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 Indias 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 - Durkheims 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 - Webers 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.
2

1. The first discrepancy was between the villagers 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
3

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. Peoples 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.
__________________________________
Dr. Sam J. Abraham, LL.M. Ph.D.
Assistant Professor
Amity Law School Center II
Amity University, UP
Mob: 09413706290 / 09910462247
E-mail: samjabraham@gmail.com
__________________________________