MEANING AND FUNCTIONS OF LAW
CONTENTS
1.0 Introduction
2.0 Objectives
Main Body
Meaning of Law
The Basic Schools of Law
Functions of Law
4.0 Conclusion
5.0 Summary
6.0 References/Further Readings
INTRODUCTION
This part of the module focuses on the main fulcrum of legal study, to wit, the meaning of law, the basic schools of law and the functions of law. In essence, the Unit beams searchlight on law and the functions it performs in the society. It also endeavours to examine how the law has been able to effectively perform those functions.
OBJECTIVES
The basic objective of this unit is to have a basic understanding of the several definitions of law. It also aims at making students understand that there is no definition to end all definitions. At the end of this unit, it is expected that students will be able to place the various definitions of law within the particular school to which they belong. They must also be able to identify the functions of law and appreciate how the law has fared in performing those functions effectively.
MAIN BODY
Meaning of Law
The main focus of students, irrespective of whichever materials they use, is to appreciate the fact that defining a legal concept is as difficult as asking the camel to pass through the needle’s eye. In defining law using various approaches, students are expected to factor in the relation of law to other social sciences and they equally must be apprised of the impact of the early periods of theorization, the Sophists, the Greeks, the Romans, etc on the emergence of the current modern meaning of law.
Underscoring the impossibility of having a generally acceptable definition, Prof. Okunniga once stated that ‘nobody including the lawyer has offered, nobody including the lawyer is offering, nobody including the lawyer will ever be able to offer a definition of law to end all definitions’.
A working definition of law can be said to be ‘the binding rules of conduct meant to enforce justice and prescribe duty or obligation, and derived largely from custom or formal enactment by a ruler or legislature.’
It is very essential that laws carry with them the power and authority of the enactor, and associated penalties for failure or refusal to obey. Law derives its legitimacy ultimately from universally accepted principles such as the essential justness of the rules, or the sovereign power of a parliament to enact them.
Elegido posits that many definitions of law have been proposed in the history of jurisprudence. This is as a result of the fact that law is a very complex phenomenon which can be studied from many different standpoints. The fact that two different writers are offering different definitions of law does not necessarily mean that their ideas are absolutely different. It could be that the two writers are emphasizing different areas of law. There could also be radical differences in definitions of law offered by different writers which is reflective of radical or philosophical differences and different ideological leanings.
Also writers have different views of what constitutes a good definition. The task of differentiating law from other social phenomena which are somehow similar to law such as social morality is similar to the effort of distinguishing contiguous primary colours.
Despite the complex nature of law, there are fundamental characteristics that are present in law. Law has the peculiar value that it advances the common good of a community through the coordination of the activities of its members. There are many goods which men can attain through their individual efforts. However, there are also goods which makes it possible for each individual in the society to attain effectively whatever goods he chooses to pursue, examples are public infrastructure.
As Elegido has pointed out that it is necessary that human beings co-ordinate their actions if they are to pursue effectively any common good for the society. Effective co-ordination however depends on obedience to a common authority. Law therefore, he contends, is one of the means of achieving this aim. Law provides a means of fostering effectively the common good of one’s society. Law also has the value that it makes it possible for authority to be exercised in a way that minimizes arbitrariness and maximizes the freedom of the members of the community. This requires the exercise of authority through the ideals of rule of law.
It is also important to note that law is made up of normative standards. This means that it is the duty of law to guide both judges and the people on the ways in which they must act in order to foster the common good of their community. Law seeks to guide the actions of the people through general rules. The learned author further states that law also is made by an authority which has effective control in the community. Equally law regularizes the social life of an independent political community and provides for a system of sanctions and means of coercion.
Self-Assessment Exercise (SAE) 1
Attempt a critique of the various definitions of law while coming up with your own working definition.
The Basic Schools of Law
Under this head, students are expected to explore the various theories of law. These are also referred to as the various schools of thought in Jurisprudence. Students are especially expected to be able to connect the dots by linking the various jurisprudential schools together in terms of ages. The starting point should be the Natural Law School. Some of the schools that should be explored include: the Natural law school, analytical positivism, legal realism, sociology of law, critical legal studies, the work of the contemporary philosopher of law, Ronald Dworkin, etc.
Natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human-created laws gain whatever force they have. For legal positivism, there is no necessary connection between law and morality and the force of law comes from some basic social facts although positivists differ on what those facts are.
Legal realism on its part argues that the real world practice of law is what determines what law is. According to this school, the law has the force that it does because of what legislators, judges, and executive do with it.(
Critical legal studies is a younger theory of Jurisprudence that has developed since the 1970s which is primarily a negative thesis that the law is largely contradictory and can be analysed as an expression of the policy goals of the dominant social group.
Ronald Dworkin has advocated a constructive theory of Jurisprudence in his work which can be characterised as a middle path between natural law theories and positivist theories o fgeneral Jurisprudence.
Students are expected to understand the standing of the various schools as well as the links or differences existing as between various schools or theories of Jurisprudence.
Self-Assessment Exercise (SAE) 2
While natural law theorists believe that law should legislate morality, the legal positivists are of the view that law should distant itself from morality. In the light of this statement, examine the similarities and the dissimilarities between the two schools of thought.
Functions of Law
What functions does law perform in a given society? Students must identify these functions and appreciate them in practical terms. Broadly speaking, law performs two major functions. It performs prescriptive function by prescribing how people ought to conduct themselves, and law helps to realise justice.
Specifically, law performs the following functions:
- It cultivates and ensures the existence of adequate order;
- It provides resolutions to conflicts;
- It provides a safe haven for individuals and their assets;
- It maintains the structured operation of the civilisation; and
- It protects civil liberties as set forth in each nation’s constitution
Added to the above, law also performs a host of other functions such as its functions in relation to achieving justice, tracing the root of sovereignty in a society, defining freedom of individuals and delineating where freedom of one must be curtailed so that it may not affect the freedom of the other, helping to determine the question of legitimacy of a given government, determining the question whether an entity can qualify as a state, and so on and so forth.
In view of the above we can therefore summarise( that the function of law connotes its purpose. The normative propositions of law are dictated by social, moral, economic, political and other purpose. The overall purpose of law is the achievement of justice. The function of law according to Salmond is it application in deciding disputes and by way of enforcement.
The bottom-line is that you are expected to know all these functions and to be able to explain them extensively through the use of the various reference materials stated at the end of the section.
Self-Assessment Exercise (SAE) 3
Without law, there can never be a society. Do you agree?
CONCLUSION
There are several definitions of law; yet there is no universally acceptable one. You havealso learnt about the various schools of law all of which attempt a definition or a description of law from a perspective most relevant to and conducive to them; and finally, we look at the various functions performed by law.
SUMMARY
In this unit, you have learnt about:
- The meaning of law
- The Basic Schools of Law
- The Functions of Law
REFERENCES
Dias, R.W.M., Jurisprudence, 4 th ed. (Butterworth & Co. (Publishers) Ltd, Boston) pp 1 – 28
FunsoAdaramola, Basic Jurisprudence, 3 rd ed., Raymond Kunz Communication, Lagos, 2004, 1 – 15
Obilade, A.O., The Nigerian Legal System, (Sweet & Maxwell, London) Prof. Okunniga, Inaugural Lecture (1983) Series 62 at 207
Simpson, A.W.B. The Common Law and Legal Theory, Oxford Essays in Jurisprudence, 2nd Ser., Clarendon Press, Oxford, p. 77 – 99