New Delhi (ABC Live):Countless theorists have attempted to define law. The definitions generally fall into one of three categories, which were initially set forth two millennia ago in the Platonic dialogue Minos: (1) law involves principles of justice and right; (2) law is an institutionalized rule system established by governments; and (3) law consists of fundamental customs and usages that order social life. Adherents of the first category are natural lawyers such as Thomas Aquinas, who assert that the defining characteristic of law is its morality, justice, and fairness.
Evil legal systems or evil laws are disqualified as law in this view. The second category aligns with H. L. A. Hart and other legal positivists, who base their definition on the existence of a legal system that consists of substantive laws (primary rules) and laws governing how those rules are made (secondary rules), without regard for the justness of the law.
Under this approach, evil legal systems count as law, but customary law and international law, which lack centralized enforcement systems, are not considered fully legal. The third category is represented by anthropologists and sociologists such as Eugen Ehrlich and Bronislaw Malinowski, who focus on customary law or living law.
They reject the notion that law must consist of an organized legal system and instead recognize that the central rules by which individuals abide in social interactions count as law. Three key fault lines run across these conceptions of law: the first regarding the normative value of law, the second the systematic form of law, and the third the function of law.
Long before the Code of Hammurabi set the law for ancient Mesopotamia, people subjected themselves— sometimes by cooperative agreement, sometimes under threat of force—to rules that would enable social and economic activities to be ordered. As societies evolved from close-knit kinship groups to larger and more diverse communities with more complex activities, the need for more formal rules increased (Fukuyama 2010).
In modern states, law serves three critical governance roles. First, it is through law and legal institutions that states seek to order the behavior of individuals and organizations so economic and social policies are converted into outcomes. Second, law defines the structure of government by ordering power—that is, establishing and distributing authority and power among government actors and between the state and citizens.
And third, law also serves to order contestation by providing the substantive and procedural tools needed to promote accountability, resolve disputes peacefully, and change the rules.