This document provides an overview of the evolution of law in society from ancient times to modern times. It discusses how laws first emerged to regulate social interactions between individuals as societies grew larger. It then explains several influential legal theories and concepts such as natural law, social contract theory, rule of law, and separation of powers that have helped shape modern law. The document emphasizes how many modern legal principles can be traced back to ideas from ancient Greek and Roman philosophers as well as Enlightenment thinkers.

1. Name: Mohammad Jihaad SOYFOO
Class: LLB year 1
Understanding the evolution of law in
society
Society has evolved and so did the laws governing it. In the highly developed states of
the modern world the citizen is cared for and governed by laws from the cradle to the
grave. In fact, even before his birth, the citizen is protected by law, for instance the laws
pertaining to abortion protects the fetus. Similarly, after the demise of the citizen the
law sees to it that his will is enacted. So a brief overview of the main theories and
concepts that underlie such a pervasive element of our life should be of a great interest.
The layman associates the word law to different entities, depending on the context. For
instance the word law is sometime used to refer to a system that includes the
government, police, the courts; and it is said that the law will catch up with the
criminals. Sometimes it is used to refer to a process and thereby, only the courts and the
judicial proceedings are implies, and it is common to heat “let the law follow its due
course”. And some other times it only means the written corpus of law, and it is often
overheard, “what law is applicable in these circumstances”.
In the broadest sense the word law means a ‘set of rules’, such as the scientific laws that
are working sets of rules that have been proven true by laboratory experiments and is
contrasted with theories and hypotheses, that are respectively, sets of rules partially
proven by experiments or not yet tested. However, formal law is more of a sociological
phenomenon, as it governs the social interactions between humans, and is more
appropriately contrasted with folkways and mores1. Folkways are such social rules that
if not obeyed may bring informal sanctions and inconveniences as the fear that the
spirits are going to haunt the one who desecrates a tomb. Mores are social rules if
violated may bring about informal social sanctions as swearing the one who rudely
jumped the queue. Whereas, laws are the formal rules of society if violated brings about
sanctions from the state or controlling authority. To this effect, the legal philosopher
John Austin, the father of the school of analytical jurisprudence defined law as
“Commands, backed by sanctions, from a sovereign to whom people have habit of

2. obedience”. After we have seen that law exists in the human society, we will tackle the
pertinent question of, ‘how law actually appeared in society?’
“… As long as Robinson leads a solitary life, he has little to do with laws”, said a French
legal author (Terré, p7) and indeed a solitary individual requires nothing more than
habits to regulate his behaviour, so as to maximise his limited supply of mental and
physical energy. However, as Robinson meets Friday a new behaviour regulating
phenomenon emerges- rules. Technically, when there are only two persons on a desert
island law cannot exist. This is because for the existence of law it is necessary to have a
third impartial party to judge between the two contentious parties in case the law is
broken. Accordingly, the Romans believed that the legal principle that “no person may
judge his own case” was so fundamental, self-evident and natural that they called it
‘natural justice’.
When some families assemble together in one place, the some of the habits of the
individuals are crystallised into customs and then into rules. These rules will not be
termed as formal laws as long as the whole community does not recognise a central
controlling authority who may be the chief of the village, the king or the state itself. This
central authority is a salient component of the definition of law, as testified by John
Austin’s definition and by the Encyclopaedia Americana’s (vol17, p71) description that
reads “law comprises all the principles, rules, and enactments that are applied in the
courts and enforced by the powers of the state”. So law appear in society when the
society is large enough and has a central controlling authority.
Natural law is a cornerstone in evolution of modern law and as many of the
fundamental principles of law; it was inspired from the great Greek philosopher
Aristotle’s (384-322 B.C.E) observations of the human society. He affirmed that humans
are by nature social beings and that they have a natural social impulse to make rules.
Moreover, the fact that the young child, ignorant of formal laws, appeals for a game to
be played ‘fair and square’- all imply that the germ of law originate from nature itself.
The medieval philosopher and theologian, Saint Thomas Aquinas (1225-1274) coin the
term ‘lex naturalis’ or ‘Natural law’ to express this concept of the origin of law. He was
influenced by the writings of Greek stoic philosophers, who advocated that human
would be “following nature”, when they follow reason because nature itself is governed
by reason or rational principles. However, proponents of Natural law refer to it as “the
law written on the hearts of man” and need not to be learned but inspired by nature
itself. A simple definition of natural law is that unwritten law that is more or less the
same for everyone, everywhere. And due to the universality of natural law, the Dutch
jurist and father of international law, Hugo Grotius (1583-1645 AC) made it the basis of

