Over the years, there have been numerous legal reforms taking place in many democratic countries. This occurs through constitutional referendums, legislation and recommendations from the judges themselves. Such changes have a great impact on the society in one way or another.
Legal positivism and sovereignty of nations has led many judicial systems to influence the development of law, for instance, the penal code or constitution-making process. Fortunately or unfortunately this legal liberalization has led to the enactment of laws where some have been beneficial to the society while others have been a total disaster. This study seeks the following: to identify several intellectual movements in law today; examine various legal systems, for instance, Romano-Germanic, Common Law, and Socialist and Islamic; discuss the role of the judges in the development of law; and finally discuss the relationship between law and morality.
Q1A. Intellectual Movements in Law Today
There are four intellectual movements namely:
a) Functionalist and Marxist Approach
b) Critical Legal Studies
c) Feminist Legal Theory
d) Critical Race Theory (CRT)
Functionalist and Marxist approaches have been widely used in the study of law and society. In particular, functionalist approach views law in society as dependent on the coexistence exhibited among members. This means that they are a complex whole that unite to maintain an internal balance (Vago 2009, p.76).
This relationship, for instance, can be attributed to the many organs in the body that despite their differences in function they work towards the well being of the body. On the other hand, Marxist approach, views the study of law in society as dependent on the conflict between classes as they struggle for resources (Vago 2009, p.76). The Marxist approach identifies harmful social relations, inequalities, egoistic structures and processes evident in the social order (Vago 2009, p.76).
Critical legal studies believe that there exist no rational, scientific, or neutral elements in law; for this matter nothing would influence the outcome of a particular case (Vago 2009, p.72). This movement further argues that law cannot settle on logical judgments and conclusions since it is full of contradiction and prejudice. Moreover, it is there to defend the rights of the wealthy in the society (Vago 2009, p.76).
Feminist Legal theory believes that law only seeks to protect one gender, for instance, males at the detriment of females in the society (Vago 2009, p.71). However, this assertion is widely opposed by the critical studies of masculinity movement (Vago 2009, p.72). It contends that men succumb to similar oppression as women go through. Although US, through affirmative action, has entrenched laws to defend the rights of women, there is a push to institutionalize the calls by men to have laws that protect them as well (Vago 2009, p.72). Feminism has occasioned others studies like lesbian legal theory which this study believes they might not augur well with US legal system.
Critical Race Theory (CRT) “It is an eclectic, dynamic and growing movement in law with close to 900 leading law review articles and dozens of books directly or indirectly devoted to it” (Vago 2009,p.73). This movement believes that American society has not been able to eliminate the root causes of racial inequality in its legal system (Vago 2009, p.75). It also believes that discrimination, oppression, inequality, and lack of diversity still infect the legal profession (Vago 2009, p. 73).
It is worthwhile to note that US Common Law System rests on judge-made law. It does not advocate for legislative law or codified law. Functionalism can fit in such a legal system since it aims to secure a balanced social and democratic order. Marxist approach may not augur well with US legal system due to its codified characteristic. Critical legal studies utterly contradict the very principles of US legal system where the judges can make logical judgments without the fear of contradiction. The same case applies to Critical Race Theory since US is confident with its legal system and depend on it to dispense justice.
Q2A. Legal Systems
Just as how there are different kinds of law so is there a large variety of legal systems (Vago 2009, p.12). The most used legal systems across many countries are as follows: Romano-Germanic (civil law), common law, socialist law and Islamic law (David & Brierley, 1985 cited in.Vago 2009, p.12).
The Romano-Germanic is widely used in Europe France and its colonies, Spain, Portugal,, Belgium, Germany, Italy, Spain including those countries that have reformed their legal systems in the western way during the 19th and 20th centuries (Vago 2009, p.12). Most English speaking countries dominantly use common-law systems. Middle East countries resort to Islamic law; in other words Islamic law dominates where Islamic religion has spread (Vago 2009, p.13). Countries like People’s Republic of China, Cuba, Vietnam and North Korea use Socialist legal systems. It is also believed that some elements of socialist systems exist in the former Soviet Union and Eastern European Countries (Vago 2009, p.13).
The Romano-Germanic’s legal science is based on Roman ius civile or civil law (Mousourakis, 2007 cited in.Vago 2009, p. 13). It consists of rules that were developed in the 16th century A.D. during the reign of Roman emperor Justinian. These rules exist in the Justinian Code and have evolved primarily as private as a means of regulating private relationships between individuals (Vago 2009, p.13). Following the fall of the Roman Empire the Justinian Code competed with the customary law of the Germanic tribes during their invasion. However, the Justinian Code coexisted with the local systems throughout Europe and in other parts of the continent.
