Law is simply law. Anon.

With reference to the various Legal Theories and other relevant

examples, critically discuss the meaning and functions of law in society.

In this paper, we will frugally define laws and its functions in line with the various schools of

thought and other relevant examples that affirm synonymously law is law. The task will also

expound on the different theories that spell out law and its functions that aggrandise the fact that

law is law. Consequently, the participants found it necessary to also include the introspective

contribution of scholars who think differently from these schools of thought with an aim to

ensure it's factual. The paper will capture: Definition of law, its functions, the natural theory of

law, the positive theory of law, the Marxist theory of law, the realists theory of law and the

deduction.

Definition of law,

Law has been defined differently by different sources.

According to Collins dictionary, law is a system of rules that a society or government develops

in order to deal with crime, business agreements, and social relationships. You can also use the

law to refer to the people who work in this system.

Merriam Webster defines law as a binding custom or practice of a community: a rule of conduct

or action prescribed or formally recognized as binding or enforced by a controlling authority. He

also adds that it is a rule or order that it is advisable or obligatory to observe something

compatible with or enforceable by established law. He equates law with a rule of construction or

procedure. Law is also the legal profession, studied for a career in law or law is a department of

knowledge, jurisprudence.
LEGAL POSITIVISM

Legal positivism has taken three central positions:

● That law is different from morality and thus should not be compared.

● That law should be viewed from the perception of what it is rather than what it ought to

be because then it will bring in morality into the picture.

● That law is made by the government.

Legal scholars in this field of legal positivism are Thomas Hobbes, John Austin and HLA Hart.

Thomas Hobbes was for the perception that laws are rules made by the sovereign to enable the

citizens to decipher between what is right and wrong. For him, law is not made by any divine

being.

John Austin was for the view that law is a command of the sovereign backed by sanctions. To

him, law is made by a superior human being and must be followed by the common human being.

H.L.A Hart took different positions for legal positivism. He took that there is no connection

between law and morals; law is a command of the sovereign backed by sanctions and that moral

judgements of law cannot be defended. The function of law according to legal positivism is that

of enforcing social order even if it involves imposing sanctions and punishing those who break

the law.

MARXISM THEORY

The scholars behind the development of Marxism are Karl Marx and Friedrich Engels.

According to Marxist's law theory, law and human rights arise from the interactions of human

being within social structures that contain economic class distinctions. However, Marxists law is
based on human rationality. That is, if the people in the society were of the same class and

standard there would be no need for law mainly because class divisions within societies create

conflicts and disorder and therefore law (and the state) come into existence to deal with this

conflict. The state that rises to maintain order within society perpetuates the conflict as dominant

class wielding power over classes with less power. It is argued that a capitalist society that

creates unequal rights based on property and classes leads those with fewer rights to protest in

the form of lawlessness. Moreover, Marxists theory brings out the meaning of law as the power

to guide, control, maintain order, solving disputes and protect the rights of the people in the

society. The assumptions basic to Marxist legal theory are that God does not exist; second, that

humans are evolving animals- deny both the possibility of an absolute moral code and of any law

grounded in any authority other than human authority. Laws are thus imposed by the state to

quell these disturbances. In Addition to this, Marxist is of the view that law, the bourgeoisie and

the proletariat are the two classes in the struggle for power. The bourgeoise law is oppressive

because on the concept of private property. Whereas if the proletariat are given power to rule

their rule would be unrestricted in any rule. Marxists claim that law cannot be separated from the

social and economic structure of the society because law and state emerged long ago to resolve

the conflict between class interests. Marxism theory bring out law as belonging to those who

have power and they use it to oppress the weak in the society.

NATURAL LAW THEORY

Natural law theory like legal positivism has appeared in a variety of forms and in many guises.

One of the most elaborate statements of natural law theory can be found in Aquinas who
distinguished four types of law: eternal, divine, natural and man-made. So according to Aquinas,

eternal law reflected God's grand design for the whole shebang. Divine law was that set of

principles revealed by Scripture and natural law was eternal law as it applied to human conduct.

