Menu Close

nature and function of law

Nature and function of law

The nature of law is such that it encourages a man to orient his existence and action according to the given circumstances and rationalize them. Fuller said “Our whole legal system represents a complex of rules designed to rescue man from the blind play of chance and to put him safely on the road to purposeful and creative activity

For the proper functioning of society and harmonious living of the society certain rules are needed to be followed. These rules are called the law. In the primitive society, these rules are called custom and usages. After that, with the development of the society these rules are codified and disobedience of them lead to sanctions. Before understanding the nature of law we need to understand meaning of law.

Suggested books for the topic

After the society is politically organized, rules are recognized by the state and codified and become law of the land. The former rules are called customs. To interpret the statutes, judicial bodies are set up. The decisions given by the judicial body becomes the precedent.

Law is closely linked to the society and thus is also called a social science. Due to its changing nature law also changes to meet the demands of the society.

B.P Achaland Vs. S. Appi Reddy and another, (2005) 3 SCC 313: “The law does not remain static. It does not operate in the vacuum. As the social norms and values change, the law to have to be reinterpreted and recast. Law is really a dynamic instrument, fashioned by the society for the purpose of achieving harmonious adjustments of human relations by eliminating of the social tensions and conflicts”

Territorial nature of law

Law is generally made and enforced by the state. It is enforced on its citizens only. This is the basic principle of sovereignty. This law is territorial in nature. It is generally not applied outside the territorial boundaries of the state. But there are exceptions to it also. Under some circumstances, the law is also applied outside the state such as personal laws of the person. It is recognized that a Hindu wherever it goes carry on his duties with him.

Section 3 & 4 of Indian penal code:

Section 3: Punishment of offenses committed beyond, but which by law may be tried within, India.—Any person liable, by any  [Indian law] to be tried for an offence committed beyond [India] shall be dealt with according to the provisions of this Code for any act committed beyond [India] in the same manner as if such act had been committed within  [India].

Section 4: 4 Extension of Code to extra-territorial offences. —The provi­sions of this Code apply also to any offence committed by—

8 [(1) any citizen of India in any place without and beyond India;

(2) any person on any ship or aircraft registered in India wher­ever it may be;]

9 [(3) any person in any place without and beyond India committing offence targeting a computer resource located in India .] 10 [ Explanation .—In this section—

(a) the word “offence” includes every act committed outside India which, if committed in India, would be punishable under this Code;

(b) the expression “computer resource” shall have the meaning assigned to it in clause (k) of sub-section (1) of section 2 of the Information Technology Act, 2000.]

Thus if a person commits a crime in India and is found outside the territorial boundaries of the country, the former can ask them later to extradite the criminal. In India, there is ‘Extradition Act, 1962’ which governs the procedure for the same.

Till sometime back the international law was not considered the proper law because of lack of enforcement authority but with the development of time, it has come into the ambit of Law.

Thus it can be concluded that the nature of law is basically territorial, but with the development of technology and science the world is coming closer and the territorial nature of law is not applied strictly. Even the laws of other countries and international laws are enforceable in a state if there is a provision in the procedural law of the country.

Morality and duty

Morality and duty are encompassed in the nature of law. If the rules are made and codified and made enforceable, it is taken into consideration that those rules should be collateral with the ethics of the society. Rules should not be contrary to the morality of the people. Without following the principles of morality it will be very difficult for the law to exist.

The nature of law is

  • Law sees in man that he has a thought process to alter his actions by conscious decisions.
  • It views that man can locate his social orientation and interactions.
  • Law assures that human conduct can be subjected to governance by rules.
  • It believes that man can be responsible agent capable of understanding and following the rules and also answerable to his defaulters

Purpose and function of law

Law is not an end in itself, it is meant to the end. It has been stated by the jurists that law and morality are not the same things. They are inter-related and their center is same but they have a different circumference. Some improper law cannot be immoral, and in the same way, if the certain law has been made it will not become unenforceable just because it is immoral.

The functions of law include

Dispensing justice

The main function of the law is affirmation as to how the courts are to function with justice being the sole remedy. Law is an instrument to secure justice, almost every theory accepts that the purpose and function of law are to secure justice in the society.

Distributive Justice:

Distributive justice is concerned with the fair allocation of resources among diverse members of a community. Fair allocation typically takes into account the total amount of goods to be distributed, the distributing procedure, and the pattern of distribution that results.

One important objective of the law is to treat persons equally who are equally placed. Article 14 of Indian constitution guarantees equal treatment for all person.

