AS IS THE SOCIETY SO IS THE LAW

Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

Lucknow

Faculty of Law

A PROJECT ON

[AS IS THE SOCIETY SO IS THE LAW]

For

COURSE ON ‘JURISPRUDENCE’

CLASS: B.Com., LL.B (Hons.) 3rd Semester

Submitted by

[SOUMYA PRAKASH MISHRA]

[B.COM. LL.B./2016‐17/13]

Academic Session: 2017‐18

Under the Supervision of

Mr. Shail Shakya

Asst. Prof. in Law

Faculty of Law

Dr. Shakuntala Misra National Rehabilitation University

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ACKNOWLEDGEMENT

I am feeling highly elated to work on the topic “As is the society so is law” under the
guidance of my faculty of Jurisprudence, Mr. Shail Shakya sir. I am very grateful to him for
his exemplary guidance. I would like to enlighten my readers regarding this topic, I have
tried to put some light on this topic.

I am very thankful to all my friends for their cooperation in completion of this project. In
the end I am very much obliged to God almighty, who provided me the potential for this
research work.

Soumya Prakash Mishra

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TABLE OF CONTENT

1.Introducion……………………………………………………………...... 4

2.Definition of law ………………………………………………………….5

3.Society ……………………………………………………………………..5

4.Relation between law and society ……………………………………...6

5.Importance of law and society ………………………………………….7-8

6.The law comes from ……………………………………………………9.

7.The law exist ……………………………………………………………..9-10

8.Sociology of law …………………………………………………………11

9.Social contract theory ……………………………………………………11-12

10.Analysis of the theory of social contract by Thomas Hobbes …….12

11.Analysis of the theory of social contract by John Locke………….13-14

12.Analysis of the theory of the social contract by Jean Jacques Rousseau..14

13.Comparison between jurist of social contract theory ……………….15

14.Function of law in democratic society…………………………………16-17

15.Law and Society movement…………………………………………….18

16.Conclusion………………………………………………………………..19

17.Bibliography………………………………………………………………20

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 AS IS THE SOCIETY SO IS THE LAW

“As Is The Society So Is The Law”

I. INTRODUCTION

Law and society studies address the mutual relationship between law and society with its
different actors, institution, and processes. Law is created and affects social change. Beyond a
causal relationship, law is further understood to constitute social institution such as policy,
family, property, corporation, crime, even the individual. The study of law and others
specialization in the social science.

Law and society studies represent a multi-and interdisciplinary field. Law and society studies
grew out of sociology. Especially in the united states.

The field of law and society studies, history, jurisprudence, linguistics, philosophy, sociology
and political science contribute it large. 1

1
Available at https:// en.m.wikipedia.org>wiki>Law (visited on 3 november,2017)

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II. WHAT IS LAW?

Law is the command of sovereign. Law must flow from a determinate person or group of
persons with the threat of displeasure, If It not obeyed. As we know, Sovereignty is only a part
of state. So, we can say that law is used to denote of conduct emented from and enforced by the
state.

According to Holland, Law Is ‘’a rule of external human action enforced by the sovereign
political authority.’’

According to Salmond, ‘’law is the body of principles recognized and applied by the state in the
administration of justice.’’So we can say that law must have three characteristics which are
given below Law has its sovereign authority Law is accompanied by sanctions,

III. WHAT IS SOCIETY?

A community or a group of persons, living in any region, who are united by some common
bond, is known as society. A society is a group of people related to each other through persistent
relations such as social status, roles and social network. Common bond is some kind of
uniformity of factors like nature like nature of people, habit, custom, etc. the punishments are
generally excommunication or ostracism.2

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IV. RELATIONSHIP BETWEEN LAW AND SOCIETY

Law and society are related to each other. Nothing can explain without any of them.
Society becomes the jungle without the law. Law also needs to be changed according to
the changes the society faces, because without the necessary changes law cannot keep
pace with society. Without the control of law, the society became the jungle or at least
barbaric. So, to keep the society peaceful, we need to create a harmonious relationship
between law and society.

We can take an example of our country, where every day we watch so many crimes but
due to lack of evidence the criminal is set free or there are too little penalty.

The social rules are made by the members of the society. Disobedience of the social
rules is followed by punishment of social disapproval. There is no positive penalty
associated with the society. The objective of law is to bring order in the society so the
members of society can progress and develop with some sort of security regarding the
future.

