What is Law ? How is it related to the Society? Describe how is law related to society?
Introduction: – Evolution of Legal Systems and the significance of Law in the Continuance of Human Society
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Nearly all human societies, tribal, peasant or industrial, have laws or legal rules whose scope is coextensive with human life. Laws or procedures control human activity, be it economic, social, or political. Basically, however, the function of law is to protect, preserve and defend the members of society against internal disorder or external threat. The legal system controls the entire gamut of human behavior through appropriate procedures, and our focus here is on its role in ensuring stability and instigating change. The society and the power of the state must grant moral sanction to laws for them to be effective and enforce them on the people.
Some Sociological Approaches to Law
Durkheim. Karl Marx and Max Weber have made significant observations on law. An important index of this transition was that the law which was repressive earlier became restitutive or made reparation to those concerned as society became more complex. In other words, while the law in simple society was based on the principle of stringent punishment, in a complex society it was based on compensatory principle. However, W.J. Chamblis and R.B. Siedman, two American researchers in law, have pointed out that the reverse is true in many instances. In the preliterate society, there is a reciprocal relationship and also a personal tie between members. Therefore, we accept compensation for injury. By contrast, in large impersonal societies, repression by state or police is a common occurrence.
Karl Marx regarded the legal system of his times as the outcome of certain dominant and vested interests. Law enabled the dominant groups to preserve their privileges and impose their will on the rest of the society This future society would consist of guild-like collectivities marked by self-governance or self-regulation.
Law in Relation to Social Order in India:
The Interplay Between Values or Norms and the Law
Human society desires an orderly social life as a goal. Stable social life enables the pursuit of the individuals’ vocations peacefully. If there is anarchy; it not only leads to the disruption of social life but also makes human behavior unpredictable. The first step in a society for inculcating social norms is the socialization of children in families and local communities. The later adult socialization reinforces conformity to the laws of society.
Manu sanctioned lesser punishment to the Brahmin deviant. He also denied property rights to women. But even the Brahmin could not escape the Karmic reaction, and expiatory performances did not help one guilty of a grave crime such as murder. As regards women, Manu conceded the authority of customs in some parts of the country, such as the South where matriarchal laws prevailed. It was mostly with reference to Indo-Gangetic India that Manu’s laws were strictly applicable. View Manu’s laws in relation to customary departures from his injunctions, not in isolation.
The Hindu legal texts composed by Manu, Vishnu and others were to some extent based on existing custom On account of this difference, there was often a tension or conflict between the two orders: “texts and contexts”. In the event of a dispute between the two, the king-in-council usually intervened and settled the issue in favor of the texts. Rulers made occasional concessions to the customary point of view, and both norms and practices were elastic in this regard. Particularly when it came to the involvement of common people. The legal texts did succeed in establishing a uniform code for India in spite of variant customs.
While the texts focused on the social, religious and metaphysical dimensions, they did not throw much light on commercial or agrarian matters. In these areas, the group or community applied their customs to settle the dispute Likewise, the various trade or craft guilds followed their customary procedures. M.B. Hooker, a Western commentator on Hindu law, describes the difference between the text and the context as follows:
The rule of Dharma was an ideal system of classification providing a certain view of reality, and it was toward the attainment of this reality that individual and caste practice was directed. Thus, custom contrary to orthodoxy, would not be followed, at least by the elite, and where such a custom was already in written form it could be, and was, argued out of existence. Custom was a human and social development, but the texts as expressed in the Shastras were not directed towards the maintenance of such development but towards higher forms of existence. It was during the colonial era that the British judges gave a rigid interpretation of the Hindu normative and customary laws.
The Muslims followed Sharia derived from Quran. The various Indian sects such as Buddhists, Jain and Sikhs followed different versions of Hindu Dharma. Even today many social institutions among these communities (marriage, property, inheritance, adoption, etc.) are governed by ecclesiastical or customary laws. As in Hinduism, tensions do exist between the ideas and the reality in these communities. For instance, many Indian Muslims have retained Hindu beliefs and customs contrary to the injunctions of Sharia. Likewise, the tribal converts to Christianity are not always monogamous.
Law as a Means of Social control: – Micro and Macro- levels in Operation
I. The Village Panchayat and Caste Council
An important institution in the Indian social structure is the traditional panchayat. For centuries, the caste council and the village council have functioned partly as administrative and partly as judicial bodies. Ritual lapses, land disputes, sexual misconduct, factional quarrels were among the items judged by these non-statutory bodies. While most of the most of the disputes were settled within the framework of customs, occasionally appeals were made to an external authority such as the king or chieftain to intervene and settle a dispute in accordance with the legal texts. In administering justice at the micro-level, the village elders were guided by oral testimony, precedents, royal decrees and occasional resort to ordeals.
II. Contrast with British Courts in India
By contrast, villagers who filed litigation in the British courts of law had to spend time away from the fields. This was a disaster to the people living on a subsistence economy especially for those in the lower rungs of the caste system. Hence, in spite of unequal distribution of power in the village, the councils functioned effectively because of their quick and public methods of bringing about justice. The third discrepancy occurred in terms of the decision itself. Usually, the British counts insisted on clear and firm decisions .
III. Tribal Judicial System
The influx of forest contractors, money-lenders, traders and missionaries into the tribal belt introduced new elements. Especially, the landowners and money lenders from the plains acquired assets in the tribal area, thereby causing a severe deprivation among the tribals. The tribals’ lands and livestock were mortgaged and many of them became landless or bonded labour. The forest contractors, motivated by monetary greed, relentlessly depleted the forests which were the main source of tribal livelihood. As a result, The alien organizations, such as the courts of law introduced by the British, took away the judicial powers vested with the tribal councils. The internal despotism of tribal life also broke down.
Composition and Operation of Tribal Councils in India
Although a formal judicial authority is absent among the Daflas, there are some conventions or codes which regulate the conduct of people. When we use conventions, negotiation and settlement become possible in the face of a feud. However, if there is a miscarriage of justice, there is no appellate authority above the tribal kin-group or tribal
village. The Daflas, therefore, represent an elementary kind of organization which is “repressive”. In this society there is no impartial judge who can decide a case; the parties in dispute act as their
own arbiters. Also, the winner is lauded even though his action from the moralistic standpoint of a more enlightened society is wrong. The end justifies the means.
IV Legal System in Modern India
The British rule introduced into India legal organizations not only to maintain law and order but to protect the colonial
interests in the subcontinent. The judicial system introduced by the British was broadly based on Anglo-Saxon canons of justice in which the obedience
In due course Anglo-Saxon laws predominated in many civil and criminal spheres, but in certain social fields such as
property inheritance in the family, partition and joint family interests (business, etc.), marriage, divorce, adoption, succession, caste disputes, etc. The legislative enactments during British rule introduced some modifications in the traditional laws with a special view to grant autonomy
to individuals in inheritance, etc.
Here we are completed with the information of describe law is related to society.