Law and Society

By Himangshu Rathee, ITM University

Editor’s Note: The interlink between social norms and legal principles have been widely discussed by a large number of scholars. This paper discusses various views of law and society in relation to each other.


  • Before we begin it is important to understand the role of social and legal rules in the society.
  • Social rules play a vital role in human society and such rules distinguish human societies from animal groups. Behaviour of humans towards others is controlled, directly and indirectly through moral standards, religious doctrines, social traditions and legal rules.
  • Marriage is an excellent example to show how social rules govern human life. Earlier, religious significance was attached to monogamous marriage (in Britain) and it was also maintained through moral rules (declaring live-in-relationships as ‘wrong’) and by the operations of rules of law which can define and control the formalities of the marriage ceremony, lay down who can and who cannot marry[i], specify the circumstances in which divorce can be obtained, define the rights to matrimonial property upon matrimonial breakdown, and so on.
  • Legal rules are significant in the world of business, with matters such as banking, money, credit and employment all are regulated by law to some extent. In a complex society, there is hardly any area which is untouched by law. Even a basic activity like eating is indirectly affected by law as the food one eats is required to meet rigorous standards of purity, hygiene[ii] and even description.[iii] Driving, handling property etc. is also governed by law.
  • Thus, the span of law is very wide; it governs almost every activity which happens in the society in one way or the other. Law is applicable to an unborn person and also to a person who is dead. Hence, it can be said that span of law is very wide in the society.

Scrutinizing Law

  • Law can be properly understood only by examining the ways in which it actually operates in the society and by studying the extreme complex relationship between a social group and legal code.


  • Now, for the time being fundamental notion is of ‘rule’.


  • Rules in general, are statements issued by the respective authorities which tell what ought to be done and what not. Twining and Miers offer a wide definition of a rule as ‘a general norm mandating or guiding conduct or action in a given type of situation’. Thus, the basic characteristic of rule is that they are normative in nature. Simplest example for rule may be ‘no smoking in the office premises’ such a statement guides action of the employees working in the organisation that they (enployees) are not suppose to smoke inside the office.


  • Rules which enable certain activity to be carried out with some form of legal backing and protection are called ‘power conferring rules’. For example, law of contracts guides a person in a manner in which he/ she wish to make a valid contract.


  • In a social group ‘various systems of rules’ exist apart from law, for say, in church there is a moral duty to put the cap or hat off as soon as the person enters the church, this is nowhere, mentioned in law but still is a rule(moral) for the particular social group (Christians).


  • Legal Rule Versus Moral Rule:
  • Legal Rules are those rules which are applicable to society as a whole and are deliberately made by the law- making bodies for the welfare of the society. These are generally, applicable to all and can only be changed at the power of the law- making bodies, which may be parliament, legislature or judiciary. For example, the maximum speed limit set for various vehicles on various roads.
  • Moral rules are principles of right or wrong behaviour that are generally accepted by a society.These are generally, personal in nature as they vary from place to place and society to society and change with respect to time. For example, in a society telling a lie may be considered immoral, that is, against moral rules.
  • Legal Rule Versus Rule of Custom:
  • Legal Rules are those rules which are applicable to society as a whole and are deliberately made by the law- making bodies for the welfare of the society. These are generally, applicable to all and can only be changed at the power of the law- making bodies, which may be parliament, legislature or judiciary. For example, the maximum speed limit set for various vehicles on various roads.
  • Customs in brief can be defined as the code of conduct which is observed for a long period of time in a society which is not against any morals or public policy.These are generally, personal in nature as they vary from place to place and society to society. For example, in a society it may be a custom that marriage can only be solemnized in a temple.
  • Legal Rule Versus Etiquettes:
  • Legal Rules are those rules which are applicable to society as a whole and are deliberately made by the law- making bodies for the welfare of the society. These are generally, applicable to all and can only be changed at the power of the law- making bodies, which may be parliament, legislature or judiciary. For example, the maximum speed limit set for various vehicles on various roads.
  • Etiquettes may be defined as a set of rules for behaving correctly in social situations. For example, masticating food while keep the mouth close.