  1. Chandevarappa vs State of Karnataka (1995) 6 SCC 309: The courts in interpreting statutes have kept in view the doctrine of distributive justice embodied in the constitution and have put emphasis on it. It has been held that economic empowerment of the Dalits, tribes and poor as a part of distributive justice is a fundamental right.

Corrective Justice:

Aristotle’s account of corrective justice describes the form of the private law relationship. Corrective justice treats the wrong, and the transfer of resources that undoes it, as a single nexus of activity and passivity where actor and victim are defined in relation to each other. Being concerned with structure, not substance, Aristotle presents corrective justice in formal terms, as an equality between the two parties to a bipolar transaction, in contrast to distributive justice, which is a proportion in which each person’s share is relative to a distributive criterion. Although formal, Aristotle’s account is not empty. It captures the coherence of the private law relationship and the categorical difference between private and public law. Because Aristotle omits to tell us what the transactional equality of corrective justice is an equality of, his account must be supplemented by Kant’s philosophy of right

Corrective justice is a rectifying function of the law. By correcting the injustice one person has done on another corrective justice assets a connection between remedy and wrong.

Social justice:

Social justice is a broad concept that is not limited to any specific religious or political movement. It is broadly associated with the political left, and in the U.S. its advocates are mainly found in the Democratic party, particularly in the party’s self-identified progressive and socialist wings. Progressives and socialists who do not associate with the Democratic party (independents, Greens, and others) also commonly employ the term.

Modifying the existing law

As already stated that law is made for the society and it changes with the society. Every day there comes a new problem and to cope up with it we need new laws. Certain old laws need to be amended to maintain the peace in the society. For example abolition of Sati, prohibition of dowry. When the society change and old laws cannot be enforced effectively they need to be amended.

Telling the procedure

Another function of the law is to tell the functional aspect of the laws. For example, CrPC and CPC are procedural laws that help the substantial laws to function properly

Rights and duties on Individual

One of the major function of the laws is to bestow rights and duties on the individual. Rights and duties are necessary to live in a society. Our constitution has given us fundamental rights and with it comes fundamental duties. There are other statutory rights also. Right to live in a society does not mean to live an animal living. It is living life with dignity and honor. And for achieving that law gives individual rights and duties.

Punishment for violation

Law will only be able to maintain peace and to give justice if it is enforceable. For it to be enforceable it is necessary that it gives punishment and sanction to the person who disobeys it. It is necessary for proper functioning of the society. Austin said ‘Law is the command of the sovereign, backed by sanction’

Welfare state

Earlier there used to be the concept of laissez-faire state where the only function of the state was to protect the people from external harm, but now it is not the same, it is evolving and now there is the concept of welfare state.

The welfare state, a concept of government in which the state or a well-established network of social institutions plays a key role in the protection and promotion of the economic and social well-being of citizens. It is based on the principles of equality of opportunity, equitable distribution of wealth, and public responsibility for those unable to avail themselves of the minimal provisions for a good life. The general term may cover a variety of forms of economic and social organization.

A fundamental feature of the welfare state is social insurance, a provision common to most advanced industrialized countries (e.g., National Insurance in the United Kingdom and Social Security in the United States). Such insurance is usually financed by compulsory contributions and is intended to provide benefits to persons and families during periods of greatest need. It is widely recognized, however, that in practice the cash benefits fall considerably short of the levels intended by the designers of the plans.

The welfare state also usually includes the public provision of basic education, health services, and housing (in some cases at low government

ost or without charge). In these respects the welfare state is considerably more extensive in western European countries than in the United States, featuring in many cases comprehensive health coverage and provision of state-subsidized tertiary education.

This will only be achievable with the help of law and proper planning and functioning of the

Uniformity

For securing obedience and for the proper administration of justice, it is necessary that the law must be fixed, certain and stable. If the rules are certain these are known to the people and certainly, people will know the consequences of not following the rules.

Impartiality

Law is necessarily impartial. It is not made for a particular person, it is made for all the people. All people are equal in the eyes of the law. It most certainly is free from the influence of improper motives on persons entrusted with the work of administration of justice.

Rule of Law

The aim of the law is to establish rule of law and not of the individual. There should be no arbitrariness. Indian constitution follows rule of law. Specifically, Article 14 guarantees the equality before the law and equal protection of the law.

Stability and Security of social order

It is one of the major purposes of law to maintain social order and social stability.

Books Referred: Jurisprudence

The legal theory by B.N. Mani Tripathi

Studies in Jurisprudence and Legal theory by Dr. N.V. Paranjape

 

 

Leave a Reply

Your email address will not be published. Required fields are marked *