“Discuss the ways in which the citizens of a nation can be made to avoid criminal activities”.

Introduction:

In a country the activities of citizens are regulated by the law, peoples are bound to follow the laws made by their parliament or sovereigns order. According to the father of Jurisprudence law is fear of sanction backed by sovereign’s order of threat.[1] Sovereign means someone who has actual or legal authority to make command towards people. As like Jhon Austin, Austrian writer Hens Kelsen also believed that people’s conducts are regulated by the coercive orders. To kelsen, if a citizen does something which gave rise to circumstances under which officials ought apply a sanction, that citizen has done nothing contrary to the norms. This is because the norms are directed to the officials. [2]The citizen has instead committed a delict which is the ground for the officials to apply sanctions. But professor Hart criticized this emphasis on officials.

For kelsen, the essence of regulating the conduct of people (according to the law) is an organization of force. Sanctions are the key characteristics to maintain a good order of the conduct of a nation’s people, not because of any supposed psychological effectiveness but because it stipulates that, coercion ought to be applied by officials where delicts are committed. The law attaches certain conditions to the use of force and those who apply its act as organ of the community. According to his view, every norms which regulating the conduct of people must have sanction, though this may be found as for instance in the constitutional law, by taking it together with other norms with which it is inter connected.

Before kelsen, Jhon Austin thought the sanction is a vital component to regulate the behaviour of the peoples of a nation. To Austin law is the command emanating from the sovereign, who will impose a sanction in a case of disobedience of the command by subject. Whereas Austin found legal validity in political fact. Kelsens theory says that law is a system of norms, in which norms are validated by other norms. Kelsen believes that coercion or compulsion is a key ingredient of law which regulate the conduct of a nations people.

A criticism of the sanctionist view, whether indeed that of Austin or Kelsen is that it blurs the distinction between civil and criminal law. This sanctionist view also makes it difficult to distinguish between penal and administrative coercion.

Unlike Austin, kelsen did not limit his theory to the law of modern states. He asserted that the word “law” is used to stand for a system of coercive rules. In the content of primitive societies, the laws stipulated blood revenge. In public international law, the sanctions are war and military reprised. Everything which is distinctly “legal” about primitive societies or the international communities must be voted in as conditions for norms requiring kinship group or states to take those drastic measures.

Many critics assert that this theory distorts the positive Law of modern states by virtue of overemphasis on sanctions. It may be denied that there is a conceptual connections between Law and coercion. Joseph Raz maintains that the law is distinguished from the other institutions by its claim to ultimate authority not by its monopolisation of force, so that the rules of a church might constitute a legal system. Fuller goes further any enterprise of subjecting Human conduct to the governance of rules is a legal system. So that the universities and clubs have laws. Ronald Dworkin however accepts the conceptual connections, although for him the concept of law refers to justified coercion, whereas for kelsen it points to organized coercion.

We can say that the conduct of a nation is overall regulate by legal system of that country. But the law has many functions where in the coercive enforcement is very much in the backwards, such as in the area of racial and sexual discrimination.

Another criticism of kelsens coercive theory, if legislative materials in terms makes conduct “obligatory” but stipulates no sanctions for failure to perform the conduct in question, then by Kelsens theory there is no legal duty. The critics therefore argues that, specific conduct may be made a condition for a sanction where it is not thought of as the subject of a duty. So it is clear that kelsens over emphasis on sanctions underplays the significances of duties. People don’t think of all legal rules as imposing sanctions because they don’t use them all that way. Legal powers as H.L.A. Hart puts it one of the great contributions of law to social life, are not used to force, they are used to facilitate. Even in criminal or tort law, the primary use of obligations is to guide conduct out of court, sanctions and civil remedies are the laws plan B. That left unresdved another question. Even if it is false that all laws are necessarily coercive, it might be true that every legal system is necessarily coercive in as much as everyone necessarily contains some coercive norms.

Joseph Raz and Jhon Finnis showed that this too false, we can imagine a legal system that has only Plan A. Even  society of angels would have a need for law, do-gooders would still need to co-ordinate their activity and there are circumstances in which they could not do so without the help of authoritative rules, law is therefore not essentially a motivational device, it is essentially an informational device and the presence of sanctions in all existing legal systems is explained by features of human nature, not by any feature of laws nature.

Dworkin sees laws as integrity as the coherent phenomena, rather than set of discrete decisions. To him people in a society is regulated by the interpretation of law, to understand what the idea of interpretation of law as integrity holds for the judge, he introduces the idea of chain module, statutory interpretation is constrained by plain meaning of words in which the statutes are contained. Dworkin als posits the ideal judge Hercules to point out correct legal arguments. In Mclouglin Vs O’Bryne, this argument was accepted as the judge interprets the law constructively. In contrast of utilitarianism, law as integrity takes into account divers’ political considerations in decision making. In Smith Vs Registrar of Birth, Smith who was adopted blamed his natural mother. He wants to take revenge. He attacked several women thinking of his original mother. He claimed an absolute right under s. 52 of the Adaptation Act 1957 to find out, who was his natural mother there was evidence to suppose that he would then his mother down and seriously injure her. Through the integrity, by delivering a judgment on this case the judiciary make restricted the son. That means constructive interpretation of law regulates the behaviour of society living people.

