Question 1 : Analyse the function of the law as a method of conflict resolution

The concept of law is as ancient as mankind. From domestic interaction to group structures, rules of law have impacted how individuals deal with conflict. Rules that govern human interaction are the foundation of moral responsible societies. The need for law assumes that "all conflict has a normative dimension and thus must be resolved by the application of morally responsible rules" 1. Law is pervasive and permanent in all human conflict. "From its inception, law has been at work shaping and reshaping the social order".2

In essence, the function of law is to establish "rules and procedures that constrain the power of all parties, hold all parties accountable for their actions, and prohibit the accumulation of autocratic or oligarchic power. It provides a variety of means for the non-violent resolution of disputes between private individuals, between groups, or between these actors and the government".3

Sources of law can be broken into three camps: natural law, positive law and realism. Commenting on the theory of natural law, Haswira Nor Mohamed Hashim and Anida Mahmood (2009) quote St. Thomas Aquinas: "Law is nothing else than an ordinance of reason for the promotion of the common good, made by him who has the care of the community and promulgated"4. The positivists' view of understanding the concept of law focuses on the aspect that law is a command of the generally

MacFarlane, J. (Ed.), Dispute Resolution: Reading and Case Studies (Edmond Montgomery Publication Limited Toronto 1999) 43
2 3

Jenkins I, Social Order and the Limits of the Law (Princeton University Press Princeton 1980) 214 Crocker C. & Hampson F. O., Managing Global Chaos: Sources of the Response to International Conflict (US Institute of Peace Press Washington 1996) 586 4 Haswira Nor Mohamed & Anida Mahmood, Law, Morality, Justice, Freedom and Equality: The Underlying Concepts (Mc Graw Hill Education Malaysia 2009) 8

adhered to sets of rules and the power to enforce them. It can be seen from the quotation of John Austin (1790-1895) where he defines law as a command given by a sovereign who may be a King, council or Parliament.5

On the other hand the sociologists interpreted law as something that cannot be understand unless we study about it and must come from the society itself. Brian Tamanaha writes in his book Realistic Sosio-Legal: Pragmatism and a Social Theory of Law (1997), law is a concept conventionally applied to natural law, international law, primitive law, religious law, customary law, state law, folk law, peoples law and indigenous law. Law according to him is a key social phenomena that must be understood, analyzed and discuss.6 So, it deals with the subjective influence of the particular parties involved in the dispensing of law. In all these paradigms, the concept of law, as an instrument of managing conflict, is unavoidable. The concept of law is therefore bigger than the source it derives from or the processes used to administrate it. Adjudication and facilitation are the two main processes dealing with the resolution of conflict.

Conflict is inevitable and perpetual in all human interaction. "Human beings engage in conflict. Aggression, warfare, violence seemingly equate with the human condition"7. Conflict has two faces: that which negatively affects society through violent acts between people, and that which positively contributes to the development of human relationships and social interaction. Violent acts against humanity and society call for a different kind of treatment than do transformational conflicts. Both require rules to ensure that justice prevails and truth is pursued.

5 6

Ibid to note 5 pg 5 Ibid to note 5 pg 5-6 7 Tidwell A., Conflict Resolved (Printer London 1999) 1

International conflicts and conflicts within divergent cultures necessitate flexibility in management approaches and understanding of context and procedure in order to choose an appropriate mode of dispute resolution.

MacFarlane underscores the need for the evaluation of the relationship between the role of law and the management of conflict when she says: "Modern conflict theorists have moved away from the study of rules and systems and toward the study of disputes themselves. This challenges students of dispute resolution to consider the relationship of rules to conflict management and dispute resolution, both as a matter of theory and in practice".8

There are different perspectives of law. Savigny was the opinion that law is an expression of the spirit of the people. It is seen as closely link in the social life of people. Law is rooted in society and can never be separated in social life of people. It developed from habit to value, from custom and tradition to rules and regulation. So, people are used to it and obeyed to it as it has become a culture to them. Hence, people take law as the method of conflicts resolution among them.

Secondly, law as divine revelation. It is about guessing something which is a secret. Natural lawyers believe that all laws are stemmed from divine law. Divine revelation is some of right reason that immanent in the nature of thing. They stress that all human law must depend for its validity on compliance with that higher law. It is natural for every human being have their own belief in a higher power or sovereign. Hence, they will obey law as it appear from God.

