According to the Law Dictionary, a law is a written or unwritten rule by which a country is governed and the activities of people and organisations are controlled. The Oxford Dictionary defines law as “a rule or system of rules recognised by a country or community as regulating the actions of its members and enforced by the imposition of penalties”. Blackstone, cited in Willis (1926), said that law, in its most general and comprehensive sense, “is that rule of action which is prescribed by some superior and which the inferior is bound to obey.” According to Black’s Law Dictionary, a law is a collection of moral requirements that citizens must abide by to avoid penalties or other legal repercussions. These requirements are imposed by a supreme authority and have binding legal effect. Given the definitions above, law can be explained as a system of rules, regulations, and principles created and enforced by a government or other authority to govern the behaviours of people within a society.
Law is a broader term which includes Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice, Morality, Reason, Righteous, Rules of court, Decrees, Judgements, Orders of courts, Injunctions, Torts, Jurisprudence, Legal theory, etc. Depending on the point of view, either as a judge, a legislator or by society, For instance, Oliver Holmes, an American jurist, said, “Laws are what the judges say it is”.
Law plays a pivotal role in the organisation and functioning of any society. It serves as the bedrock upon which the pillars of justice, order, and development are constructed. A law is a system of rules and regulations created and enforced by a governing authority, typically a government or legal system, to regulate the behaviour and interactions of individuals, organisations, and entities within a society or jurisdiction. The primary purposes of law are to maintain order, resolve disputes, protect individual rights and liberties, promote justice, and establish a framework for the functioning of society. Laws can cover a wide range of areas, including criminal behaviour, civil disputes, contracts, property rights, human rights, family matters, and more. Violating laws can lead to legal consequences, such as fines, imprisonment, or civil liabilities, depending on the nature and severity of the violation. Legal systems vary from one jurisdiction to another, but they all share the fundamental role of establishing a framework for orderly and fair governance.
The objective of law, as argued by Abyssinia Law, is not just to achieve justice but to balance the desire for consistency and flexibility. Uniformity is necessary for assurance and predictability, allowing citizens to plan their actions with some degree of assurance and anticipate legal repercussions. This is especially important in certain laws, such as contracts and property law, as it stabilises and protects the social order. Therefore, the law represents a struggle between these two requirements: the desire for consistency and the need for flexibility.
In the context of contemporary Ghanaian society, understanding the multifaceted functions of law is paramount. For instance, if you live in Ghana and you decide to purchase a car from a dealership, there are laws governing you and the car right from its purchase to its usage. When you buy the car from the dealership, you enter into a contract. This contract specifies the terms and conditions of the sale, including the price, payment schedule, and any warranties. If either you or the dealership breach the terms of the contract, there are laws that will be used to resolve it or remedy the situation. As you drive your new car on the road, you are required to follow traffic laws. These laws dictate that you must obey speed limits, stop at red traffic lights, use turn signals when changing lanes, and observe other rules of the road. There are laws that will protect your ownership rights of the car, as well as laws by which an injured party can seek compensation from you for their medical expenses and vehicle repairs, in case you collide with another car in an accident.
Laws can generally be categorised into three main functions, namely:
Permissive functions: This refers to the aspects of the law that allow or permit certain actions or behaviours, often by setting out specific conditions or requirements that must be met. It gives rights or options to subjects or citizens whether to act or not to act. Permissive functions of law serve various purposes in society, including promoting individual autonomy, facilitating economic activities, and accommodating diverse preferences. Examples include entering into a marriage or a contract, registering a company, etc., where the terms (i.e., The dos and don’ts) are explicitly defined. Chapter 5 of the 1992 Constitution outlines various fundamental human rights and freedoms that one is permitted to enjoy. These include Freedom to Contract, Freedom of Association, Freedom of Speech or Expression, Religious Freedom, right to Education, Freedom to Assemble and Protest, Freedom of Travel, etc. The law also permits and regulates economic activities, such as entrepreneurship, investment, and trade, by providing a legal framework for business operations, property ownership, and financial transactions.
Directive functions refer to the role that laws play in guiding and influencing behaviours and decision-making within a society. These functions are often associated with laws and regulations that set forth specific goals, principles, or policies that individuals, organisations, and government entities are expected to follow or achieve. In simple terms, it directs or guides the citizen on how to undertake a particular activity. For instance, the Companies Act 2019 (Act 992), with its various amendments, specifies the documents required to register a company or the acquisition of a passport. The Contract Act 1960 (Act 25) outlines the various elements of a valid contract. Precedents, which are a very important aspect of the law, can also provide directive functions, such as Date-Bah JJC in this case of NTHC v Antwi directed on how to enter into binding contracts by use of an offer, which is a clear binding intention to enter into a contract and hence must be final and leave no room for further negotiations. Additionally, Article 2(1) of the 1992 Constitution directs how to enforce the Constitution. Article 33 also directs how to enforce human rights.
