{"id":1947,"date":"2022-10-10T04:36:12","date_gmt":"2022-10-10T04:36:12","guid":{"rendered":"http:\/\/tibetanlegalassociation.org\/en\/?p=1947"},"modified":"2022-10-10T04:36:12","modified_gmt":"2022-10-10T04:36:12","slug":"importance-of-law","status":"publish","type":"post","link":"https:\/\/tibetanlegalassociation.org\/en\/importance-of-law\/","title":{"rendered":"Importance of Law"},"content":{"rendered":"

 <\/p>\n

The functions of law<\/h3>\n

Law can be said to perform four different functions, each of which is of huge importance to our welfare.<\/p>\n

(1) Defending us from evil<\/strong><\/p>\n

The first and most basic function of law is to defend us from\u00a0evil<\/a>\u00a0\u2013 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\u00a0Nuremberg Trials\u00a0<\/a>and the creation of the\u00a0International Criminal Court<\/a>.<\/div>\n

(2) Promoting the common good<\/strong><\/p>\n

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\u00a0\u2018invisible hand\u2019 phenomenon<\/a>\u00a0where if everyone pursues their own self-interest, everyone in the community is made better off, as if everyone\u2019s actions were guided by an \u2018invisible hand\u2019 to achieve that end.) So a community of self-interested actors needs law: (i) to solve\u00a0\u2018Prisoner\u2019s dilemma\u2019 situations<\/a>; (ii) to distribute into private hands property that would otherwise be exploited by everyone, thereby avoiding a\u00a0\u2018tragedy of the commons\u2019 situation<\/a>\u00a0arising; (iii) to prevent people acting on their natural desire to extract\u00a0\u2018an eye for an eye\u2019<\/a>\u00a0in revenge for actual or perceived wrongs that they have suffered at other people\u2019s hands.<\/div>\n

(3) Resolving disputes over limited resources<\/strong><\/p>\n

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\u00a0Judgment of Solomon<\/a>.<\/div>\n

(4) Encouraging people to do the right thing<\/strong><\/p>\n

It was thought even from classical times that law performed a fourth function \u2013 that of encouraging and helping people to do the right thing. For example,\u00a0Aristotle<\/a>\u00a0(384 BC \u2013 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 \u2018morals laws\u2019 \u2013 that is, laws that were designed purely and simply to stop people acting immorally, according to the lights of\u00a0Christian teaching<\/a>\u00a0on what counted as immoral behaviour. However, in the 20th century, the\u00a0\u2018harm principle\u2019<\/a>\u00a0propounded by John Stuart Mill in his book \u2018On Liberty<\/a>\u2019, 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 \u2018morals laws\u2019. These trends triggered what is now known as the\u00a0Hart-Devlin debate<\/a>\u00a0over the extent to which it is legitimate for the law to enforce morality. Lord Devlin \u2013 at the time, a judge in the House of Lords, the highest court in the land \u2013 argued that law should enforce morality so as to preserve the cohesiveness of society. Professor H.L.A. Hart \u2013 at the time, the most famous legal philosopher in the world \u2013 based his position squarely on Mill\u2019s 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\u2019s views are set out in his widely read book \u2018Law, Liberty and Morality<\/a>\u2019. Hart is thought to have won the debate \u2013 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 \u2018morals laws\u2019 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?<\/div>\n

The rule of law<\/strong><\/h3>\n

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\u00a0rule of law<\/a>\u00a0is maintained and observed in those nations. See for example, this\u00a0World Bank website<\/a>, or this\u00a0United Nations website<\/a>, or this website maintained by the\u00a0American Bar Association<\/a>, or\u00a0this essay<\/a>\u00a0on the importance of observance of property rights and the rule of law to a country\u2019s 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\u00a0World Justice Project<\/a>\u00a0and\u00a0International Property Rights<\/a>.<\/p>\n

Critics of the law<\/strong><\/h3>\n

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.
\nFor 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\u00a0Anatole France<\/a>\u2019s famous observation that \u2018The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.\u2019
\nOthers take this point further and argue that in the wrong hands, law can become an instrument of evil, a means by which a country\u2019s rulers can\u00a0rob people of their property<\/a>\u00a0and\u00a0oppress minorities<\/a>.
\nIt 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:
\n(i) hamstringing public officials (such as the fictional\u00a0Jack Bauer of the American TV series \u201824\u2019<\/a>) from doing what is necessary to prevent terrorist atrocities; and
\n(ii) granting people rights and encouraging them to exercise them, thereby fostering a damaging\u00a0culture of complaint<\/a>\u00a0and\u00a0compensation culture<\/a>\u00a0that alienates people from each other, and discourages people from helping other people for fear that doing so might result in their being sued.<\/p>\n

Conclusion<\/strong><\/h3>\n
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\u2019s freedom. Some of that harm is an unintended side effect of the legal system\u2019s 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\u2019t have any doubt that (1) is true of our legal system; at the same time, I don\u2019t have any doubt that (2) is not true. So the verdict on our legal system must be \u2018Good, but could be better\u2019. 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\u2019s Harvard lectures on \u2018Justice\u2019, which are available\u00a0here<\/a>.<\/div>\n

<\/p>\n

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  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\u00a0evil\u00a0\u2013 that is, those who would seek to harm us for no good reason.\u2026 Read More »<\/a><\/span><\/p>\n","protected":false},"author":1,"featured_media":711,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[352],"class_list":["post-1947","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news","tag-importance-of-law"],"_links":{"self":[{"href":"https:\/\/tibetanlegalassociation.org\/en\/wp-json\/wp\/v2\/posts\/1947","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/tibetanlegalassociation.org\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/tibetanlegalassociation.org\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/tibetanlegalassociation.org\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/tibetanlegalassociation.org\/en\/wp-json\/wp\/v2\/comments?post=1947"}],"version-history":[{"count":1,"href":"https:\/\/tibetanlegalassociation.org\/en\/wp-json\/wp\/v2\/posts\/1947\/revisions"}],"predecessor-version":[{"id":1948,"href":"https:\/\/tibetanlegalassociation.org\/en\/wp-json\/wp\/v2\/posts\/1947\/revisions\/1948"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/tibetanlegalassociation.org\/en\/wp-json\/wp\/v2\/media\/711"}],"wp:attachment":[{"href":"https:\/\/tibetanlegalassociation.org\/en\/wp-json\/wp\/v2\/media?parent=1947"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/tibetanlegalassociation.org\/en\/wp-json\/wp\/v2\/categories?post=1947"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/tibetanlegalassociation.org\/en\/wp-json\/wp\/v2\/tags?post=1947"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}