Law and Society - Academike
Law and Society - Academike
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By Himangshu Rathee, ITM University
“Editor’s Note: The interlink between social norms and legal principles have been widely
discussed by a large number of scholars. This paper discusses various views of law and
society in relation to each other.”
INTRODUCTION
Before we begin it is important to understand the role of social and legal rules
in the society.
Social rules play a vital role in human society and such rules distinguish
human societies from animal groups. Behaviour of humans towards others is
controlled, directly and indirectly through moral standards, religious
doctrines, social traditions and legal rules.
Marriage is an excellent example to show how social rules govern human life.
Earlier, religious significance was attached to monogamous marriage (in
Britain) and it was also maintained through moral rules (declaring live-in-
relationships as ‘wrong’) and by the operations of rules of law which can
define and control the formalities of the marriage ceremony, lay down who
can and who cannot marry[i], specify the circumstances in which divorce can
be obtained, define the rights to matrimonial property upon matrimonial
breakdown, and so on.
Legal rules are significant in the world of business, with matters such as
banking, money, credit and employment all are regulated by law to some
extent. In a complex society, there is hardly any area which is untouched by
law. Even a basic activity like eating is indirectly affected by law as the food
one eats is required to meet rigorous standards of purity, hygiene[ii] and even
description.[iii] Driving, handling property etc. is also governed by law.
Thus, the span of law is very wide; it governs almost every activity which
happens in the society in one way or the other. Law is applicable to an
unborn person and also to a person who is dead. Hence, it can be said that
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span of law is very wide in the society.
Scrutinizing Law
Rules in general, are statements issued by the respective authorities which tell
what ought to be done and what not. Twining and Miers offer a wide
definition of a rule as ‘a general norm mandating or guiding conduct or
action in a given type of situation’. Thus, the basic characteristic of rule is that
they are normative in nature. Simplest example for rule may be ‘no smoking
in the office premises’ such a statement guides action of the employees
working in the organisation that they (enployees) are not suppose to smoke
inside the office.
Rules which enable certain activity to be carried out with some form of legal
backing and protection are called ‘power conferring rules’. For example, law
of contracts guides a person in a manner in which he/ she wish to make a
valid contract.
In a social group ‘various systems of rules’ exist apart from law, for say, in
church there is a moral duty to put the cap or hat off as soon as the person
enters the church, this is nowhere, mentioned in law but still is a rule(moral)
for the particular social group (Christians).
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Legal Rule Versus Moral Rule:
Legal Rules are those rules which are applicable to society as a whole and are
deliberately made by the law- making bodies for the welfare of the society.
These are generally, applicable to all and can only be changed at the power of
the law- making bodies, which may be parliament, legislature or judiciary.
For example, the maximum speed limit set for various vehicles on various
roads.
Moral rules are principles of right or wrong behaviour that are generally
accepted by a society.These are generally, personal in nature as they vary from
place to place and society to society and change with respect to time. For
example, in a society telling a lie may be considered immoral, that is, against
moral rules.
Legal Rules are those rules which are applicable to society as a whole and are
deliberately made by the law- making bodies for the welfare of the society.
These are generally, applicable to all and can only be changed at the power of
the law- making bodies, which may be parliament, legislature or judiciary.
For example, the maximum speed limit set for various vehicles on various
roads.
Customs in brief can be defined as the code of conduct which is observed for
a long period of time in a society which is not against any morals or public
policy.These are generally, personal in nature as they vary from place to place
and society to society. For example, in a society it may be a custom that
marriage can only be solemnized in a temple.
Legal Rules are those rules which are applicable to society as a whole and are
deliberately made by the law- making bodies for the welfare of the society.
These are generally, applicable to all and can only be changed at the power of
the law- making bodies, which may be parliament, legislature or judiciary.
For example, the maximum speed limit set for various vehicles on various
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roads.
Etiquettes may be defined as a set of rules for behaving correctly in social
situations. For example, masticating food while keep the mouth close.
Different Jurists have different opinion about how the system of law should
operate.
American writer Karl Llewellyn gave ‘Law-Jobs Theory’.
Law-Jobs Theory:
Karl and Robert, both a forth mentioned jurists theory is mainly based on the
various functions of law in the society.
