Law and Society

12-May-2020

Maj. Gen. P. K Sharma
Prof. & Director Amity Law School
Dean Faculty of Law
Amity University Gurugram

People tend to think of Law as slow moving, immutable and disconnected from daily life. In fact, Law is dynamic and keeps evolving with the needs of time and society. It is actually an integral part of our daily lives and before the current pandemic hit the world, any number of debates on news channels could be found discussing the validity/necessity etc. of Gay Rights, Uniform Civil Code, rights of the accused in Nirbhaya Case, developments in Commercial Laws and their impact on the growth of industry etc.; what is now being talked of is what Laws govern this Pandemic Situation!

Why is it important to study the relation between Law and Society, one may ask? The answer maybe in the way both Law and Society influence each other. Law, though it is the product of the Society, is responsible for social transformation. Whereas on one hand, it is often said that Law is the reflection of the will and wish of the Society, and if you want to study any Society, you must study the Laws enacted by that Society, on the other hand, in today’s technology driven global world, Laws enacted to meet the global standards are compelling the Society to change according to the same. It may be said that when Law changes the Society, it is the sign of beginning of the development of the Society and when Society changes Law, it is the sign of maturity of the Society.

Sociologists believe that societies differ from each other due to the social norms or core beliefs of a given Society, about what it considers moral or immoral, acceptable or unacceptable, good or bad, which in turn leads to different Legal Systems and Laws. These social norms often provide the building blocks for many of our Laws. So, the question arises as to what is Law? Law has many definitions and Jurists have over the time developed many theories to trace the origin and development of Law and Legal Systems. The various schools of thought, which may broadly be classified into, Philosophical, Analytical, Historical, Comparative and Sociological, do not only differ in their approach in defining Law but also in what they consider to be Law.

For example, to the scholars belonging to the Analytical School, Law is the command of the Sovereign backed by sanctions (Austin, 1832). In other words, the exponents of the Analytical School study the relation between Law and the State and presume the existence of a developed legal system. In contrast, the Historical Jurists study the relation of Law with societal institutions like values and customs and according to them, Law is a customary rule spontaneously evolved by historical necessity and popular practice. The Comparative School of thought defines Law by comparing different legal systems to ascertain the general, permanent or essential legal doctrines as opposed to those that may be specific to certain areas or situations. The Philosophical School of thought is more concerned with the purpose of Law and the methodology used for achieving the said purpose. It defines Law as the consequence of human reason with the goal of improving human nature. Lastly, the Sociological Jurists view Law as a social function, concerned with the Society’s relation with its individual members (Salient Features Of Sociological School Of Jurisprudence, 2020). It may thus be surmised that the proponents of each of the above Schools of thought define Law according to either what they considered to be the purpose of Law or how according to them Law came into existence.

What can be gathered from above is that Law serves a purpose in every Society or legal system. Some of the purposes may be summarised as: -

Social Control Law prescribes: what is acceptable or unacceptable behaviour and provides sanctions or punishments for deviance, thereby acting as a formal method of social control in large and diverse societies where individual members or sub-groups have differing values, attitudes etc.

Justice or Dispute Resolution: Disputes or disagreements between members of a Society will arise and an important function of Law is to provide resolution to these disputes. Where a Law already exists, the Courts perform the function of dispute resolution. In cases where the disputes relate to subjects not governed by Law, the Legislature intervenes, and a new Law is enacted. Besides dispute resolution, Law also provides justice, it is there to preserve human dignity and equality for all.

Social Transformation or Change: Law plays an important role in bringing about social transformation or the way Society behaves by providing rights or restrictions. The year 2020 is the beginning of a new decade and over the past two decades many new Acts and Legislations have been enacted which have been responsible for social transformation either because the Law compelled the Society to change or because the changing societal norms demanded / necessitated it. Also, many Laws that were enacted in the first decade have since been repealed or amended to meet the needs of the changing dynamics of the globalized world.

Law does not always protect the rights of people, it at times puts restrictions on their rights and the deference bestowed on legal systems masks the dysfunctional aspect of Law. Dysfunctional, meaning that the Law promotes inequality or serves the interest of a smaller number of individuals or a class/ group in opposition to the welfare of the Society at large (An Introduction to Law and Society, n.d.). Some Laws may be discriminatory or maybe misused by some members of the Society or due to the socio-economic divide may tip in the favour of the powerful.

Law and Society are interrelated. Some of the new Laws and Amendments to the existing Laws that India has witnessed in the past decade are a testament to the fact that Law is not isolated and is often a result of external events. For example, the recent amendments to the Criminal Law, like decriminalisation of Adultery, the recognition of the Third Gender Rights, The Muslim Women (Protection of Rights on Marriage) Act, 2019 or the inclusion of Right to Privacy within Right to Life and Personal Liberty, guaranteed by Article 21of the Constitution of India, are a direct result of changing societal norms and values. Other Laws like the Competition Act, The Companies Act, 2013, The National Food Security Act, 2013 or The Insolvency and Bankruptcy Code, 2016 were enacted due to the changing political and economic ideologies.

Law may be viewed as a means for resolving conflicts that arise occasionally amongst the members of a Society who otherwise live in harmony with each other having similar values; or it may be viewed as a means of compelling people who essentially have conflicting interests to coexist by prescribing minimum standards and sanctions for non-compliance. Either ways, it may be summarised that Law and Society are both dynamic and influence each other in their growth and development.