Amin George Forji
Faculty of Law, Department of Public Law, University of Helsinki
Man by nature is a gregarious being both in his body and mind. In other words, he likes to live in a community. This explains the hackneyed adage that no man is an island. Instead he is a victim of social inevitability as he must as a matter of necessity willy nilly live in a society with other human beings rather than in isolation. For any society to survive or even exist, it must inescapably anchor itself on law, which in turn governs the behavior of members of the society in question, as well as their relations, their rights and obligations. Law thus is a mandatory cause of conduct accepted by members of a given society as established by the legitimate authority of that society. When we talk about law and society, we are undoubtedly referring to a group of individuals bound together under a political organization, whose very existence is dependent on the quality of the law which has enabled that association to come into existence in the first place. Members of the society normally have an inherent interest in the preservation of both their individual welfares and that of the association.
I am not trying to suggest that members of a society would robotically adhere to the laws in place. Far from that, the reverse is true. Just as the faces of all men are different, so are the members that constitute any human society. They each share varying behaviors ranging anywhere from submissiveness to delinquency. The main relevance of the law is to direct the society to behave in a particular way or face corresponding sanctions. The purpose of this paper therefore is to examine how human behavior is determined by law or relative to law, vis-à-vis the society, crime and punishment. It recognizes the enormous influence of any legal system on the behaviors of its citizenry, and asserts that law can through direct or indirect enforcement mechanisms either widen or contract the horizon of opportunities within which individuals can satisfy their sundry preferences.
Inherent to the activities of any community, society or organization is a potential for order and disorder. When we are attempting to control something, we must acutely be conscious of what resists us. No society in the world however beautifully designed can function in an atmosphere of perfect harmony. With every human society constituted of people with different behavioral patterns, there is bound to be an element of disharmony at various facets of societal intercourse, which in turn necessitates law to act as specific social barometer. This consists of bringing about “the desired social conduct of men through threat of a measure of coercion which is to be applied in case of contrary conduct.” Hans Kelsen has asserted that a state is defined as a political organization only because the “political” element consists in nothing but “the element of coercion.”Another writer has succinctly observed that for there to be an organization or a society, there should be interaction, for there to be interactions there should be encounters, and for there to be encounters there should be disorder. In other words, order and disorder are effectively part and parcel of human society.
The Social Function of Law
Hans Kelsen has observed that the function of every social order is to “bring about certain mutual behavior of individuals; to induce them to certain positive or negative behavior, to certain action or abstention from action.”8 Going by the catchphrase maxim ubi societas ibiius, the purpose of law is to make social life possible. Naturally, there is a very close bond between the individual and his societal environment. Whoever believes in the existence of a social order believes in the existence of a legal order. Living together involves setting up rules and institutions that regulate this living together.10 There is no other conceivable way by which large communities can be constituted other than through some coercive legal orders. As observed in the introduction, law is the cultural force which has that important social function of imposing, conducting and/or controlling patterns of human behavior. The sociology of law is aimed at studying human behavior in society as commonly recognized by ethno-legal norms. In other words, it is legal norms that guide, delimit or determine patterns of behavior in any human society.How does this come about? Put differently, what is the conditions sine qua non for the effectiveness or non effectiveness of legal norms vis-à-vis human behavior?
The specific reality of the law is not obvious in the actual behavior of the individuals who are subject to the legal order.13 This is comprehensible given that legal norms are the creation of human will. The law as a norm “is an ideal and not a natural reality.” The behavior of individuals as a consequence may or may not be in conformity with the legal order in place. Despite this imbalance, law still both directly and indirectly functions as a specific social technique in adjusting human behavior towards a particular social pattern. How does law do what it does?
Although very few legal philosophers have been interested in the question, Robert S. Summers has nonetheless pivot from a synthesis of the few available literature on the subject that to achieve its aim, law breaks itself into elements such as legal authority and legal rules, moral aspects of law and law’s coercive features.This is clearly a much extensive way of approaching the issue. A more narrow and compelling response can be inferred from Hans Kelsen’s assertion that law regulates societal behavior by oscillating the principles of reward and punishment, where applicable.18These two principles are fundamental for social living. For the sake of convenience, I would make a slight linguistic adjustment by re-qualifying these two values respectively as pleasures and pains, loosely borrowed from Jeremy Bentham’s utility principle, because I believe these words best capture the functionality of law vis-à-vis societal behavior.19 Bentham’s theory of utilitarianism states that the aim of the individual and the legislator in the conduct of the society should be to achieve the greatest happiness for the masses.It is in the interest of the legal order that it strive for genuine justice in order to dissuade individuals from inducements to contra bonos mores. When from a particular conduct, the benefits or advantages are more than the disadvantages or sufferings to an individual; that individual can certainly be expected to opt for compliance, because the benefits (pleasures) of compliance outweigh the disadvantages (pains) of violation. The reverse conduct would be true for a legal system which is prone to injustice, hardship and sufferings to some or most of its subjects, given that the latter beside their pains are not giving any motivation to abide to the legal order. In this case, the advantages of violation seem just as good if not better as of compliance. Law as such functions to shape not only positive behavior but prejudices as well. The efficacy of law depends on its ability to deter at every level of operation (prescription legislating), functional courts and enforcement mechanisms). According to Kelsen, Law functions as a specific legal technique by applying the measures of coercion as decreed by the legal order. I would return to this proposition in due course, given that it has been jettisoned in other academic circles. For now, suffices to state that it is the unpredictability of human nature that makes it necessary to establish a legal order as a coercive order. As noted before, history has presented man with a social condition of ubi societas ibi ius. It is obvious from the functionality of things that man has not been totally at ease with this condition. He has always demonstrated a preferential tendency for a society free from all coercion, “one in which there will no longer be any law, or what amounts to the same thing, any state. “