The prohibitive function also refers to the role of laws in forbidding or regulating certain actions or behaviours in society. These functions are essential for maintaining order, protecting individual rights, promoting safety, and upholding societal values. Prohibitive laws outline what is illegal or unacceptable and establish penalties or consequences for violations. The law must prohibit that specific activity before you can be punished for committing that particular crime. Article 19(11) stipulates that every individual involved in a criminal activity must be given a fair hearing and must be presumed innocent until proven guilty. However, the crime must be defined and punishments prescribed in a written law such as the Criminal Code of Ghana 1960 (Act 29). In the case of Glah v. The Republic (1992) 2 GLR 15, the court held that an action can be against the traditions and customs of a society, but once it is not prescribed in the Criminal Code, one cannot be prosecuted or convicted for it. The law must prohibit the act. There is the Electronic Transaction Act 2008 (Act 779) that prohibits actions such as hacking, identity theft, cyberbullying, and computer fraud, aiming to protect individuals and organisations from online threats as well as fraud and white-collar crimes. Laws governing traffic and transportation prohibit actions like speeding, driving under the influence, running red lights, and reckless driving, as contained in the Road Traffic Act 2004 (Act 683). The Narcotics Act 2020 (Act 1019) contains laws related to controlled substances that prohibit the possession, sale, or use of certain drugs and substances, often to prevent drug abuse and protect public health. Several other Acts regulate Intellectual property, environmental protection, firearms, child protection, etc.
Legal systems rely on these prohibitions to maintain order and ensure that individuals are held accountable for their actions when they violate the law. Enforcement mechanisms, such as law enforcement agencies, courts, and penalties, are established to uphold these prohibitive functions.
All the above functions notwithstanding, the basic or primary functions of laws include but are not limited to:
- To Maintain Order and Peace
Law plays a fundamental role in maintaining order and peace in Ghanaian society. This function is evident in the 1992 Constitution of Ghana, particularly in Article 200 (3), which establishes the Ghana Police Service as a law enforcement agency responsible for ensuring public safety and order. The police force, guided by legal principles, maintains law and order by preventing and investigating crimes, ensuring public safety during protests in accordance with the Public Order Act 1994 (Act 491), and upholding the rule of law. Laws provide a framework for regulating behaviour and maintaining order in society. They define what is acceptable and unacceptable conduct, helping to prevent chaos and conflicts. The Constitution by large also mandates the Ghana Police Service to apprehend offenders and prosecute criminals, in accordance with the Criminal Offences Act 1960 (Act 29).
In a similar position, the law functions as a social control mechanism. Because varied social ideals, behaviours, and interests may exist among society’s members, it is essential to enforce socially acceptable standards. Laws and other formal social restrictions are necessary in a mature, politically organised society. The law establishes fundamental principles and norms, penalises deviation from these principles, and enacts these principles through a variety of mechanisms, including arrests, legal proceedings, punishments, prison guards, and parole boards.
- Protect Human Rights and Freedoms
Another crucial function of law in Ghana is the protection of individual rights and freedoms, as enshrined in Chapter Five of the 1992 Constitution. For instance, Article 12 guarantees the fundamental human rights and freedoms of every person in Ghana. These rights include the right to life, the right to personal liberty, and the right to freedom of speech and expression. The legal framework established in the Constitution empowers citizens to seek redress in cases of rights violations, ensuring that their liberties are protected. These rights also include freedom of religion, the right to a fair trial or fair hearing (audi alteram partem), and protection from discrimination and harassment. Article 140 (2) and Article 33 of the constitution empower the High Court to enforce fundamental human rights and freedoms and also issue directions or orders to protect the rights of individuals, such as habeas corpus, certiorari, etc.
- Ensure Accountability and Justice
Additionally, the laws in Ghana play a pivotal role in ensuring accountability and delivering justice. Article 125 of the 1992 Constitution establishes the judiciary as an independent body responsible for interpreting and applying the law. The judiciary ensures that individuals and entities are held accountable for their actions, and it resolves disputes through fair and transparent legal processes. This function promotes trust in the legal system and upholds the principles of justice and the rule of law. The legal system seeks to promote justice by ensuring that individuals are treated fairly and equitably under the law. This includes the principle that everyone is equal before the law, regardless of their social or economic status. Article 23 talks about the fair administration of justice and says that persons aggrieved shall have the right to seek redress in court. Article 33 also highlights the protection of individual rights by the courts.
