An important step in the consideration of a discussion of this nature would be the observation that law from whatever angle it is looked at, has as its main objective the regulation and governance of the people it is made for.
We therefore have as this objective the society to which the Laws are applicable. The rapid increase in the population of societies some of which are multi-lingual, and multi-cultural in nature , the inequalities engendered by the growth in trade and commerce resulting in various interests, very often competing and conflicting with one another, and the general information technology revolution on a scale hitherto unprecedented (not even the industrial revolution) are all factors which among other things, influence the making, and development of laws quite often adapted to the needs of the society it is being made. This is in order to reduce to the barest minimum the likely lacuna which would necessarily exist in the legal system of any given society where the rate of these rapid changes exceeds that of the change in the adaptation, modification, and addition to the Legal System of the requisite laws to take care of these various changes.
Prior to the nineteenth century, states did not make conscious efforts to be concerned with the regulation of matters relating to the welfare of their societies, to wit: Education, Welfare, Systems, Contracts, Health Care, Economics, etc. However, with the rapid changes in societies, the States gradually and increasingly became interested and concerned with these matters. This implied need to regulate the matters essential to the well-being of the society as it gradually grew and became more complex, compelled legal theory to re-adjust itself in order to take cognizance of such preoccupations.
One common feature of a number of approaches prior to the nineteenth century was a priori, the speculation/ analysis (i.e. purely formal analysis) of the law by a good number of jurists. For instance “law properly so called” was seen by Austin as well as Bentham as “only an aggregate of laws”, and defined a law as “a rule laid down for the guidance of an intelligent being (the subject) by an intelligent being having power over him (the sovereign,) and backed by sanctions.” Law to them, simply put, was the command of the sovereign backed by sanctions. This, Austin described as “Positive Law” or “…law simply and strictly so called.”
The underlying factor in this approach/ analysis of law being the duty created by the command which command is made by the sovereign, and backed by sanctions to be imposed on the subject in the event of disobedience. Since Duty and sanction are in this context, correlative terms, the fear of the sanction in Austin’s view supplied the motive for obedience. This is illustrated by the simple case of traffic tickets for breaking the traffic light.
The ever increasing number of social activities with which the law has had to deal with produced a number of new problems for the solution of which guidance was needed. It became obvious that traditional approaches to law, analytical positivism in particular, were being forced into “confessions of mental bankruptcy” in meeting these new demands of the society.
In addition, changes in the political structures in the society, social upheavals, and unsettlements not only upset any contentment about social stability, but also provoked anxiety about the inadequacies of the law. Even then, theories of law as at the beginning of the nineteenth century though diverse in nature in terms of focus, scientific analysis, applicability and practicability, indirectly, in one way or the other, gave grounds for the inference without more, that there is a necessary connection between the law and the society.
In Austin’s analysis of law, the “command” could not have been made in vacuum, but must be/ have been addressed to some object [subject(s)/ person(s)] which collectively, in their aggregate form, are a collection of persons, which constitute the society itself. Furthermore, the term “Sovereign” could not have been intended by Austin to be applicable to one and the same universal body, but is applicable to particular societies or association of societies. Again, in Kelsen’s assertion that “… a theory of law should be … applicable to all times and all places ….” the expression “… in all places” could be said to be referring to societies.
The Historical School [Savigny] in asserting that the nature of a particular legal system was “a reflection of the spirit of the people who evolved it, the law being “… the manifestation of the common consciousness” of the society; had shown that connection between law and the society in which it develops.
Thus the connection between the two would form the basis of our discussion – the social factors that affect, influence and shape the law of a particular society, which for ease of language is referred to as the social determinants of law.
A consideration of this topic would naturally bring to mind the following questions:
What are the functions of Law in the society?
What are those factors [social, political, economical or otherwise] that affect or influence the laws of a society?
How far do these factors affect the Legal System of a particular society?
What effects does the legal system of a society have on it?
In the consideration of this topic, it would perhaps be appropriate to attempt to understand a study of the society, and thereafter, to describe [not elucidate or analyze] law in its relation to the society. We shall then discuss the functions of law in the society, the impact of social factors on the law, and vice-versa.
The Study of the Society
The term “Sociology” is basically derived from the Latin expressions “socio” and “logios” (i.e. knowledge of the society.) Comte defines the term “sociology” as meaning “broadly, the study of society of which law is but a part.” It was to him, “… the science of social order and progress.” It included two components social statics and “social dynamics,” the former being the formal theory of social order, and the latter being the theory of social progress.
The society we are in today is basically, a product of various stages of development from the primordial, primitive society of the early ages through different stages of progress and development to the present day society with all of its complexities. Thus the society is as put by Dias, “… a developing organism whose progress is marked by the specialisaton of functions within it. Its distinctive feature is the capacity for improvement and development if guided by proper scientific principles.
