FUNCTIONS OF LAW IN THE SOCIETY

The Marxist theorists have argued that it is possible to have a

society so peaceful and organized that the need for law would be
non-existent. However, experience has shown that this is virtually
impossible, as laws are needed to regulate the on-goings in a
particular society. Lack of laws would mean the solving of disputes
in any given way without any given procedures inevitably resulting
in disastrous consequences. Hence laws are an integral part of any
society and history has shown that the absence of laws has led to
one of the most atrocious crimes in history-the Nazi regime.
Law is a set of rules and regulations backed by the threat of
sanction to govern the people in a society and provided by a
sovereign. The law is a social institution, a way of life. Although
enforced by the state machinery, it is an expression of the will of
the people-a guidance of their human conduct.
This paper seeks to explore the functions and the importance of
law in a society.
The most basic and elementary role of law is the one of solving
disputes in the society. Conflict is inevitable in the day-to-day

abrasions of social life. Law provides mechanisms and techniques

for dealing with such conflicts to avoid, as Hobbes put it, the war
of all against all in a pre-governmental state. Such mechanisms are
imperative to ensure that peoples rights as pertains to each other
and as pertains to the state are not infringed on and those
obligations both between individuals and between the individual
and the state are performed. It is a known fact that laws regulate
the operation of courts, tribunals, arbitrators hence they are taken
as the standard of justice. This, as a result means that the people
have recourse to law when their rights are infringed upon.
Law further provides facilities for private arrangements between
individuals. By doing this, the law helps individuals in pursuing
ends of their choice. However it does not impose its will on the
people but rather serves them in realizing their ends using the
proper means. The bulk of such arrangements is contained in
private law, contracts and torts and include; contracts, negotiable
instruments, private property (mortgages, charges), marriage
(prenuptial

agreements,

marriage

certificate),

companies

(memoranda and articles of association, cooperatives, banks, trade

unions wills, treaties (on the international plane) etcetera. In these
arrangements, patterns of legal relations are formed and inevitably
both duty imposing and power conferring rules and procedures are

conferred on such relations thus resulting in rights and duties e.g.

provisions against trespass, theft, and negligence etcetera. The law
further outlines proscribed acts and in case of any violations the
penalties to be imposed and the remedies available to the party
suffering loss. Such restrictions are necessary to protect one party
to an arrangement from being exploited by the other party, and to
protect third parties from the unfair consequences affecting them
resulting from arrangements in which they did not participate.
When fulfilling this function the law sometimes provides ways of
securing legal protection for arrangements that could be achieved
by non legal means e.g. the marriage certificate seeks to protect the
married couple from claims by third parties that either is the
spouse, something which could be done in a non-legal manner
albeit with many loopholes.
Laws build the moral opinion of a given society in that it embodies
the values and norms of each particular society. It further sets out
the principles on which the society rests. This is done through the
constitution of countries, which is the supreme law of the land, and
any law contrary to it shall be void to the extent of that derogation.
The law here may serve to strengthen or weaken the respect given
to certain moral values e.g. the sanctity of life, respect for authority
in general, sense of national unity etcetera. Law also defines

crimes or offences and their penalties- falls under the auspices of

criminal law, defines rights and duties of individuals toward one
another e.g. negligence, contract etcetera falling under the auspices
of private law.
Law also has the role of structuring and controlling public power.
This role specifically serves to ensure that persons who wield
power in the society have limits (the ultra vires principle which
tends to make sure that public bodies and servants perform their
duties within the limits prescribed by law) to their exercise hence
minimizing the possibility of autocracy and exploitation of the
society in general. Law here plays the role of regulating the public
servants behavior so that the society is governed by a set of
civilized rules as opposed to adherence to social pressure and
anarchy, which would exist in the absence of laws. It thus provides
checks and balances for leaders and the politically correct persons
in society so that they are also subject to the rule of law. Rule of
law here means that every person being subject to the law, not
being above the law.
Another important function of law is the provision of services. The
law performs this function by providing for education (sometimes
compulsory free education like in Kenya), health services, road

construction and maintenance, sewage and rubbish clearing,

subsidizing industries, payment social security benefits etcetera.
The law more often than not performs this function by conferring
powers on officials (e.g. ministers, mayors district officers,
provincial officers, councilors etcetera) and prescribing how such
powers are to be used.
Regulation of behavior, deeds and activities in the society. This
function is mainly performed by parts of the criminal law and the
law of torts. It is served by prohibitions on murder, assault,
unlawful imprisonment, libel, certain forms of sexual behavior,
revealing official secrets etcetera. As well as duties of care while
engaging in dangerous activities. The behavior which the law seeks
to regulate here is one that is considered undesirable by the law
and not necessarily the whole population Mostly but not always,
such acts (undesirable) are prohibited because they are regarded as
likely to adversely affect other persons or grossly impugn on the
societys beliefs and values. The law enforces this function by
imposing duties and vesting powers on persons who act as per the
law.