  • Different Jurists have different opinion about how the system of law should operate.
  • American writer Karl Llewellyn gave ‘Law-Jobs Theory’.
  • Law-Jobs Theory:
  • The theory is a general account of the functions of legal institutions in social groups of all kinds.
  • He argues that every social group has certain basic needs, which are catered for by the social institution of law by ensuring that the group survives and by providing for the prevention of disruptive disputes within the group. If there are any disputes law must provide the way of resolving them.
  • He further says that law must also provide the means whereby the authority structure of the group is constituted and recognized and finally the law must provide for the manner in which the mentioned ‘ law- jobs’ are carried out.
  • Robert Summners identified five techniques of law, which may be used to implement social policies, these techniques are:
  1. The use of law to remedy grievances among members of a society;
  2. The use of law as a penal instrument, with which to prohibit and prosecute forbidden behaviour;
  3. Law as an instrument, with which to promote certain defined activities;
  4. The use of law for managing various governmental public benefits, such as education and welfare policies;
  5. The use of law to give effect to certain private arrangements between members of a society, such as the provisions of the law of contract.
  • Karl and Robert, both a forth mentioned jurists theory is mainly based on the various functions of law in the society.
  • Austin on the contrary treats rules (legal) divorced from social context or settings, for him hallmark of a legal rule lies in the manner of its creation. He defined law as the command of the sovereign body in a society and these commands were backed up by threats of sanctions, to be applied in the event of disobedience.
  • Criticisms To Austin’s Theory of Command:

Following are the criticisms of Austins’s theory of command from the societal point of view:

  • All laws are not commands, for say, marital laws never commands anyone to marry but lays down the procedure and formalities people must follow for a valid marriage. Similarly, law does not command to enter into contract.
  • Variety of kinds of legal rule is there, it would not be desirable to reduce them to simple propositions, ‘law are commands’.


  • HLA Hart’s Concept of law:
  • Every social group must have certain rule imposing duties upon the members of the group concerning standards of behaviour.
  • There are primary rules which are concerned with basic criminal law rules, at the same time such rules might also impose civil-duties.
  • There are certain problems with primary rules which can be resolved with the help of secondary rules.
  • Following are the problems with the primary rules along with their remedy:
  1. Problem 1àSuch a simple code leads to no settled procedure for resolving doubts pertaining to the nature and authority of an apparently ‘legal rule’. Such a problem can be solved with the help of with the introduction of ‘rules of recognition’, these rules will constitute the hallmark of what is truly a law and may do so by reference to a set of other rules or institutions, such as a constitution or a representative body like parliament.
  2. Problem 2àPrimary rules are static, that is, these may not change with the changing circumstances of the social group. ‘Rule of Change’ enables the specified bodies to introduce new rules or to alter the existing ones, thus resolving the problem.
  3. Problem 3àPrimary rules will be inefficiently administered, because their enforcement will be through diffuse social pressures within the group. According to Hart introduction of ‘rules of adjudication’, can help to solve this problem as such rules provide for officials (judges) to decide disputes authoritatively.


  • Therefore, these secondary ‘rules are rules about rules’, and Hart argues that union of primary and secondary rules is a characteristic of modern legal system.
  • Criticisms to Hart’s Concept of Law:

Following are the criticisms to Hart’s Concept of Law:

  • Too Simple, the reduction of all duty imposing to a category which he calls ‘primary rules’ is very simplified whereas a complex classificatory scheme is required to deal with and understand adequately various areas of law like family law, criminal law, law of contracts, law of tort etc.
  • All Laws are not rules, Dworkin argues that there are principles in law as well whereas Hart views the entire legal system as a ‘system of rules’. Rules are applicable in all -or- nothing manner while principles are guidelines, stating a reason that argues in one direction. For example, if a man murders his father and father has executed a will in favour of his son, according to the rule son should get father’s property but son will not get the property because of the principle ‘ a man should not profit by his own wrong’[iv]. Another example which takes hard rule and principles involved into account is tort of negligence.
  • Other writers are of the view that the law is best understood by examining the actual operation of the legal system in practice, and by comparing the law in texts with the way it actually operates. Such an approach is taken by those writers whose work[v] is usually catogarised as ‘Legal Realism’.


