What is law, and do we really need it?

A brief overview

As such, there is no single or correct answer to this question. In past no one really questioned lawmakers,
law distributors, or the laws themselves. But of late, society has begun to question most legal activities as
to their effectiveness and competence. The cause of these reviews has emerged by changing times,
changing thoughts, understanding, beliefs, as well as the development of technology and other such new
developments within societies.

There are 2 sources of law parliament (legislation) and court (case) made law. These laws can be
regarded as being purely formal, irrespective of whether they are good or bad.

Law can be positivist in nature meaning no judgement is made in regards to the quality of that law -
implement it regardless if it is a good or bad. Such a theory does not look at the moral implications of the
laws its a amoral view of law. Natural law on the other hand, is the idea that God makes laws. This
theory originates as far back as early Greece and the Gods. The most complete account of natural law
doctrine can be found by Aquinas St. Thomas. For instance "Nothing else than the rational creatures
participation of the eternal law", "Every human law has just so much of the character of the law as it is
derived from the law of nature. But if in any point it differs from the law of nature, it is no longer a law but a
corruption of a law", "that positive law is a determination of natural law". One natural theorist is Kant
Emmanuel "No law can be right merely by convention", "Laws, as such, are to be regarded as
necessary a priori that is as following of themselves from the conceptions of external right generally
and not as merely established by statues".

Bentham Jeremy

He accepted Hobbers identification of law A law is what a sovereign commands (This approach
can be associated to the case of Hitler and his power).

Principle of utility the ability to way up the benefits of a product or situation and make decisions
about it based on its usefulness or cost.

Suggested that certainty in the law could not be had without codification.

In 1832, Austin John published his theory that sought to clarifyy the distinction between law and morality.
He stated that 'commands' are expressions of desire that another shall forbear, which is accompanied by
a threat of punishment (the "sanction") for disobedience.

The disputed question is "is law really needed"? As simplistic as it may seem to answer, it is fundamental
that we ask. Personally, laws are guidelines that set out appropriate behaviour that has been developed
over time, and are based on moral beliefs, a human condition that sets out a purpose that society in
general is called upon or required to fulfill. Without the fulfillment of these desired tasks, man simply will
become equal to animals or worse still, allow their darker sides (or impulses) to emerge and control
their lives. Thus, law acts as a guardian against the inevitable anarchy that would engulf humanity (if you
want proof, simply turn to the riots that take place in America when officers of the law go out on strike).

On the other hand, we have those who believe that mankind is naturally good, and it is the external forces
that surround us that are completely responsible for any wrong doing that takes place for instance, the
government.

Augustines assertion that law was a natural necessity to curb mans sinful nature held the field for many
centuries. But the belief that mans nature might be corrupt and sinful has been at times weighed against
the belief that man posses a natural virtue which is capable of development. Leaning heavily upon
Aristotles conception of the natural development of the state from mans social impulses, Aquinas held
that the state was not necessary evil but was a natural foundation in the development of human welfare.

This continued perception of man with no laws or structures to force certain behaviours creating the
ultimate utopian society is legally termed (or coined) as laissez faire. But when we think about this
supposed utopian society, we can see that it is not possible. The only time it would have ever been a
feasible theory would have been at the time of mans conception as in Adam and Eve and history has
already show us that their duration in paradise did not last that long. Come to think of it, even Adam and
Eve had guidelines, no matter how limited, that they had to follow for their retention in paradise and they
failed - as would any other anarchy based, or limited direction society.

The most influential of all people that promoted anarchy of sorts, would undoubtedly be Karl Marx. He
envisaged the overthrow of the capitalist society by a violent revolution of the oppressed proletariat. Law
was nothing but a coercive system devised to maintain a classless society would be brought into being,
and law and the state would whither away as being no longer needed to support an oppressive regime.
The Marxist looks forward rather than back to the Golden Age (if it ever really existed) when social
harmony will be attuned to the natural goodness of man unimpeded by such environmental snares as the
institution of private property. But it can be seen that the introduction of Marxist socialism has always
been closely followed by the implementation of more laws and legal repression, rather than having them
abolished.

