CHAPTER 2

 Nature of law
 functions of law

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 WHAT IS
LAW?

Law means:
• those rules/standard for
behaviors that are explicitly
enforced by society/the state
• principles govern and regulate
human behavior
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 BLACK’S LAW DICTIONARY

•Something which is laid down, ordained or established

• A rule of method according to which phenomena
or actions co exist or follow one another
•law refers to a result regardless of the process
used to bring it about

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 WEBSTER’S 3rd NEW INT. DICTIONARY

•A binding custom/practice of community.

•A rule or mode of conduct or action that is prescribed
or formality recognized as binding by supreme
controlling authority or made obligatory by a sanction
made.

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“The written and unwritten body of rules largely
derived from custom and formal enactment
which are recognized as binding among those
persons who constitute a community or state,
so that they will be upon and enforced among
those persons by appropriate sanctions”
- Dictionary of law – L.B. Curzon

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What is Law
 Law is the body of
enacted or customary
rules recognized by a
community as binding –
Oxford Dictionary

Law is the body of principles

recognized and applied
by the State in the
administration of justice –
John Salmond

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 ROLE OF LAW

WHY NEED LAW?

Man is by nature a social being,

desiring companionship of his fellows
and in primitive times he tended to
form tribes, groups or societies either
for self reservation or by reason of
social instinct.

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 If society is to
continue, some form of the larger
social order is community, the
necessary, therefore more complex
rules or laws are drawn will be the law
up to ensure that
members of society
may live and work

main purpose is to law is a

create social mechanism for
harmony social control
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Law in Relation To Justice
 The aim of law is to attain justice in society.
 Justice is an abstract idea of right and wrong,
fairness and equality
 Hence, the aim of a given law is right or just in a
particular set of circumstances.
 The law which coincides with people’s idea of
justice are more likely to be respected, obeyed
and easily enforced.
 What is seem to be just today, may not be seen
to be just in the future because societal norms
change from time to time.

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Law and morality?

 Definition
 Effect
 Establishment
 Enforcement

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Nature and General Function of Law

 Nature of Law
 Not easy to describe law
 Some define law by looking at the context
in which it is used, functions it performs,
as set of rules and legal system through
constitutional arrangement and sources of
law.

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 VIEWS ON NATURE OF LAW

Natural Positivist
Law view view

SCHOOL OF
THOUGHTS

Sociological
Realist view
view
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 NATURAL LAW

Law is derived from a higher

ordained by divine
 Based on the principles of
natural law i.e there are moral
principles prescribed by nature,
which can be discovered by man.
There are certain higher principles
that are superior to the laws made
by man.

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 PRINCIPLES OF NATURE

Any man-made law

Good is to be done
in violation of natural
& promoted &
law is not
evil is to be avoided
true law.

Law should be just An unjust law is

and fair not law
(moral perspective) and should not be
obeyed.
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 POSITIVE VIEW

Study of law as
A rule from a it exists in the
political superior to a legal system,
political inferior not as it
habitually obeys, A command from ought to be on
with sanctions sovereign the moral
imposed if rule authority in ground;
is broken a society does not
- John Austin require law to
be
moral or fair
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 POSITIVIST

Salmond •The body of principles recognized

and applied by the state in the
administration of justice.
• superior order, enforceable in court
of law to secure justice

Law consists of 2 rules: Hart

 primary rules imposed duties; human in
nature to do good thing & to avoid evil
 Secondary rules; society’s duties to
impose rule – how to set rules, what
punishment, how
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 REALIST VIEW

The study of the nature of law as it is

actually carried out and enforced
than law as series of roles contained
in the statutes.

Rule of conduct laid down by persons

acting as judicial organ of the state.
Law is what the judges declare

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 SOCIOLOGICAL VIEW

number of study the effect of

approaches law & society on
-more diverse each other

-law is empirical phenomenon,

Its nature can be understood only
when it is viewed in terms of
its relationship to society

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 Continue…
 Nature of Islamic law
 Syariah refers to
commands,
prohibitions, guidance
and principles that
Allah had addressed
to mankind pertaining
to their conduct in this
world and in the next

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 Functions of Law

a) Social control
 Law maintains public order
 Law fosters social order by facilitating co-operative
action
 Law constitutes and regulates the principal organs of
powers
 Law communicates and reinforces social values

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b) Conflict resolution

 When there are conflicting or overlapping interest which

cannot be resolved by other means (mutually, out of
court), it will have to be resolved through a legal process.
 Provide legal means by which conflict between parties
can be settled is a main role of law. Law provide
procedures(rules and regulations) and enforce those
through designated institutions( courts, arbitrators).
 Determine the facts of disputes, apply appropriate legal
rules to them and reconcile claims by means of trail or
hearing. Thus, law create conceptual and institutional
framework that build trust among individuals.

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c) Facilitative function

 Law provides ways to connect peoples’ conduct for

common goals without arising conflicts(e.g. laws relating
to marriages).
 Performs this by providing set of rules which structures
relationships.( all private laws).
 Here law promotes certainty and predictability and
establish trust in social life.
 By providing framework of rules, creating rights, powers
and obligations, Law provides individuals with facilities
for realising their wishes and goals.

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d) Integrative function
 Integration between diverse elements and interests of
collective life.
 Roscoe Pound – Law secures, and should secure, social
cohesion and orderly social change by balancing
conflicting interests. Act as an instrument of conflict
managements and to bring about social cohesion
 Emile Durkheim – society establishes two types of law
i) Penal or repressive law – mechanical solidarity –a kind of
cohesion based on fear of punishment.
ii) Restitutive or cooperative law – organic solidarity – a
kind of genuine cohesion
 Law thus helps to organize and harmonizes the activities
within a group by providing direction for them to act.
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e) Social engineering
 A main function of law is to satisfy demands and desires
of individuals in a limited resources situation in a
maximum possible way.
 Roscoe Pound – we have multiplicity of desires and
demands which we seeks to satisfy. The desires of each
continually conflict with or overlap on those of others.
The function of law is to satisfy social wants by giving
effect to as much as we need with the least sacrifice.

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 “Law secures social cohesion and orderly social change
by balancing conflicting interests.”
 “Law acts as the tool of social engineering by maximizing
the fulfilment of the interest of the community and its
members and promoting smooth running of social
machinery.”
 Instrument of change and reform in order to secure
equality of opportunity and status in society.
 Performs task of social engineering by trying to minimize
economic imbalance - by maintaining equal distribution
of health care, education, housing.
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f) Social welfare i.e corporate social
responsibilities (CSR)

 With the concept of “welfare state” or “caring society”,

this has acquired great importance
 As law provide security for matters such education,
health, minors protection ect.., modern government
spend a huge sum of money for wide range of fiscal and
social benefits and services.
 Law provide for social justice and welfare in such
matters as income tax, disability and old age retirement
benefits, legal aid (Maldives acts ).

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 Continue…
 Methods of social control through law
 The Penal Technique
 The Grievance – Remedial technique
 The Private Arranging Technique
 The Constitutive Technique
 The Administrative-Regulatory Technique
 The Fiscal Technique
 The Conferral of Social Benefits Technique

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