Definition of Law and Function of Law

BY LUCKY SINGH,ARMY INSTITUTE OF LAW

ABSTRACT

Law, the cornerstone of any well-functioning society, uses a sophisticated set of guidelines
and precepts to regulate behaviour. This essay examines the complex nature of law by
examining its definition, numerous perspectives, and fundamental purposes. It looks at
important legal theories and shows how different legal theories see the beginnings,
legitimacy, and application of law, including natural law, legal positivism, legal realism, and
critical legal studies. The study also looks at the fundamental roles that law plays in
preserving social order, defending individual liberties, advancing justice, and stimulating the
economy. Law has a crucial role in creating and preserving a just and equitable society, and
we can better appreciate this role by comprehending the interactions between legal theories
and their practical applications.

INTRODUCTION
A functional society is built on a complex and multidimensional system of laws called the
law. Every aspect of our lives is impacted by it, from the routine exchanges of everyday
living to the complex operations of governments and international affairs. However, what
really is law, and how does it carry out its essential duties?

This introduction explores the fundamental ideas behind law, including its definition, key
traits, and functions in establishing and upholding a fair and lawful society. We'll look at how
the law creates structures for settling conflicts, defending rights, advancing justice, and
stimulating the economy. We may better appreciate the enormous influence that law has on
both the well-being of the whole and each of our individual lives when we comprehend the
nature and purposes of law.

TYPES OF LAW

Two primary categories can be used to generally classify law:

 Public Law: This area of law regulates how the government interacts with people or
other entities. It guarantees the government runs justly and lawfully while defending
people's rights. A few instances of public law are as follows:

 Constitutional Law: Defines people' fundamental rights, lays forth the structure of
government, and distributes authority among the several organs of government.

 Administrative law: oversees government agency operations, making sure they follow
the law and behave justly.
Criminal law: establishes the parameters for crime investigation and prosecution, as
well as the definitions of crimes and their penalties.

 Private Law: This area of law regulates interpersonal or business connections. It

resolves conflicts arising between people, companies, and other entities. Some
instances of private law are as follows: Contract Law: Controls the drafting and
 implementation of interparty agreements.

 Property Law: Specifies the responsibilities and rights that come with real and
personal property ownership.

 Tort law: Offers compensation to anyone harmed by the wrongdoing of other people.
Apart from these two broad divisions, there exist a plethora of specialised legal
domains that address certain subjects or sectors. Among them are:

 Business law: Covers topics such as corporation law, securities law, and bankruptcy
law that are related to the establishment and management of businesses.
 Environmental Law: Controls actions that could affect the environment.

 Family law: Addresses matters pertaining to adoption, child custody, marriage, and
divorce.

 Health Law: Oversees matters pertaining to the healthcare sector, including insurance
coverage, patient privacy, and medical malpractice.

 Intellectual property law: safeguards authors' rights to their original works, including
copyrights, trademarks, and innovations.

 International law: Regulates trade agreements, treaties, and war crimes as well as
international relations between nations.

 Labour Law: Controls matters pertaining to pay, hours worked, and working
conditions in the relationship between employers and employees.
Tax Law: Controls how both individuals and corporations are taxed.

Natural Law Theory

Natural law theory is a philosophical and legal theory that postulates the presence of a higher
rule that governs human behaviour and acts as a yardstick for assessing the validity of laws
created by humans. It is separate from human-made laws. Here's a closer examination of its
salient features:

Fundamental Principles:
• Universal and Objective Law: Natural law is applicable to all individuals, irrespective of
space, time, or culture. It is a universal and objective law. It comes from anything that is not
of human making and is frequently ascribed to God, reason, or nature.

• Inherent Rights: According to natural law, people are born with fundamental rights that are
not bestowed by governments but rather are part of what makes them human. Since they are
unalienable and universal, these rights cannot be restricted.

• Moral Foundation for Law: The legitimacy of laws created by humans stems from their
alignment with natural law. A law is deemed unfair if it is in conflict with natural law and has
no moral basis. This idea offers a foundation for contesting and possibly changing unfair
laws.
Crucial Details of Explanation:

• Basis for Various Interpretations: Natural law's origin and content are ambiguous, allowing
for a variety of viewpoints within the theory. While some interpretations contain theological
or religious concepts, others place more emphasis on reason and reasoning.
Problems and Rebuttals: Opponents claim that natural law is arbitrary and that there is no
precise way to determine its tenets. They also doubt its applicability in making legal
decisions because of the possibility of different interpretations.

• Historical and Current Relevance: The American Revolution and the formation of human
rights ideas are two historical occurrences that were greatly influenced by natural law theory.
Though it isn't embraced by all in contemporary legal systems, it nonetheless has an impact
on legal and philosophical debates concerning justice, morality, and the law.
Instances of Natural Law at Work:

• Right to Life: Many proponents of natural law theory contend that the right to life is an
inalienable right that stems from natural law, which serves as a rationale for objections to the
death penalty and euthanasia.

