The Role of Law in the Society - Essay Example

The role of law The concept of the role of law has been presented differently by different scholars. While there is a general agreement on the role and importance of law in the society, the philosophy behind this concept differs according to different scholars. There is a general agreement that the fundamental role of law is to maintain order in the society, through the protection of the basic rights of individuals (Collins, 2005 p42). In a society where people are living together, it is inevitable to develop rules of conduct that guide the relationship and interactions between the people. While such rules of conducts may be developed and applied differently by different societies, the objective is simply the same; to protect the fundamental rights of individuals within the society (Grant, 1987 p12). Therefore, this essay will argue on the role and importance of law, as advocated for by two different scholars, namely Thomas Hobbes and John Locke. The prime essence of law in the society is to regulate social behavior (Brown, 1965 p7). Without laws, it could be difficult to regulate the social behavior of individuals, since people vary depending on their natural abilities, social orientations, cultural foundations and generic makeup. Therefore, it is natural that some individuals in any society are weaker than others, and thus needs to be protected from exploitation by the other individuals who are dominant in various aspects (Tarcov, 1984 p11). However, according to Thomas Hobbes, who was a renowned English philosopher, the major problem that exists in the world is that of establishing political and social order (Dietz, 1990 p114). Therefore, the fundamental question regarding social interaction is on how people can live together, without the danger and fear of conflict. This forms the basis of his Moral and Political Philosophy, which postulates that to realize peaceful coexistence in the society full of undue danger and fear of conflict, people should give their obedience to an unaccountable sovereign, which could take the form of an individual or a group that is vested with the powers of deciding on the political and social issues facing the society (Collins, 2005 p45). This point to the inevitable need for some form of law that is vested on certain social institutions, which have the powers to interpret and apply the laws for the common benefit of the society and al individuals, who have committed their obedience to such institutions. Thus according to Thomas Hobbes, the need for law in the society stems from the fact that the state of nature is one full of universal insecurity, where all people have the right to fear violent death (Brown, 1965 p12). Therefore, the role of law is to guarantee such people their security, and thus eliminate the danger and fear of violent death that is present in the state of nature, which is likened to a state of civil war. Hobbes further observes that it is practically impossible to achieve a rewarding human cooperation (Franklin, 1978 p61). This is because; individuals will always take advantage of their strengths to dominate over the weaker ones in the society, and thus expose them to the danger and fear of violent death. Thus according to Hobbes, law plays the role of guarding individuals against the danger and fear of violent death, through assuring them of their security that is hardly provided for by the state of nature. However, the postulation that the state of nature presents universal insecurity where all people have reason to fear violent death has been countered by another philosophical scholar, John Locke, who observes that men are by nature free and equal (Collins, 2005 p55). John Locke postulates that all people have rights, such as the right to life, right to own property and right to liberty, which are completely independent of any laws established by any society (Dietz, 1990 p121). Thus according to Locke, social and political institutions such as governments are formed when people in the state of nature transfers their rights to the government of the land with conditions that allow them to enjoy their liberty, lives and property in a more comfortable and stable manner (Milton, 2006 p85). This means that the process of formation of laws is a social contract that is voluntarily established between the people and the government, on condition that the government will aid in stabilizing the conditions under which the individuals will enjoy their rights. Should the people feel that the government or any social institution does not protect their rights appropriately, then, such individuals have the right to rescind the contract they established with such institutions. Thus according to John Locke, laws are not fundamental for the survival of individuals within the society, since such individuals have the inalienable natural rights to life, property and liberty (Hood, 1964 p32). Even in the absence of laws, people still have the rights that cannot be taken away from them, unless they voluntarily wish to vest some of their rights on institutions such as the government, with the right to rescind the contract and establish it afresh, with a new government. Thus, according to John Locke, the role of law is to provide a stable and favorable environment for individuals to enjoy their natural and inalienable rights and not necessarily to protect them against the danger and fear of violent death (Grant, 1987 p26). Nevertheless, there are certain criticisms to both Thomas Hobbes and John Locke’s philosophies on the role of law. The postulation that people in the society are universally insecure in their state of nature is questionable, since it portrays man as simply self-interested and egoistic, capable of causing violent death to the other man (Franklin, 1978 p74). His argument that man cannot avoid the danger and fear of violent death unless with the support of law, makes man an intolerant creature, who cannot live with the other man, unless under the protection and guidance of law, which may not be realistic (Yolton, 1958 p478). John Locke’s philosophy has also been criticized for portraying man as free and with basic inalienable rights, which can still be enjoyed even in the absence of the law. The reality is that even though man may have the inalienable rights, chances are high that they will always be tampered with and violated in the absence of laws and a government that implements such laws (Brown, 1965 p18). This criticism simply indicates that despite man having certain natural rights, and despite man being capable of living with others in the society even in the absence of laws, law is an essential component of the society, which simply guides the relationships between individuals in the society, and thus eliminate the dangers and fear of violence and death (Collins, 2005 p38). In conclusion therefore, the role of law in the society is not to make the society problem free, but to establish order in the society, through shaping and guiding the interaction between individuals. Law is a creation of man. There is hardly any relationship between law and the state of nature, because people can fail to follow the laws and continue to live (Milton, 2006 p78). On the other hand, following the law does not deny individuals the natural rights that are bestowed on them. Therefore, the role of law is to protect the rights of individuals and impose punishments on the individuals who violate the rights of the others. Considering that individuals in the society have conflicting interests, the role of law is to ensure that the individuals do not violate the rights of others in pursuit of their self-interest (Murphy, 2000 p36). In the light of this, the importance of law is to sustain good relationship between individuals, including those with conflicting interests, and thus enhance the ability of all individuals to live, and enjoy their property and liberty. References Brown, K.C., (ed.), 1965, Hobbes Studies, Cambridge: Harvard University Press. Collins, J., 2005, The Allegiance of Thomas Hobbes, Oxford: Oxford University Press. Dietz, M., (ed.), 1990, Thomas Hobbes and Political Theory, Lawrence: University of Kansas Press. Franklin, J., 1978, John Locke and the Theory of Sovereignty, Cambridge: Cambridge University Press. Grant, R. W. (1987). John Lockes liberalism. Chicago, University of Chicago Press. Hood, E.C., 1964. The Divine Politics of Thomas Hobbes, Oxford: Clarendon Press. Milton, J. R., 2006, John Locke an Essay concerning Toleration. Oxford, OUP Oxford. Murphy, M. 2000, “Hobbes on the Evil of Death”, Archive for Geschichte Philosophies, 82: 36-61. Tarcov, N., 1984, Lockes Education for Liberty, Chicago: University of Chicago Press. Yolton, J., 1958, “Locke on the Law of Nature”, Philosophical Review, 67: 477–498. Read More