Sayantan Misra | University of Calcutta (original) (raw)

Papers by Sayantan Misra

The primary function of the law is to serve the society by regulating the behaviour of the member... more The primary function of the law is to serve the society by regulating the behaviour of the members of the society. In the absence of regulatory behavioural norms which is provided by law, the society will have to face anarchy, because in the absence of law every member actuated by his interest would act to the detriment of everyone else. It is, therefore, force of law which has helped mankind to maintain peace and order in the society and has saved society from anarchy. This necessity of force of law becomes evident when it is said : "A herd of wolves is quieter and more at one than so many men, unless they all had one reason in them, or have one power over them. Unfortunately, they have not one reason in them, each being moved by his own interests and passions; therefore, the other alternative is the sole resource." However, it is universally accepted that the society is always in a state of flux and is always changing, sometimes forward and sometimes backward. Law, therefore, has to keep pace with the changing mores of society. Once the society is on the march, law will have to be reformed, modified or amended with a view to bringing it in conformity with the need of the society. However, there exists a controversy as to whether social change 1. G. Williams (ed.), Salmond on Jurisprudence, 1957, p.88. 59 influences law or law influences social change. The contro versy is one of the recurrent themes of the history of 2 legal thoughts. While Savigny holds that it is the law which follows the social change, Bentham holds the 3 opposite view. But in ultimate analysis one must agree that they do influence each other. Sometimes it is the law which brings forth the required and desired social change and sometimes it is the social change that brings in the 3 3 expected change of law. For example, it can be said that the law relating to abolition of "Sati" system was enacted primarily to bring about the desired reform of the then Hindu society, whereas the changing trend of the society towards socialism necessitated the change of law which brought about the abolition of "Zamindary" system. Therefore, change of law is a must either waythat is either to bring about the desired change of society or to reflect the change of society. If law remains static and hinders the march of society, it will be rejected. This holds good both in case of ordinary law and Constitutional Law. Though Constitutional Law is superior to ordinary law of the land and, therefore, should not be lightly tempered with, yet it should not obstruct the will of the future generation and the 2. W. Freidman,

The primary function of the law is to serve the society by regulating the behaviour of the member... more The primary function of the law is to serve the society by regulating the behaviour of the members of the society. In the absence of regulatory behavioural norms which is provided by law, the society will have to face anarchy, because in the absence of law every member actuated by his interest would act to the detriment of everyone else. It is, therefore, force of law which has helped mankind to maintain peace and order in the society and has saved society from anarchy. This necessity of force of law becomes evident when it is said : "A herd of wolves is quieter and more at one than so many men, unless they all had one reason in them, or have one power over them. Unfortunately, they have not one reason in them, each being moved by his own interests and passions; therefore, the other alternative is the sole resource." However, it is universally accepted that the society is always in a state of flux and is always changing, sometimes forward and sometimes backward. Law, therefore, has to keep pace with the changing mores of society. Once the society is on the march, law will have to be reformed, modified or amended with a view to bringing it in conformity with the need of the society. However, there exists a controversy as to whether social change 1. G. Williams (ed.), Salmond on Jurisprudence, 1957, p.88. 59 influences law or law influences social change. The contro versy is one of the recurrent themes of the history of 2 legal thoughts. While Savigny holds that it is the law which follows the social change, Bentham holds the 3 opposite view. But in ultimate analysis one must agree that they do influence each other. Sometimes it is the law which brings forth the required and desired social change and sometimes it is the social change that brings in the 3 3 expected change of law. For example, it can be said that the law relating to abolition of "Sati" system was enacted primarily to bring about the desired reform of the then Hindu society, whereas the changing trend of the society towards socialism necessitated the change of law which brought about the abolition of "Zamindary" system. Therefore, change of law is a must either waythat is either to bring about the desired change of society or to reflect the change of society. If law remains static and hinders the march of society, it will be rejected. This holds good both in case of ordinary law and Constitutional Law. Though Constitutional Law is superior to ordinary law of the land and, therefore, should not be lightly tempered with, yet it should not obstruct the will of the future generation and the 2. W. Freidman,