What Is Social Law?
- Marvin Harvey
Social law is a unified concept of law, which replaces the classical division of public law and private law, The term has both been used to mean fields of law that fall between “core” private and public subjects, such as corporate law, competition law, labour law and social security, or as a unified concept for the whole of the law based on associations.
In reaction to classical jurisprudence in the 19th century, legal scholars questioned a rigid divide between private law and public law. The German legal philosopher, Otto von Gierke worked to develop a comprehensive history and theory of “social law” ( Soziales Recht ). Key tenets of Gierke’s work were adopted and brought into English jurisprudence by Frederick W.
Maitland, In France, Léon Duguit developed the concept of social law in his 1911 book, Le droit social, le droit individuel et la transformation de l’état, A common thread has been an attachment to social justice in a democratic society. This became central to the thinking of American legal realists during the Lochner era of the early 20th century.
What is the social function of law?
Prem Raj Silwal Law is a set of rules that govern the behaviour of the individuals and society and act as a means of social control to maintain social order and social discipline in society. It controls human behaviour and preserves social values and norms.
Law is the most powerful and acceptable formal means of social control in a developed and politically organised society. Society is the primary and important institution for a social function. Every political and legal system deals with the law for the betterment of society and the social function itself.
Social Control The social function of law compresses and prevents civilisation, social values, social interest, social role, social ethics and is responsible for peaceful change and larger morality. The major function of law is described in terms of the ultimate motto and goal, which is social control.
- The major goal of the law is maintaining peace, harmony and order.
- Ancient Greek Philosopher Plato states law functions for the maintenance of social harmony.
- Likewise, another Greek philosopher Aristotle (384-322 BC) emphasizes on distributive and corrective justice to human life.
- American philosopher Lon L.
Fuller (1902-1978) believed that law is the enterprise of subjecting human conduct to the governance of rules. Many Jurists and philosophers agree that law and its broader social functions are for the betterment of human society. British Philosopher Jeremy Bentham (1748-1832) stated that ˈgreatest happiness of the greatest number of the peopleˈ is the main function of law.
He emphasised basically on four functions of law which are to favour equality and maintain security, to provide abundance, to provide subsistence and to produce abundance. Furthermore, British philosophers like Thomas Hobbes (1588-1679), John Locke (1632-1704) focussed on political sovereignty for the better security of the people.
Locke’s function of law is to protect human life, liberty and property of all individuals. American Thomas Pane (1737-1809) states that the function of law is basically to protect the life of people, liberty and pursuit of happiness. His concept was applied in the political change of the USA´s independence in 1776.
- French political pioneer Jean Jack Rousseau (1712-1778) emphasised maximum individual freedom and liberty for human beings.
- He said that man is born free and are chained from everywhere later in life.
- Immanuel Kant (1724-1804) also states about individual freedom and liberty.
- Similarly, German philosopher Rudolf Stammler (1856-1938) strongly believes in respect and participation of all with harmony as the function of law.
American Sociologist Roscoe Pound (1870-1964) pressurized on balancing the interest theory as the social function of law. Jurist John Finnis (1940) was concerned with the function of law in common goods. Joseph Raz (1939), a 20th Century jurist, emphasised that the consequences of the law are the function of law is actual consequences of the law.
German Sociologist Rudolf Von Jhering (1818-1892) states that the main purpose of the law is to protect or reconcile as well as serve to the interests of society, in his book “Law as a means to an end” (1877). Modern American political Philosopher John Rawls (1921-2002) was a pioneer in the field of equality and justice.
His book “A Theory of Justice” (1971) believed that the main aim of the law is to achieve justice and maximization of liberty. British HLA Hart (1907-1992) who wrote “The Concept of Law” (1971) emphasized that law is not a gunman theory. French Sociologist Emile Durkheim (1858-1917) stated that society requires conflicting and questionable activities for the own good of society.
Many philosophers and jurists emphasised that the function of law is to promote and safeguard human life, liberty, freedom, security and property. But some have denied the social function of law. German philosopher Karl Marx (1818-1883) stated that law is the tools of exploitation of aristocrats. He further explained that law only protected and promoted the interest of capitalist and ruling class.
Correlated In the modern era, law and society are correlated phenomena. Law is all about the protection and promotion of rights of human, person and individual of the society. In a larger sense, a constitution is a law and legal frame of the country. A constitution is the supreme law of the land.
All law and legal provision of State is for the people and society. The Nepali society is growing and developing with advancement and modernization. In this age, all law and the legal system is being checked by society. Society is composed of different individual beliefs and thoughts. Every law and legal provision is because of the greater function of society.
No law and legal provision can run and function without society and social consent. American jurist Karl Llewellyn (1893-1962) argued that society changes faster than law. That’s why the law must maintain social harmony, peace, security, justice and individual freedom.
- Basically, the social function of law is concerned with primary and secondary objectives.
- The primary function of law is concerned with individual behaviour and phenomena and prevents the undesirable behaviour of individual in society.
- It regulates criminal and anti-social behaviour in the society, promotes and prevents facilities, legal contract of an individual in society, business and commercial activities and many more.
The secondary function of law, on the other hand, is concerned with the larger interest of society. It constitutes of systematic operation of legal system, logical and legal settlement of disputes, implementation of competent courts decisions, enforcement of law and legal provision in the society etc.
- Minimum Legal Sanction The social function principle of law believes in minimum legal sanction for peace and harmony of the society for an individual.
- Moreover, Social function of law is concerned with the suppression of fraudulent and anti-social behaviour along with the advancement of the social justice, individual freedom, humanity, peace, security and protection of individual and society.
