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What is law, and why we have it?
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WHAT IS LAW AND WHY WE HAVE ITTHE CONCEPT OF LAW AND WHERE IT COMES FROM
Who made the law?
ð Is it made by humans?
ð Someone or something else?
ð A higher being perhaps?
Can we define law in such a way that explains every aspect about it?
In thinking about this and knowing that there are so many facets of the
law, the answer to the last question in the negative, because it is very
difficult to get one definition that would explain every single aspect of the
law.
That hasn’t stopped people from all walks of life trying to define it though,
but in the failure to define it, most people are able to recognise the law
when they do come across it. That could probably be attributed to the
idea that the law is mostly about ordering a society and the rules that are
developed to maintain this order.
Law presupposes a society
If you look at what a society is:
ð Where groups of people or a collection of people come together, and
they must coexist.
If these people in the society or collective do not have rules, or some kind
of structure to follow, and they are allowed to do as they please, then
there would be chaos, and eventually the collective will seize to exist.
A large group of people cannot agree on rules among themselves on a
continuous basis. A need arises for some kind of structures of authority or
government that will make rules for the whole society.
- Before the concept of society, you could say that people lived in a
state of chaos
- This chaos ensued because people lived on their instincts, they had
complete freedom to do as they please when they please.
- What a society really wants to do is ensure the future of the society,
and to do that, we must have rules.
ð These rules also ensure that there is structure, because where
there is no structure, chaos reigns.
ð These rules will govern the relationship between people, and
people and their belongings, so this order is maintained.
, ð What type of rules?
- In law we have what we call “prescriptive rules.” These tell
you what to do and what not to do. This ideally will ensure
the survival of the society and allow growth.
ð Adherence to these rules is known as the ‘rule of law’.
If we go back to the question of where the law came from, there are some
scholars that believe laws are only man-made. These are called
positivists. They separate the law from any other concept including things
like religion and morality.
Other scholars- the natural lawyers- say that human laws are actually
judged against some higher standards. This could be a higher standard of
morality or religion. They believe that in human laws that do not level up
to the standards are not really laws at all.
In opposition, the positivist believe that the law is made by humans and
there is nothing else that influences the law. Law is completely separate
to anything else.
Other theorists also say that law is also a neutral system that ensures
some kind of harmonious coexistence between the humans in a society.
But, on that basis, we might have to ask if the law is in fact always
neutral.
ð Some may argue that it actually favours those that are in
charge at the time (think of South Africa’s history)
Other theorists argue that the laws are very certain
ð In other words, you know the rule, therefore you know the
outcome of the legal issue.
But in law this is not so cut and dry.
Example: if murder is a crime and if you murder somebody, if the rule
states that you will always be punished, we have to ask if that will always
be the case, especially if we consider things like self-defence.
So did you kill somebody else in self-defence of injury to yourself?
If that is the case, will the outcome always be the same?
These of some of things we can think about in exploring where the law
comes from and what it is really about.
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