The state makes law. Disobedience of state laws causes penalty, which is enforced by
the government by the power of state. Which is not enforceable is not law3.

V. CHANGE OF LAW AND CHANGE OF SOCIAL ROLES:

The legal system of a country reflects the rules of society. If there is a change social
rules than we say that a change in social law just occurs. Law can be change the due to
social condition of any country.

As we know, the acid violence is a major problem in our country. Few years ago, it
becomes like epidemic. The law also states that, import, production, storage, Sale or
usage of acid without a license is a punishable offence.

3. Available at https://www.lawteacher.net>discuss-the-…(visited on 3 november,2017)

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Examples of society

The national prosecuting authority has been probing the unit in an investigation that
Gordhan opposition parties and civil society group say is politically motivated.

Some societies cause indentured workers to earn their freedom under impossible
circumstances.

VI. IMPORTANCE OF LAW IN SOCIETY:

The law is important for a society for it serves as a norm of conduct for citizen. It was
also made to provide for proper guidelines and order upon the behaviour for all citizens
and to sustain the equity on the three branches of the government. It keeps the society
running. Without law, there would be chaos and it would be survival of the fittest and
everyman for himself. Not an ideal lifestyle for most part.

The law is important because it acts as a guideline as to what is accepted in society.

Without it there would be conflicts between social groups and communities. It is pivotal
that we follow them. The law allows for easy adoption to changes that occurs in the
society.

1. Law plays an important indirect role in regard to social change by shaping a

direct impact on society. For example; A law setting up a compulsory education
system.

2. On the other hand, Law interact in many cases indirectly with basic social
institutions in a manner constituting a direct relationship between law and social
change. For example, a law designed to prohibit polygamy.

3. Law plays an agent of modernization and social change.

4. It is also an indicator of the nature of societal complexity and its attendant of

integration.

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5. Law is an effective medium or agency, instrumental in bringing about social

change in the country or in any region in particular.

Law certainly has acted as a catalyst in the process of social transformation of people
wherein the dilution of cast inequalities, protective measures for the weak and
vulnerable sections, providing for the dignified existence of those leaving under
unwholesome condition etc. Are the illustrious examples in this regard?

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VII. THE LAWS COME FROM:

In the United States, the constitution is the ultimate source of law. However, it was
never designed to address every specific legal question. Within the boundaries of
constitution, there are two primary sources of law, Common law and statutory law.

1. COMMON LAW

Common laws are laws that have come about out been enacted based on
court rulings. These laws are developed based on ruling that have been given
in older court cases. Common laws are also known as case law or precedent.
Common law or laws that have come about of been enacted based on court
rulings. These rules can be written as well as unwritten.

2. STATUTORY LAW

Statutory laws or laws that have been written down and codified by the
legislative branch of a country. The law has been set down by a legislature or
legislator (if it is monarchy) and codified by the government. These laws are
also known as written laws or session law.

This law comes from the judicial branch. Though the courts do not pass laws,
they do interpret them. This means that the judiciary bases their legal
decisions on what is written in the constitution, and on previous court rulings
in similar cases. This is a process called stare decisis which in Latin means
‘’let the decision stand.’’

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VIII. LAWS EXIST

Laws exist to protect the rights of the members of a society and to ensure that they do
not have to protect those rights through their own actions.

Philosophers like John Locke argued that without laws, human societies would be
brutal places. They argued that a society without laws would be one in which individual
people only had as a many right as they could protect. In other words, you only had the
right to life if you could keep others from killing you and you only had the right to your
property if could keep others from stealing it.

Locks says that societies devised laws and governments as a way to get themselves out
of this state of nature. The people would give up some of their rights to the government.
In return, the government would protect their major rights like life, liberty and property.

In this view, Laws exist in order to protect our most fundamental human rights. Because
we have laws and ways to enforce them, we all have rights even if we would be too
weak to protect those rights in a state of nature.4

4..Available at https://www.enotes.com>homework-help( last visited on 3 novembe,2017)

5. Available at judiciallearningcenter.org>law-and-the-..(visited on 3 november,2017)

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IX. SOCIOLOGY OF LAW:

The sociology of law is described as a sub‐ discipline of sociology or an

interdisciplinary approach within legal studies. Some see sociology of law as belonging
‘’ necessarily’’ to the field of sociology whilst others tend to consider it a field of
research caught up between the discipline of law and sociology. Still others regard it
neither as a sub‐discipline of sociology nor as a branch of legal studies but as a field of
research on its own right within the broader social science tradition.