Austin on the contrary treats rules (legal) divorced from social context or
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settings, for him hallmark of a legal rule lies in the manner of its creation. He
defined law as the command of the sovereign body in a society and these
commands were backed up by threats of sanctions, to be applied in the event
of disobedience.
Following are the criticisms of Austins’s theory of command from the societal point
of view:
All laws are not commands, for say, marital laws never commands anyone to
marry but lays down the procedure and formalities people must follow for a
valid marriage. Similarly, law does not command to enter into contract.
Variety of kinds of legal rule is there, it would not be desirable to reduce them to
simple propositions, ‘law are commands’.
Every social group must have certain rule imposing duties upon the members
of the group concerning standards of behaviour.
There are primary rules which are concerned with basic criminal law rules, at
the same time such rules might also impose civil-duties.
There are certain problems with primary rules which can be resolved with the
help of secondary rules.
Following are the problems with the primary rules along with their remedy:
1. Problem 1àSuch a simple code leads to no settled procedure for resolving
doubts pertaining to the nature and authority of an apparently ‘legal rule’.
Such a problem can be solved with the help of with the introduction of ‘rules
of recognition’, these rules will constitute the hallmark of what is truly a law
and may do so by reference to a set of other rules or institutions, such as a
constitution or a representative body like parliament.
2. Problem 2àPrimary rules are static, that is, these may not change with the
changing circumstances of the social group. ‘Rule of Change’ enables the
specified bodies to introduce new rules or to alter the existing ones, thus
resolving the problem.
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3. Problem 3àPrimary rules will be inefficiently administered, because their
enforcement will be through diffuse social pressures within the group.
According to Hart introduction of ‘rules of adjudication’, can help to solve
this problem as such rules provide for officials (judges) to decide disputes
authoritatively.
Therefore, these secondary ‘rules are rules about rules’, and Hart argues that
union of primary and secondary rules is a characteristic of modern legal
system.
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principle ‘ a man should not profit by his own wrong’[iv]. Another example
which takes hard rule and principles involved into account is tort of
negligence.
Other writers are of the view that the law is best understood by examining
the actual operation of the legal system in practice, and by comparing the law
in texts with the way it actually operates. Such an approach is taken by those
writers whose work[v] is usually catogarised as ‘Legal Realism’.
Different jurists have different views about ‘why people obey law’ and one
more important sub-topic which would be covered under the same head is
AUTHORITY.
John Austin:
One of the main element of Austin’s command theory is legal sanction, due to
fear which people obey law.
HLA Hart:
Everything depends on the kind of society and the legal system in question.
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Charisma: The authority of a leader or ruler may be the result of the personal,
individual characteristics of the leader, such character traits sets a person apart
from others.
Traditional Obedience to the leader or regime is sustained because it has
always been so by tradition (origin of authority), for say, son of a leader will
always be a leader.
Bureaucratic[vi]àIn modern western societies such an authority exists, where
the authority of the regime is legitimized through rule and procedures.
The best example to show that all the three authorities exist (may) at the same
time is the current society of India.
Thus, the ‘obedience to law’ and ‘sources of authority’ are complex concepts
and the views as usual regarding the matter in context varies from jurist to
jurist.
Some other writers, to study law and its related aspects, take into account the
cultural and historical background of the society.
LAW AND SOCIETY
When the term ‘society’ is used, a picture which often comes in mind is of
loose collection of people, institution and other social phenomenon and
among these law occupies a prominent place, holding these social
arrangements in an orderly fashion.
Law merely does not bind society but the behaviour patterns, relationships
and beliefs also play a vital role in keeping the society together. For example,
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no law asks one to socialize with one’s neighbor, but still one does which is
due behaviour and man’s innate need for social relationships.
There are various social phenomena which constitute parts of the overall
structure of a society, such phenomena apart from law includes political
institutions (Parliament, political parties etc.), economic and commercial
institutions (trade unions, factories etc.), religious institutions (temples,
church), institutions concerned with teaching of social rules and standards
(schools, family etc.) and cultural institutions (press and media, cultural
associations etc.)
Core Concepts:
Social Stratification: Within a society groups and individuals may be
differentiated, or ranked, by their place on a ‘ladder of influence’, with some
ranking higher in terms of power, prestige, wealth or some other criterion,
than others.