Common law refers to the English System which evolved after the Norman Conquest 1066 (Vago 2009, p.13). Other laws that resisted codification include England law and other English Law Systems, for instance, US, Canada, Ireland and India. This refers to the famous “judge-made” law which is not similar to legislation or statutory law (Vago2009, p.13). It believes that the parliament does not enact laws but much law is based on precedents set by judges in deciding a case (Friedman, 1998 cited in Vago 2009, p.13).
The socialist law aims at three things namely: national security; equal distribution of resources and according to everyone’s needs; and thirdly to promote socialist-based education (Vago 2009, p.14). Legislation is the main source of socialist law which represents the popular wish of the Communist Party (Vago 2009, p.14). In this system, courts only apply the law, not to create or interpret it. This system disregards the concept of separation of powers and places much emphasis on ownership (Vago 2009, p.14). It prohibits private ownership and recommends that it be used only to satisfy personal needs.
Islamic Legal System is not an independent branch of knowledge as compared to other legal systems (Vago 2009, p. 17). Its precepts go hand-in-hand with the Islamic religion, which controls the social order of the faithful who make laws in their light of their God (Vago 2009, p.17).These laws are based on divine command and revelation (Vago 2009, p.17). This distinguishes them from other legal systems that base themselves on judicial decisions, precedents and legislation (Vago 2009, p.13).
Q3A. There are various perspectives that explain lawmaking processes namely: the rationalistic model, the functionalist view, theory of Conflict and a moral entrepreneur thesis (Vago 2009 p.163). From a rationalistic model point of view the design of laws are aimed at safeguarding the members of society from malice and social misconduct. This is the widely held perspective in lawmaking procedures (Goode, 2008 cited in.Vago 2009, p.163). The challenges with such approach are the creation of objective laws, that is, laws free from bias and prejudice. It can turn out that judges design laws that suit their interests; or better still, they define what activities to be regarded as crime or not.
According to functionalism lawmaking is just but re-affirmation of the existing social customs (Bohannan 1973 Cited in.Vago 2009, p.164). On the other hand, conflict perspective holds that lawmaking derives from economic class struggles in the society (Vago 2009, p.164). It states that law originates from an elite class (Vago 2009, p.164). In England, for instance, vagrancy laws were pushed by the groups that represented the dominant economic interests at the time (Chambliss 1964 cited in.Vago 2009, p.164). The moral entrepreneur theory believes that laws originate from an enterprising entity (Vago 2009, p.164).
The judges through the courts are called upon to interpret the law. Moreover, ambiguity in law provides the judges with an opportunity to take part in lawmaking (Vago 2009, p. 174). It is believed that antitrust statutes allow judicial lawmaking (Vago 2009, p.174); furthermore, courts not only make law but they also implement policy to guide other businesses and government agencies (Vago 2009, p.174).
It is worthwhile to note that the origin of law is of a philosophical nature so this fact rules out any assumption that judges could be the originators of law. This study believes that there is a distinction between judges making law and judges being the originators of law. In a court of law, for instance, judges follow proceedings and through consultations and use of conscience, they pass a verdict, either implicating that the defendant is guilty or not guilty. Obviously the judge will not make a law there and then that he will choose to judge the case, but instead he will refer the matter to appropriate statutory requirements.
As mentioned earlier, judges do make laws and this is their duty, however, the lawmaking process always depends on another standard and the chain goes on. This is why this study mentioned that understanding of lawmaking is of a philosophical nature. Therefore, just as how a mason will build a house following the guidelines or architectural work provided by the Architecture so will the judges follow natural law principles in making the laws.
In general, this study believes that judges make law but guided by certain legal principles (natural law). Lawmaking process is not a direct action of the judges; recall the example of a mason and the design of the architecture.
Q4A. Social Control
“Social control refers to the methods used by members of a society to maintain order and promote predictability of behavior” (Vago 2009, p.). There are formal and informal social control processes the society can resort to namely: criminal sanctions, death penalty, white-collar crime and licensing just to mention a few (Vago 2009, p. 203).
