WHAT IS LAW
1.
The Importance of Law
Law carries much importance
in our society because it gives justice. Read further to know more about the
importance of law.
The functions of law
Law can be said to perform four different functions, each of which
is of huge importance to the welfare of our people.
(1) Defending all from evil
The first and most basic function of law is to defend us
from evil – that is,
those who would seek to harm us for no good reason. This function of law
underlies 20th century developments in International Law such as the nuerember court and the
creation International criminal court.
(2) Promoting common good
Law is not just concerned to bring evil people to account for
their actions. A community made up of people who bear no ill-will to anyone
else and are simply concerned to pursue their own self-interest needs law
because there are situations 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 ‘invisible hand’ 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 actors needs law: (i) to
solve ‘prisioners’ dilemma situations
; (ii) to distribute into private hands property that would
otherwise be exploited by everyone, thereby avoiding arising; (iii) to
prevent people acting on their natural desire to extract in revenge for
actual or perceived 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 should have what of a limited number of resources. Law is needed to
resolve these disputes, as exemplified by the famous story of the judgement.
(4) Encouraging people to
do the right thing
It was thought even from classical times that law performed a
fourth function – that of encouraging and helping people to do the right thing.
For example, Aristotle (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 appreciate
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 purely and simply to stop people acting immorally, according to the lights
of Christian teaching on
what counted as immoral behaviour. However, in the 20th century, the ‘harm principle’ propounded by John
Stuart Mill in his book ‘on liberty’,
according to which the law should not sanction people for acting immorally
unless their conduct involved some harm to others, gained more and more
popularity, and resulted in the abolition of large numbers of ‘morals laws’.
These trends triggered what is now known as the ‘heart devlin debate’ over the extent to
which it is legitimate for the law to enforce morality. Lord Devlin – at the
time, a judge in the House of Lords, the highest court in the land – argued
that law should enforce morality so as to preserve the cohesiveness of society.
Professor H.L.A. Hart – at the time, the most famous legal philosopher in the
world – based his position squarely on Mill’s harm principle, though subject to
the caveats that the law might legitimately prevent someone acting immorally if
doing so involved harm to himself or would cause offence to others. Hart’s
views are set out in his widely read book ‘law,
liberty, 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 century cull: if law does not have a role to play in encouraging us to do
the right 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 kill themselves?
The rule of law
Whether or not law has a role to play in encouraging us to do the
right thing, no one doubts the continuing importance of law in performing the
first three functions set out above. As a result, there is a widespread
acceptance that the health and wealth of nations is crucially dependent on how
far the ‘rule of law’ is
maintained and observed in those nations. See for example, this world bank , or this united
nations, or this website maintained by the bar associatom, or on the importance of observance of
property rights and 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 such indexes.
Critics of the law
Having said all that, it should be acknowledged that numerous
criticisms are made of the benefits that are supposed to flow from the
existence of law, and the observance 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 society will be particularly just (or even that wealthy). The rule of law,
it is argued, is compatible with great oppression, inequality and poverty; a
point summed up by anatole frances famous
observation that ‘The law, in its majestic equality, forbids rich and poor
alike to sleep under bridges, to beg in the streets, and to steal their bread.’
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 freedom. 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 system not do any unnecessary harm. I don’t have
any doubt that (1) is true of our legal 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 system could be improved is a matter
of debate. A good starting point for students interested in joining that debate
would be Michael Sandel’s Harvard lectures on ‘Justice’.
Must read: career in law
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