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HOW DOES LAW IMPACT SOCIETY

LEGAL METHODS
Submitted to – Mrs. Sai Ramani
Submitted by – Jasween Singh Gujral
Roll no. – 27
B.A.LL.B (Hons.)
1st year, 1st semester

National law University, Delhi


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Table of contents
Page no.
List of Cases (iii)
List of Abbreviations (iv)
Chapter I: Introduction 1-4
1.1 Meaning and Importance of ‘Law’
1.2 Meaning and Importance of ‘Society’
1.3 Central Question
1.4 Research Methodology
1.5 Research Scheme
Chapter II: Relationship between law and society 5-8
Chapter III: Conclusion 9-10
Bibliography (v)

List of Cases
Page no.
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Golak Nath v. State of Punjab, 5


Kesavananda Bharati v. The State of Kerala 6
Sajjan Singh v. State of Rajasthan 5
Shankari Prasad Singh Deo v. Union of India and State of Bihar 5

List of Abbreviations
A.I.R. India Reporter
H.C. High Court
p. Page no
S.C. Supreme Court
iv

S.C.C. Supreme Court Cases


U.S. United States
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CHAPTER – I

INTRODUCTION

The question “What is Law?” haunts almost all the promising lawyers. The meaning of
law is subjective and varies from one person to another. It can be construed as a regulatory
mechanism, a code of conduct, a set of normative rules and regulations. Though all these
statements are true, yet they provide an incomplete picture of law.
Law is an instrument of social change, or a means to achieve justice in the society.
History is replete with many situations where law has acted to bring about social reformation.
For example social evils such as sati, purdah, dowry, child marriage have been strictly
brought under control through legal sanction. Not only can these but various other examples
can be cited where law has impacted the society in order to usher in social change.
Law may be considered as an abstract set of rules and regulations backed by an authority as
said by John Austin ‘Law is the command of sovereign’. The preamble of our constitution
reads “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure to all its
citizens”1, makes us, all citizens, an actively participates in the law making process. In other
words the process of law making is directly or indirectly related to each and every individual
in the society. Thus, in this project we try to understand the various areas where law impacts
society as well as the life of all those who are a part of it.

1.1 Meaning and Importance of ‘Law’


Most of us are required to observe many different kinds of rules. School children may be
required to wear a uniform. People belonging to certain religion are prohibited to eat a
particular substance or do a particular thing.
Law is often based on morality. For example, murder and rape are regarded as immoral,
and are punishable in all societies and are proscribed by most religions. In such cases, the law
coincides with morality but this need not always is the case. For example lending money at
interest is practised since times immemorial. But this is prohibited by Islam. Similarly,
Christianity prohibits Usury, i.e. excessive interest. Traditional Hindus follow the rule of
Damdupat, i.e. the total interest must not increase the principal sum. The Money-lender Acts
in force of various states do regulate interest which, by virtue of the practice of compounding
their interest but they have limited application

1
Preamble to the Constitution of India
6

There are many perspectives regarding Law. From one outlook, law can be said as an
abstract body of rules and statues. And from the other, it could be seen as a social method of
dispute resolution of the conflicting interests of the people living in the society. Law may also
be considered as of having a coercive character, or can also be seen as made by the customs,
traditions or religion. Law can also be said to inherently exist in the society.
Some thinkers have made an attempt to clear the picture of the concept of law. In the
words of Kant law is the ‘sum total of the conditions under which the personal wishes of one
man can be combined with the personal wishes of another man in accordance with the
general law of freedom’ . Hegel explains law as the, ‘the abstract expression of the general
will existin and for itself’. John Austin says, Law is the command of Sovereign, Savigny
considers law as Volksgeist i.e. the spirit of the people. While, Roscoe Pound, a thinker of
Sociological school of law, considers law as ‘Social Engineering’.
Similarly various others thinkers have coined law in their own different perspectives.
Therefore, it can be observed that law is a vast subject of study and defining it in limited
words would be restricting its scope and would not construe the correct picture. Law is ever
evolving and keeps on growing with the development of the society.