Following are some examples of social stratification:
In India, caste system is the best example. Generally, lowest position or rank is
held by the Scheduled Tribes, preceded by Scheduled Castes, and then comes
Other Backward Classes, finally highest rank is held by the General category.
Similarly in a Tribal society may have rank according to power (legitimate),
first position may be occupied by the king, then the chief and so on.
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1. Simple, technological undeveloped society:
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the individuals or between the groups, within the society.
Thus, law responds differently in both (simple and advanced societies) the
type of societies.
Law plays an important part in the definition and regulation of all kinds of
social relationships, between individuals and between groups. For example, a
basic social unit in any society is family which is defined and protected
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through legal rules (marital laws) and institutions (family courts).
In the business world too, the law regulates activities of the limited company,
the partnership and the trade union. Financial deals between people in
business are normally subject to the law of contract and there are many
obligations contained in the acts of the parliament such as the Companies Act,
2013, with whose regulations all companies must comply.
One of the most important facets of law is that it is dynamic in character and
changes as per the social conditions. For example, before 2005 an unmarried
hindu women could not adopt according to the Hindu Adoption and
Maintenance Act, 1956 but the law was amended in 2005 and now an
unmarried female hindu could adopt, such an amendment took place due to
change in the socio-cultural factors of the society.
Macaulay was of the view that business firms try to avoid disputes by
negotiating, if it all when any dispute arise they(firms) try to compromise
because good business relations are essential, if a business wants to continue to
flourish.
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where workers sell their labour for wages
Due to industrial revolution two new classes came into existence: the
industrial working class and the industrialists, who employed them, paid their
wages and frequently provided them with housing.
Now and then also unemployment was major problem, so the workers had
little or no bargaining power and have to accept the terms and conditions laid
by the employer.
The only means by which the worker class could put pressure on employers
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was by the way of trade unions.
The status of workers was the same even after the repealing of these
combination acts[vii] as the judges were still able to interpret strikes as
‘conspiracies to injure’ the employer’s interest.
Now there is modern approach[x] to this problem which take into account
various factors (mode of payment, income tax etc.) and these tests are known
as multiple or mixed tests.
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it laid minimum standards of working conditions.
Therefore, the law played an important role in industrialization and now also
playing a vital role in employee and employer’s relationship, thereby
indirectly influencing the social structure of the society.
Talcott Parsons:
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order.
His theory focuses on examining those elements within society which tend
towards the maintenance of the society.
His theory does not take into account those elements of the society which
tend towards social conflict and such elements are considered for any theory
of social order.
The pluralist view, in its ‘pure’ form, accepts the existence of conflicting
groups and interests, but maintains that the constant interaction and
negotiation between conflicting groups, all of which are assumed to have
more or less equal bargaining-power, helps maintain social stability and
equilibrium. The role of the Law and the state is portrayed as ‘neutral arbiter’,
or ‘honest broker’ ;taking no sides in these conflict situations, but providing
the machinery of conflict-settlement either through law or through political
debate and policy-making by government.
The view states that the acceptance of social conflict manifestations (obvious
to the understanding of an individual) are played out within boundaries of
socially accepted norms in terms of official legal and governmental authority
whose concerns are the resolution of such conflicts.
For say, White presented a model which he calls an open model, whereby
conflicts and consensus are taken into account. The model says that conflict
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that these conflicts can be resolved through a legitimate process. There will be basic
agreement that conflict-resolution can be achieved within framework of negotiation,
arbitration, judicial decision and electoral battle, backed up by strike but without
resort to revolution.
Consensus can deliberately occur in the society when basic interests, or the
interests which are ‘in the national interest’ or for the common good. For
example, Armed Forces Special powers Act, 1958 has been enacted for the
common and most importantly for the national interest of the society.
MY VIEW
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Different jurists and sociologists have different views about LAW AND
SOCIETY.
The theory says that the class should not be categorized according to the caste
or surname but according to the income of the family.
Furthermore, if the quota is given to one family then it should not be given to
the immediate next progeny of the family, as the family got to improve their
financial status. This also means if the financial status is not improved, then
the family can be offered quota again, but only to the grand-children.
The basis of the above rule is that the child of the family was given enough
opportunity to improve the status of the family.
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[vii] Combination Act, 1799à Prohibited combinations of the workmen
[xi] Like Factories Acts (in india this act was passed in 1948)
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Desmond
May 2, 2021 at 9:37 am
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