It remains intellectually dependent mainly on the traditions, methods and theories of

mainstream sociology and, to a lesser extent on other social science such as social
anthropology, political science, social policy, criminology and psychology.

X. SOCIAL CONTRACT THEORY:

The concept of social contract theory is that in the beginning man leaved in the state
of nature. They had no government and there was no law to regulate them. There was
hardship and oppression on the section of society. To overcome from these hardships,
they entered into two agreements which are;

. ‘’Pactum unionis ‘’, and

. ‘’pactum subjectionis’’.

By the first pact of unionis, people sought protection of their lives and properties. As
a result of it is a society was formed where people under took to respect each other
and live in a peace and harmony.

By the second pact of subjections, People united together and pledge to obey an
authority and surrendered the whole or part of their freedom and rights to an
authority. Thus, the authority or the government or the sovereign or the state came
into being because of the two agreements.5

5
Available at https:en.m.wikipedia.org>wiki>socio…( visited on 3 november,2017)

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XI. ANALSIS OF THE THEORY OF SOCIAL CONTRACT BY THOMAS HOBBES:

1. According to him, prior to social contract, man leaved in the state of nature. Man’s
life in the state of NATURE was one of fear and selfishness. Man lived in chaotic
condition of constant fear. Life in the state of nature was solitary, poor nasty,
brutish, and short.

2. Hence, it can be deduced that, Hobbes was the supported of absolutism. In the
opinion of Hobbes, ‘’law is depended upon the sanction of the sovereign and
government without sword are but words and of no strength to secure a man at all’.

3. For Hobbes all law is dependent upon the sanction of the sovereign. All real law is a
civil law, the law commanded an enforced by the sovereign and are brought into the
world for nothing else but to limit the natural liberty of particular man.

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XII. ANALYSIS OF THE THEORY OF SOCIAL CONTRACT BY JOHN LOCK:

1. John lock theory of social contract is different than that of Hobbes. According to
him man lived in the state of nature, but his concept of the state of nature is
different as contemplated by Hobbesian theory. Locke’s view about the state of
nature is not as miserable as that of Hobbes.

2. Property plays an essential role in Locke’s arguments for civil government and
the contract that establishes it. According to lock private property is created
when a person mixes his labour with the raw materials of nature.

3. John Locke considered property in a state of nature as insecure because of three

condition; they are;

Absence of establish law;

Absence of impartial judge; and

Absence of natural power to execute natural laws.

4. According to Locke the purpose of government and laws is to uphold and protect
the natural rights of man. So long as the government fulfils this purpose.

5. Hence John Locke advocated the principle of ‘’ a statue of liberty; not of

license’’. Locke advocated a state for the general good of people.

6. Locke in fact made life, liberty and property, his three cardinal rights.

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XIII. ANALYSIS OF THE THEORY OF SOCIAL CONTRACT BY JEAN

JACQUES ROUSSEAU:

1. According to him social contract is not a historical fact but a hypothetical

constrictions reason. Prior to social contact, the life in the state of nature was
happy and there was equality among men. For this purpose, they surrendered
their rights not to a single individual but the community as a whole which
ROUSSEAU turned “general will”.

2. According to ROUSSEAU, the original freedom, happiness, equality and liberty

which existed in primitive society prior to the social contract was lost in the
modern civilization.

3. General will, therefore, for all purposes, was the bill of majority citizens to
which blind obedience was to be given. His sovereignty is infallible, individual,
unpresentable and illimitable.

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XIV. COMPARISON OF THE THEORY OF SOCIAL CONTRACT OF

THOMAS HOBBES, JOHN LOCKE AND JEAN JACQUES ROUSSEAU:

1. Hobbes asserts that without subjection to a common power of their rights and
freedom, man are necessarily at war. Locke and Rousseau, on the contrary, set
forth the view that the state exist to preserve and protect and the natural rights
and citizens.

2. Hobbes view was that whatever the state does is just. All of society is a direct
creation of state, and the reflection of the will of the ruler. According to Locke
the only important role of the state is to ensure that justice is to seem to be done.
While Rousseau‘s view is that state must in all circumstances insure freedom
and liberty of the individuals.

3. Hobbes theory of the social contract support absolute sovereign without giving a
value individuals while Locke and Rousseau support individual more than a state
or the government.

