A wise saying goes that “a lawless society is a lifeless society,” and according to Thomas Hobbes, life would be short, nasty, and brutish. This brings us to the functions of law in society and how the law has been an instrument of regulating man’s life and general activities today.
We are going to be doing a jurisprudential analysis of law in society. Jurisprudence here means the science of the study of law and its theory by notable jurists who propounded several theories which have helped shape the way law is seen today in society.
Ever wondered why law enforcement agencies are prevented from embarking on strike or any work holiday? Imagine how lawless society will be on that day, the perpetual fear that we will all live in and the certainty that one would not even trust their blood.
Historically, since the olden days, there has been nothing like law. There was no rule guiding their behaviours or even punishing them for some acts done against another. It was just a jungle society where the more potent feed on the weaker ones.
Everyone lived in fear, and the enforcement of any wrong was according to the whims and caprices of the individual since there was no generally recognized instrument of social engineering to regulate the activities of human beings.
One must know here and appreciate that human beings are often driven by negative emotions like greed, anger, envy, and hatred. If nothing checks those desires, they do not mind infringing on other people’s human rights to achieve their aims.
Now, the big question is, what is law? The truth is that law does not have a universal definition because it is dynamic. Law is dynamic because what is a law here in Nigeria might not be regulated in other jurisdictions.
For Example: In Nigeria, we practice a dual criminal law system. We have the criminal code and the penal code. The criminal code applies to the southern regions, while the penal code applies to all the Northern regions.
The issue of adultery in the southern region of Nigeria is not a criminal offence, as held by the Court in Aoko v. Fagbeyemi (1961) 1 ALL NLR 400. However, it is an offence under the penal code in Sections 387 and 388, which stipulates imprisonment for two years and a fine for adultery. However, adultery could be the sole ground for a petition to dissolve a marriage in court.
The above example explains the dynamic nature of law and why one cannot generally give a finite definition of law. Notwithstanding the above, we will devise a working definition. Law is an instrument of social engineering which regulates and punishes, prohibits or prevents, and protects certain acts /rights in society.
Let us take a quick overview of some of the school of jurisprudence in law that clearly explains the functions of law in society.
Different Schools of Thought on the Functions of Law
The philosophical school of thought – This school of thought has great philosophers like Aristotle and Thomas Aquinas as the fathers. They believed that law is embedded in morality and that the primary function of law is to persevere morality. The issue here is that morality is relative.
Analytical school of thought – Jeremy Bentham is a core activist here, and the idea here is that the law is what it is and not what it ought to be, and the state commands the law.
Historical school of thought – This school of thought believes that law is living and represents the culture and practices of people in society. Friedrich Karl von Savigny founded it.
The Realist school of thought – The realist school believes that the functions of law should be as the judges make them because judges should be the ones making laws in society.
Sociological School of Thought – The father of this school is Roscoe Pound, a former Dean of Harvard School of law. The focus of the function of law here was on the relationship between law and the behaviour of man.
He brought about the phrase “social engineering,” showing how law shapes man’s activities and that the law was made for man and not man for the law.
Functions of Law
There are enormous functions of laws in the society, which includes:
1. Law preserves public order and safety in the society
One of the functions of law in society is to preserve public order and safety. This is achieved when the instrumentality of the law law enforcement agencies is established to make sure that there is peace, order, and tranquillity in society. That is why it is a criminal offence to commit the offence of ‘affray‘. Affray is an offence of fighting in public.
More so, the law criminalizes any act that will likely result in a breach of the public peace, like a violent protest or inciting a revolution. Some jurisdictions have made it an offence to engage in protest without due authorization from the appropriate authorities had and obtained.
The second arm of it is the preservation of safety. The philosophical idea of government and law is that the citizens handed over their rights to the government in exchange for protection and safety assurance.
Law’s function is to provide safety measures during crises or health issues, and this was seen in the COVID-19 case, where regulations were put in place to curb man’s activities in the wake of the pandemic. The law has made it safe for society by providing safety measures during that period.
More so, the policy of quarantine is adopted to separate infected victims from those who are uninfected to curb the spread of any disease.
2. Law discourages the commission of an offence
There is a dilemma here, which is a to wit: Does it mean that man obeys the law because of the threat of punishment or because of the individual’s moral standard?
Now, even if we do not have some police checkpoints along the way or we do not have traffic officers, they are some individuals who would ordinarily not fault the law. Some persons will not fault the law because of the presence of the officers or the threat of punishment.
The sociological school of thought believes that law is an instrument of social engineering and man is dynamic, so the law has to be dynamic to regulate man’s acts in society efficiently. It is because culture changes, lifestyle evolves, and different acts come into vogue.
This is seen in the issue of the abuse of drugs and internet-related offences, which is increasing. The law here aims to make stiffer regulations to control it and discourage individuals from omitting the offence, which is why they provide heavy terms of improvement for offences like rape, murder, armed robbery, and possession of firearms.
3. Law punishes offenders
The maxim of equity says, “Ubi jus ibi Remedium” which means that where there is a legal right, there is a remedy once the right has been breached. Hence the issue of punishment could be years in prison with a fine or only a fine.