  • Different jurists have different views about ‘why people obey law’ and one more important sub-topic which would be covered under the same head is AUTHORITY.
  • John Austin:
  • One of the main element of Austin’s command theory is legal sanction, due to fear which people obey law.
  • HLA Hart:
  • He argued the concept of internal aspect of obedience to law, which states that people conform to law because of more complex social and psychological process, whereby people accept the legitimacy and authority of the source of law. Thus, people obey law because they consider it ‘right and proper’ to do so.
  • There are certain exceptions to the above concept mentioned by Hart like some may obey law due to genuine worry about the consequences of disobedience, some others might obey the law out of sheer convenience.
  • Everything depends on the kind of society and the legal system in question.
  • AUTHORITY is also a vital part of the law.
  • Max Weber identified three types of authority in social groups, as follows:
  • Charisma: The authority of a leader or ruler may be the result of the personal, individual characteristics of the leader, such character traits sets a person apart from others.
  • Traditional Obedience to the leader or regime is sustained because it has always been so by tradition (origin of authority), for say, son of a leader will always be a leader.
  • Bureaucratic[vi]àIn modern western societies such an authority exists, where the authority of the regime is legitimized through rule and procedures.
  • Rarely, in reality any of the above mentioned three types of mentioned authorities existed in their pure forms.
  • The best example to show that all the three authorities exist (may) at the same time is the current society of India.
  • Traditional authority is seen in the formal opening of the parliament.
  • Charismatic authority in the leaders likes Gandhi-ji and now-a-days such authority is seen in NarendraModi by a large group in the society.
  • Rational-Legal authority can be seen in political and legal institutions such as the civil service.
  • Thus, the ‘obedience to law’ and ‘sources of authority’ are complex concepts and the views as usual regarding the matter in context varies from jurist to jurist.
  • Some other writers, to study law and its related aspects, take into account the cultural and historical background of the society.



  • When the term ‘society’ is used, a picture which often comes in mind is of loose collection of people, institution and other social phenomenon and among these law occupies a prominent place, holding these social arrangements in an orderly fashion.
  • Law merely does not bind society but the behaviour patterns, relationships and beliefs also play a vital role in keeping the society together. For example, no law asks one to socialize with one’s neighbor, but still one does which is due behaviour and man’s innate need for social relationships.
  • There are various social phenomena which constitute parts of the overall structure of a society, such phenomena apart from law includes political institutions (Parliament, political parties etc.), economic and commercial institutions (trade unions, factories etc.), religious institutions (temples, church), institutions concerned with teaching of social rules and standards (schools, family etc.) and cultural institutions (press and media, cultural associations etc.)
  • Core Concepts:
  • Social Stratification: Within a society groups and individuals may be differentiated, or ranked, by their place on a ‘ladder of influence’, with some ranking higher in terms of power, prestige, wealth or some other criterion, than others.
  • Following are some examples of social stratification:
  • In India, caste system is the best example. Generally, lowest position or rank is held by the Scheduled Tribes, preceded by Scheduled Castes, and then comes Other Backward Classes, finally highest rank is held by the General category.
  • Similarly in a Tribal society may have rank according to power (legitimate), first position may be occupied by the king, then the chief and so on.
  • Function in society: ‘Function’ of a social institution or process is the contribution it makes to the overall social structure and its maintenance. For example, family unit in a society ensures continued procreation, also ensures socialization and moreover, family as a consuming unit boosts up the economic base of the society. In the mentioned example, family contributes to the maintenance (smooth running and functioning) of the society and such a contribution is measured by taking into account the functions performed by the family in the society.