Ibid to note 1 pg 15

In other point of view, Lord Hailsham believes that there is a duty to obey the law due to the prima facie or presumptive obligation which imposed the duty to obey law whatever the circumstances while John Finnis in his book Natural Law and Natural Rights (1980) writes that obligation to obey law means either.9 Plus, the word obedience often suggests deference to authority and not merely compliance with orders backed by threats.

Some emphasise law as force and coercion. According to Hart, law is the primary norms which stipulated the sanction. Hans Kelsen (1888-1973) under his Pure Theory of Law states that coercion is an essential characteristic of law. An order without sanction is utopian.10 Austin view is the fear by which the law, by its coercive power, strikes in the heart of people is what makes people obey the law. In other words, if a law is made without sanction, it would be disobeyed.11 In order to solve a conflict, law will be used as it is definite and permanent plus fair to everyone. It will prove whether an action is an offense or vice versa. If it is proven that it is an offense, there will be a punishment waiting for them. As for that, they must obey the law or otherwise they will have to face the sanction. That is the other reason on how law functioned as the method of conflicts resolution.

Other than that, John Rawls in his books Law and Philosophy (1964) and A Theory of Justice (1971) states that there is a moral duty to obey the law. Even though that people do not obey law because of the fear towards sanction, it is a moral duty to obey them. It is based on the reasons grounded on the spirit of social contract which is an essential quid pro quo agreement. For example, the social

Ibid to not 5 pg 21 Ibid to note 5 pg 14 11 Ibid to note 5 pg 22

10

contract in Malaysia is between the Malay and non-Malay citizens of Malaysia; in return for granting the non-Malays citizenship at independence, symbols of Malay authority such as the Malay monarchy became national symbols, and the Malays were granted special economic privileges.12 It does not written in the constitution but people ought to obey them as it is a part of moral duty. So, it has solved the conflict between the Sino-Malay regarding their rights in the country. Hence, it shows how law function as a method for conflicts resolution.

James Bryce says that law is complied with by people, amongst other matters, by sheer indolence. Most people do not want to deviate merely because they find it convenient rather than inconvenient to obey. Some people obey the law realizing that it is essential to do so otherwise there would be anarchy, as without fixed rules, civilized life would come to an end.13 The obedience of law lies in the idea whereby we accept the legitimacy or authority of the source of law. We obey because we consider it right and proper to do so. However, Hart acknowledged that some might obey out of genuine worry about the consequences of disobedience. Others might disagree with the entirety of the legal and social arrangements of our society, but obey law out of sheer convenience.14 So, when a conflict appears, they will use the law as resolution because it is convenience for them to follow the law and the consequences of it.

In a nutshell, I think the law is functioned as the method for conflicts resolution as the characteristics itself is used to solve a problem. People will use it as it has become a culture in the society. It is convenience to be used and the present of

12 13

Khoo Boo Teik, Paradoxes of Mahathirism (Oxford University Press 1995) 104-106 Ibid to note 5 pg 25 14 Ibid to note 5 pg 26

sanctions that is bound with law will make people obey with the result. So, law is the best method to resolve a conflict.

References

The Role of Law in Conflict Management <http://www.mediate.com/articles/simpson.cfm> 3 August 2011. Haswira Nor Mohamed & Anida Mahmood, Law, Morality, Justice, Freedom and Equality: The Underlying Concepts (Mc Graw Hill Education Malaysia 2009)

May 13 Race Riots <http://en.wikipedia.org/wiki/May_13_race_riots> 2 August 2011.

LAW 012 INTRODUCTION TO LAW 1 Assignment Take Home Test By ri Nadiah binti Mohd. ani 2011271198) Farah Mursyieda binti Mohammad Fuad (2011283458) Fatin Nur Athirah binti Zainudin (2011288944) Nur haleeda binti ainol 2011268978) Siti Aisyah binti Ruzlan Zabidi (2011230182) Farra Emira binti Amir Firdaus (

LWA 01C (PI 007)

Submitted in Partial Fulfilment of the Requirements for the Foundation of Law KPTM

8 August 2011.