Name: Mohammad Jihaad SOYFOO Class: LLB year 1

Understanding the evolution of law in society

Society has evolved and so did the laws governing it. In the highly developed states of the modern world the citizen is cared for and governed by laws from the cradle to the grave. In fact, even before his birth, the citizen is protected by law, for instance the laws pertaining to abortion protects the fetus. Similarly, after the demise of the citizen the law sees to it that his will is enacted. So a brief overview of the main theories and concepts that underlie such a pervasive element of our life should be of a great interest. The layman associates the word law to different entities, depending on the context. For instance the word law is sometime used to refer to a system that includes the government, police, the courts; and it is said that the law will catch up with the criminals. Sometimes it is used to refer to a process and thereby, only the courts and the judicial proceedings are implies, and it is common to heat let the law follow its due course . And some other times it only means the written corpus of law, and it is often overheard, what law is applicable in these circumstances . In the broadest sense the word law means a set of rules , such as the scientific laws that are working sets of rules that have been proven true by laboratory experiments and is contrasted with theories and hypotheses, that are respectively, sets of rules partially proven by experiments or not yet tested. However, formal law is more of a sociological phenomenon, as it governs the social interactions between humans, and is more appropriately contrasted with folkways and mores1. Folkways are such social rules that if not obeyed may bring informal sanctions and inconveniences as the fear that the spirits are going to haunt the one who desecrates a tomb. Mores are social rules if violated may bring about informal social sanctions as swearing the one who rudely jumped the queue. Whereas, laws are the formal rules of society if violated brings about sanctions from the state or controlling authority. To this effect, the legal philosopher John Austin, the father of the school of analytical jurisprudence defined law as Commands, backed by sanctions, from a sovereign to whom people have habit of

obedience . After we have seen that law exists in the human society, we will tackle the pertinent question of, how law actually appeared in society? As long as Robinson leads a solitary life, he has little to do with laws , said a French legal author (Terr, p7) and indeed a solitary individual requires nothing more than habits to regulate his behaviour, so as to maximise his limited supply of mental and physical energy. However, as Robinson meets Friday a new behaviour regulating phenomenon emerges- rules. Technically, when there are only two persons on a desert island law cannot exist. This is because for the existence of law it is necessary to have a third impartial party to judge between the two contentious parties in case the law is broken. Accordingly, the Romans believed that the legal principle that no person may judge his own case was so fundamental, self-evident and natural that they called it natural justice . When some families assemble together in one place, the some of the habits of the individuals are crystallised into customs and then into rules. These rules will not be termed as formal laws as long as the whole community does not recognise a central controlling authority who may be the chief of the village, the king or the state itself. This central authority is a salient component of the definition of law, as testified by John Austin s definition and by the Encyclopaedia Americana s (vol17, p71) description that reads law comprises all the principles, rules, and enactments that are applied in the courts and enforced by the powers of the state . So law appear in society when the society is large enough and has a central controlling authority. Natural law is a cornerstone in evolution of modern law and as many of the fundamental principles of law; it was inspired from the great Greek philosopher Aristotle s (384-322 B.C.E) observations of the human society. He affirmed that humans are by nature social beings and that they have a natural social impulse to make rules. Moreover, the fact that the young child, ignorant of formal laws, appeals for a game to be played fair and square - all imply that the germ of law originate from nature itself. The medieval philosopher and theologian, Saint Thomas Aquinas (1225-1274) coin the term lex naturalis or Natural law to express this concept of the origin of law. He was influenced by the writings of Greek stoic philosophers, who advocated that human would be following nature , when they follow reason because nature itself is governed by reason or rational principles. However, proponents of Natural law refer to it as the law written on the hearts of man and need not to be learned but inspired by nature itself. A simple definition of natural law is that unwritten law that is more or less the same for everyone, everywhere. And due to the universality of natural law, the Dutch jurist and father of international law, Hugo Grotius (1583-1645 AC) made it the basis of