• Universal Human Rights: The natural law idea that every person has inherent rights is
consistent with the concept of universal human rights, which is codified in international law.

• Civil Disobedience: People who question laws they feel are unfair and immoral can do so
by citing natural law principles as justification.
Additional Talk:

• Contrasts: Legal positivism, which emphasises the separation of morality and the law, is
offered by natural law theory.

• Modern Applications: Examining the potential applications of natural law concepts to

modern problems such as global justice, bioethics, and artificial intelligence might encourage
additional thought and debate.

Positivist Theory of Law

One of the most well-known schools of thought in jurisprudence, the positivist theory of law
addresses the nature and purposes of the law. These are some of this theory's salient features:
Core Principles:

• Distinction between Morality and Law: Morality and law are two different things, hence a
law's legitimacy is independent of its morality or whether it is deemed "just." Even though a
law is considered unfair or immoral, it may nonetheless be valid.

• Social Source of Law: Law comes from sources that are accepted by society, like judicial
rulings, customs, laws, and established legal authorities.

• Emphasis on Formal Features: Rather than emphasising the substance or moral

ramifications of legislation, positivists place more emphasis on the formal features of law,
such as its origin, enactment processes, and enforceability.

Important people:

• Jeremy Bentham (1748–1832): Promoted codified law and a utilitarian theory of law.
Law was first defined by John Austin (1790–1859) as "the commands of the sovereign
backed by sanctions," which laid the groundwork for legal positivism.

• H.L.A. Hart (1907–1992): Created a more complex form of positivism by making a

distinction between "secondary rules" (rules concerning the formulation and application of
other rules) and "primary rules" (direct requirements).
Remarks:

• Ignoring Morality: Opponents contend that the basis for advancing justice through the legal
system is completely removed when morality is disregarded.

• Legitimising Unjust rules: The theory has drawn criticism for perhaps legitimising rules that
are morally repugnant despite being legally enacted, particularly in totalitarian regimes.

Legal Realism:

Emerging in the early 20th century, legal realism emphasises the social effects and practical
reality of law rather than just its formal norms and ideas. This sets it apart from traditional
legal theories. Here's a closer look at this well-known theory:
Fundamental Principles:

• Put Practice Before Theory: Legal realists contend that understanding how law actually
operates in practice requires more than just studying legal rules and concepts. They stress the
significance of "the law in action," taking into account the ways in which laws are
implemented and understood in practical contexts.

• Social, Economic, and Political Aspects: Legal realists recognise that these aspects have a
big impact on how cases turn out. When interpreting and applying the law, judges, solicitors,
and other legal actors take into account their personal prejudices, experiences, and social
settings.

• Gap Between Ideal and Reality: Legal realists acknowledge that there is a difference
between the "reality" of how the law functions in practice and the "ideal" of law as it is
portrayed in legal codes and principles. This discrepancy shows the impact of numerous
variables outside the prescribed legislation.

• Pragmatism and Uncertainty: Legal realists recognise that there is a degree of flexibility and
inherent uncertainty in the interpretation and application of the law. They encourage a
pragmatic approach to legal study, emphasising how judgements made by the law will
actually affect society and the real world.

Important People and Educational Institutions:

 Oliver Wendell Holmes Jr., Karl Llewellyn, and Jerome Frank, United States
 Denmark: Alf Ross
 Realist Schools: Scandinavian and American legal realism

Advantages and Drawbacks:

Advantages:

 Offers a more realistic and nuanced grasp of how law works in practice.
 Draws attention to how social and political variables affect the results of legal
proceedings.
 Promotes critical thought on the drawbacks of legal formalism.

Weaknesses:

 May be blamed for causing legal ambiguity in cases where there isn't a solid
foundation for legal interpretation.
 May be interpreted as weakening the rule of law by highlighting the subjectivity and
flexibility of legal judgement.

Examples of Legal Realism in Action:

• Judicial Decision-Making: Legal realists examine how judges make decisions by taking into
account a variety of elements, such as the social backdrop, public opinion, and prospective
policy ramifications, in addition to previous legal precedents.
Legal realists investigate the potential of law to effect social change, acknowledging the
impact of attorneys and social movements on legal reforms and interpretations.

• Legal Education: In addition to the study of legal doctrine, legal realist viewpoints have
influenced legal education by promoting an emphasis on practical skills, problem-solving in
the real world, and the social environment of legal practice.

Additional Discussion:

• Comparison: Legal positivism, which stresses the formal aspects and division of law and
morality, must be compared with legal realism.
• Modern Relevance: It can foster critical thinking to examine how legal realist concepts
might be applied to modern legal concerns including mass imprisonment, environmental law,
and international legal systems.

Critical Legal Studies (CLS) Explained:

Critical Legal Studies (CLS) is a group of legal theories that emerged in the late
20th century, challenging traditional legal thought and its underlying assumptions.

Key Ideas:

• Traditional Legal theory Critiqued: According to CLS researchers, traditional legal theory
obscures the fundamentally political character of law by emphasising neutrality, objectivity,
and formal logic. They contend that the law keeps existing disparities and the dominant
class's power structures intact.

