Role and Functions of Law (Essay Sample)

ROLE AND FUNCTIONS OF LAW
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Role and Functions of Law
According to (Hart & Raz, 2012) law is a social conception. Its emergence in the society signalled a form of social control and systematic living enforced by institutions of the day. Law supersedes customs, but it can still be said to be resting on these customs. The law always runs at a risk of alienating its subject from some crucial norms that govern their lives. The right attitude to take towards law is that of caution, not celebration. The law can also be said to be based on good sense, common sense. This is what makes it easy to obey and follow.
The law has various functions both in the business and the society in general. It plays different roles in the society. It draws its roles from the different classifications that it falls in like,
1 Criminal and Civil Law – criminal law and the entire legal system is based on the premise every individual is responsible for his or her actions, and should be held accountable for them. This serves as the foundation to which people are punished, with exception of special cases like that of children who are not fully capable of appreciating the full weight of their actions. Civil law provides remedies for private wrong doings, in cases where the government has little or no direct interest. Criminal law covers matters that entrench into public rights. In as much as a crime could have been committed against one person, the society maintains certain standards and demand a particular form of conduct from each. However, it is important to note that criminal and civil law in most times overlap (Scheb & Scheb, 2009)
2 Substantive and Procedural Law – According to (Dunham, 2011) substantive law creates, regulates and defines rights while procedural law governs the methods used in enforcing the rights set aside by substantive law. Substantive law guides and governs the conduct of citizens. It includes the privileges and obligations of citizens.
3 Public and Private Law – According to (Hogan, 2006) public law is concerned with making laws of the land, matters of citizenship, ownership of land and as a whole, the relationship between a government and its citizens. The private law covers matters between individuals, corporations and non-profits.
Functions of law
The law is a social construct that suffers multiplicity of functions depending on which dimension you choose to analyse it from. This multiplicity only leads to overlapping of that same law and eventually, unclear differentiation of the law. Law fulfils one function, that of maintaining social order. Whether the law is public, private, substantive or procedural, public or private, it serves to uphold order and serve the interests of citizens of the county. The law serves other functions such as keeping government and its sometimes unlimited powers in check, peacekeeping and protecting the environment. The law also fosters a good environment for economic growth while staving off unfair completion. The law provides for reprieve in times of conflict, maintains for structured coexistence of humans and protection of their assets. The law provisions for civil liberties such as freedom of speech and freedom of association amongst others. It is the law that ultimately determines what is lawful and what is unlawful.
For the functions of law to be valid, they have to be demarcated into different parts that can are independent but exist in the midst of the others. Such laws include administrative laws, tort laws, contract law, trust law, criminal law, international law and constitutional law. Trust law is defined as the stipulate how investments are to be handled while tort laws provide reprieve anytime an individual is harmed, their property damaged or a company’s property is damaged.
In the case of (Cipollone vs. Liggett Group, Inc., et al.,, 1992), it was in the premise of private law because it dealt with an imagined case between two private parties, an individual and a corporation. In particular, tort law. This is the law which determines how an individual or a company can pursue another individual or company for compensation in case they feel they have been harmed or their property damaged. However, the issue of pre-emption brings the constitutional law into play, where federal law remains the only supreme law of the land, with state law being unable to supersede federal law. Congresses pre-emption powers are very broad. It is often pre-empts states laws but also allows some other tort actions to proceed. Express pre-emption cannot be read narrowly all the time, it must leave some room for interpretation.
Since Congress chose to pre-empt and specificall...