Man-made law was construed by human beings to fit and accommodate the requirements of

natural law to the needs and contexts of different and changing societies. Also according to

Aquinas, the fundamental precepts of natural law were not only ascertainable (mere mortals like

you and me could and did find them out) but self-evident, that is, they required no proof. They

were, in Aquinas' terms, per se nota, known through them. Like his predecessor, Aristotle,

Aquinas distinguished two kinds of reasoning: theoretical and practical. Human beings were

capable of both sorts of reasoning. Theoretical reason was the capacity to apprehend those

principles guiding human conduct which tell us how we ought to live, what things we should

value, what goods we should seek, and how we ought to live our lives. Like Aristotle, Aquinas

believed that there were principles of practical reason and that they were no less fundamental

than the principles of theoretical or speculative reason. Thus, for Aquinas, the principle of non-

contradiction was self-evident as the first and most fundamental principle of natural law ("Good

is to be done and evil is to be avoided ").Like the principle of non-contradiction, the precepts of

natural law were, according to Aquinas, general and unchanging. They were the same for

everyone. But man-made or human has to take the particularities of each human situation into

account. Man-made law must adjust natural law to specific and often changing circumstances.

Man-made law is accommodating and changeable. Furthermore, there are areas of human

conduct where natural law does not spell out the particular ways that human beings ought to

behave themselves. Natural law does not dictate, for example, that we drive on the right hand

side of the road. Human communities require a host of regulations simply in order to function
(traffic and tax laws). But even these regulations are guided albeit somewhat distantly, by natural

law, that is, by the requirement of natural law that health and safety be protected. Man-made law

may, of course, conflict with natural law or fail to capture some fundamental feature. Aquinas

argued that human laws that contravene natural law are "acts of violence "and "a perversion of

law ".Such laws he argued do not bind the conscience. They have no legal validity and cease in

this regard to be [Link] law theory has the role of showing human beings the way they

ought to follow since it is focused on morals accepted and kniwn by society. In addition to this,

natural law forms the basis for formation of civil law. Civil law forbids many wrong acts such as

murder or theft because they are morally wrong. Without natural law theory to bring sanity, civil

law would just be formed on the basis of those who hold more power.

Realism Theory

Realists take a view that legal system is just another form of politics. They disagree that the law

is a scientific endeavour to which deductive reasoning may be applied to reach decision. It also

recognizes that because Judges often make decisions based on their political affiliations, the law

has a tendency to lag behind social realities (Take for instance; decision on Abortion by Judge

Anthony Kennedy in the USA Roe v Wade and also the Supreme court ruling on the Presidential

Petition of 2013 in Kenya. Realists are opposed to natural law traditions and this is because of

their Value free approach; they are also opposed to any form of Linguistic turn in Jurisprudence.

Legal realism is a naturalistic approach to law and the view that jurisprudence should emulate

the methods of natural science, that is, rely on empirical evidence, it is a perspective that legal

rules are to benefit the larger society and public police based on judicial decisions. Neither

dogma nor supernatural authority applies. A court is expected to determine legal rights and legal

duties. Legal realists have two different traditions:

viewed law from the point of the bad man, who in this case, is any person in a criminal

and civil proceeding. He is for the view that lawyers should be in a position to know how

court decisions are made and predict the outcomes.

● The Scandinavian Realists- Karl Olivecrona was one of the originators of this school of

thought where he was against the idea that law is backed by sanctions as he viewed that if

the law is internalised then it would not be difficult for the subjects to adhere to it.

Realism theory has the role of involving judges in decision making since they are

involved in interpreting the law. This helps in making the law clear as judges have a

better understanding of the law.

UTILITARIANISM

Utilitarianism is for the view that morality involves doing whatever is possible to increase

happiness and minimise pain. This school of thought is attributed to Jeremy Bentham and John

Locke who said that the greatest happiness of the majority people is the foundation of morals and

law and that utilitarianism governs our judgement of every situation and action. Utilitarians

believe that the human society seek happiness and avoiding pain, and the best way to ensure this

is to choose actions that maximise happiness and reduce pain.

SOCIOLOGICAL SCHOOL

This school of thought is tied to the study of the society and began in the 20th century.

Sociological theorists include Roscoe Pound, Herbert Spencer, Marx Weber and

AugusteCompte. Roscoe Pounds position was influenced by the expansion of the American

society, its wealth and the devotion to scientific technology. For Pound, the role that law plays is
that of structuring the society and reconciliation of the conflicting interests. The task that law has

is that of playing as a social engineer. This school of thought shows the impact that law has got

into the society and checks the functions of law in the society.