WHAT IS LAW AND WHY WE HAVE IT
THE CONCEPT OF LAW AND WHERE IT COMES FROM
Who made the law?
Is it made by humans?
Someone or something else?
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:
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.
These rules also ensure that there is structure, because where there is no
structure, chaos reigns.
These rules will govern the relationship between people, and people and their
belongings, so this order is maintained.
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, 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.
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.
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
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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