  • Emile Durkheim, who was a French Sociologist of later nineteenth century was concerned about knowing ‘what keeps the society together’, so he formulated the following theory rather points about the society.
  • He said that there are two types of societies, as follows:
  1. Simple, technological undeveloped society:
  • Mechanical Solidarity is the primary characteristic of such type of society, which means, that the whole group exists and acts collectively towards common aims, the moral and legal code(the ‘collective conscience’) being acknowledged and accepted by the whole group, keeping the group together.
  • If there is any deviation from the collectively held norms of the group, sanctions are issued on the offender through repressive (criminal, or penal) law, which expresses the community’s anger and avenges this repressive law serve to identify and punish the deviant; it also fulfils the function of maintaining the boundaries between acceptable and unacceptable behaviour, thus helping maintain the collective conscience, and hence the cohesion of the group.
  • Disputes are between the group and the individual.
  • There is no room for individual’s creativity and interests of an individual are identical to the interests of such social group.
  1. Advanced, technological developed society:
  • When the social group becomes more complex, there is occupational specialization or division of labour where every individual has a specified role and thus, individual is no more a self-sufficient producer and consumer of his everyday needs.
  • Individuals living in a society are dependent on each other. For example, the task of making is divided among farmers, flour mills and bakaries, each occupationally specialized and they are also economically interdependent on each other, farmer is dependent on the flour mill for the payment so as the mill dependent on the bakery. Such an economic interdependence is known as Social Solidarity which is the primary characteristic of an advanced society.
  • Nature of collective conscience is such that the individual takes on social importance in his or her own right. Individuals are encouraged socially to develop and realize talent, skills and personalities.
  • Law in the advanced type of society takes the form of compensatory rules, where the objective is to solve the grievances by trying to restore the aggrieved person he or she was in prior to the dispute. Disputes are between the individuals or between the groups, within the society.
  • Criticisms to Durkheim’s analysis of society:
  • Overestimated the decline of repressive law, in the advanced society as he himself explained the continued existence of repressive and criminal type rules. Today, also there are a number of criminal- law rules.
  • Underestimated the presence of compensatory or civil law, in the simple societies that already exist in them, for say, disputes between families involving property.
  • In addition, Chambliss and Seidman also distinguished between advanced and undeveloped (simple) societies regarding dispute settlement system, the system is as follow according to them:
  • In simple societies the system tends towards compromise, or “give-a-little” and “get-a-little”. In societies approximating to the community type (these terms referring, like Durkheim’s types, to hypothetical models, or ‘ideal types’ which never actually occur in reality in their ‘pure’ form, simple societies), social relations tend to be fairly permanent; indeed the continued existence of the community group depends upon the continued existence of social ties, and consequently in such type of societies, the type of dispute-settlement is often compromise.
  • The official dispute settlement system in complex or advanced society tends towards “winner-takes-all”. There are many disputes involving no desire or need by the parties to continue their relationship. The example given by Chambliss and Seidman is of personal injury in an automobile accident. Only in cases where the parties do anticipate future relations, then there is any genuine attempt to give a little, take a little.
  • Thus, law responds differently in both (simple and advanced societies) the type of societies.


