Defining Law

9 September 2017

Defining law is a problematic endeavourer as it severs different functions, derives from different origins, signifies various things for different people, and effects everyone differently. Albeit of these factors, many have endeavored to do so, as law has such a prominent structure for all interactions. The changing nature of society meaner that there is an inherent change to law, “law must be stable; yet it cannot stand still” and, therefore, as something is constantly changing it derives and ever-changing definition. However, the inherent wavering has not deterred the many who have attempted to define law.

Any approach to actually pinpoint law must take into account so many variables – cultural, economic, institutional, and operational. It becomes almost futile to seek a sole definition for this endless entity. Theories of law diverge sharply in their answers, attempts to define law as a social phenomenon has meant the divergence of two basic categories. The first attempts to define law as a method of maintenance of a normative order within a social group, and given that every social group has normative regulation, every social group has ‘law. Such definitions disregard the presence or absence legal institutions. Rules may be seen o be linked by chains of reciprocated services, over long periods of time, covering wide aspects of interests and activities. Twining and Miners suggest that these notions of rules, characterized by the activities they govern or the sources they originate from are the main devices used by people to define their situations, and therefore, it is said that rules can define law. The problem with this approach is that this form of law is virtually indistinguishable from the responsibilities arising from all social relationships.

And it emphasizes the nature of rules only governing social relationships in the context concerned. And as persuasive or as sufficiently understood as they are, rules do not suffice in the administration of all behavior as they are not binding and therefore have the potential to cause social havoc. This also raises issues in calling all forms of ordering that are not state law by the term ‘law, as it confounds the analysis” (Merry ‘Legal Pluralism ‘ 869) and in turn enables the definition of law to simply be described as social life.

The second approach in defining law through a social construct includes defining law in terms of public institutionalized enforcement of norms. Barman explores norms as rescanning them to entail certain modes of conduct, often as unspoken rules guiding and standardizing behavior. Norms have been associated with law as compliance includes similar reasoning; the transgressor in failing to co-operate, becomes the subject of such social sanctions such as feelings of guilt, shame, gossip, and ostracism.

However, this convergence quickly disintegrates as norms may only be seen to be the norm in a minority of the society (for example gypsy law), whereas law is seen to fall within accordance of a higher authority, seen as an universal organization. A problem also arises where norms are argued to be at a point of assumption, where the authorization is no longer the product of an act of will. The distinguishing characteristics therefore include the pressure to comply with the law is an external factor to the individual, involving coercion and force.

The fear of social control such as disapproval or ridicule trot tort example Tamil or the community can therefore not be said to be the reason for compliance of the law as the forced applied in sanctioning the law is socially authorized to do so; I. E. Police, Judges. Forcing the application of the law cannot be said to define it either. The impeding faculty in the definition of law is the recognition of the reasons for the law and the functions it aims to serve. Law has been said to be instrumental in achieving “purposes or goals” (Tahiti readings 117).

As vast as the number of roles in the society exist, the definition of law falls to each role as they have their own interpretation to fulfill their function and position. As there are so many different view points of what the law is and what its functioning is in society, it becomes extremely difficult to give an exact definition. John Sutton states law is so difficult to define as it meaner “various things to various people. Sutton explores law as being a set of standards derived from society’s deepest values.

In exploring the sources of law such as custom, religious beliefs and morality it has been suggested that the custom has connected people together with collaborative experiences which in turn made the law intertwined with custom.. However, this concept only seems to work when we look at one isolated population. Where the “the reasonable man” may be an obvious concept to apply in one society, as the constant similar social interactions require a vision of seeing eye-to- eye, this mess to be strange and disruptive to another culture.

The very notions of ‘customary’ or ‘indigenous’ laws were creations of and reactions to colonization, in which the customs and institutions of indigenous societies were marked as distinct from the norms and systems of the colonizers (readings). Therefore, it may be said that the definition of law through custom is a constructive label used to categorize circumstances of colonization. Providing guidelines and allowing citizens to identify expectations of each other and from government is important to distinguish law from norms, rules and customs.

Firstly, the rule of law is a regulator of government power, providing a meaner of equality before the law, expecting that procedural and formal process will provide justice. Parkinson describes the characteristics of law as being autonomous, central to social ordering and moral authority therefore differentiating from norms and customs. The autonomy of law being distinct from custom, morality, religion or politics argues the term “customary law’ itself, is a contradiction as “custom” and “law’ are regarded as two distinct concepts that never interlock. Therefore, sometimes law is defined through violation consequences.

The removal of liberty through prison is a strong deterrence, but other reasons to obey law include morality, feeling obliged, concerns about peer scrutiny, fear of harm and habit (darken). Diverse moral standings and customs, historically have instigated conflicts, and hence the implementation of law was required through the prescription “that laws must be clear and certain in their form and consistent in their application” (Bottomless and Britton, RL 38). It is evident that the mere codification or legislation of rules is insufficient to be practical, as they must be widely perceived as seasonable, appropriate and fair or “morally correct. And although the autonomy of law is a long standing principle, the reality to everyday elite and social conventions, mean that morals or values will influence individual decisions, and as morals are held differently by individual values, the that the definition of law becomes more problematic. Another way law is defined is by its purpose. In some cases this purpose is clear and UN-debated. However, in other situations, such as the common law, which has had countless ideas of law influencing its development.

The difficulty f defining law becomes apparent where individuals, even of the same discipline cannot agree on a purpose. And in turn illustrates the vast differences in opinion are a key problem in attaining a definition. Therefore, we are able to see that each definition becomes insufficient as it becomes too restrictive when considering another aspect. As law cannot be held the in an objective realm, and the subjective nature of the topic meaner that it has a different meaning for each individual whether they find their definition in purpose, reasoning, effects, origins or functions.

A limited
time offer!
Save Time On Research and Writing. Hire a Professional to Get Your 100% Plagiarism Free Paper