52 AM Definitions of Law and its Functions

This theory tries to justify and put above common law the approaches and bias of judges. According to this, laws are subject to an
individual, or group of individuals' conscience and personal choices, leaving laws up to the mercy of their interpretation. Aside from
these, laws exist before judiciary passes judgements on them, and still have validity in the society. Hence, this is a very imperfect
theory.

All the above theories, in addition to many more, have been made as an attempt to define law, to make it easier to understand.
However, the complexity of the subject cannot be avoided, making all the theories open for criticisms. These criticisms bring out the
anomality in the �definitions' and further provide room for clarification and improvement. This process in itself represents the
scope and growth of the subject being limitless. Law is as vast as human behavior and imagination. Hence, although there are little
chances of having a universal applicable definition or theory of law that covers all its aspects, efforts in that direction are still being
made to simplify this study.

One of the most important questions to ask is, what is the purpose of law? Lawa was not around since the origin of mankind. It is
believed to have evolved from communities and civilizations. The general human sense of right and wrong differs subjectively,
however was enough to guide humans through their evolution. So, what exactly is the purpose of law and what other functions does
it have?

Law was established to maintain order. If people were to let loose without any restrictions and limitations that correspond to unfair
or immoral practices, the society would be in chaos. Human behavior needs to be regulated in order for civilizations to exist. Further,
law sets the standards of code of conduct and etiquettes that would be the minimum requirements in order to be part of a society
or community. For example, adultery is declared a crime by law and thus, sets the expected behavior portrayed by married
individuals. Law also plays role in settling disputes by punishing the violators of law. Thus, law works towards protecting the rights
and liberties of people.

For example, a thief would be punished by law and the rights of the original owner's rights would be protected by offering the best
possible restitution or by the letting him claim damages.

Thus, laws perform various functions. One of the most accurate functions of law were stated by Roscoe Pond, who treated law as a
species of social engineering.

Roscoe Pound states that there are four major functions of law:
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.

The most basic and common function approved by jurists, is to ensure well-being of the society by keeping order. The functions of
law in a society are much clearer than the functions of law in a general sense, which would rather be termed as the purpose of law.

The main functions of law in a society are discussed in detail below:

Maintenance of law and order in society
Laws are directives that govern and regulate human behavior and code of conduct to ensure order. They are made for people
within a territory to abide with. Laws are also responsible for keeping peace of a country intact. Many countries possess a very
diverse population. If the same law is applied throughout the population, irrespective of their diversity, different needs and
differences in opinions, it would cause conflicts.

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4/12/22, 11:52 AM Definitions of Law and its Functions

Hence, laws are drafted to cater the needs of different pats of the society and help in maintaining peace in the country. For
example, in a secular country like India, the constitution leaves certain subjects, like marriage, under people's respective
religion. These laws are called Personal laws.

 
Protection of Fundamental Rights
There would be no use of any law that does not work towards protecting and securing the rights of people. Law is in place to
maintain order and benefit the society. They are written to cater to people's needs and interests. In cases of crimes, laws
punish violators in order to ensure that the basic rights of the people are protected and further set examples to ensure
security. Thus, one of the most fundamental function of law is to promote and protect human rights

 
Control of Political System
Law and politics have an obvious relationship. One of the major governmental functions is to draft and amend laws in the
interest of the people. However, the political system is also subject to law and has to perform its duties according to law and
be responsible for its consequences. Thus, law also governs and controls the political system by predetermining their duties,
the structure of the system and who qualify to be a part of it.

 
The regulations of economic activity
Law also sets the rules and regulations that must be followed while performing economic activities such as sale, trade, labor
and investment. Law is needed to have valid and legal business deals and agreements. Laws such as sales tax, income tax, GST
and customs law are also responsible for government revenue that are used as funds for investing in the development of the
country. Hence, law is also responsible for governing the economic sector and its counterparts to ensure ordinance.

 
Regulations of human relations
Human relations, such as contracts, agreements, families and marriages also come under the purview of law. Law plays the
function of keeping human behavior and relations in a check. Thus, it automatically influences human relations by restricting
unacceptable behavior, for example adultery. It is also responsible for clarifying the correct procedure of entering legal
relationships, its legality and validity. Cases in marriage, like divorces, are needed to be approved by the law and registered in
order to be valid. Hence, law holds control over the regulation of human relations.

 
International relations
Law is responsible for conducting and making international relations. It plays an important role in forming economic,
diplomatic and strategic relations with other nations. Visa law is also responsible for allowing people from other countries to
enjoy the services provided by that nation. Laws are also used against policies and demands of other nations, and protect and
promote the nations interests.

Law has several functions that are all related to providing a uniform code to be followed. All the functions of law can be traced back
to bring orderliness and provide with knowledge of correct procedures to be followed. The functions of law are many and cannot be
limited to the ones discussed in this paper.

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