4. To Hobbes sovereign and the government are the Identical but Rousseau makes
a distinction between the two. He rules outer representative form of government.
But, Locke does not make any such distinction.

5. Rousseau’s view of sovereignty was a compromise between the

constitutionalism of Locke and absolutism of Hobbes

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XV. THE FUNCTION OF LAW IN DEMOCRATIC SOCIETY:

If the people are not in command of their government, but are actually subordinate to some
get more remote sovereign who up holds and justifies unsanitary condition, poor housing,
long hours of labour, and general defence of social welfare legislation as a freedom required
by some constitutional command or higher law of nature. In one famous roll call of
American legal realist I had the honour, possibly dubious of, being single out by name. The
common law is not a brooding omni prisons in the sky but the articulate voice of some
sovereign can be identified. The particular aspect of the problem then decided was that then
was not even a common law throughout United States. In commercial law with development
of the uniform legislation of the state in many aspects of corporate law and bankruptcy the
organisation. I think there has being undoubtedly again in certainty.

But I suppose the speaker had mainly in mine problem of public law. I suggest that there is
greater consistency at the moment then at any time since that early period, prior to the civil
war, of judicial restraint in legislation.

I think we would do much better to face the issuesquarely and to recognise the function of
law in a democracy is not greatly different from its function in a dictatorship.

I suggest that the history of our constitutional law has been one of an attempt to get away
from such in habitation. There is gap between the people and the representative which we
don’t bridge and which serves admirably to promote its responsibility and disunity. The
changes just referred to don’t touch the fundamental form of government of the federal
system of civil liberty of the individual rights.

I don’t think lawyers have done their full part in helping to stimulate it. I do think they have
done more than their share and trying to forge change which in reality are nonexistence. But
there is nothing to await the slower development, while in the mean time we give such push
to the movement as we can.6

6
Available at digitalcommomns.law.yale.edu>CGI>vie. (visited on 3 november,2017)

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XVI. LAW AND SOCIETY MOVEMENT:

Law and society refers to an association of scholars a general of academic research and a
collection of empirical approaches to understanding how law works. As an intellectual
movement, the law and society scholars of allocate themselves at a margin of traditional
legal scholarship.

Because law is a system of both symbol and action, structured reason and constant force.
The cultural and social action dimension of law become more prominent in the nineteenth
century.

Law a slow an organic distillation of the spirit of a particular people and when historians
such as Henry Maine (1861) in Britain describe the development of social representation
over the millennia as movement from status to contract.

The common law (1881) that the life of the law is not logic but experience. But at the end of
world war second the social science have developed the empirical tools for data collection
and analysis.

Finally, the law and society research has flourished most conspicuously outside the law
schools in colleges and universities. The appearance of an increasing number of synthetic
development of more than five dozen under graduate programs and the half dozen PHD
programs in existence and institutional field.78

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CONCLUSION

Law is the system of rules and guidance which are enforced through social institution to
govern behaviour wherever possible. It shapes politics, economics and society in
numerous ways and serves as a social mediator of relation between people.

If the harm is criminalized in legislation, criminal law offers means by which the state
can prosecute the perpetrator. Constitutional law provides a framework for the creation
of law, the protection of human rights and the election of political representatives.

Administrative law is used to review the decision of government agencies, while

international law governs affairs between sovereign states in activities ranging from
trade to environmental regulation or military action.

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BIBLIOGRAPY

A. Primary sources:

1.Jurisprudence and legal theory by V.D. Mahajan’s

2.Jurisprudence of Dias (fifth edition)

B. Secondary sources:

1
Available at https:// en.m.wikipedia.org>wiki>Law (visited on 3 november,2017)

2.Available at www.encyclopedia.com>social-sciences (visited on 3 november,2017)

3. Available at https://www.lawteacher.net>discuss-the-… (visited on 3 november,2017

I. Available at https://www.enotes.com>homework-help (last visited on 3 novembe,2017)

5. Available at judiciallearningcenter.org>law-and-the-... (visited on 3 november,2017)

6.Available at https: en.m.wikipedia.org>wiki>socio… (visited on 3 november,2017)

7.Available at www.indiastudychannel.com>resources(visited

8.Available at digitalcommomns.law.yale.edu>CGI>vie. (visited on 3 november,2017)

9.1 Available at https://law.stanford.edu>publications>t..(visited on 3 november,2017)

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