It is fact, that even in the simplest of societies, some form of legal rule and guidance is without doubt
needed to control the anarchist like environment which ironically counteracts the entire purpose of a
lawless society.

Written By Evan Sycamnias

John Austin "A rule laid down for the guidance of an
(English jurist born intelligent being by an intelligent being having
1790) power over him."
"Province of
Jurisprudence
Determined" "A body of rules fixed and enforced by a
sovereign political authority."

Professor Hart Hart defined law as a system of rules, a union of

(Oxford primary and secondary rules,
Professor of
jurisprudence,
born 1907)
"The Concept of
Law" (1961)

Definition of law - Marxist theory

Marxist theories of law generally define law as a

tool of oppression used by capitalists to control
the proletariat.

Definition of law - Natural Law.

Plato (Greek An embodiment of Reason, whether in the

philosopher born individual or the community.
427 BC)
Aristotle (Greek
philosopher born
304 BC)

St Thomas "Nothing else than an ordinance of reason for the

Aquinas (Italian common good, made by him who has care of the
philosopher born community, and promulgated"
1224)
"Summa
Theologiae
(Summary of
Theology)",
Question 90, Art. 4
Definition of law - Legal Realism

Oliver Wendell "The prophecies of what the courts will do ... are
Holmes what I mean by the law,"
(American judge
and jurist born
1841)
"The Path of the
Law" in Collected
Papers, 1920

The Jurist and Associate Justice of the United States

Supreme Court, Oliver Wendell Holmes Jr., was born in
1841. Oliver W. Holmes Jr. died in 1935. For information,
Oliver Wendell Holmes Sr. (a Physician and Author) was
born in 1809 and died in 1894.

Karl Llewellyn "What officials do about disputes,"

(American legal
scholar born 1893)
"The Bramble
Bush" 1951

Lord Browne- "The sum of the influences that determine

Wilkinson (Senior decisions in courts of justice."
Law Lord born
1930)

Other definitions

Definition of Law "Lawexist if it is externally guaranteed by the

- Max Weber probability of coercion (physical or psychological)
(German to bring about conformity or avenge violation,
Sociologist born and is applied by a staff of people holding
1954) themselves specially ready for that purpose."

Definition of law Hobbes said of the role and function of law in his
- Thomas polemic work Leviathan (1651)
Hobbes "Law is the formal glue that holds fundamentally
(English disorganised societies together."
philosopher born
 1588)

Definition of law "Law is the cement of society and also an

- Glanville essential medium of change. Knowledge of law
Williams increases ones understanding of public affairs.
Learning the law Its study promotes accuracy of expression,
facility in argument and skill in interpreting the
written word, as well as some understanding of
social values".

The law is reason, free from passion.

Aristotle

It may be true that the law cannot make a man love me, but it can keep him from lynching
me, and I think that's pretty important.
Martin Luther King, Jr.

Lawless are they that make their wills their law.

William Shakespeare

Taste cannot be controlled by law.

Thomas Jefferson

Taste cannot be controlled by law.

Thomas Jefferson

Taste cannot be controlled by law.

Thomas Jefferson

Taste cannot be controlled by law.

Thomas Jefferson

No man is above the law and no man is below it: nor do we ask any man's permission when
we ask him to obey it.
Theodore Roosevelt
To live outside the law, you must be honest.
Bob Dylan

If you must break the law, do it to seize power: in all other cases observe it.
Julius Caesar

In matters of conscience, the law of the majority has no place.

Mohandas Gandhi

A judge is a law student who marks his own examination papers.

H. L. Mencken

The law condemns and punishes only actions within certain definite and narrow limits; it
thereby justifies, in a way, all similar actions that lie outside those limits.
Leo Tolstoy

More law, less justice.

Marcus Tullius Cicero

In law, nothing is certain but the expense.

Samuel Butler

It is not wisdom but Authority that makes a law.

Thomas Hobbes

Man became free when he recognized that he was subject to law.

Will Durant

Necessity has no law.

Oliver Cromwell

Law and order are the medicine of the body politic and when the body politic gets sick,
medicine must be administered.
B. R. Ambedkar
Lawyers are the only persons in whom ignorance of the law is not punished.

JEREMY BENTHAM