1.2 Meaning and Importance of ‘Society’


Society must be understood as a combination of functional, cognitive, and cultural
systems. Functional systems include market, political institutions, and familial processes and
deal with the production and consumption of goods, the provision of services, the waging of
war, and the administration of justice and education. Cognitive systems organize values to
guide choice among alternatives. A unique combination of functional, cognitive, and cultural
systems defines and distinguishes a society.
The society changes as any element within it changes and the process of change is
constant. Values are preached and rejected, technology is altered, and roles are achieved.
Change creates stress, but adaptation and adjustment make possible continuity (and perhaps a
temporary stability). Thus, a society may experience significant change in its functional
system through a political or technological revolution, yet still maintain its essential quality.
The force that holds it together, that gives society meaning, in spite of change, is ideology.
An ideology is a way of looking at the world that is shared by members of a group; it
connects individual precepts to those generally held in the society and provides the group a
base for consensus.
Ideological change on a large scale is revolution. There is a significant difference between
the evolutionary change that constantly marks society, and revolutionary change that literally
transforms the society into something new, something not previously experienced by the
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individuals within it. Such revolutionary change comes about when the cognitive, cultural,
and functional systems have accumulated so much change, together or independently, that
they are no longer commensurate with the ideology that served to interpret them. When the
problems confronted no longer seem capable of solution within the existing systems of
information organization then comes revolutionary change2. Such revolutionary changes were
experienced in the medieval and some Western Societies in modern ages.
In the project we will study as how changes are brought about in a society, by using law
as an instrument of social change. Law and society are integral to each other. In order to
maintain disciplines in the society, law plays a substantial role. Though instances show
situations where law lags society, but as we all know that society is ever evolving and so ins
the law both cope up with each other and remain in consonance with each other.

1.3 Central Question


The project mainly focuses on the impact of law in the society. How law brings about
change in the society. The relationship between law and society is discussed in latter parts of
the project. And the conclusion is followed by the research discourse.
1.4 Research Methodology
The study on the topic has been extensive ranging from researching books on
jurisprudence, political theory, political science by Indian authors as well as foreign authors
in NLU library, as well as using the resources of internet and data available in the websites
relating the topic of the project.
Many sources have been referred to and such reference is footnoted for convenience.
The type of source has been a combination of primary as well as secondary sources ie
doctrinal research. The aim of the research has been, not only to gather facts, but also to
substantiate any viewpoints put forth.

1.5 Research Scheme


The first chapter discusses the basic meaning of the terms, ‘law’ and ‘society’. It
explains their meaning beyond the mere alphabets combining to form the word. It also shows
the pervasive existence of law in the society.
The second chapter throws light upon their relationship as well as their
interdependency. It tries to prove the symbiotic relationship between law and society.
The project is then concluded and attempts to prove the central question, law play an
eminent, substantial, and significant role in bringing about the change in the society.

2
Dr. Alston'Economic History of the U.S.
8
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CHAPTER 2

RELATIONSHIP BETWEEN LAW AND SOCIETY

In this chapter we study the relationship between law and society in relation to their
interdependence on each other. Law and society share a symbiotic relation. In every society
we find complexity in the action of the individuals and conflicting interests. This is because
the needs and wants of humans are infinite, but the resources to fulfil those demands are
limited and exhaustible. Therefore, in order to achieve and maintaining optimum utilization
of resources by providing maximum satisfaction to maximum people and by creating
minimum friction, law comes in the picture.
Society can be viewed from various perspectives. Some may view it as autonomous
social reality independent of those who form it, giving rise to social forces that act upon,
control and determine the conduct of its constituents. Here the view of man as a product of
social forces is called ‘determinism’. While others view it as an association of individuals, in
which every constituent participates as an active agent in the creation of social reality. This
view is known as voluntarism3.
Social control mainly takes place through customs, traditions, religion, social mores,
etc. But these are informal and non-institutionalised. But law can be considered as the most
specialised form of social control. Durkheim views law as the direct embodiment of the
‘conscience collective’. This view seems to ignore the coercive character of law. Even while
accepting the coercive character of law; it is important to remember that law does not operate
as an exclusively coercive mechanism. If law is effective as a method of social control, it
must have legitimacy, and value consensus as the root of legitimacy4 .
According to Max Weber, Power is the probability that one actor within a social
relationship will be seen in a position to carry out his own despite resistance, regardless of the
basis on which this probability rests. Though law constraints misuse of arbitrary power, it
prevents a state of anarchy. In order to achieve this purpose it has set up the ‘Rule of Law’.
Rule of law means governance of laws, and not of man. It totally restraints any part of the
society to act arbitrarily on its own will. Everyone is below the law and must abide by the law
of the land.
This creates, maintains, and regulates a state of peace and order in a society. Due to
the presence of law in the society justice is prevailed. It prevents the elements of tyranny,

