Law and Society - Notes Milenge



Law and Society

A. Significance of Law in the Continuance of Human Society

Nearly all human societies, tribal, peasant or industrial have laws or legal rules whose scope is coextensive with human life.

Basic function of the law is to protect, preserve and defend the members of the society against internal disorder and external threat.

The persons who deviate from the law are given punishments of various kinds such as fines, imprisonment, exile or even death. However, the state which is an embodiment of law may itself become arbitrary or tyrannical.

The perennial question among jurists has been – “Should law be concerned with what is or what ought to be?

B. Evolution of Legal Systems

• In preliterate societies laws have been orally transmitted and often inseparable from customs. The normative control was maintained by the strict observance of taboos which were laws as well as being the basic fabric of society.

• In complex, ancient civilizations such as Babylonia, Egypt, Israel, India and Rome, the laws were usually based on customs, religious principles and the decrees of the monarchs or heads of state. Of these old civilizations, Rome created the most elaborate legal system which enabled it to exercise control over a heterogeneous society. Its far-flung provinces in Europe, Asia and Africa were ruled efficiently by means of formal codes. While the free citizens of the ancient world enjoyed legal protection, the slaves did not have even basic rights.

• The Hindu laws known as Dharmashastras composed by Manu and others were intended to provide guidelines for the maintenance of Varna and observance of Dharma. These texts legitimised the institutions of a heterogeneous country and imparted social stability. On several occasions, when India’s political unity was weak these texts provided the source of new political order.

• As societies grew from simple to complex, there has been an extensive growth of legal rules. This gives rise to certain problems. For example, when a nation-state is formed on the basis of integration of a number of groups, it may be quite difficult to establish equality before law, as these groups may be at different stages of development or have separate legal codes. There are geographic, historic and cultural factors which hinder legal uniformities. If these distinctions are obliterated at one stroke by a fiat of law, it may cause grave imbalances in the social structure. However, a gradual reduction if not removal of disparities is not only possible but also desirable, in view of the modern trend towards equality.

C. Some Sociological Approaches to Law

• Emile Durkheim - Durkheim’s sociology of law was tied up with the wider context of transition from simple to complex society. An important index of this transition was that the law which was repressive earlier became restitutive. In other words, while the law in simple society was based on the principle of stringent punishment, in a complex society it was based on compensatory principle.

• Karl Marx - Marx regarded the legal system of his times as the outcome of certain dominant and vested interests. Law enabled the dominant groups to preserve their privileges and impose their will on the rest of the society. Hence in the communist society of the future, where private interests are replaced by collective goals, both state and law would be unnecessary. This future society would consist of guild like collectives marked by self governance or self regulation. However, in practice in present day socialist states there is a considerable concentration of legal authority in state and repression of those who do not think on the same lines.

• Max Weber - Weber’s theory of law derives from his notion of rational legal authority. In the study of historical jurisprudence, he described the gradual ascendancy of the rational- legal principle. Rational- legal norms emphasise some basic elements such as hierarchic structure of bureaucratic authority, division of spheres of work, impersonal interaction, specific functions and large scale organisations. Official procedures are the very basis of modern organisations, where contractual (means-end) relationships predominate.

In sum, the sociological theories of law emphasise the significance of social factors in the study of law.

C. Reciprocal Relationship between Law and Society

The sociological view highlights the difference between formal (normative) and substantive (operative) aspects of law. What is written into statute books is not always followed in practice. At the same time, law may itself change social norms in various ways. For example, in free India, legal abolition of untouchability is an attempt to change a long- standing social norm. Yet it has not succeeded much due to inadequate social support. Thus there is a reciprocal relationship between law and society.

D. Law as a Means of Social Control: Micro and Macro Levels in Operation

1. Village Panchayat

2. Caste Council

3. British Courts

4. Tribal – judicial system

5. Legal System in Modern India

E. Contrasting Indigenous Jural Tradition of India and British Jurisprudence

According to Bernard Cohn, an American Anthropologist, four discrepancies occurred between Indigenous Jural Tradition of India and British Jurisprudence.

1. The first discrepancy was between the villager’s hierarchical view of interpersonal relationship and the British notion of equality before law. As a result even if a lower caste person, particularly an untouchable, won his case against the land owning upper caste person, the harsh reality of the village power politics negated his victory.

2. The second discrepancy was between status and contract. According to official rules, the relation between a landlord and a tenant was contractual; in personal terms, it was a multiple relationship involving reciprocal (Jajmani) obligations.

3. The third discrepancy occurred in terms of the decisions itself. Usually, the British courts insisted on clear and firm decisions. In contrast, the caste and village councils tried to bring about a compromise between the disputing parties.

4. Fourthly, the official courts usually dealt with the disputes placed before them rather than investigate into the past relationship between the two parties.

Some of these differences between the two systems are carried over to the present.

F. Law and Social Change in India

After Independence, the Constitution of India providing far reaching guidelines for change. Its Directive Principles suggested a blueprint for a new nation. The de-recognition of caste system, equality before law and equality opportunities all in economic, political and social spheres were some of the high points of the Indian Constitution. The problem in the Indian Society is the non-fulfilment of constitutional directives, especially in respect of economic improvement of masses.

G. State Initiated Legal Measures

1. Institutions - There are three State Initiated legal institutions at present. They are:

a. Nyaya Panchayat

b. Lok Adalats

The Nyaya Panchayat and Lok Adalats have been introduced to supplement the existing judicial bodies. Although they have not been completely effective they have familiarised people with the secular concept of law. They are an alternative to the former case and village councils. They have also succeeded in screening disputes at the village level so that excessive legislation is avoided. But heir main limitations are the paucity of resources, limited judicial powers and also non availability of legal minded people in villages.

c. Legal Aid to the Poor

The Legal Aid to the poor is complementary to the Nyaya Panchayats and Lok Adalats. The main reason for introducing this are the paucity of lawyers in small towns and villages, the increasing cost of litigation and lack of awareness among ordinary people.

2. Legal Reforms - The Law Commission of India (LCI) which came into existence in 1955 has been entrusted with comprehensive terms of reference. These include not only the traditional spheres of law such as Company Law, Civil and Criminal Procedure, Contract Act, etc. but also the laws oriented to social change such as those related to the implementation of Directive Principles. The LIC has been expected to reform the existing social legislations or usher in new laws with regard to weaker sections, bonded on contract labour, juvenile delinquents, mentally ill and physically disabled.

H. Law and Social Justice

Ex.: Bhopal Gas Tragedy

I. People’s Participation in Legal Change

As yet, masses in India have not been involved in the contemporary legal activities. In recent years, the Public Interest in Litigation has increased. The journalists, lawyers and social workers are in a position to approach a civil or criminal court for appropriate action by the government. Of course, in this type of litigation, publicity seeking by individuals may be implicit to some extent. Nevertheless, it is an effective weapon to uncover the scandals and deceptions through exposure in the courts of law.

Concluding Reflections

The ineffectiveness of legal institutions in meeting the needs of society has slowed down the pace of social change in India.

In the legal scene, hope and disappointment at once confront the average Indian in contemporary India.

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Dr. Sam J. Abraham, LL.M. Ph.D.

Assistant Professor

Amity Law School – Center II

Amity University, UP

Mob: 09413706290 / 09910462247

E-mail: samjabraham@

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