  • Law plays an important part in the definition and regulation of all kinds of social relationships, between individuals and between groups. For example, a basic social unit in any society is family which is defined and protected through legal rules (marital laws) and institutions (family courts).
  • In the business world too, the law regulates activities of the limited company, the partnership and the trade union. Financial deals between people in business are normally subject to the law of contract and there are many obligations contained in the acts of the parliament such as the Companies Act, 2013, with whose regulations all companies must comply.
  • Public laws, deal with constitutional rules, the authority of elected representatives such as councilors, or members of parliament and the power bodies of such as the civil service, the courts, the police etc.
  • One of the most important facets of law is that it is dynamic in character and changes as per the social conditions. For example, before 2005 an unmarried hindu women could not adopt according to the Hindu Adoption and Maintenance Act, 1956 but the law was amended in 2005 and now an unmarried female hindu could adopt, such an amendment took place due to change in the socio-cultural factors of the society.
  • Macaulay was of the view that business firms try to avoid disputes by negotiating, if it all when any dispute arise they(firms) try to compromise because good business relations are essential, if a business wants to continue to flourish.
  • It is also necessary to study the changes in employment relationships and generally speaking, in social relationships due to the developing industrialisation (industry is also a part of society)s, within the economy.


  • In eighteenth and nineteenth century industry and commerce developed a lot, especially in Britain.
  • Many factors contributed to such an expansion of manufacturing industries, among them availability of natural resources (notably coal) and the suitability of certain areas for the use of water and steam-powered machines. Supreme factor was the existence of a free market in the labour, this refers to a situation where workers sell their labour for wages
  • Prior to the industrial revolution, social relations in which agricultural labourers or peasants were tied to, and economically dependent on, the land-owners and nobility (their lords and masters).
  • Due to industrial revolution two new classes came into existence: the industrial working class and the industrialists, who employed them, paid their wages and frequently provided them with housing.
  • Together with the commercial entrepreneurs who traded in the manufactured goods and brought raw materials to be worked in the factories, these constituted the rising new ‘middle class’, the ‘bourgeoisie’, a social class distinct from the landowners who traditionally possessed the wealth and political power and who had until then been the sole ‘ruling class’.
  • Problems/Tensions introduced by class system:
  • Tensions associated with higher(land owners) class;
  • Middle class make demands for a greater political voice in the parliament, bringing them in conflict with the established landowning class.
  • Many people of the working class demanded improvement in their working conditions, and for a political voice. Workers also organized themselves into trade unions, sin order to put pressure on the employers (industrialists) for better pay and conditions.
  • Tensions associated with lower(working) class;
  • The Master and Servant laws of 1823 provided for the imprisonment of any worker who broke his/her employment contract by going on strike.
  • Combination acts and other associated acts were also detrimental to the interest of the workers and were advantageous for the employers.
  • Now and then also unemployment was major problem, so the workers had little or no bargaining power and have to accept the terms and conditions laid by the employer.
  • The only means by which the worker class could put pressure on employers was by the way of trade unions.
  • The status of workers was the same even after the repealing of these combination acts[vii] as the judges were still able to interpret strikes as ‘conspiracies to injure’ the employer’s interest.
  • The relationship between employer and employee , in law, one of contract; that is, a legally binding agreement made by two parties, containing the agreed rights and obligations of each party, any breach of which entitles the aggrieved party to a legal remedy for breach of contract.
  • Problem with the contract: An employment contract may be oral coupled with the frequently vague and complex nature of the terms, which called law to settle disputes rose from employment situations. For example, an employee might bring a claim against the ex-employer alleging the dismissal was unlawful. The difficulty is that many legal rules and remedies are only applicable if there is a proper ‘employment contract’.
  • The old legal test for ascertaining whether an employment relationship existed was the ‘control’ test, expounded in the case of Yewens versus Noakes[viii] in 1880, and formulated in terms of the extent to which the employer exercised effective control over the workers. However, the growth of specialized and highly skilled occupation led to many cases where the employer could not sensibly be said to be ‘in control’ of the activities of the employee, and this test has been discarded.
  • In 1953 Denning LJ observed that ‘the test of being a servant does not rest nowadays on submission to orders. It depends on whether the person is part and parcel of the organization’[ix]. This ‘organization’ test, like all other tests rely upon single factors, and have been found unworkable in practice.
  • Now there is modern approach[x] to this problem which take into account various factors (mode of payment, income tax etc.) and these tests are known as multiple or mixed tests.
  • Status of workers was improved when piece meal legislation[xi]was passed as it laid minimum standards of working conditions.
  • Statutes or Acts for benefits of employees/worker class:
  • Employment Right Act, 1996 laid down the individual rights of an employee. Before this there was ‘The Wages Act, 1986’.
  • Health and Safety at Work etc Act,1974 lays legal duties upon employers, employees, manufacturer and to observe due care in installing, using and maintaining equipment and premises; the act provides various administrative sanctions for the enforcement of its provisions, and contains a legal framework for worker-participation in safety at work.
  • The Employment Relations Act, 1999 amended the Employment Rights Act, 1996; provides that the employees must be given notice of the main terms of the contract of employment.Further, the act also extended maternity rights and introduced a three months paternity leave.
  • Therefore, the law played an important role in industrialization and now also playing a vital role in employee and employer’s relationship, thereby indirectly influencing the social structure of the society.


