Is law necessary? Functions of the legal process and the areas where law keeps out

1. The case for law

The classical argument starts from human nature. Thomas Hobbes, in Leviathan (1651), pictured a state of nature without government as a “war of every man against every man” in which life is “solitary, poor, nasty, brutish, and short.” Men agree to give up their natural liberty to a sovereign in return for security. On this view law exists to curb the evil passions of man — greed, fear, the desire for glory — and the social harmony we enjoy is the product of law, not its cause.

The argument does not depend on thinking people are wicked. Even good people need law because:

• Co-ordination. Someone must decide which side of the road we drive on. The rule is valuable because it is shared, not because left is better than right.
• Disputes are inevitable. Honest people disagree about facts and about what is fair. A society needs a method of settling disputes that both sides accept, instead of self-help.
• Scale. In a village, opinion and custom may keep order. In a society of millions of strangers, trade, credit, taxation and public services need clear general rules.
• Protection of the weak. Without law the strong prevail. Rights of workers, women, children, consumers and minorities exist in practice largely because law creates and enforces them.
• Planned change. Law is the main instrument by which a State abolishes untouchability (Article 17), sati or bonded labour, or reorganises land ownership.

2. The case against law

• Anarchists (Godwin, Proudhon, Kropotkin) argued that the State and its law are instruments of oppression, and that people left free would co-operate voluntarily.
• Marx and Engels saw law as part of the superstructure that protects the property of the ruling class; in a classless communist society the State would “wither away” (Engels’s phrase) and with it coercive law.
• Religious and idealist views hold that a society of truly moral persons would need no compulsion. Gandhi distrusted State coercion and valued self-regulation.
• Simple societies show order kept by kinship, religion and custom without courts or police.

Reply. Every State that claimed to have abolished law in the name of these ideas ended with more coercion, not less. Simple societies have rules, and sanctions such as expulsion, even if they lack formal institutions. The sounder conclusion, and Lloyd’s, is that some form of law is necessary in any complex society; the real questions are how much, of what kind, and under what controls.

3. The essential functions of the legal process

The “legal process” means the whole working of law: making rules, applying them, settling disputes and enforcing outcomes. Its functions:

1. Maintaining order and security. Criminal law and police protect life, body and property.
2. Settling disputes. Courts and tribunals give a peaceful, final answer, with appeal and review to correct error.
3. Defining and protecting rights. Fundamental rights, property and contract rights; remedies such as writs under Articles 32 and 226.
4. Allocating and limiting power. The Constitution distributes power between Union and States and among legislature, executive and judiciary, and law controls its misuse.
5. Facilitating private arrangements. Contracts, marriages, wills, companies and trusts are possible only because law gives them effect.
6. Social change and justice. Welfare and reform legislation, and public interest litigation such as Hussainara Khatoon v. Home Secretary, State of Bihar, 1979 INSC 34, where the Supreme Court treated speedy trial as part of Article 21 and ordered the release of undertrials detained longer than the maximum sentence.

Llewellyn’s “law-jobs”. In The Cheyenne Way (1941, with the anthropologist Hoebel), Karl Llewellyn argued that every group, however simple, must do certain jobs to survive: (i) the disposition of trouble cases; (ii) the preventive channelling, and re-channelling, of conduct and expectations so as to avoid trouble; (iii) the allocation of authority and the arrangement of procedures for decisions; and (iv) the net organisation of the group as a whole so as to give it direction and incentive. To these he added the craft of doing the jobs well, which he called juristic method. Quoting this list gives a 10-mark answer a framework.

4. The areas where law keeps out

Law is necessary, but not everywhere. There are areas the law deliberately leaves alone, for reasons of liberty, practicality or respect:

• Thought and belief. Law governs external acts. Holland’s definition says as much. Article 25 protects freedom of conscience.
• Private morality. The Wolfenden Committee in England (1957) recommended that private homosexual conduct between consenting adults should cease to be criminal, because private morality is not the law’s business. India reached the same result through the Constitution in Navtej Singh Johar v. Union of India, 2018 INSC 790, (2018) 10 SCC 1, reading down section 377 IPC.
• Privacy and the home. Justice K.S. Puttaswamy v. Union of India, 2017 INSC 801, (2017) 10 SCC 1, recognised privacy as a fundamental right, limiting how far the State may intrude.
• Family and friendship. Social and domestic agreements (to take a friend to dinner) are not contracts, because the parties do not intend legal relations (Balfour v. Balfour, 1919, English). Courts are slow to intervene in the day-to-day running of a family, though they do intervene for cruelty and domestic violence.
• Matters unsuited to legal enforcement. Gratitude, generosity, courtesy and most religious duties. Enforcement would cost more than it achieves.
• Political questions and internal affairs. Courts generally do not review the internal proceedings of Parliament (Article 122) or the internal affairs of voluntary bodies unless rights are affected.

The boundary moves. Domestic violence was once treated as private and is now regulated by the Protection of Women from Domestic Violence Act, 2005. The conclusion for the answer: law keeps out where intervention would destroy liberty or cannot work, and enters where private power causes serious harm.

How this is examined

The necessity question is set every year in one form. Answer it as for and against, then a reasoned conclusion. The functions question needs a numbered list with an Indian example for each function, plus Llewellyn. “Areas where law keeps out” is a 6-mark note: give four areas, one example each, and the point that the boundary shifts over time.