The provided statement posits that the purpose of law is to protect rights and guide behaviour, rather than to coerce through fear. It further argues that for law to be legitimate, it must be fair and applied equally. This essay will evaluate this perspective by exploring key jurisprudential concepts, including the role of law in preventing social disorder and the principle of the Rule of Law. It will be argued that the statement captures a modern, liberal understanding of law's function in England and Wales, but that the ideal of perfect fairness and equality remains a significant challenge.
Law as a Framework for Order and Protection
The statement’s initial image of a world without consequences, where the powerful exploit the weak, echoes the concept of the ‘state of nature’ described by the philosopher Thomas Hobbes. Hobbes argued that without a governing authority and laws, life would be a "war of every man against every man" (Hobbes, 1651). From this perspective, law’s primary purpose is to provide security and order, establishing boundaries to prevent harm. This is evident in the framework of criminal law, where legislation such as the Offences Against the Person Act 1861 prohibits violence and protects bodily integrity. Similarly, contract law provides a framework that guides behaviour in commercial transactions, allowing parties to engage with a degree of certainty that their agreements will be upheld. The statement is therefore correct to identify that law serves to protect individuals and establish predictable boundaries for conduct.
Beyond Coercion: Law as a Guide
The assertion that law’s purpose is "not to frighten people into obedience" moves beyond a simplistic view of law as merely a set of commands backed by threats. This challenges the positivist theory of John Austin, who defined law as the command of a sovereign enforced by a sanction (Austin, 1832). While this may describe some aspects of criminal law, it fails to account for the many laws that empower and guide. H.L.A. Hart offered a more nuanced view, arguing that law consists of both primary rules (which impose duties) and secondary rules (which confer powers), such as the rules that allow people to make wills, form companies, or marry (Hart, 2012). These laws do not coerce; they provide facilities for individuals to realise their wishes. This aligns with the statement's view that law is a guide for behaviour, facilitating personal and social arrangements rather than simply compelling obedience through fear.
The Rule of Law: Fairness and Equality
The statement’s most critical point is that "laws must also be fair and applied equally to everyone". This is the central tenet of the Rule of Law. A.V. Dicey, a prominent constitutional theorist, articulated this principle through three main ideas: the supremacy of regular law over arbitrary power, equality before the law for all citizens, and the protection of rights through the common law (Dicey, 1885). The idea is that nobody, not even the government, is above the law. This principle was famously established in Entick v Carrington (1765) 19 St Tr 1030, where the court held that state officials could not act without legal authority.
More recently, Lord Bingham expanded on this concept, outlining eight sub-rules that constitute the modern Rule of Law. These include the principles that the law must be accessible, clear and predictable; that questions of legal right should be resolved by the application of law and not the exercise of discretion; and that the law must afford adequate protection of fundamental human rights (Bingham, 2010). The importance of equal application and access to justice was powerfully affirmed in R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51, where the Supreme Court struck down employment tribunal fees, holding that they unlawfully prevented access to justice, particularly for the less wealthy. This case demonstrates the judiciary’s role in upholding the principle that laws must not only exist but be accessible and fair in their application, reinforcing the sentiment expressed in the quote.
Conclusion
In conclusion, the statement provides a sound summary of the function of law in a modern democratic society like the United Kingdom. It correctly identifies that law’s purpose extends beyond simple coercion to the protection of rights and the guidance of behaviour, reflecting the ideas of jurists like Hart. Crucially, it highlights that the legitimacy of the entire legal system rests on the principle of the Rule of Law—that laws must be fair and applied equally. While cases like UNISON show a commitment to this ideal, the challenge of ensuring that the law is truly fair and accessible for everyone, "regardless of wealth social state", is an ongoing one. The statement thus serves as a reminder of both the purpose of law and the high standard against which it must constantly be measured.
References
Austin, J. (1832) The Province of Jurisprudence Determined. John Murray.
Bingham, T. (2010) The Rule of Law. Allen Lane.
Dicey, A.V. (1885) An Introduction to the Study of the Law of the Constitution. Macmillan.
Entick v Carrington (1765) 19 St Tr 1030.
Hart, H.L.A. (2012) The Concept of Law. 3rd edn. Oxford University Press.
Hobbes, T. (1651) Leviathan. Andrew Crooke.
R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51.