3. international law. More important, natural law is the very foundation of modern human
rights as we know it today. Indeed, the third president and one of the founding fathers
of the United State and Thomas Jefferson (1743-1826) used the natural law theory to
justify the "inalienable rights" that were stated in the United States Declaration of
Independence. Moreover, natural law is used as a yardstick to assess the fairness of
positive (man-made) laws and when used in this context it is called the “higher law”.
The human socialisation process has greatly influenced the evolution of law and it is
basis of the social contract theory, yet another important turning point in the history of
law. First proposed by the English philosopher Thomas Hobbes (1588-1679 AC) in his
treatise the “ Leviathan”(1651), the social contract presuppose that man was living
alone in a natural state aloof from society and there, he could enjoy and exercise all his
(natural) rights and freedom limitlessly and independently. Thereafter, because of the
fear and dangers he encountered in the wilderness, man decided to rally together and
enjoy the protection and advantages of living in society. But in so doing, he has to give
up some of his natural rights and freedom to the sovereign and this imply the essence of
a tacit social contract that could be expressed as follows, “…every man says *implicitly+
to every man in a covenant that I give up my rights of governing myself to his man (the
sovereign)” . Nevertheless the social contract formulated this way tended to sanction
totalitarian rulers, and the English philosopher and father of liberalism, John Locke
(1632-1704) aimed at rectifying this aberration in his “Second Treatise of Government”
(1792). He postulated that man was not in a state of fear in the natural state but instead
man was happy. It was on his own and willingly that he formed a state to solve the
minor inconveniences of administration, which is to provide for a “neutral judge” to
guard his rights and freedom from being baffled by others. Thus the social contract that
ensued does not license the ruler with absolute authority but make him the guardian of
the people’s right. And the law stands as the written guarantee of this social contract by
defining the rights and freedom of everyone and providing sanctions for those who
violates it.
The French philosopher and writer, Jean Jacque Rousseau (1712-1778 AC), further
refined the social contract theory by placing law as the ultimate sovereign. Thus he
brought to the back to the forefront the important concept of the ‘rule of law’, as
supported hitherto by Aristotle, who boldly stated that: “the rule of law is better than
the rule of any individual”. In his treatise “Le Contrat Social” (1762), Rousseau argued
that it is the citizens who should rule and that the ruler should bow down to the will of
the people. And since the law is the actual will of all the citizens, as it emanated from
the collective social contract of all them, then by placing law above everyone, including
the ruler, it is like if the people themselves are ruling. Moreover, as the ruler is

4. accountable to law, it is the will of the people who will prevail, as the Thomas Fuller
stated in 1733, “be you never so high the law is above you”. Nonetheless, the rule of law
is a vague concept that encompasses meaning like ‘the rule according to law’, which
guaranty that no one is eligible to pay any damages except if prescribed by law;
sometimes it is interpreted to mean ‘the rule under law’ and thus ban arbitrariness. This
is to say that the rule of law is of utmost importance as it gives society its stability. The
judge Glover, in the case of Mahboob v Government of Mauritius 1982 MR 135,
graphically described that an absence of the rule of law would lead to a situation “as
bewildering as the croquet game in Alice in Wonderland, where the rules are changing
all the time to suit the caprice of an unpredictable umpire”. And as unpredictability
scares away invertors who are weary to safeguard their assets, the economy of a
modern country will be badly crippled in the absence of the rule of law. Hence, it is not
surprising that the rule of law is considered as one of the constitutional pillars in
England to compensate for the absence of a formal written constitution there.
Albeit the great importance of the concept of the ‘rule of law’, it lacks a concrete
structure to ensure its enforcement and it was still too easy for a despot to ignore the
law and rule according to his whims. Hence the French political and social philosopher,
Baron de Montesquieu (1689-1755) proposed ‘the separation of powers’ as a solution to
the problem of despotism and to assure the rule of law. He proposed that if the three
arms of government- the legislature, judiciary and executive- are governed by different
bodies, then one body of government, the judiciary for example, can check and balance
the excesses of the other bodies, and vice-versa. In this way it becomes more difficult
for a despot to gain absolute power. Thus Montesquieu laid down the foundation of all
modern constitutions, because the separation of powers is heart and spirit of a
constitution.
It is imperative at this point to note that many of these legal concepts have been bitterly
criticised. For instance, the much respected English jurist and legal reformer, Lord
Bentham (1748- 1832) described the ‘rule of law’ as “nonsense on stilts” in his book;
and the Scottish philosopher and economist, David Hume (1711-1776) described the
social contract theory as “a convenient fiction”. The separation of powers is also
accused of causing much undue bureaucracy. It is true that none of these theories are
perfect but it would be unfair to say that they are of no use.
Indeed these legal theories and concepts were landmark developments in the legal field,
amongst others, that have helped shape law as we know it today. And to try to
understand law without understanding these principles would be to ignore the very
spirit of modern law. Moreover, this brief overview of the evolution of law, emphasise

5. the importance for law students to understand society and sociology. Furthermore, it
underscores the fact that ideas are timeless. Indeed many of the great philosophers
from Aristotle to Montesquieu have not seen the realisation of their dreams but they
have set the stage for the future generations.
References:
1. Encyclopedia Americana, international edition 1979, volume 17, USA.
nd
2. Cruz, P. 1999, Comparative law in a changing world, 2 edn, Cavendish Publishing Limited,
Great Britain.
3. Farrar, J.H. & Dugdale, A.M. 1990, Introduction to legal method, 3rd edn, Sweet &
Maxwell, England.
4. Terré, F. 2003, Introduction Générale au Droit, 6eme edn, Dalloz, France.
5. Johnson, M. 2007, lotus illustrated Dictionary of Law, Lotus Press, India.