international law. More important, natural law is the very foundation of modern human rights as we know it today. Indeed, the third president and one of the founding fathers of the United State and Thomas Jefferson (1743-1826) used the natural law theory to justify the "inalienable rights" that were stated in the United States Declaration of Independence. Moreover, natural law is used as a yardstick to assess the fairness of positive (man-made) laws and when used in this context it is called the higher law . The human socialisation process has greatly influenced the evolution of law and it is basis of the social contract theory, yet another important turning point in the history of law. First proposed by the English philosopher Thomas Hobbes (1588-1679 AC) in his treatise the Leviathan (1651), the social contract presuppose that man was living alone in a natural state aloof from society and there, he could enjoy and exercise all his (natural) rights and freedom limitlessly and independently. Thereafter, because of the fear and dangers he encountered in the wilderness, man decided to rally together and enjoy the protection and advantages of living in society. But in so doing, he has to give up some of his natural rights and freedom to the sovereign and this imply the essence of a tacit social contract that could be expressed as follows, every man says [implicitly] to every man in a covenant that I give up my rights of governing myself to his man (the sovereign) . Nevertheless the social contract formulated this way tended to sanction totalitarian rulers, and the English philosopher and father of liberalism, John Locke (1632-1704) aimed at rectifying this aberration in his Second Treatise of Government (1792). He postulated that man was not in a state of fear in the natural state but instead man was happy. It was on his own and willingly that he formed a state to solve the minor inconveniences of administration, which is to provide for a neutral judge to guard his rights and freedom from being baffled by others. Thus the social contract that ensued does not license the ruler with absolute authority but make him the guardian of the people s right. And the law stands as the written guarantee of this social contract by defining the rights and freedom of everyone and providing sanctions for those who violates it. The French philosopher and writer, Jean Jacque Rousseau (1712-1778 AC), further refined the social contract theory by placing law as the ultimate sovereign. Thus he brought to the back to the forefront the important concept of the rule of law , as supported hitherto by Aristotle, who boldly stated that: the rule of law is better than the rule of any individual . In his treatise Le Contrat Social (1762), Rousseau argued that it is the citizens who should rule and that the ruler should bow down to the will of the people. And since the law is the actual will of all the citizens, as it emanated from the collective social contract of all them, then by placing law above everyone, including the ruler, it is like if the people themselves are ruling. Moreover, as the ruler is

accountable to law, it is the will of the people who will prevail, as the Thomas Fuller stated in 1733, be you never so high the law is above you . Nonetheless, the rule of law is a vague concept that encompasses meaning like the rule according to law , which guaranty that no one is eligible to pay any damages except if prescribed by law; sometimes it is interpreted to mean the rule under law and thus ban arbitrariness. This is to say that the rule of law is of utmost importance as it gives society its stability. The judge Glover, in the case of Mahboob v Government of Mauritius 1982 MR 135, graphically described that an absence of the rule of law would lead to a situation as bewildering as the croquet game in Alice in Wonderland, where the rules are changing all the time to suit the caprice of an unpredictable umpire . And as unpredictability scares away invertors who are weary to safeguard their assets, the economy of a modern country will be badly crippled in the absence of the rule of law. Hence, it is not surprising that the rule of law is considered as one of the constitutional pillars in England to compensate for the absence of a formal written constitution there. Albeit the great importance of the concept of the rule of law , it lacks a concrete structure to ensure its enforcement and it was still too easy for a despot to ignore the law and rule according to his whims. Hence the French political and social philosopher, Baron de Montesquieu (1689-1755) proposed the separation of powers as a solution to the problem of despotism and to assure the rule of law. He proposed that if the three arms of government- the legislature, judiciary and executive- are governed by different bodies, then one body of government, the judiciary for example, can check and balance the excesses of the other bodies, and vice-versa. In this way it becomes more difficult for a despot to gain absolute power. Thus Montesquieu laid down the foundation of all modern constitutions, because the separation of powers is heart and spirit of a constitution. It is imperative at this point to note that many of these legal concepts have been bitterly criticised. For instance, the much respected English jurist and legal reformer, Lord Bentham (1748- 1832) described the rule of law as nonsense on stilts in his book; and the Scottish philosopher and economist, David Hume (1711-1776) described the social contract theory as a convenient fiction . The separation of powers is also accused of causing much undue bureaucracy. It is true that none of these theories are perfect but it would be unfair to say that they are of no use. Indeed these legal theories and concepts were landmark developments in the legal field, amongst others, that have helped shape law as we know it today. And to try to understand law without understanding these principles would be to ignore the very spirit of modern law. Moreover, this brief overview of the evolution of law, emphasise

the importance for law students to understand society and sociology. Furthermore, it underscores the fact that ideas are timeless. Indeed many of the great philosophers from Aristotle to Montesquieu have not seen the realisation of their dreams but they have set the stage for the future generations.
References: 1. Encyclopedia Americana, international edition 1979, volume 17, USA.
2. Cruz, P. 1999, Comparative law in a changing world, 2nd edn, Cavendish Publishing Limited, Great Britain.

3. Farrar, J.H. & Dugdale, A.M. 1990, Introduction to legal method, 3rd edn, Sweet & Maxwell, England. 4. Terr, F. 2003, Introduction Gnrale au Droit, 6eme edn, Dalloz, France. 5. Johnson, M. 2007, lotus illustrated Dictionary of Law, Lotus Press, India.