Reactionary paper on

PURPOSE AND
FUNCTIONS OF LAW

Subject : Legal Method

Contents
Acknowledgement : ...................................................................................................................................... 3
Introduction: ................................................................................................................................................. 4
 Establishing Standards: ..................................................................................................................... 5
 Maintaining Order............................................................................................................................. 5
 Resolving Disputes ............................................................................................................................ 5
 Protecting Liberties and Rights ......................................................................................................... 6
RELATIONSHIP BETWEEN LAW AND STATE .................................................................................................. 6
Conclusion: .................................................................................................................................................... 8
Acknowledgement :
This Project consumed huge amount of work, research and dedication. Still implementation
would not have been possible if we did not have the support of some individuals and
organizations.

Therefore I would like to extend my sincere gratitude to all who helped me in implementing
this project.

This project was partially supported by Surendranath Law College. I also thank my teacher
Ms. Shreyashi Roy who provided insight and expertise that greatly assisted the research, her
comments greatly improved the manuscript.

I would like to show her gratitude for sharing the pearls of wisdom with me during the course
of the research. I am also thankful for the comments on the earlier versions of the manuscript,
although any errors are my own and shouldn’t tarnish the reputation of the esteemed
organization and the teacher mentioned.
Purpose and functions of Law:
In a free society each and every man lives under a rule of law, as opposed to a whim-ridden
rule of men. Such a rule of law has only one purpose: to protect the rights of the smallest
minority that has ever existed.

The rule of law is the legal principle that law should govern a nation, as opposed to being
governed by decisions of individual government officials. It primarily refers to the influence and
authority of law within society, particularly as a constraint upon behavior, including behavior of
government officials.

Introduction:
Sometimes it seems as though we cannot do anything in today’s world without
consulting an attorney. Over the past few decades, the law has crept and clawed its way
further into our daily lives. Law, in one form or another, permeates modern society,
including the business environment, which is subject to numerous laws and regulations
at all levels of government—local, state, federal, and in limited circumstances,
international. Consequently, today’s businesspersons benefit themselves and their
organizations by developing a basic, working knowledge of the law.

Many legal scholars have tried to answer the essential, but difficult question, “what is
law?” In his 1881 book The Common Law, US Supreme Court Justice Oliver Wendell
Holmes stated that “The Law embodies the story of a nation’s development through
many centuries, and it cannot be dealt with as if it contained only the axioms and
corollaries of a book of mathematics. ”Accordingly, because the law is not math, a
precise definition may be unattainable.

According to A Dictionary of Basic Legal Terms, law is “The regime that orders human
activities and relations through systematic application of the force of politically
organized society, or through social pressure, backed by force, in such a society. "This
definition of the law, while true, is too abstract and long for our needs. We should
therefore think of the law in more basic terms as rules that govern and guide actions
and relations among and between persons, organizations, and governments. This is the
short and easily understandable definition that we will use.
The law serves many purposes and functions in society. Four principal purposes and
functions are establishing standards, maintaining order, resolving disputes,
and protecting liberties and rights.

 Establishing Standards:
The law is a guidepost for minimally acceptable behavior in society. Some activities, for
instance, are crimes because society (through a legislative body) has determined that it
will not tolerate certain behaviors that injure or damage persons or their property. For
example, under a typical state law, it is a crime to cause physical injury to another
person without justification—doing so generally constitutes the crime of assault.

The law tells the threshold between acceptable and unacceptable behaviors in society.
For example: it is a crime to cause physical injury to another person except some cases
such as self-defense etc.

 Maintaining Order
This is an offshoot of establishing standards. Some semblance of order is necessary in a
civil society and is therefore reflected in the law. The law—when enforced—provides
order consistent with society’s guidelines.

In order to establishing standard and keeping the peace in a society, the law enforces
whole society to abide the rules.

 Resolving Disputes
Disputes are unavoidable in a society made of persons with different needs, wants,
values, and views. The law provides a formal means for resolving disputes—the court
system. There is a federal court system and each state has its own separate court
system. There are also various less formal means for resolving disputes—collectively
called alternative dispute resolution (ADR). We will learn about the federal and state
court systems in chapters 6 and 7, respectively, and about ADR in chapter 9.

Disputes are unavoidable, because society is made of people with different needs,
wants, values, and views. The law provides guidelines for solving disputes through court
system. Contract law is an example of this function. It regulates disputes between the
sides who signed on the contract

 Protecting Liberties and Rights

You have probably realized that laws may serve more than one principal function and
there are obviously more principal functions than the four that we have identified.

The law regulates and keeps equality between disadvantaged ones and advantaged
ones. For example: in the taxation law, people who earn more have to pay more tax
than people who earn less. Also, corporations are divided into tax brackets depending
on the revenue of the corporations.

RELATIONSHIP BETWEEN LAW AND STATE

There are three main legal theories with regard to the relationship between law and
state. They are: the state is superior to and creates law; law precedes the state and
binds it when it comes into existence; law and the state are the same thing looked at
from different points of view.

Austin explains that state is superior to and creates law when he defines law as the
command of the sovereign. According to Austin, there must be a political society of
‘considerable’ numbers, and a superior in that society who is habitually obeyed by the
bulk of the members of that community. Within this community, the superior has a
sovereign power to lay down the law. Collectively considered, the sovereign is above the
law, but a member of the legislature is individually bound by the law.
The theory of sovereignty has been of service as a formal theory, but some writers go
farther and seek to justify sovereignty as a moral necessity instead of as a convenient
hypothesis. For example, Hegelianism treats the state as a supreme moral end being a
value in itself; it is not bound by the rules of ethics that apply to individual person. This
theory ‘grants to state absolutism the virtue of moral truth’. ‘The state is the divine idea
as it exists on earth’.

This theory has been carried farther by the Naizi and Fascist conceptions, which regard
law as but the will of the Leader. These doctrines treat law as an instrument of executive
action, not as a check upon it: law is a weapon to achieve the ends of state policy, not a
chain to hamper the executive.

According to the second theory, law may bind the State. The sovereign has absolute
power over positive law, but is bound by ius naturale. Ihering considered that law in the
full sense was achieved only when it bound both ruler and ruled. Ihering regards state as
the maker of law and he argues that law is the intelligent policy of power, and it is easier
to govern if the state voluntarily submits to the law it has created. Then, Jellinek
develops this doctrine into a theory of auto limitation-the State is the creator of law, but
voluntarily submits to it.
Conclusion:
Today, law serves as these purposes and functions in the most countries of the world
except those countries that are having a civil war et cetera. It is almost impossible to
enforce a law in these countries, because the conflict is between government and
citizens. In addition to these countries, law is not fully serving as its purposes and
functions in the countries with polluted government.