For years now Philosophers and other social thinkers have been making attempts to explain what it means by the term law. However, it seems the clear definition of law has been difficult to be obtained; there has not been uniformity in the definition of law. Probably that has been so due to the fact that law, like other social phenomena, is traced by different approaches. Despite the fact that there have been various approaches on the meaning of law that does not bar us from taking a stand somewhere on the meaning and the nature of law. In this part various definitions of law as given by different philosophers will be discussed. The discussion will look at law as those rules, which we have to obey and, if we do not obey them, we can be taken to court and get punished for breaking the law.
Sir John Salmond defines law to mean the body of principles recognized and applied by the state in the administration of justice. He argues that law entails rules recognized and acted on by courts of justice. To Salmond law are the rules enforced by the state. Is it a satisfactory definition?
John Austin says law is a rule of conduct imposed and enforced by the sovereign. To him law is a command of ats fundamental interests. Law, therefore, express the will of the economically and politically dominant classes. It assumes the form of state will by virtue of the politically dominant class because, above all, it dominates, the state. Since the state is an institution of political power, law is always a political phenomenon.
Nature of Law
Law is differentiated form other social norms that regulate human behaviour by its unique nature of normativity. Normativity of law means that the members of society are bound to behave in accordance with the law. People are bound to live in accordance with the law and not in accordance with their interests and wishes. Law has always been binding. Generally, normative nature of law is seen in three scenarios:
Law as permissive rules. Law as prohibitiv rules and Law as directive rules
Therefore, law regulates human behaviour through any of the above ways.
Functions of Law
Law in any given jurisdiction has its own roles and functions. Through these functions the need and demand of any society to have the law are met. It is out of the need for well-governed society, the need to have a well-organized public power, the demand for peaceful society and the desire to have a system that governs and regulate individuals in societies. Therefore, all these needs attracted the emergence of law in societies and thus, laws that are set or enacted must fulfill these demands. Therefore the following are the major functions of law:
Law has a role to structure public power. With this function law expresses or establish public power (the state). Law also structure and controls the exercise of power. It is the law that puts in place the organs of the public power and set the limits on the same. Law plays the role of recognizing basic human rights and set the duties of the people in societies they live. Therefore, by meeting this important role, law structures the public powers for the benefit and good of both classes in the societies mainly, the ruling class and the ruled.
Law facilitates and regulates private relations. With the advancement of technology and improvements in modes of productions there have been tremendous changes in socio-economic relations among individuals. Conducive environment that would make the new socio-economic relations operate was a must, and that environment was to be laid down by rules and laws that would attract for example fair contractual relations, or property ownership relations. In these we get law of contract and law of property etc.
The other function of law and which is well known to many is to solve disputes or conflicts between and among members of society. In any living and growing society where members of that particular society interact in day-to-day activities, conflicts are inevitable. Therefore, it is for the law to resolve these emerging conflicts and restore the status quo in society. Through this role peace is restored and make people focus on production activities and the living peaceful. This is done by the state through law to set institutions like courts of law and other bodies to resolve disputes.
Law compared with other social norms
Law is not the only social norm that regulates the social behaviour of the people in society; there are other social norms like, rules of morality, customs and organizational rules. The differences between law and other norms are:
Law is created by the state, either by being enacted by a law making body or by being formulated by certain organs like courts and members of the executive when practicing delegated functions.
Law attracts state interests, therefore can be or is enforced by means of exercising state power.
Divisions of Law
Commonly, law is classified into three categories that are:
• Criminal Law and Civil Law
• Public Law and Private Law
• Substantive Law and Procedural Law
• Criminal Law and Civil Law
These are the well-known divisions of law to many people including laymen. Criminal law is that class of law that attracts the interests of the state/public and therefore deals with relationship between the state and individuals. It deals with crimes and punishments. In criminal cases the suspect of a crime is called the accused and those who allege suspicion towards the accused are called prosecutors. When the case is determined the accused is either found guilty or not guilty and if guilty he is convicted and sentenced accordingly.
Civil law is the class of law that regulates the relationships of individuals to which the state has no interest at all and is not directly involved. The state only provides institutions and framework for the resolution of private disputes. In civil cases the person who sues is called the plaintiff and the person who is sued is called defendant. Normally punishment in a civil suit is compensation when the court finds that the lawsuit is justifiable.
Public Law and Private Law
Public law is that branch of law that deals with the relationship between the state and the individual. It also provides for how public power is to be exercised, by whom and by what limits. Public law comprises transcendental being that is God. They contend further that since God is the source of all material beings, he is, by the same token, the prime mover of such material beings. Therefore they argue that God is the sole determinant of all phenomena including law and state, which he gives once and for all. Thus according to this theory state and law are God given and for that matter they are eternal categories, which are over and above man and society generally. To them Kings and rulers are representatives of God in the world with the assignment to rule by divine right. It is therefore a must for man to obey God fully. Founders of this theory include John Locke and Thomas Hobbes, these and many others connect state and law with God.
Materialist Theory.
Unlike Idealist theory, materialist theory contends that to understand the origin of state and law it is important to study the historical and dialectical development of the two phenomena. They therefore argue that the two are social institutions, in which their origin is to be traced through modes of production at each particular stage of human development. To them, state and law came into being at a particular stage of human development. They argue that state was not in existence at the primitive communalism because at this time man lived a very low and primitive life due to low level of development. They are of the view that state and law originated at the time when man was highly developed economically, socially and technologically, where man was able to produce surplus. At that time when man had improved means of production. They conclude by saying that state and law emerged when there was tremendous improvement in the productive forces, production relations and social relations which in turn guaranteed division of labour, production of surplus, and class formation in society.
