Should the Law Regulate Private Space and/or Free Expression of Personal or Religious Beliefs - Essay Example

?INTRODUCTION The term law is the most important aspect of every civilized society yet when it comes to defining it, we face a major dilemma. Juristshave defined law in different way from different point of views. It has been called as ‘Dharma” in Hindu jurisprudence and “Hokum” in Islamic, Romans called it “Jus” and in Germany and France it is called as “Richt” and “Droit” respectively1. In ancient times state law was conceived as divinely ordained set of human action, therefore it was believed to have a divine origin. This idealistic definition of law was given at the time when there was no distinction between law, morals, and religion and law was broadly conceived as a part of religion. These definitions have therefore lost their significance in modern time when law is being treated as an instrument of social change, but they still have a theoretical significance. The element of ‘justice” in law is however considered necessary even in the present time. But what law contemplates today is legal justice and not abstract justice as visualized by the ancient jurists. In the present age law pervades all the spheres of human activities and the state seeks to regulate them. The law therefore has to play a positive role in regulating human conduct. The modern jurists have defined law as a means to secure legal justice. WHAT IS LAW? Law in its most general and comprehensive sense means any rule of action and includes any standard or pattern to which action are or ought to be confirmed. In its judicial sense law means a body of rules of conduct, action or behavior of person, made and enforced by the state. It expresses the rule of human action. It is a structure of rules and guidelines, usually enforced through a set of institutions.  As Holland puts it, the term “law” is employed in jurisprudence not in the sense of abstract idea or order but in that of the abstract idea of rules of conduct2. According to him law is a general rule of external human action enforced by a sovereign political authority. Ulpian defined law as the art of science of what is equitable and good. Expressing his views regarding confusion about an exact definition of law, Lord Lloyd observed “Since much juristic ink has flown in an endeavour to provide a universally acceptable definition of law, but with little sign of attaining that objective”3. Morris also holds similar views about the lack of unanimity in the definition of law and opines that since law has been definitely defined by various legal scientists, from different points of view, there could not be any unanimity of opinion regarding the real nature of law and its definition. Despite there being lot of literature available on law, there is no common definition of law which could acceptable to all. Modern jurists have defined law from different angles. Some have defined in on the basis of its nature, some concentration mainly on its sources. Again some writers define law in terms of ends or purpose of law. About the exact definition of law, Keeton pointed out that “to attempt to establish a single definition of law is to seek to confine jurisprudence within the straight jacket from which is continually striving to escape. According to Blackstone, law in its most general and comprehensive sense signifies a rule of action and it applied indiscriminately to all kinds of actions whether animate or inanimate, rational or irrational4. Hooper defines law as any kind of rule whereby actions are framed….that which reason in such sort defines to be good that it must be done5. Ihring defines law as the form of the guarantee of the conditions of life, of society assured by states power of constraints. Thus he treats law only as a means of social control and obedience is secured by the state through external compulsion. Ihring emphasizes that law is an instrument for serving the needs of human society. According to C.J.Gray law is a statement of the circumstances in which public force will be brought to bear upon men through courts6. It consists of rules which the courts lay down for demonstration of legal rights and duties. Salmon defined law as the body of principles recognised and applied by the states for administration of justice. The object of law is to achieve justice. The definition of law is well explained by Roscoe Pound. He stated law to be social control through systematic application of force of politically organized society. Thus law can be described in terms of legal order accepted by society at large functioning within the limits of state7. According to Paton law consists of a body of rules which are seen to operate as binding rules in the community by means of which sufficient compliance with the rules may be secured to unable the set of rules to be seen as binding. Law according to Kelson is a technique of social organization. He says “law is characterized not as an end but as but as a specified means, as an apparatus whose value derives rather from some end which transcends the law8. H.L.A.Hart has defined law as a system of rules-the primary and secondary rules, their union or combination may justly be regarded as the essence of law9. The primary rules according to Hart are duty imposing while secondary rules are power conferring. It can thus be seen that no single definition of law can be treated as satisfactory because law is ever changing in the dynamic fabric of its inherent element. Law is such an aspect which if defined would become stagnant. A stagnant law will do harm the society and would not fulfill any need. Law should change with the time; law should be flexible and subject to change with the need of society. A law which was relevant five yrs back cannot be applicable today. Similarly law which is applicable today cannot be said to be relevant five years hence. Law must be such which should be able to keep pace with changing time and development of society. All developments in law follow certain sequence. It is for this reason that Thurman Arnold observed “law is ultimately a set of positive prescribed formal rules enforced by the sovereign authority with the approval of common public opinion in response to social challenge emanating from contemporaneous factors and currency of forces. LIMITS OF LAW Law may be described as a normative science, that is, a science which lays down norms and standards for human behaviour in a specified situation or situation enforceable