3
N K Jayakumar, LECTURES ON JURISPRUDENCE. 2nd ed. 2008, p. 14.
4
Ibid.,p-15.
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dictatorship, authoritarianism, totalitarianism in governance that is it prevents the ruler from


acting in a despotic fashion and rulings the society on his own whims and fancies.
It has been seen in some landmarks cases where law has acted as an instrument to
bring about social change in the society.
For instance the Shah Bano case was a milestone in the Muslim women's search for
justice and the beginning of the political battle over personal law. A 60-year-old woman went
to court asking maintenance from her husband who had divorced her.
The court ruled in her favour. Shah Bano was entitled to maintenance from her ex-
husband under Section 125 of the Criminal Procedure Code (with an upper limit of Rs. 500 a
month) like any other Indian woman. The judgment was not the first granting a divorced
Muslim woman maintenance under Section 125. But a voluble orthodoxy deemed the verdict
an attack on Islam.
By going through this case, it shows that how can law bring about social change in
society even if it has to go against the established customs, traditions, mores and beliefs of
the society for the sake of delivering justice in the society.
Another explanation could be the Golaknath v. The State of Punjab 5. Where in 1967,
in Golak Nath vs. The State of Punjab, a bench of 11 judges (constituted for the first time) of
the Supreme Court deliberated as to whether any part of the fundamental constitutional rights
could be revoked or limited by amendment to the Constitution.
This question had previously been considered in Shankari Prasad v. Union of India6
and Sajjan Singh v. State of Rajasthan7. In both cases, the power to amend the rights had been
upheld on the basis of Article 368.
Chief Justice Subba Rao writing for the majority (5 Judges dissenting) held that:
a) A Law to amend the Constitution is a Law for the purposes of Article 13.
b) Article 13 prevents the passing of Laws which "take away or abridge" the Fundamental
Rights.
c) Article 368 does not contain a power to amend the Constitution but only a Procedure.
d) The power to amend comes from the normal legislative power of Parliament.
e) Therefore, amendments which "take away or abridge" the Fundamental Rights cannot be
passed.
Six years later in 1973, 13 judges of the Supreme Court, including then Chief Justice
Sikri, heard arguments in Kesavananda Bharati v. The State of Kerala8, and thus considered

5
AIR 1967 SC 1643
6
(1952) SCR 89
7
1965 AIR 845 1965 SCR (1) 933
8
AIR 1973 SC 1461
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the validity of the 24th, 25th and 29th amendments, and more basically the correctness of the
decision in the Golak Nath case. This time, the court held that although no part of the
Constitution, including fundamental rights, was beyond the amending power of the
Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not
be abrogated even by a constitutional amendment".
Nani Palkhivala, assisted by Fali Nariman, presented the case against the government
in both cases. The following can be said:
1. All the Judges held that 24th, 25th and 29th amendments acts are valid.
2. 10 Judges held that Golak Nath's case was wrongly decided and that an amendment to
the Constitution was not a Law for the purposes of Article 13.
3. 7 Judges held that the power of amendment is plenary and can be used to amend all
the articles of the Constitution (including the Fundamental Rights).
4. 7 Judges held (six Judges dissenting on this point) that "the power to amend does not
include the power to alter the basic structure of the Constitution so as to change its
identity"
5. 7 Judges held (two Judges dissenting, one leaving this point open) that "there are no
inherent or implied limitations on the power of amendment under Article 368."
However 9 Judges (including 2 dissentients) signed a summary stating that "the view of the
majority" in the case was that:
1. Golak Nath's case was overruled.
2. Article 368 did not enable Parliament to alter the basis structure or framework of the
It follows, therefore, that this case established the principle that the basic structure
cannot be amended on the grounds that a power to amend is not a power to destroy. This
shows how law not only enforces the rules and regulation and delegates duties to the
constituents of the society but even guarantees as well as safeguards their rights and protect
them from the harsh edges of the legislature, executive and even judiciary itself.
In the above mentioned cases we see impact of law on the society where the court
seven overrules its own judgement, for safeguarding the fundamental rights to the citizens.
The way law safeguards its citizens shows the concern of law for the society.
The question arises as to how the judiciary can safeguard the rights of the individuals
against it. The answer to this is the power of judicial review, which confers each court the
power to intervene when the executive or the legislature tries to overstep their power. The
statutory provisions that give rise to the jurisdiction to consider claims for judicial review do
not, however, define its scope. it is ‘a remedy invented by the judges to restrain the excess or
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abuse of power’9 and ‘secure that decisions are made by the executive or by a public body
according to law’.

