• Law changes from time to time and from country to country. Law is not static.
• It must change with changes in society.
• That is the reason why there is no unanimity with regard to the
purpose and function of law.
• Hindu view - purpose of law is that it should aim at the welfare
of the people in this world and also from salvation after death. • Mohammedan law - , the purpose of law is the discipline of the soul, the improvement of morals and the preservation of life, property and reputation.
• The end of law is to promote the welfare of man both individually
and socially, not merely in respect of life on this earth but also of future life.
• The general function of law is to maintain law and order in the
State. • According to Hobbes - Law was brought into the world for nothing else but to limit natural liberty of particular men in such a manner as they might not hurt but assist one another and join together against a common enemy.
• On the contrary, John Locke says - The end of law is not to
abolish or restrain but to preserve or enlarge freedom.
• Similarly, Immanuel Kant states - The aim of law is freedom and
the fundamental process of law is the adjustment of one's freedom to that of every other member of the community. • Bentham - of the substantive branch of the law, the only defensible object or end is the maximization of the happiness of the greatest number of the members of the community in question.
• Holland - Law is something more than police. Its ultimate object
is no doubt nothing less than the highest well-being of society; and the State from which law derives its force, is something more than an institution for the protection of rights.
• Justice Holmes - The object of law is not the punishment of sins
but to prevent certain external results. • Krause and Ahrens - Law should be conceived of as harmonizing the conditions under which human race accomplishes its destiny by realizing the highest good of which it is capable.
• The pursuit of highest good of the individual and of society needs
a controlling power, which is law, and an organization for the application of its control, which is the State
• Salmond - The object of law is justice.
• Justice can be used in a wider (roughly synonymous with morality – natural justice) or restricted sense (Legal Justice). • Justice operates at three different levels- distributive justice and corrective justice and social justice.
• Distributive justice works to ensure a fair division of social
benefits and burdens among the members of a community.
• Distributive justice serves to secure a balance or equilibrium
among the members of society.
• Article 14, 15, 16 and 18 are guided by endeavour of achieving
the objective of distributive justice. Articles 38 directs the state to secure a social order for the promotion of welfare of the people. • Art. 38 (2) states that the State shall, in particular, strive to
• minimize the inequalities in income, and
• endeavor to eliminate inequalities in status, facilities and opportunities, • not only amongst individuals but • also amongst groups of people residing in different regions or engaged in different vocations. • • Article 39 mandates that State must ensure that • men and women have equal and adequate means of livelihood; • equitable distribution of material resources ,
• wealth and means of production within community so
serve common good and avoid concentration of wealth.
• Social justice, equality and dignity of person are cornerstones of
social democracy
• Social justice has been elevated to the status of a fundamental
right for the empowerment of the disadvantaged. • The concept of "social justice" which the Constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen.
• Social justice is a dynamic device to mitigate the sufferings of the
poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person.
• Social security, just and humane conditions of work are part of
meaningful right to life and to achieve self-expression’ of his personality and to enjoy the life with dignity. • Courts have always emphasized the doctrine of social justice is founded on the basic ideal of socio-economic equality as enshrined in the Preamble of our Constitution.
• Apart from the aforesaid functions, certainty in law via fixed rules helps in uniformity in securing obedience to the law.
• In case political, social or economic equilibrium is disturbed ,
then, the function of the courts is to apply justice in its corrective sense.
• Corrective justice is rectificatory function of law.
• By correcting the injustice one person has inflicted on the other, corrective justice asserts a connection between remedy and wrong. This removes the feeling of injustice.
• This function is performed by courts. This is known as
administration of justice.
• Courts can play a creative role in ensuring prevalence
distributive and corrective justice.
• Fair and equal dispensation of corrective justice demands more
than equality between the parties to individual law suits. • It requires that all be equal before the law. Legal rights which each person has should be given equal protection by the courts.
• There should be a fair procedure for determining the disputes
• Judges should mete out justice without fear or favour, without
distinction between high and low, rich and poor and so forth.
• Like cases should be treated alike not only as regards the
hearing but also in respect of the finding. Major discrepancies in sentencing mean in fact inequality before the law. • In modern times, social justice has become a very important purpose of law. Social justice implies securing minimum life necessaries to every individual in society.
• Social justice, equality and dignity of person are cornerstones of
social democracy.
