Law and society are closely related with each other in such a way that the existence of one is not possible without other. Law is a mere written word until it is recognized by the society as a mandatory upon them. In society, law acts as an instrument for social change, social control, social solidarity and social cohesion.
‘Ubi societus ibi jus’ this old Latin maxim, which means wherever there is society, there is law clearly shows the interrelationship between law and society. Law is the initiator of the a social change. It brings the fundamental changes in the society as well as it changes itself to adopt in changing society. So it can be said as both the law and society has dynamic nature.
We can say that law is a social science categorized by the movement and adaption. Rules are neither created nor applied in the vacuum on the other hand they created and used time and again for a purpose.
Examples of law changing the society are:
Before shrawn 4 1988 there was the capital punishment (death penalty) for the wrong doers for the crimes under the country’s common law. Capital punishment was abolished by the legal reform in 1946 and the full abolition by constitutional amendment came into the force on 9 nov.1991
Art.12 of the constitution of the kingdom of Nepal (1990) states “No law shall be made which provides for the capital punishment”
The last execution in Nepal took place in 1979.
Sati pratha was considered as a social evil. In Nepal the first attempt was made by Jung Br Rana and was legally abolished by the Prime Minister Chandra shumsher Rana in 1920.
Before 2000 Bs polygamy in Nepal was not a punishable but for the first time in the history of muluki ain, 2020 imposed punishment for it of the imprisonment of 7 days and increased throuolly. Now, Muluki criminal (code) act 2074 under the sec.175 increased punishment for polygamy to 1 to 5 years imprisonment and 10 to 50 thousand rupees fine.
Some of the cases showing the law changing the society are:
Parental right to women:
In the judgments of the case of Meera Dhungana v.HMG, NKP, 2059 established the equal parental right of the women. Initially daughter had to be unmarried until 35 years to claim property but this was found discriminatory by the court and ordered to adopt suitable legislation. Later 11th amendments of the muliki ain 2020 provision to address the issue.
In this case court declared that the marital rape as the punishable offence for the first time and initially imposed punishment of 3 to 6 months imprisonment .But after the judgment in the case of Jit Kumar Pangeniv.Government of Nepal the punishment was increased to 3 years to 5 years of imprisoning according to the Muluki criminal code 2074.
In the judgment of case of Dil Bdr.Bishwokarma court gave the directive orders to the government for the elimation of the chaupadi pratha. This helped in upliftment of women.
Indian Supreme Court decriminalized the consensual sex between adults in private whether it is homosexual under sec.377.
Hence, in the present context, new Muluki Ain which has 5 codes has been enforced since Bhadra1st 2074. This code has many provisions relating to civil and criminal justice which are new to our country. Introduction of torts, open jail system could initiative a new change in society. Inclusion of right to victim of crime in art21 of constitution has given victim a huge opportunity to establish society prosperity.
THE IDEA OF P.N BHAGWATI
“Law cannot stand still, it must change with the changing social concepts and values. If a bark of the tree fails to grow and expand along with the tree it will either choke the tree or it is living tree it will shed that the bark and grows a new bark for it. Similarly if the law fails to respond to the need of changing society, then either it will stifle the growth of society and choke its progress or if the society is vigvirous enough it will cast away the law, which stands in its growth. The law must therefore, constantlybe on the move adapting itself, to the fast changing society and do not lag behind”.
On the other hand law has been the most effective instruments for the social change that is law compels the society to be changed according to it. The enforcement of the society to change the law has lead many people to uplift the standard in the society and to live a proper life. Human tendency could be negative but law prevents the evil doer from doing wrong as a part of negative control as well as laws uplifts the advantageous work to society.
Examples of society changes laws are:
Environmental protection :
The judgment in case of the Surya Kumar Dhungal v.Godawari marbles established the environment protection act 2053.Initially, Right to life includes right to live in a clean environment.Accordig to the present constitution of Nepal, there is made a provision of polluters pay principle in article 20.
Allegation of witchcraft:
The judgment in the case of the Reshma Thapa v. HMG Supreme Court held that witchcraft is only the superstitious belief of society that has been heard in court. Here the allegations of witchcraft and in human activities on ground of it are offensive.
Development of technologies:
The society is developing in rapid pace. There is been many development in the technologies. The development of such technology has both positive and negative effect in the society so to control that negativity there has been the development of various laws (cyber law 2063/64, traffic rules) has been initiated to control the negativity from these developments.
Outer spaces and seas law
Peaceful settlement of disputes
Therefore this shows how a law can bring a change in society and vise versa. One is incomplete with other. These both play an important role in balancing the crime.
(Shah is currently a first year student pursuing B.A.LL.B at Kathmandu School of Law.)
(Click here and like our Facebook page to read the materials published by Law Hub Nepal.
If you want to publish an article or idea on legal or any related topic, send it to [email protected])