Law exists in society only for society. So law and society are connected for the betterment of society, social solidarity, social cohesion, social stability and social order with human values. Law is not just about cohesion and sanction to individual. Rather it is concerned with the legal education to the society where the law is under facilitated control of people and society to achieve their own larger interest and good.
The pathway for goal for the State and people is common. And, the common goal comprises of progress and security of every individual in society. Without society law and legal provision are meaningless. The social function of law and society are vast concepts and philosophies regarding these ideas always spark debate and controversy among scholars all around the globe.
(An advocate, Silwal is pursuing Ph.D research on Nepali constitution)
What is the sociological definition of law?
Introduction – The sociology of law refers to the sociological study of law and law-related phenomena, whereby law is typically conceived as the whole of legal norms in society as well as the practices and institutions that are associated with those norms.
Dating back to the classic works by Emile Durkheim and Max Weber, the sociology of law has partly also evolved in conjunction with intellectual efforts within legal scholarship, where a specialty of sociological jurisprudence developed. The sociology of law was for some time primarily part of the multidisciplinary field of law-and-society studies or the law and society movement, but it has in more recent years grown into a relatively autonomous branch of theory and research in sociology.
It is from within the theoretical and methodological contours of the sociological discipline that the sociology of law derives its unique approach and value as a contribution to the social-scientific study of law. The number, quality, and variety of available writings in and about the sociology of law reflect its scholarly and institutional growth as a respected sociological specialty.
What are culture laws?
Cultural property law Cultural property law is the body of law that protects and regulates the disposition of, including historic, ancient and historic artifacts, artwork, and intangible cultural property. Cultural property can be any property, tangible or intangible, having special significance to a defined group of people, whether or not the group is vested with a traditional property interest.
What are social laws or facts?
Social Facts are one of Emile Durkheim’s most significant contributions to sociology. Social facts are things such as institutions, norms and values which exist external to the individual and constrain the individual. The University of Colorado lists as examples of social facts : institutions, statuses, roles, laws, beliefs, population distribution, urbanization, etc. Social facts include social institutions, social activities and The video below provides a useful introduction to the concept of social facts.
- The video suggests that the concept ‘social fact’ is a broad term designed to encompass the social environment which constrains individual behaviour.
- It uses the analogy of a how the physical structure of a room limits our actions (we can only go in and through the door or windows for example; in the same way the social facts which make up our social environment constrains us – norms, values, beliefs, ideologies and so on effectively limit our choices.
Sociology is about identifying the relationship between the social conditions and people’s behaviour. This second video is a bit more complex According to Durkheim, social facts emerge out of collectives of individuals, they cannot be reduced to the level of individuals – and this social reality is real, and it exists above the level of the individual, sociology is the study of this ‘level above the individual’.
- As far as Durkheim was concerned this was no different to the concept that human life is greater than the sum of the individual cells which make it up – society has a reality above that of the individuals who constitute it.
- A key idea of Durkheim – that we should never reduce the study of society to the level of the individual, we should remain at the level of social facts and aim to explain social action in relation to social facts.
(Not in the video) – this is precisely what Durkheim did in his study of suicide by trying to explain variations in the suicide rate (which is above the level of the individual) through other social facts, such as the divorce rate, the pace of economic growth, the type of religion (all of which he further reduced to two basic variables – social integration and social regulation.
In this way sociology should aim to be scientific, it should not study individuals, but scientific trends at the level above the individual. This is basically the Positivist approach to studying society, as laid down in Durkhiem’s 1895 work ‘The Rules of Sociological Method’. NB Durkheim’s study of suicide is just about the best illustration of the application of social facts that there is – In which he researched official statistics on suicide in several European countries and found that the suicide rate was influenced by social facts such as the divorce rate, the religion of a country, and the pace of economic and social changed – Durkheim further theorized that the suicide rate increased when there was either too much or too little integration and regulation in society.
The major criticism of Durkheim’s concept of social facts is that the statistics he claims to be ‘social facts’ aren’t – suicide stats are open to manipulation by the people who record them (coroners) – and there is huge potential for several suicides (intentional deaths) to be mis-recorded as open verdicts or accidental deaths and thus we can never be 100% certain of the validity of this data, thus theorising on the basis of cross national comparisons based on said data is risky.
It is possible to apply this ‘social construction critique’ to a range of statistics – such as crime stats, unemployment stats, immigration stats, happiness stats, and a whole load more, which means that while there may be a really existing social world external to the individual, it’s not necessarily possible to know or measure that world with any degree of certainty or to understand how all of the various social facts out there interact with each other.
NB This may well explain why no one seems to be able to make predictions about economic crashes, Arab Springs, or election results these days! Other critics, such as phenomenologists (kind of like precursors to Postmodernists), argue that the whole concept of an external reality is itself flawed, and that instead of one external reality which constrains individuals there are a multitude of more fluid and diverse social realities which arise and fade with social interaction.
What are social values in law?
Social values are a set of principles that are morally acceptable by society. Values shape the way that society behaves, to guarantee a coexistence between the participants in society. Governments and laws are usually put in place to preserve the social values and to enforce the procedure.
What is the main definition of law?
A rule or set of rules, enforceable by the courts, regulating the government of a state, the relationship between the organs of government and the subjects of the state, and the relationship or conduct of subjects towards each other.2.a. a rule or body of rules made by the legislature. See statute law.
Why is sociology of law important?
Practice – The Sociology of Law is a focused and critical field in understanding legal mechanisms and legal practice, as well as establishing the foundation of jurisprudence. However, a definition and general framework need constructing so that the right questions can be formulated.