through sanction of the state. The function of law is that of social engineering and to regulate men’s conduct in the society. However law is not absolute and has certain restrictions and limitations. Law is a necessary evil. As we cannot underestimate its importance in developing the society, the same way law can become a tool of destruction if misused. Law is generally something that is suggestive of righteousness. The unreflective equation of what is lawful with what is just is not simply characteristic of popular governments, where we might expect the laws to serve the public good. Even a tyrant, where able, will destroy his rivals by lawful means: even a tyrant seeks the appearance of legality. It is as though we expect the law, by virtue of its being law, to somehow be fair. The very proper example here would be of Holocaust. The Hitler regime could conduct such genocide only due to dictatorship. The Nuremburg codes were the first racial law which marked the beginning of an era of elimination of Jews. Dictatorship is the simple reasons as to how an educated and advanced society, such as Germany, could create the situation of the Holocaust. When one single person rules a country and holds power to make any law as like in a dictatorship, anything is possible. It just so happened, that this person, Hitler, had horrible intentions of using his power and position. This is not possible even in presidential form of government either. For example the U.S. has a president who does run the country in a way. He does not, on the other hand, rule over everything. The people have their own rights and can make laws that have the potential to be carried out. There's Congress that has to agree to certain laws. Each state has separate laws, lawmakers, and law enforcers. The president cannot just say something and then have it carried through just like that. Germany, on the other hand, had Hitler ruling and what he said was obeyed, or considered then taken in and accepted with no other alternatives. They had no Congress, separate state senators or Cabinets. Thus it is very clear that law has limits. Law has to be just, fair and must be enacted to do some good and prevent bad. For example Article 5 of American constitution provides that no person shall be deprived of his life and personal liberty except by a due process established by law. Law has to ensure people’s basic fundamental rights and human rights. No law can deprive or limit the abovementioned. However law may regulate them in such a way that no person should be able to use their rights to infringe others right. For example law has imposed reasonable restrictions in people’s right to speech to prevent defamation, hate speech etc. Then we also have limits to what the law can achieve because some of its tools are blunt, some tools do not work, some are counter-productive and some exacerbate the problem they were supposed to resolve. Corruption among the law enforcers is also a major limitation in the part of enforcement. Law is most of the times rigid; it is unable to keep pace with fast changing society. Law has failed the test of time and the gap between the advancement of the society and the legal system tends to persist. Also law is conservative in approach and suffers from excessive formalism. Greater emphasis is laid on form of law rather than its substance. Law is very complex in nature rather than being simple. This makes it beyond the reach of simple man of ordinary understanding. Legal connoisseurs have become now critical about the efficiency of law to bring about justice as they often come across situations where the striking inadequacies in the legal toolbox come abreast. Their regular experiences of inconsistencies of the law and problems in its enforcement have made them skeptical about the potential of law to govern society efficiently. CONCLUSION Therefore we saw that jurists have expressed different views about the purpose and function of law. It is well known that law is a dynamic concept which keeps on changing with time and place. It must change with changes in society. Law in the modern sense is not considered not as an end in itself, but rather it is a means to an end. The end is securing of social justice. Almost all the theorists agree that law is a means of securing justice. However law has certain limitations or it has a limit to which it can be used. Law must be used as a tool for social welfare not as an instrument of tyranny. Law is like fire, if used cautiously and within limits it will benefit the mankind as a whole, make our lives peaceful, protect our rights and provide us with recourse in case such right is violated. Law is a subject of “pain and pleasure”. Jurists have agreed that law should reduce pain and bring pleasure to human beings. But if law goes out of its limits or misused, it can cause a mass destruction. We have seen many such examples in history like Holocaust, French revolution etc and in more recent past; USA’s attack on Iraq, Saddam’s rule of tyranny over Iraqi people. If we look more closely China which calls itself communist has actually curtailed so many rights of its people. In China social networking is banned and it follows no human rights. Law should be to regulate people’s behavior so that they can peacefully co-exist with each other, so that their property and self should be protected. Law also has multiple limitations while it comes to its implementation. Therefore we conclude that law cannot, should not and must not be defined. No specific definition of law would stand the test of the time. Society will collapse if we restrict law by defining it. SOURCES 1. Fitzergerald P.J., Salmons on Jurisprudence, 2nd ed., 5th reprint, 1988 2. Paranjape P.N., Studies in Jurisprudence and Legal Theory, Central Law Agency, 2008. 3. Holland T.E., Elements of Jurisprudence, 13th ed, Oxford 4. Llyod Dennis, ‘Introduction to Jurisprudence, London, 1985 5. Pound Roscoe, ‘Social Control Through Law’, West Publishing Co.,1968 6. Hart H.L.A., ‘Concept of Law’, Oxford, 1961 7. Law, Business Directory, viewed 1st May, 2011, 8. The Limits of Law, Stanford Encyclopedia of Philosophy, viewed 1st May, 2011, 9. What id Law, Law Library, viewed on 2nd May, 2011, http://www.uplink.com.au/lawlibrary/Documents/Docs/Doc31.html 10. What is Law, Wisegeek, viewed 4th May, 2011, 11. The Limits of Law, Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey , Stanford:  Stanford University Press, 2005, 336pp, viewed on 4th May, 2011 Read More