Jurists have expressed different views about the aim and performance of law. It’s well-known that law could be a dynamic concept which keeps on changing with time and place. It must change with changes in society.
Law, in the modern sense, is considered not as an end in itself, but it is a means to an end. This end is securing social justice, most theorists agree that law is an instrument of securing justice.
Salmond noticed, “Law is a body of principles recognized and applied by the state in the administration of justice”.
Hobbes and Locke recognized the positive role of law when they said that “The end of law is not to abolish or restrain but to preserve or enlarge freedom and liberty”.
Kant said, “the aim of the law is that the adjustment of one’s freedom to those of other members of the community.
According to Holland the function of law is to confirm the well-being of the society. Thus, it is something more than an institution for the protection of individual’s rights.
The object of the law is to ensure justice. This justice may either be distributive or corrective. Distributive justice seeks to ensure a fair distribution of social benefits and burden among the members of the community. Corrective justice, on the other hand, seeks to remedy the wrong.
If a person wrongfully takes possession of another’s property, the courts shall direct the former to restore it to the latter. This is corrective justice.
Rule of law is the sine qua non for even-handed dispensation of justice. It implies that everybody is equal before law and law extends equal protection to everyone. Judges should impart justice without concern or favour and like cases should be treated alike.
Advantages and Disadvantages of Law:
Advantages of Law:
The chief uses or advantages of law are four in number: –
1). Uniformity and Certainity
2). Equality and Impartiality
3). Protection from errors
Uniformity and Certainty: –
The first of the advantages of law is that it imparts uniformity and certainty to the administration of justice. It is vitally important not only that judicial decisions should be just, but also that people should be able, in most matters, to know beforehand the decision to which the courts of justice will come.
It is often more important than a rule should be definite, certain, known and permanent, than that it should be ideally just. The law is for certain and predetermined and as such people can know beforehand their respective rights and liabilities and can thus adjust their conduct in their relationship towards one another.
The more complex our society and civilization becomes, the more needful is its regulation by law, and not by individual conscience and reasons, which vary from time to time and place to place. The reason varies so much and changes so often that uniformity and certainty of the law becomes an impossibility.
Equality and Impartiality:
The law is made for no particular person or for no individual case and so admits no respect of persons, which is incompatible with justice. All are equal in the eye of law irrespective of their ranks and position in the society.
It is necessarily impartial. It does not show any particular favour to any man. None can escape from the clutches of law. This principle of equality and impartiality prevents the administration of justice from being corrupted.
Protection from errors:
The law serves to guard the administration of justice against the errors of individual judgement. The establishment of the law is the substitution of the opinion and conscience of the society at large for those of the individual to whom judicial functions are entrusted. The principles of justice are not always clearly legible by the light of nature.
Very often problems requiring judicial decision are dark and difficult to grasp, and it requires the guidance of some accepted principle, which, although not always wise, are likely to lead to wiser decisions.
The law is not always wise, but on the whole and within the long term, it is wiser than those who administer it. Aristotle observes: “To seek to be wiser than the laws is the very thing which is, by good laws, forbidden”.
The law expresses the will and reason of the body politic, and claims by that title to override the will and reason of the Judges and Magistrates.
Hence, the law reflects the opinion and conscience of the whole society; and the Judges in giving effect to such opinion and conscience are saved from falling into errors of their individual judgement.
Another advantage of the law is that it is more reliable than individual judgement. Human minds are fallible and Judges are no exception. The wisdom of legislature which represents the wisdom of the people could be a safer and more reliable means of protection than the momentary fancy of the individual judge.
The Defects or disadvantages of law:
There are four disadvantages of law which are as follow: –
4). Needless complexity
The first defect of a legal system is its comparative rigidity. Because of this rigidity law is to be applied without any allowance for special circumstances and without turning to the right hand or the left.
The provisions of the law are not exhaustive. There may be cases and circumstances which are not covered by its express provisions.
The law being rigid in its application, making no allowance for special circumstances. It causes great hardship and injustice in cases which are not provided for. But, if we are to have a general rule at all, we must be content to pay this price.
For example, authoritative precedents that are binding decisions of superior courts cannot be substituted. Because of this rigidity, the law is to be applied without any relaxation for special circumstances and without giving any attention to the positive or negative aspects of the case.
Analogous to the vice of rigidity is that of conservatism. The former is the failure of the laws to conform itself to the requirements of special circumstances and unforeseen classes of cases; the latter is its failure to conform itself to those changes in circumstances and in men’s views of truth and justice which are inevitably brought about by the lapse of time.
Progressive societies are always in advance of the law. In a progressive society, the needs of the people may outgrow the provisions of the existing law. The existing body of rules may be found inapplicable to such changed circumstances. That which is true today may become false tomorrow by the change of circumstances.
The Judges can do something to mould the law in the course of administering it, but the most efficient instrument of legal change is direct legislation. But legislation cannot keep pace with the progressive opinion and opinion cannot progress as rapidly as the changing circumstances require.
So, the evils of legal conservatism remain as it is. However, perfect we may make our legislative machinery, the law will lag behind public opinion and public opinion behind the needs of the time.
Formalism is the tendency to attribute more importance to technical requirements than to substantive rights and wrongs. The formalism of ancient law is too notorious to require illustration. In modern times registration and attestation are examples of formalities.
The fourth defect of law is undue and needless complexity. The law becomes more and more complex due to the excessive development of a legal system. It becomes too difficult for people to understand the law without difficulty. The tendency of the lawyer to draw fine distinctions has made it all the more difficult to understand the actual law.