It is worthwhile to note social control can be achieved through internalization or through external pressure (Vago 2009, p. 203). Internalization occurs when a group of people maintain law and order as an end in itself. A group of young people, for instance, will stop taking bhang not because the government has put stiff measures, but because they see the value to keep off from drugs.
Their resolution to change their lives becomes an internalized value. On the contrary, appropriate authorities may result to the use of external pressure if the members of the society fail to adhere to the laws in place. Such external pressures can take the form of fines or can be rewarded through bonuses and awards. On the same note, the sanctions used can be formal or official and they can be informal or unofficial (Vago 2009, p.204).
Criminals who persistently destabilize social order can be dealt with through imprisonment. Prisons, therefore, serve as a means to promote law and order. Punishment accorded under the criminal justice system should be formative in nature and have a deterrent effect. Death penalty is a social control that has the most deterrent effect. On the other hand, it is one of those that put human dignity at stake. Its rationale is valid since it punishes a culprit who takes away another person’s life. This study believes that the there should be tougher laws to deal with crimes like murder although exercised with abundant caution. Inasmuch as many states abolished capital punishment the law should never compromise with acts that violate human dignity.
It is believed that criminal sanctions are not the only way to control deviant behavior; civil commitment can help to achieve this end through medicalization of deviance (Conrad, 1996 cited in.Vago 2009, p.224). Here, criminal behavior is approached from a medical point of view.
To a large extent, this approach brings out the state as a caring nation but it has got disadvantages as well. Not all deviant behavior can be cured medically, for instance, stealing; where can one get medicine for stealing, it is absurd. But, it can apply to other situations like drug addiction, alcoholism et cetera. If all laws sung the tune of civil commitment then most criminals would walk scot-free because of little due process of the law. Everything on deviant behavior would be attributed to sickness which should not be the case.
Defiant behavior like prostitution, gambling, alcoholism, and drug addiction fall under crimes without victims. Such crimes only harm the participating individuals as such (Schur, 1965 cited in. Vago 2009, p. 227). There is a tendency to think that such misconduct should not be punishable by law since it is of no consequence to the society. This perception is wrong since it contradicts the aim of law as a rule of conduct enacted for the sake of the common good and to make men good. Therefore, the state should ensure that laws form their people in virtue. This anticipates the next section which will look at the role of law as an instrument for change.
Although majority of people overlook crimes committed by people of high caliber, they happen to be the gravest crimes ever. These crimes, more than often, go unpunished and yet they pose more dangers to the society, for instance, when a government official robs the ministry money that could be used in helping the poor.
Licensing, inasmuch as it seeks to permit engagement in certain activities, it should never contradict the ideals of a good and just society. This means that the state issues licenses only for the well being of all and not for the licensee. The state has a duty to safeguard the public from sub-standard services through revocation of such licenses.
This extends to the idea of inspection in that the state should ensure that everything in the service of the public is fit. This covers the health sector, transport sector and education among others. It aims to ascertain that the public get only quality products and services. The government should have a provision to safeguard whistleblowers that expose wrongdoings in the society. This spirit should be encouraged since it can help uncover defiant behavior that may never be dealt with.
Q5A. Limitations of Law as an Instrument of Social Change
The debate as to whether law plays any role in changing the society is rather controversial (Vago 2009, p.332). But, this study wishes to state that law in itself should transform the society, period.
It is believed that “jurists in the former Soviet Union saw the law as an instrument for social engineering” (Gureyev & Sedugin, 1977 cited in.Vago 2009, p.333). The transition from capitalism to socialism led the Soviet State utilize legislation in guiding the society, establishing and creating social economic reforms and getting rid of possible exploitation. Moreover, such legislation regulated measures of labor and the measure of consumption of the products of social labor. On the same note, the Soviet State used legislation to enhance democracy, maintain law and order, enhance public safety and edify socialism (Gureyev & Sedugin, 1977 cited in.Vago 2009, p.333).
In Latin it is said that hominum causa omne jus constitutum which means that all right (law) was made for man. Man is the object of law; or better still, law is made for man and not man for the law. This study recalls this assertion to help the reader realize that law in itself does not transitively occasion social change. It is not like how a person shifts an item from one position to the next such that one can talk of the subject of action and object of action involved. Always, law as it is derives from man’s rationality; it is simply an extension of man’s thoughts.
Therefore, it is not the law that desires social change but it is man himself, see the point? Law, therefore, becomes a means through which the states (composed of men) project their desire for social change. It is important to note that men resort to use of laws since they all accept a universal legal principle which governs all other laws they might enact. Therefore, law as a tool for social change should be examined with a third eye due to its philosophical connotations.