9
Hugh Southe, Adrian Fulford, JUDICIAL REVIEW: A PRACTICAL GUIDE.
13

CHAPTER 3

CONCLUSION

From the above readings, it can be concluded that in the last sixty years, we have seen many
changes such as progress and rehabilitation agitation and classification of social interactions
and social reforms in the society. This workshop’s main objective is to study different aspects
of the criminal justice system in the United States and abroad (including a special session on
Brazil), and their impact on the construction of social and cultural identities, life options and
conditions, and human interactions.
Law is the most important element of the society. It reflects not the professed customs but the
inherent beliefs of the social beings. The statement reveals the eternal bonding of law and
society. Law is a cohesive force providing coordination to the society. If a society is devoid of
law and order, there can be no discipline with chaos and confusion throughout the land and
every person claiming superiority over the other. Law is a system of regulatory activity and it
expresses the will of the entire population.
In the absence of law, people would always be justifying their acts and frequent strider would
crop up which is definitely unhealthy for a society and would prevent the growth of
civilisation.
We all have to agree that law aids in social coordination. Law is an intervention agency (an
instrument for social change and welfare). It is a catalyst for soci-economic development.
Law is basically a complete non- arbitrary institution by itself providing near justice(or total
justice is just an unattainable ideal of state) and ensuring healthy relationship between social
neighbours.
Law is justice-oriented and it provides coordination in the sense that it resolves disputes and
friction in the society as well as wrongs committed against its constituents. In the society
where law get priority conflicts can be settled through natural justice without disturbing the
social integrity or hurting the morality.

Social coordination (or inter relationship between the several social institutions or parties, ne
it individuals, companies, religious groups, political entities and so on) can be achieved,
when peace thrives in a society which can happen when justice is delivered properly. To
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avoid complexity several laws have been framed for separate crimes which aims ar natural
justice.
Certain examples in support of the notion could be:
1. In case of demolition of Babri masjid, the Supreme Court intervened and brought
coordination between the two conflicting religious groups by passing the interim
order of maintaining ‘status quo ante’.
2. Though we establish the intimate relationship between law and liberty, yet it is to be
kept in mind that liberty is not improper unrestrained power of the people amounting
to anarchy. Even the fundamental rights provided in our constitution have reasonable
restrictions. So, we regulate liberty and other social facets like religious groups,
linguistic groups, social groups, economic groups and bring parity among them.
3. Law is the essence of human development as it holds the nation views together. It was
the will of the people which made light to education a fundamental right.
4. The aim of law is to establish a Welfare State. Various laws like environment laws,
consumer protection Act, Domestic Violence Act have emanated for the general good.
5. Non-arbitrariness in the sense that people can always appeal to the higher courts and
the judicial decisions are always for the general good and welfare.
6. Law always strives to provide justice in the human society. unjust laws cannot be
called laws as they pose to the civilization.
7. Law is the mirror reflection of the society. For knowing the ideology of a country or
how its reacts to various problems, one must study the law of the land.
Hence, it could be inferred that law impacts the society at a very large scale. And the relation
between law and society inalienable, where exists a society, law has to come into existence.
And the impacts of law on the society can be clearly seen in every day to day working of us.
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Bibliography
Books -
N.K. Jayakumar, LECTURES ON JURISPRUDENCE, 2ND ed., Lexis Nexis Butterworths
Hugh Southe, Adrian Fulford, JUDICIAL REVIEW: A PRACTICAL GUIDE
Dr. Alston, ECONOMIC HISTORY OF THE U.S.

Internet –
http://www.google.co.in/
http://www.books.google.co.in/
http://www.wikipedia.org/

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