The functions of law
Law can be said to perform four different functions, each of which is of huge importance to our welfare.
(1) Defending us from evil
The first and most basic function of law is to defend us from
evil – that is, those who would seek to harm us for no good reason. This function of law underlies 20th century developments in International Law such as the
Nuremberg Trials and the creation of the
International Criminal Court.
(2) Promoting the common good
Law is not just concerned with bringing evil people to account for their actions. A community made up of people who bear no ill-will to anyone else and are simply concerned to pursue their own self-interest needs law because there are situations where if everyone pursues their own self-interest, everyone will be worse off than they would have been if they acted differently. (This is the reverse of the
‘invisible hand’ phenomenon where if everyone pursues their own self-interest, everyone in the community is made better off, as if everyone’s actions were guided by an ‘invisible hand’ to achieve that end.) So a community of self-interested actors needs law: (i) to solve
‘Prisoner’s dilemma’ situations; (ii) to distribute into private hands property that would otherwise be exploited by everyone, thereby avoiding a
‘tragedy of the commons’ situation arising; (iii) to prevent people acting on their natural desire to extract
‘an eye for an eye’ in revenge for actual or perceived wrongs that they have suffered at other people’s hands.
(3) Resolving disputes over limited resources
As every family knows, in any community there will always be disputes over who should have what of a limited number of resources. Law is needed to resolve these disputes, as exemplified by the famous story of the
Judgment of Solomon.
(4) Encouraging people to do the right thing
It was thought even from classical times that law performed a fourth function – that of encouraging and helping people to do the right thing. For example,
Aristotle (384 BC – 322 BC) argued that people needed the discipline of law to habituate them into doing the right thing, from which standpoint they could then appreciate why doing the right thing was the right thing to do. Up until the 20th century, this view of law was accepted by law makers, with the result that the UK legal system contained a large number of ‘morals laws’ – that is, laws that were designed purely and simply to stop people acting immorally, according to the lights of
Christian teaching on what counted as immoral behaviour. However, in the 20th century, the
‘harm principle’ propounded by John Stuart Mill in his book ‘
On Liberty’, according to which the law should not sanction people for acting immorally unless their conduct involved some harm to others, gained more and more popularity, and resulted in the abolition of large numbers of ‘morals laws’. These trends triggered what is now known as the
Hart-Devlin debate over the extent to which it is legitimate for the law to enforce morality. Lord Devlin – at the time, a judge in the House of Lords, the highest court in the land – argued that law should enforce morality so as to preserve the cohesiveness of society. Professor H.L.A. Hart – at the time, the most famous legal philosopher in the world – based his position squarely on Mill’s harm principle, though subject to the caveats that the law might legitimately prevent someone acting immorally if doing so involved harm to himself or would cause offence to others. Hart’s views are set out in his widely read book ‘
Law, Liberty and Morality’. Hart is thought to have won the debate – but his concessions that it might be legitimate to make it illegal for someone to engage in immoral behaviour that will (i) harm himself or (ii) offend others, seem to make little sense. The same point can be made about those ‘morals laws’ that survived the 20th century cull: if law does not have a role to play in encouraging us to do the right thing, why is it illegal to have sex in public, or to have sex with animals, or to dig up dead bodies, or to take hallucinogenic drugs, or to help someone kill themselves?
The rule of law
Whether or not law has a role to play in encouraging us to do the right thing, no one doubts the continuing importance of law in performing the first three functions set out above. As a result, there is a widespread acceptance that the health and wealth of nations is crucially dependent on how far the rule of law is maintained and observed in those nations. See for example, this World Bank website, or this United Nations website, or this website maintained by the American Bar Association, or this essay on the importance of observance of property rights and the rule of law to a country’s development. As a result, a lot of attention is paid to indexes that attempt to chart how far countries around the world respect such things as the rule of law and private property rights. For examples of such indexes, see World Justice Project and International Property Rights.
Critics of the law
Having said all that, it should be acknowledged that numerous criticisms are made of the benefits that are supposed to flow from the existence of law, and the observance of the rule of law.
For example, some point out that the fact that a society respects the importance of the rule of law and private property rights is no guarantee that that society will be particularly just (or even that wealthy). The rule of law, it is argued, is compatible with great oppression, inequality and poverty; a point summed up by Anatole France’s famous observation that ‘The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’
Others take this point further and argue that in the wrong hands, law can become an instrument of evil, a means by which a country’s rulers can rob people of their property and oppress minorities.
It is also argued that even if law is not actually used as an instrument of evil, it can become its accomplice by doing such things as:
(i) hamstringing public officials (such as the fictional Jack Bauer of the American TV series ‘24’) from doing what is necessary to prevent terrorist atrocities; and
(ii) granting people rights and encouraging them to exercise them, thereby fostering a damaging culture of complaint and compensation culture that alienates people from each other, and discourages people from helping other people for fear that doing so might result in their being sued.
Conclusion
All legal systems do harm of one kind or another. Some of that harm is intended: in order to achieve its goals, a legal system always has to limit people’s freedom. Some of that harm is an unintended side effect of the legal system’s attempting to achieve its goals: for example, harms (i) and (ii), above. What is important is: (1) that our legal system do more good than harm; and (2) that our legal system not do any unnecessary harm. I don’t have any doubt that (1) is true of our legal system; at the same time, I don’t have any doubt that (2) is not true. So the verdict on our legal system must be ‘Good, but could be better’. How our legal system could be improved is a matter of debate. A good starting point for students interested in joining that debate would be Michael Sandel’s Harvard lectures on ‘Justice’, which are available
here.