Law in its Relation to the Society
We must point out that this paper does not seek to engage in any analytical discussion or definition of the word “law,” but shall consider law from a functional point of view, as it relates to the society in which it is in.
In that regard, the description of the word “law” by Agbede would be most appropriate. He described law as simply being,”… an instrument of social control … backed by the organised sanction of the state”. Going by this description of the word “law” from a functional perspective (in this sense, as it functions in the society,) then it would be correct to say that the influence of the social environment on law could still operate only through the medium of society. The question then is – what are the functions of law in the society? First, from the above description of law, we may say its function is principally social control.
An appraisal of the major theories on the functions of law would show two main streams:
– The Normative Functions, and The Social Functions
The two categories however, do not form two water-tight compartments of functions of law, but over-lap each other, for according to”… every legal norm has necessarily a normative and usually also a social function”. We would however, briefly outline the two categories of functions as follows:
“Norms” have generally been defined as “tenets or principles which regulate human conduct or attempt to justify it”. Legal rules are basically norms in so far as they are “… beacons towards which social action is directed by human elements in society. Raz thus, ascribes two normative functions to the law in the following words:
… it guides action determinately by expressing the intention that it shall be performed and stipulating a generally undesirable consequence to follow when it is not performed. It guides behaviour indeterminately by stipulating certain legal consequences to follow upon the performance of the act, which are not generally obnoxious, with the intention that these legal consequences will affect people’s decisions to perform the action.
The social functions of law depend to a large extent on the effectiveness of the law in that society (i.e. how far these laws are obeyed and applied towards set aims and objectives.) This further depends on the relevance of the law to the society. Law being a part of human conduct, and in accordance with Ihering’s teachings, the main purpose of laws is therefore to serve the needs of the society. Their (laws) purpose is to advance and protect the interests of the society collectively. The social functions of the law include the protection of the general security of the society, the protection of domestic institutions, protection of general morals, the adjustment of conflicting interests, the protection of the individual rights, interests and privileges in the society, etc.
In summary, Law performs these functions by protection of a combination of the rights of the individual, the state, and the society, through the prescription of measures [imposition of sanctions] designed to fight against deviant social conduct, the recognition of the rights of the individual, and the enforcement thereof, thus ensuring social stability. In all, it could be said that the society is the central concern of the law. Thus, the law in attempting to achieve any or all of these functions must always take cognisance of the factors in the society. These factors invariably influence the nature, scope and relevance of laws in the society.
Social Factors affecting the Law
Law, being an instrument of control of a society, must of necessity bear some relationship to its relevance to that society. It is to this end that social facts are sought to be taken into account by a prudent legislature. Having stated that, we may then wish to consider these points which ought to be taken into consideration in order to achieve the purpose of legal order as earlier on stated. These points are products of empirical studies and observations on their effects in determining the general pattern of any particular society.
Roscoe Pound had provided elaborate recommendations which have made easy the path of study in that regard. The influence social factors have on the law may be better appreciated by a consideration of Pounds “interests recognised by law”. According to him, they are:
- a)The recognition of certain interests – individual, public [the state], and social,
- b)The definition of limits within which such interests will be legally recognised, and given effect to, and
The securing of these interests within the limits as defined.
He went further to state that in determining the scope and subject matter of the system, the following require to be done:
- a)Preparation of an inventory of interests within the limits defined.
Selection of the interests which should be legally recognized
- c)Demarcation of the limits of securing the interests so selected
- d)Consideration of the means whereby laws might secure the interests when these have been acknowledged and delimited
- e)Evolution of the principles of valuation of the interests
Pound described these processes in the formation and development of a legal system as the integral part of a process he called “Social Engineering”. It is this process which takes account of the factors we refer to as the social determinants of law. The aim of social engineering is to establish as efficient a structure of society as possible, which requires the satisfaction of the maximum of wants with the minimum of friction and waste. Social Engineering therefore involved the balancing of interests as:
… claims or demands or desires which human beings, either individually or in groups or associations or relations, seek to satisfy, of which, therefore, the adjustment of relations and ordering of human behaviour through the force of politically organised society must take account.
The connection between law and the society more than lays the foundation for the assertion that a proper understanding of the law would appear to require careful considerations on the part of the law maker, and the subjects of the law [i.e. members of the society] of those social factors that have in one way or the other affected or are affecting/ influencing the making of laws, and the overall legal system, by a combination of all of the above approaches to the study of law.
Unfortunately, in developing societies, little or no study is carried out to find the exact needs of the society before legislation is made. What is needed is a theory, and practical manual for the guidance of law makers. In this regard we suggest that the law makers adopt the recommendations as set out by Pound. When, for instance, a law is to be passed, touching on one or more of the important social factors, a careful study of those factors should be made by way of interviews, research work, findings of Committees on Law Reforms, perhaps questionnaires, etc. It is for the law makers to take into consideration these social factors for purposes of development of the law, by reforms, repeals, amendments, etc.