• Power Dynamics and Ideology: CLS places a strong emphasis on how these two factors
influence legal thinking and legal systems. They contend that legal thinking is biassed and
not objective, and that even seemingly impartial legal principles frequently reflect the
interests and values of the powerful.

• Deconstruction and Critique: Legal texts, structures, and practices are dissected and
critiqued by CLS academics using a variety of critical perspectives, including feminist,
Marxist, and critical race theory. Their goal is to reveal the power structures and prejudices
present in judicial systems.

Important People and Educational Institutions:

• Roberto Unger, Duncan Kennedy, and Patricia J. Williams were the founding figures.

• Associated Movements: Critical Race Theory, Marxist Legal Theory, and Feminist Legal
Theory

Advantages and Drawbacks:

Advantages:

 Calls attention to the power dynamics and any biases that may be present in legal
systems, encouraging critical thought and possible improvements.
 Provides a range of viewpoints that can undermine conventional legal narratives and
advance social justice.

Weaknesses:

 Detractors claim that CLS can be unduly critical and only provide a few workable
options for legal reform.
  The focus on dismantling and criticising could result in a dearth of distinct substitute
frameworks for legal theory and application.

Examples of CLS in Action:

 Legal neutrality is criticised by CLS scholars, who contend that even superficially
neutral legal systems can serve some groups at the expense of others. For instance,
they could examine how contract law perpetuates current power disparities or how
property laws benefit particular economic groups.
 Exposing Hidden Assumptions: To expose the values and hidden presumptions buried
in seemingly objective legal arguments, CLS researchers may examine legal
reasoning. For instance, they may reveal how ostensibly neutral legal precepts
concerning "merit" might sustain preexisting disparities according to socioeconomic
class, gender, or race.
 Encouraging societal Change: One common goal of CLS researchers is to utilise their
criticisms to push for legislative changes and societal changes that advance social
justice and equality. To question the status quo and promote a more equitable legal
system, they might take part in activism, legal studies, and other types of intervention.

Further Discussion:

 Comparison: To comprehend CLS's unique viewpoint on the origin and purpose of

law, it is crucial to compare it with other legal theories such as natural law or legal
positivism.
 Discussion and Impact: The debates surrounding CLS shed light on the continuous
conversations regarding the function of law in society, the possibility for legal study
to encourage social change, and the many methods of approaching legal interpretation
and analysis.

FUNCTIONS
Law performs a number of crucial roles in society, including the following:

 Preserving social order: Law offers a framework for settling disagreements and
averting confrontations, which encourages stability and predictability. It helps to
prevent crime and uphold order in a community by establishing clear standards of
behaviour and the penalties for breaking them.
 Preserving individual rights: Fundamental freedoms including the right to free
expression, to assemble in public, and to practise one's religion are protected by the
law. It ensures that people are treated equally and fairly under the law by establishing
legal limits on what the government can and cannot do to them.
  Encouraging justice: The law guarantees that people are held responsible for their
deeds and that those who are injured receive compensation or other forms of
reparation. In order to properly resolve conflicts and administer justice in accordance
with the law, it builds a system of courts and legal procedures.
 Promoting economic development: Investment and economic expansion are facilitated
by the steady and predictable environment that law offers. By defending property
rights, upholding contracts, and promoting a level playing field, it gives both
individuals and companies the assurance and predictability to conduct business.
 Creating a sense of security: By preventing crime and guaranteeing that people can
live their lives without fear, the law contributes to the creation of a sense of security.
It creates unambiguous standards for conduct and imposes penalties for misconduct,
which enhances a community's sense of security and well-being.
Apart from these fundamental roles, law also affects a number of other facets of
society, including:
 Controlling many industries: Various legal fields, such as labour, environmental, or
healthcare law, govern particular sectors and activities to make sure they run
responsibly, safely, and ethically.
 Encouraging social change: The application of law is a tool that can be utilised to
solve social issues and encourage social change. Laws that support equal rights or
forbid discrimination, for instance, can help create a society that is more just and
equitable.
 Establishing a framework for international relations: International law sets guidelines
for trade, diplomacy, and the settlement of disputes between nations.

CONCLUSION

To sum up, legislation is vital to society and fulfils a number of vital purposes. It supports
social order, protects individual liberties, advances justice, stimulates growth in the economy,
and heightens feelings of security. A more secure, just, and successful society can be
achieved through the application of law, which provides a framework for resolving conflicts,
safeguarding rights, and enforcing accountability.
It's crucial to recognise that the law is dynamic, though. Over time, it changes and adapts to
suit the shifting demands and societal ideals. Ongoing analysis and critical thought are
necessary to make sure that the law continues to successfully carry out its core tasks and
advance a just and equitable society as societies struggle with new difficulties and
complexities.

REFERENCES

https://www.legalserviceindia.com/legal/article-5069-definitions-of-law-and-its-
functions.html

https://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/jurisprudence-
Unit-I.pdf