law and society essay example
Emile Durkheim said “law is a boundary maintaining device” which has two
functions (1) to define sanctions and (2) to prescribe punishments as a way of
deterring social instability (i.e. controlling society). He explained that social stability
is maintained, in our legal structures by (1) a repressive structure (the criminal law)
and (2) a restitutive structure (civil law). Thus, we see that the law can act as a
social control mechanism, influencing and controlling societal behaviour. Durkheim
says that the state represents society as it is our “collective conscience” and he
believes that we all have consensus about these interests.
In any society, there are competing or conflicting interests. One role of the law is to
ensure that all interests are considered and balanced when laws are both created
and enforced. The competing interests are those of individuals and the majority in
society. We see competing interests in both the procedural and substantive laws.
The law protects everyone’s rights and interests through its rules. An individual’s
rights would include… the right to safety, freedom, justice and privacy, many of
which are now inculcated in Human Rights Law (The ECHR and the Human Rights
Act ). Society’s or the public’s interest (through the state) would be financial and
physical security (public safety).There are clear overlaps with the concept of justice.
The theories of justice attempt to define justice, whereas, balancing competing
interests seeks to achieve justice.
The rules/law develops over time and often represents social norms (what is
accepted, as normal and appropriate conduct within society). Moral rules are not
mandatory/enforced and there are no punitive sanctions. To ensure that society
functions, legal enforceable rules have been developed, by Parliament and the
Courts.
Balancing the competing interests, which exist in society, is achieved, through
Parliamentary law making and the legislative process. Parliament can enact
legislation, which redresses unequal balance between parties e.g. the Consumer
Protection Act 1987 and the Supply of Good Act 1994. The extent to which these
laws achieve a fair balance in society is questionable. Much depends on the
consumer having the knowledge of the law and their rights as well as the financial
means to enforce them. Government departments are required to balance
competing interests when exercising their powers through delegated legislation.
Our procedural law provides courts and tribunals where conflicts of interests can be
resolved. The High Court hears cases of judicial review, which look into the balance
of power in society (between individuals and the state). A recent case, which
illustrates this, is that of Noel Conway, who held the state to account for not
allowing him to have help to die (assisted suicide). His case was rejected by the
Emile Durkheim said “law is a boundary maintaining device” which has two
functions (1) to define sanctions and (2) to prescribe punishments as a way of
deterring social instability (i.e. controlling society). He explained that social stability
is maintained, in our legal structures by (1) a repressive structure (the criminal law)
and (2) a restitutive structure (civil law). Thus, we see that the law can act as a
social control mechanism, influencing and controlling societal behaviour. Durkheim
says that the state represents society as it is our “collective conscience” and he
believes that we all have consensus about these interests.
In any society, there are competing or conflicting interests. One role of the law is to
ensure that all interests are considered and balanced when laws are both created
and enforced. The competing interests are those of individuals and the majority in
society. We see competing interests in both the procedural and substantive laws.
The law protects everyone’s rights and interests through its rules. An individual’s
rights would include… the right to safety, freedom, justice and privacy, many of
which are now inculcated in Human Rights Law (The ECHR and the Human Rights
Act ). Society’s or the public’s interest (through the state) would be financial and
physical security (public safety).There are clear overlaps with the concept of justice.
The theories of justice attempt to define justice, whereas, balancing competing
interests seeks to achieve justice.
The rules/law develops over time and often represents social norms (what is
accepted, as normal and appropriate conduct within society). Moral rules are not
mandatory/enforced and there are no punitive sanctions. To ensure that society
functions, legal enforceable rules have been developed, by Parliament and the
Courts.
Balancing the competing interests, which exist in society, is achieved, through
Parliamentary law making and the legislative process. Parliament can enact
legislation, which redresses unequal balance between parties e.g. the Consumer
Protection Act 1987 and the Supply of Good Act 1994. The extent to which these
laws achieve a fair balance in society is questionable. Much depends on the
consumer having the knowledge of the law and their rights as well as the financial
means to enforce them. Government departments are required to balance
competing interests when exercising their powers through delegated legislation.
Our procedural law provides courts and tribunals where conflicts of interests can be
resolved. The High Court hears cases of judicial review, which look into the balance
of power in society (between individuals and the state). A recent case, which
illustrates this, is that of Noel Conway, who held the state to account for not
allowing him to have help to die (assisted suicide). His case was rejected by the