- Promote Economic and Social Development
Ghanaian law also serves as a catalyst for economic and social development. The Constitution, in Chapter 6, outlines the state’s commitment to promoting social and economic development through various policies and programmes. Legal frameworks, such as those governing business and investment, provide a conducive environment for economic growth. Additionally, laws related to education, healthcare, and social welfare aim to improve the overall well-being of the Ghanaian population. Laws can stimulate economic growth and development by providing a legal framework that supports business activities, enforces contracts, and protects property rights.
- Resolve Disputes and Conflicts
Dispute resolution is another essential function of the law in Ghana. This is because conflicts are inevitable in the life of society, hence the role of law to settle disputes. The Constitution recognises the role of traditional authorities in conflict resolution and their integration into the formal legal system. Furthermore, the Alternative Dispute Resolution Act, 2010 (Act 798), promotes the use of alternative methods of dispute resolution, reducing the burden on the formal courts and contributing to timely conflict resolution. Laws provide a formal mechanism for resolving conflicts and disputes. Courts and legal procedures enable individuals and organisations to seek redress when their rights are violated or when disagreements arise.
- Resolving International Disputes
Finally, international laws and treaties govern the conduct of states and international organisations, helping to resolve conflicts and regulate relations between nations. Resolving international disputes is a critical function of international law and diplomacy, and it involves various mechanisms and principles aimed at peacefully settling conflicts and promoting stability among nations. Articles 73, 74, and 75 talk about international relations, diplomatic representations, and the execution of treaties, agreements, or conventions between Ghana and other countries. These treaties become binding and regulate our relationships with the countries as well as their citizens. However, such treaties must be ratified by parliament, as in the case of Banful v Attorney-General. Also, based on such existing treaties, INTERPOL, for instance, can collaborate with member countries to conduct investigations and arrest suspects involved in transnational organised crimes.
- Social change
The law also functions as an agent of social change. Society faces numerous challenges, including poverty, drug abuse, corruption, prostitution, rape, lynching, child marriage, acid attacks, child labour, and discrimination based on caste, race, colour, gender, etc. Law serves as a driving force to eliminate these hurdles by introducing legislation and statutes that can make a difference in the present and future of society. While the law has helped bring about changes, societal issues are not completely disappearing. It is time for society to efficiently utilise existing laws to bring about social change. The solution to how the law can be used as an instrument for creating social change lies in society and its people themselves. Society needs to utilise existing laws efficiently to effectively bring about social change. The solution lies in society and its people themselves, as societal issues are not disappearing completely. For instance, the 1992 constitution of Ghana prohibits child marriage. Child marriage is illegal in Ghana; both the 1992 Constitution and the 1998 Children’s Act set the legal age for marriage at 18 for both girls and boys. Female genital mutilation is equally prohibited; the Criminal and Other Offences Act 1960, Section 69(A), criminalises the performance, procurement, aiding, and abetting of FGM. These are examples of how laws affect social change.
Conclusion
These are some of the various functions of law in Ghana, as enshrined in the 1992 Constitution, shedding light on how they contribute to the nation’s stability, justice, and development. The functions of law in contemporary Ghanaian society, as outlined in the 1992 Constitution, are vital pillars that support the nation’s growth, stability, and justice. From maintaining order and peace to safeguarding individual rights, ensuring accountability, promoting development, and resolving disputes, the legal system in Ghana plays a multifaceted role. Understanding and upholding these functions are essential steps towards building a just and prosperous Ghana. By adhering to the principles of law, Ghana continues to progress as a nation that values justice, order, and the well-being of its citizens.
Author’s Profile: Abdul-Salam Shaibu is an Investigator and Cybersecurity Practitioner. He had his professional training at the Detective Training Academy, Ghana Police Service, as well as a Professional Diploma in Database Management from IPMC. He holds a Bachelor of Science Degree in Computer Engineering from Ghana Communication Technology University and a Master of Science in Digital Forensics and Cybersecurity from the Ghana Institute of Management and Public Administration (GIMPA). A certificate in Cybersecurity Investigations and Digital Forensics at the e-Crime Bureau, among other numerous courses and certifications. He is also a student at the GIMPA Faculty of Law pursuing a Bachelor of Laws (LLB) Degree. He is a Businessman and an Entrepreneur. The author’s research interests are in IT, Cybersecurity, Law, Risk Management, Security, and Criminal Psychology.
Please address all correspondence to: Abdul-Salam Shaibu by Phone: at (+233) 026 530 8783 and by email at shaibubaba80@gmail.com
Reference
Willis, H.E. (1926). “A Definition of Law”. Retrieved on 11 October 2023 from https://www.repository.law.indiana.edu/facpub/1250