  • Law may be regarded as a mechanism of social control, regulating activities and interests in the name of the community, a ruling class or the state. The state may be defined as either a ‘neutral arbitrator’ or ‘interested party’ and the balancing of interests.
  • Law may be seen as an institution for the furtherance and protection of the welfare of everyone, on the contrary it (law) can also be viewed as an instrument of repression wielded (command or to rule) by the dominant groups in the society. Some sociologists agree with the former view point and some other with the latter.
  • Talcott Parsons:
  • He had a ‘consensus’ view of society, according to him a ‘system’ comprises of actions and institutions, each functioning to maintain social stability and order.
  • His theory focuses on examining those elements within society which tend towards the maintenance of the society.
  • Criticisms to Talcott’s view regarding society:
  • His theory does not take into account those elements of the society which tend towards social conflict and such elements are considered for any theory of social order.
  • Pluralist or Conflict view:
  • The pluralist view, in its ‘pure’ form, accepts the existence of conflicting groups and interests, but maintains that the constant interaction and negotiation between conflicting groups, all of which are assumed to have more or less equal bargaining-power, helps maintain social stability and equilibrium. The role of the Law and the state is portrayed as ‘neutral arbiter’, or ‘honest broker’ ;taking no sides in these conflict situations, but providing the machinery of conflict-settlement either through law or through political debate and policy-making by government.
  • Criticism to the Pluralist view:
  • Multitude (a large number of people) of interest-groups in a society do not possess equal power, in either political, legal or economic terms, as some groups have power to influence law-making and the implementation of those laws, which others do not have.
  • Liberal-democratic view:
  • The view states that the acceptance of social conflict manifestations (obvious to the understanding of an individual) are played out within boundaries of socially accepted norms in terms of official legal and governmental authority whose concerns are the resolution of such conflicts.
  • For say, White presented a model which he calls an open model, whereby conflicts and consensus are taken into account. The model says that conflict

is expected to continue in different forms between interest groups but it is assumed that these conflicts can be resolved through a legitimate process. There will be basic agreement that conflict-resolution can be achieved within framework of negotiation, arbitration, judicial decision and electoral battle, backed up by strike but without resort to revolution.

  • Marx and Marxists:
  • Marx was concerned with the analysis of capitalist societies. Capitalism, according to Marx, involves the exploitation of the working classes by the capitalist class.
  • Marx distinguished between the working class (‘proletariat’) who possess the labour powerand the capitalists (‘bourgeoisie’) who own the capital and means of production (factories, business concerns etc.) and the landowners, who derive their income from rent of their land.
  • Capitalists and the landowners occupy the powerful economic and political positions in the society through the exploitation of the unfortunate class, that is, the working class, thus the relationship was not of equality, as exploitation led to suppression of the interests of the working class.
  • How to Take Exploitation Ahead?

  • Marx recognized that exploitation could only continue by avoiding bitter revolutions by the working class, for these capitalists need to maintain the control over the official state institutions.
  • By control of state apparatus (government, law, police etc.), they (capitalists) could dominate the interests of the working class and thereby, protecting their (capitalists) own interests.
  • In terms of capitalist Ideology as expressed through law, private property is regarded as fundamental to social and economic stability.
  • Consensus can deliberately occur in the society when basic interests, or the interests which are ‘in the national interest’ or for the common good. For example, Armed Forces Special powers Act, 1958 has been enacted for the common and most importantly for the national interest of the society.
  • Different jurists and sociologists have different views about LAW AND SOCIETY.
  • According to me, law of India is good and well framed as far as it is considered from text point of view except a few. One of the major law which needs to be amended is the reservation system.This can be solved with the help of THEORY OF SEGREGGATED CLASS.
  • The theory says that the class should not be categorized according to the caste or surname but according to the income of the family.
  • ASSUMPTION OF THE THEORY: For inspecting the income of the family, government should have a proper committee.
  • Furthermore, if the quota is given to one family then it should not be given to the immediate next progeny of the family, as the family got to improve their financial status. This also means if the financial status is not improved, then the family can be offered quota again, but only to the grand-children.
  • The basis of the above rule is that the child of the family was given enough opportunity to improve the status of the family.
  • One day, there would be no need of quota.

Edited by Sinjini Majumdar

[i]For say in Hindus, Hindu Marriage Act,1955 defines it(Section 5(IV))

[ii]Food Safety and Standards Act, 2006, The Prevention of Food Adulteration Act,1954 in India etc.

[iii] Right to be informed

[iv] Riggs versus Palmer; 115 N.Y. 506

[v] Karl Llewellyn, Jerome Frank, Oliver Wendell Holmes etc.

[vi] Also known as rational-legal

[vii] Combination Act, 1799à Prohibited combinations of the workmen

Combination of Workmen Act, 1825àAct of UK parliament, which prohibited trade unions; suppressed the right        to strike

[viii] (1880) 6 QBD 530

[ix] Bank voor Handel enScheepvart NV v Slatford; (1953) 1QBD 248

[xi] Like Factories Acts (in india this act was passed in 1948)

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