However, the fact that law is for man does not make it immune to man’s misappropriation. This means that law cannot prevent itself from being broken. For instance, the law that abortion is illegal does not prevent people from doing abortion. This limitation hinders the effectiveness of law as a tool for social change.
It is also important to note that social change does not mean change in population, climatic change, and technology and so on and so forth, but rather it is change in the human conduct. So, social change revolves around political systems, legal systems, education, health, crime and inter-subjectivity just to mention a few. For, instance, whenever a state proposes to have a democratic society where its citizens will have equal rights, such a policy is executed legally through the bill of rights. Now, the shift from a centralized government to one that is decentralized is not only a political move but also a legal move.
The shift from capitalism to socialism is also a legal move. As mentioned earlier, individual members of the state see the need to have a society that has equal distribution of resources. Therefore, they entrench laws that would lead them to this end. Somewhat, the laws become an outward sign of their agreement to promote a just society.
This study wishes to state that ubi jus ibi remedium which means that where there is a right there will one find a remedy. It may also mean that where a right is violated, a remedy must be sought. Social change is nothing else but promotion of human rights from one epoch to the next. The channel through which such rights can be achieved is through the laws in place. In common parlance, people fight for social change through constitutional process and through voting competent legislators into power.
Q6A.Law and Morality
The debate on the connection between law and morality becomes controversial since morality itself is also controversial. It is not easy to convince utilitarianists or moral relativists that law and morality interrelate. They may accept that laws should be universal but they will never accept that morality has universal principles.
However, this study believes that ubi ius ibi moralis which means that where there is law there is morality. It would be a contradiction in terms to insinuate that a particular law is immoral. Law focuses on the regulation of individual behavior, but it cannot be used to alter attitudes, values and morality (Vago 2009, p.353). Obedience to the law derives from a sense of moral obligation learnt from socialization (Vago 2009, p.359). Therefore, law would make no sense at all where there is no morality or at least some basic moral sensitivities and perceptions.
It is quite self-evident that where morality vaguely envisions a state of social harmony or social and mutual tolerance, law seems to explicate this vaguely conceived end by making it public and mandatory. Be what it may, law and morality remain intimately connected not as a matter of accident but as a matter of necessity. This is re-affirmed by their purported claims to the promotion and advancement of the cardinal social ideals, for instance, tolerance, cohesiveness, compatibility, integrality and self-sustainability in the society.
Furthermore, no law can claim any validity, social impact or regulatory force where the institutions of social morality are crumbling. Neither can the law effectively operate where it is found to contradict or even to contravene obvious ethical and, by implication, moral principles in the society.
With the institutionalization of social morality and positive promotion of it through all available collateral social agencies, public morality and sometimes individual probity are equally promoted and enhanced. Thus an intriguing complementarity between public morality and the legal regime seems to emerge and indeed to need each other as vital and mutually indispensable sustainables.
Morality should be the conscience of lawmakers. This means lawmaking process takes place in the eyes of morality. Just as how a person will see the environment as green if viewing it through green glasses so will laws be moral if lawmakers see them through the eyes of morality. Therefore, in the development of law it is important to take into consideration moral values otherwise the laws may not meet their intended goal. This also implies that lawmakers themselves must be highly moral. As the saying goes nemo dat quod non habet which means one cannot give what he does not have, therefore, lawmakers must be persons of high moral standards to be able to direct laws in a moral path.
As can be seen there four intellectual movements in law today are: functional and Marxist approach; critical legal studies; feminist legal theory; and critical race theory. It has also been established that Roman-Germanic law rests on Roman civil law coined during the reign of Roman Emperor Justinian. Common law refers to the English Legal system which rests on judge-made law. Socialist law is founded on communist principles. It believes on the application of the law and not its interpretation. Islamic legal system directly acts in participation to Islamic religion. Therefore, its laws are based on command and divine revelation.
This study has also established that judges do make laws. However, this does not mean that they are the originators of law. In other words, they do not serve s direct actors in the making of law, and this is as a matter of principle. The law is a basic tool for social change. This study believes that there cannot be effective social change if the laws in place are inadequate. Finally, there exists a symbiotic relationship between law and morality. It is absurd to posit one aspect of law as moral and one of aspect of it as immoral.
Steven Vago, "Law & Society" ninth edition 2009 Prentice Hall