Thomas Hobbes says that, we must combine to form a sovereign and sovereigns have power to order and provide discipline to society. In the later hands of the utilitarian individualists of Bentham and James Mill, collective identity seemed to be derived from order imposed on individuals in civil society. Durkheim, on the other hand can be seen to argue that discipline and social solidarity are simply natural features, albeit in different forms, implicit in the idea of society itself and we must be able to come to know the empirical analysis of social order and social interaction. As Durkheim put it in his “Rules of the sociological Method” the principle which we espoused would create a sociology which sees in the sprit of discipline the essential condition of all common life, while at the same time founding it on reason and truth.[3]

Durkheim is often treated in a simplistic form, being wheeled out to propose a division between the pre-modern and the modern, a distinction between “mechanical” and “organic” forms of solidarity. In mechanical solidarity every individuals does many different type of tasks, this society has only low level of technology and operates as a subsistence society. Little interchange of goods ensue. In a stratified subsistence economy there is little differentiation in lifestyle between chief and lesser members. Modernity, however, benefits form role-differentiation and specialisation, which leads in turn to the exchange of products- a society characterised by complex division of labour. This later form of society Durkheim characterises as held together by”organic solidarity”. Durkheim saw the division of labour not simply in terms of a more productive economic order but as ushering in a new type of moral life, which he called moral individualism.

Durkheim separates judicial role into two great classes, according as they have organised repressive sanction or only recitative sanctions. Furthermore, Durkheim asserted that, the only common characteristic of all crimes is they consist…..in acts universally disapproved by all members of each society.[4] The disapproval came out of the collective or common conscience of the society, which he defined as, the totality of beliefs and sentiments common to average citizens of the same society, and which formed a determinate system which has its own life.[5] This same collective conscience is the source of repressive punishments: because they are found in all consciences, the infraction committed arouses in those who have evidence of it or who learn of its existence the same indignation. Everybody is attacked; consequently, everybody opposes the attack.[6]According to Durkheim, the conduct of a nations citizens are regulated by their society’s rules and regulations, which is in modern time, knows as laws.

As like Durkheim Max Weber, tries to define the society and the way how a society people are regulated. Weber proposes a model of three ideal types of authority, which regulated the behaviour of the society people. Traditional authority; which rests on an established belief in the sanctity of immemorial traditions and the legitimacy of the status of those exercising authority under the. Charismatic authority: and Rational legal authority: which rest upon the rational grounds and belief in the legality of patterns of normative rules and the right of those elevated to authority under such rules to issue commands. This form was coming to dominate modern western society.

The idea of obedience is not free from complexities. The word obedience often suggests deference to authority and not merely compliance with orders backed by threats. Even so, it is not easy to state, even in the case of single order given face to face by one man to another, precisely what connection there must be between the giving of the order and the performance of the specified act in order that letter should constitute obedience. The word habit and obedience would perhaps be connected to have a fairly obvious application.

Conclusion:

H.L.A.Hart denied the way that people obey the law only because of threat of sanction; people obey the rules of the society as a standard of behaviour too. To him, in a society there are two types of people living in a society, the first type who obey the rules of the society from his internal point of view, and the second type, who obey the rules from the fear of sanction. For example, the Road Traffic Act, recently in our country a law has been passed, that every driver shall have to wear the sit belt when he is driving his car, this law is not only obeyed by the drivers of the for fear of sanctions but also from the standard of behaviour of a driver. Recently a law has been implemented regarding Eve Teasing, those who are conducting eve teasing, he is now been stopped by this sectional law, but lots of people in our country would not commit any kind of eve teasing they are obeying it from their internal point of view or from their standard of behaviour, on the other hand the wrong doers are separate from this offence for fear of sanctions.

Bibliography:

1.      Freeman & Lloyds ; Introduction to Jurisprudence.

2.      Penner ; Jurisprudence And Legal Theory

3.      Hart, The Concept Of Law.

4.      Dworkin.R. laws Empire.

5.      Hart , Eassys in Jurisprudence and philosophy.

6.      Morrison. W. Jurisprudence from the Greek to Post Modernism.

7.      Cotterrell. The Ploitics Of Jurisprudence.

8.      Fuller. Positivism and fidelity to law.

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[1] Freeman, Lloyds Introduction to jurisprudence.

[2] Penner,J. Jurisprudence and legal theory.

[3] . la Capra, 1972. pp.229-30.

[4] Ibid,p.73.

[5] Ibid,p.79.

[6] Ibid,p.109.