Academic journal article International Journal of Punishment and Sentencing

The Correlation between Law and Behaviour as Pillars of Human Society

Academic journal article International Journal of Punishment and Sentencing

The Correlation between Law and Behaviour as Pillars of Human Society

Article excerpt

Introduction

Man by nature is a gregarious being both in his body and mind. In other words, he likes to live in a community. (1) This explains the hackneyed adage that no man is an island. Instead he is a victim of social inevitability as he must as a matter of necessity willy nilly live in a society with other human beings rather than in isolation. For any society to survive or even exist, it must inescapably anchor itself on law, which in turn governs the behavior of members of the society in question, as well as their relations, their rights and obligations. Law thus is a mandatory cause of conduct accepted by members of a given society as established by the legitimate authority of that society. (2) When we talk about law and society, we are undoubtedly referring to a group of individuals bound together under a political organization, whose very existence is dependent on the quality of the law which has enabled that association to come into existence in the first place. Members of the society normally have an inherent interest in the preservation of both their individual welfares and that of the association.

I am not trying to suggest that members of a society would robotically adhere to the laws in place. Far from that, the reverse is true. Just as the faces of all men are different, so are the members that constitute any human society. They each share varying behaviors ranging anywhere from submissiveness to delinquency. The main relevance of the law is to direct the society to behave in a particular way or face corresponding sanctions. The purpose of this paper therefore is to examine how human behavior is determined by law or relative to law, vis-a-vis the society, crime and punishment. It recognizes the enormous influence of any legal system on the behaviors of its citizenry, and asserts that law can through direct or indirect enforcement mechanisms either widen or contract the horizon of opportunities within which individuals can satisfy their sundry preferences. (3)

Inherent to the activities of any community, society or organization is a potential for order and disorder. When we are attempting to control something, we must acutely be conscious of what resists us. (4) No society in the world however beautifully designed can function in an atmosphere of perfect harmony. With every human society constituted of people with different behavioral patterns, there is bound to be an element of disharmony at various facets of societal intercourse, which in turn necessitates law to act as specific social barometer. This consists of bringing about "the desired social conduct of men through threat of a measure of coercion which is to be applied in case of contrary conduct. (5) Hans Kelsen has asserted that a state is defined as a political organization only because the "political" element consists in nothing but "the element of coercion." (6) Another writer has succinctly observed that for there to be an organization or a society, there should be interaction, for there to be interactions there should be encounters, and for there to be encounters there should be disorder. (7) In other words, order and disorder are effectively part and parcel of human society.

The Social Function of Law

Hans Kelsen has observed that the function of every social order is to "bring about certain mutual behavior of individuals; to induce them to certain positive or negative behavior, to certain action or abstention from action." (8) Going by the catchphrase maxim ubi societas ibi ius, (9) the purpose of law is to make social life possible. Naturally, there is a very close bond between the individual and his societal environment. Whoever believes in the existence of a social order believes in the existence of a legal order. Living together involves setting up rules and institutions that regulate this living together. (10) There is no other conceivable way by which large communities can be constituted other than through some coercive legal orders. …

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