When it comes to a criminal charge, the usual punishment is a term of years in prison or, at worst, a death sentence or life imprisonment for capital offences. Concerning civil wrongs, the punishment could be fine, restitution, specific performance, injunction, or declaratory orders given in favour of the applicant or defendant.
However, there has been a debate on whether punishment has reduced or increased the crime rate. Some schools of thought think that punishment does not help curb or reduce the commission of an offence as some persons become more hardened after going to prison and go back to disturbing society again.
Hence, they believe the law should change its focus to retribution as much as it punishes and ensure that the convict turns a new leaf.
4. Law provides for fundamental human rights
One of the functions of law in society is the provision of fundamental human rights, usually enshrined in that country’s constitution. Fundamental human rights are those human rights that have received the protection and enforceability of the law.
It means that they can be enforced, unlike human rights, which are natural rights that do not have the backing of the law and cannot also be enforced by the law.
Examples of some fundamental human rights are the right to life, the right to ownership of property, freedom of speech, and freedom of movement. These rights have few exceptions where they can be derogated, and such individuals will cease to enjoy the right. For example: when someone is sentenced to imprisonment, their freedom of movement becomes restricted.
Recently, some jurisdictions around the world are already having some changes because they believe that no institution has the right to take a man’s life which is a natural life. They are already abolishing punishment that has to do with the death sentence.
5. Law establishes administrative bodies
The issue of governance is a tedious task, and the government cannot work effectively unless it does so through its agents, known as statutory bodies enacted by law. Educational bodies and regulatory bodies are all agents of the government, which makes sure that all the policies of the government are implemented and administered.
On this note, law enforcement agencies aim to protect and preserve life and property. They also implement the court’s decision on cases adjudicated by a competent court of jurisdiction.
6. Law protects contracts between individuals
Law provides a safe avenue for contracting parties to enter into a contract that the court will enforce in so far as it is legal and not vitiated by any factor like misrepresentation, undue influence, illegality, lack of consideration, and lack of consent.
The court’s position is not to enter into contracts for parties but to enforce and interpret the terms of the contracts when there is a breach of the contract.
The innocent party will ask for specific performance when possible or damages for breach of the contract and, in some cases, for the setting aside of the contract if it does not meet the conditions for legality as stipulated by law.
7. Law provides for its enforcement
If there is a law and no enforcement, then the law is useless because individuals will still go against its provision and fault it. The government’s executive arm is charged with enforcing the law after a judgment from the court. This is why the executive is in charge of the police, securities, and prison authorities.
Offenders of the law are sentenced to years of imprisonment and will stay and serve it except if there is an executive pardon for the offence. The law provides the method of enforcement, how it is done, and who is in charge of the enforcement.
8. Law provides means for its amendment
An amendment is when some sections of the law are repealed or removed. This also includes introducing new sections or provisions in that particular law. The constitution provides for different amendments, and some of them are either rigid or flexible.
The flexible amendment means it is easier to amend the constitution than the rigid constitution, which is written but not easily amended as it requires some intricate processes before the amendment is achieved.
The constitution of Nigeria and other countries is rigid and written, and as such, it is not easy for one to pick it up and change a single letter in the constitution.
The procedure of its amendment is stated in the constitution, and it is not an easy process, and that is why it seems as if the law is static when it is supposed to be dynamic.
9. Law provides means for its enactment
This is also one of the functions of law in the society, as it provides for the procedures for its enactment. The legislative arm of government is in charge of the legislation issue for the government, as the judiciary is in charge of interpreting the law.
It is the usual procedure that the initial stage of enactment is that the law becomes a bill that is sent to the legislative houses. It could emanate from the house of senate, representatives or the executive in the form of a money bill which is the budget for the year.
The bill presented will go through various stages of reading, particularly the first, second, and third reading stages. This is where the bill is deliberated upon, and if it passes the first stage, it advances to the third stage and goes up further.
Then when the second reading is over, it goes to the third reading before the draft is sent to the executive for assent. Once the bill is signed, it becomes law.
Everything is regulated and directed by law, including how it is enacted, which makes things be done in an orderly manner without issues, and if it does not go through the process, it cannot become law.
10. Law stipulates means for its interpretation
The common law’s language is English, and words are usually ambiguous if the word’s meaning is not restricted or extended in that particular law. A definition section exists in a law enacted, and the essence is to restrict the meaning of some words or extend their meaning.
When a different meaning is intended aside from the ordinary meaning of that word, it would be indicated and the situations where the word applies.
Ordinarily, laws should be interpreted using their ordinary meaning, called literary meaning. However, when its literary interpretation leads to ambiguity, then the golden rule of interpretation doctrine will be adopted to ensure that justice is done to the parties.
The primary and the only body charged with interpreting the law is the judicial arm of government which is the judges in a law court.
We have shown the most important functions of law in this society that will help in individuals’ research and studies. This will help to appreciate the rationale behind the existence of the law in society and why one should always obey the law to avoid punishment.
The functions of law in society cannot be underestimated as we cannot live in peace and order without law, and even when there is a law, the order is still not maintained. Hence, it is also a thing of morality to see peace and order in society.