13 Basic Functions of Law in Society

 

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-à-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.