• The concept of "social justice" which the Constitution of India
engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen. • Social justice is not a simple idea of a society but is an essential part of complex social change to relieve the poor etc. from handicaps, penury, to ward off distress and to make their life livable, for greater good of the society at large.
• Social justice is a dynamic device to mitigate the sufferings of the
poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person.
• The State should provide facility and opportunities to enable
them to reach at least minimum standard of health, economic • Social justice is a fundamental right and equally empowerment is a fundamental right of the disadvantaged.
• The aim of law is to establish rule of law and not that of
individuals or any particular group of individuals or section of community.
• Roscoe Pound says that there are four purposes of law –
• The first purpose of law is to maintain law and order within a
given society and that has to be done at any cost. • The second purpose of law is to maintain the status quo in society.
• The third purpose is to enable individuals to have the
maximum of freedom to assert themselves.
• The fourth purpose of law is the maximum satisfaction of the
needs of the people. • According to Roscoe Pound, law is a species of social engineering whose function is to maximize the fulfillment of the interests of the community and its members and to promote the smooth running of the machinery of society.
• . Bodily security, property, reputation and freedom of speech are
all interests.
• The reconciliation of conflicts between competing interests is in a
broad sense part of the problem of justice. • Apart for justice, The notion of law represents a basic conflict between two different needs, the need for uniformity and the need for flexibility.
• Where rules of law are fixed and generalized, the citizen can plan his activities with a measure of certainty and predict the legal consequences of his behaviour.
• Fixed principles of law provide, uniformity and certainty to the
administration of justice. • In some areas of law fixed rules may be preferable to rules that are fairer but less certain e.g. contracts, property.
• The uniformity and certainty of law add to the convenience and
happiness of the people.
• E.g. certainty and uniformity in road laws make it possible for
millions of people to drive with relative safety
• The existence of fixed principles of law avoids the dangers of
arbitrary, biased and dishonest decisions. Law is certain and known. • A departure from a rule of law by a judge is visible to all. It is not enough that justice should be done, but it is also necessary that it should be seen to be done.
• If the administration of justice is left completely to the individual
discretion of a judge, improper motives and dishonest opinions could affect the distribution of justice
• John Locke states that the legislative or judicial authority cannot
assume to itself a power to rule by extemporary, arbitrary decrees. • It is bound to dispense justice and to decide the rights of the subjects by promulgating standing and known law.
• In most cases, the law on the subject is clear and judges are not expected to twist the same. They are not expected to substitute their own opinion for the law of the country.
• Experience shows that people have lived happier lives when
they are ruled by the fixed principles of law than when there are no laws as such. • In words of Cicero - We are the slaves of the law so that we may be free.
• Human mind is fallible and judges are no exception.
• The wisdom of the legislature which represents the collective
wisdom of the people is a safer and more reliable means of protection than the momentary fancy of the individual judge.
• Emphasising on importance of clear and certain rules of law,
Salmond states that the law is not always wise, but on the whole and in the long run, it is wiser than those who administer it. • However, in certain cases there is a need for a certain degree of flexibility.
• An ideal legal system keeps on changing according to the
changing needs of the people.
• Law must adjust itself to the needs of the people and cannot isolate itself from them.
• However, law is not usually changed to adjust itself to the needs
of the people. There is always a gap between the advancement of the people and the legal system of the country. • As a matter of fact, no rule can make provision for every possible case. Some measure of discretion is necessary.
• Many a times conservative nature of legal system results the fact
that Both the lawyers and judges favour the continuation of the existing law.
• The result is that very often law is static.
• Law that is capable of adaptation, whether by legislation or
judicial development, allows for peaceful change from time to time. • If law is unalterable, the necessary changes will come by revolution, violence and upheavals.
• Furthermore, Formalism, and technical objections of law focus
more on form of law rather than substance without any concern for merits of the dispute.
• Formalities of law many a times make the innocent suffer while
the crooked takes advantage by abusing technicalities of legal process. • A lot of hair splitting is involves in legal process creating complexity. • This does not bring justice nearer but merely helps the clever and the crooked. It is true that some of the defects can be removed by codification.
• But the difficulty with codification is that within a few years, so
much of case law comes into existence that the real law of the country cannot be understood by a reference to the code alone.
• Ultimate aim and function of law is to achieve stability and
peaceful change in society and law and its process must continue in its path to sustainably follow this endeavor while providing individual space for development.
