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Law and Society

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Universally, law is recognized as a system of rules that a specific society sets to maintain order, social solidarity and in the protection of its citizens from harm. Law serves up many functions, primarily as stated before, the maintenance of social control in the form of social cohesion and harmony among citizens, the resolution of disputes among parties in society, the facilitation of orderly social change, and not to forget, the vitally important, administration of justice. Laws, written by legislators are enforced by the police with the direct support of the court and prison system, inter alia. The main function, the administration of laws is vastly important in any given society. With this in mind, various theorists/sociologists, namely, Emile Durkheim, the functionalist, Karl Marx, the conflict theorist and Max Weber, the interactionist, have all given different perspectives on the function and development of law in society.

Emile Durkheim views law as a measure of social solidarity. As viewed by him, Law is the organization of social life in its most stable and precise form. In his many deliberations, Durkheim identifies that there are essentially two types of law that exist within a given society, restitutive law, which consists of restoring relationships, that intends to provide restitution for harm to victims and to rehabilitate criminals, and repressive law, which deals with penal law where offences that go against the interest of society at large are punished. Restitutory law, which corresponds to the organic state of society, is contrasted to repressive laws. Whereas repressive law corresponds to the 'center of common consciousness,' restitutory sanctions either constitute no part at all of the collective consciousness, or subsist in it weakly. Second, whereas repressive law tends to stay diffused throughout society, restitutory law works through more specialized bodies, for example the courts, magistrates, and lawyers. Despite the removed role of restitutory law from society, society still intervenes in restitutory sanctioning. The formation of a contract directly concerns the parties involved: nonetheless, if a contract has a binding force, it is society which confers that force. If society does not give its blessing to the obligations that have been contracted, then these obligations are reduced to only moral promises. Hence, the presence of society in restitutory law, although not necessarily felt, is nonetheless essential. Durkheim uses his theory of the Division of Labour to further highlight the distinction between laws and society. He firstly identifies that Division of Labour increases both the reproductive capacity and skill of the workman; it is the necessary condition for the intellectual and material development in societies. However, the Division of Labour also has a moral character which is more important. It can create a feeling of solidarity between two or more people. As we are led to believe,



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