The meaning and importance of commercial law
THE MEANING OF COMMERCIAL LAW
The law which regulates commercial transactions between two or more parties; or,to be precise, the law which governs the relations between traders,merchants and others who are engaged in commercial transactions. However,since the word 'law' has a variety of meanings, we shall first inquire into what 'law' really is.
It is necessary to distinguish between natural laws and manmade laws. Natural laws deals with deals with that which is,I.e, something the result of wish can be deduced from known observation of cause and effect,like the laws of gravity,the laws of floatation or certain laws of economics. Manmade laws ,on the other
hand,are concerned with law as it ought to be,I.e.,what the society thinks or lays down as a code of behaviour.Such code of behaviour is based on the values and practices of the society concerned.
In the article we are concerned with 'law' in this second sense,i.e.,law in relation to human actions. Several attempts have been made by eminent jurists as well as anthropologists to define the word law it would be unnecessary ,within the scope of this book to examine the various definitions of 'law'. It would be unnecessary,within the scope of this article to examine the various definitions of 'law'. But it should be pointed out that the lawyer and the layman slightly different ideas of law. To the lawyer,law consist of those rules of han conduct that the courts normally would apply or enforce. But to the layman, law includes all rules of conduct which people are generally expected to observe. The layman's law, therefore has a broader scope than the lawyers's law, and may lnclude those rules and regulations which guide human behaviour, the breach of which the people of a given state or community may frown upon and which such a state or community can enforce. In otherwords, the layman's law includes those traditional and religious usages and norms which court of recognize, much less enforce.
Law can be defined as the entire body of principles that govern human conduct, and the observance of which can be enforced among the members of a given state. It is the bond that regulates people's behaviour in a society. According to Professor D.R. Cole,'the law of a given community is the body of rules which are recognised as obligatory by its members.' From this definition , it is evident that the rules may derive from custom, legislation or case law. In the case of custom, only that which is obligatory and which the society will enforce can be law.
In a traditional society,law consist mainly of the traditional usages and customs of the people inherited from their immemorial past. It changes often unconsciously and imperceptibly with the changing social,economic and religious ideas and needs of the people. Obedience to them is secured by social pressures and rarely by judicial actions. Today, the importance of these customary rules of conduct is on the wane, even in the traditional society. Legal rules now come mainly from law-makers and courts.
IMPORTANCE OF COMMERCIAL LAW
In any organised society in which there are developments in commerce and communication, there emerges the great need of fashioning laws to regulate people's mutual rights and obligations. If there are ,however, no man-made laws,it may be that people would be guided by principles of morality; and choose to live and act in the same ways as they do today. Man would conduct himself in accordance with the dictates of his conscience, the precepts of right living that are part of his religion, and the ethical concepts that are generally in his community. However, problems may arise when a few individuals, who, while enjoying the advantages of living in a civilized society, may be unwilling to conform to the established mode of behaviour, which makevthe civilised community possible in the first instance, by evading laws which are obeyed by others.
The regulatory effect of law on human conduct, in present day society, cannot be over-emphasized. Law makes man's behaviour in any given situation predictable. Therefore, when we live or move about in the company of our neighbours, we are relatively sure that our society is guaranteed,because we know their limits under the law. Law in a society means order,peace,stability stability and progress. In the absense of law and a general disposition to obey law, life would be impossible, for chaos, confusion, and a general feeling of in security would be the order of the day.
It is hard to appreciate fully the importance of the law in a society without forming a mental picture of what life in a lawless community would be. The antithesis of law and order is a state of lawlessness, often called a state of anarchy. When in a society people take to killing or injuring their neighbours, to committing crimes and to breaking agreements with impunity, we know that a state of anarchy or lawlessness is at the doorstep, and in the absense of any supreme temporal authority to hold this vices in check, the future will certainly be sad, bleak and uncertain. No man would safely go about his business to make a living and none would confidently enter into any agreement with his neighbour. Economic machinery of the society would grind to a halt. All politcal, social and economic institutions of the society would crumble. All the treasured values inherited from immemorial past would be debased, if not completely destroyed. In fact, the entire social fabric would give away,for there would would be no bond, no social ties to hold the people together.
Man may even become wild and a wolf to his fellow man,for there would be no mutual respect, no responsibility and no accountability. In short, the place would lose all the features and qualities of a society and cease to have any attraction for people. Man will then go back to the State of Nature, where, according to Thomas Hobbes, 'Life was solitary,poor,nasty,brutish and short'. Because many would take to their heels, that might mean an end to the community, unless a saviour emerges to re-establish a government and restore order by means of laws.
Man owes his dignity and basic rights to law. Even our religious life cannot be maintained in the absence of law. Our family life and relationships are recognized and well protected by law which stipulated remedies any uninvited invasion of our recognised rights. Because we and our belongings, our homes and families are secure under the law, we generally can afford to rest or sleep peacefully, work and save and think and plan for the future.
Often changes in the political, economic and social structures are initiated by law. For example, the change from parliamentary to a presidential system of government for, United states of america, was brought about by the promulgation of a legal instrument.
In an effort to articulate the type of law we are concerned with, we should put the United States of American situation with regard to business practices in constant perspective. It would appear that in the United States of America community, the bulk of the people we term 'businessmen and women' hardly ever stop to think of employing law in their activities. The need to consider the legal consequences of their engagements in business is either not fully appreciated or is not considered necessary at all. Consequently, law is resorted to when there is already a gross mistake in the conduct of business, resulting in a substantial damage.
The law which regulates commercial transactions between two or more parties; or,to be precise, the law which governs the relations between traders,merchants and others who are engaged in commercial transactions. However,since the word 'law' has a variety of meanings, we shall first inquire into what 'law' really is.
It is necessary to distinguish between natural laws and manmade laws. Natural laws deals with deals with that which is,I.e, something the result of wish can be deduced from known observation of cause and effect,like the laws of gravity,the laws of floatation or certain laws of economics. Manmade laws ,on the other
hand,are concerned with law as it ought to be,I.e.,what the society thinks or lays down as a code of behaviour.Such code of behaviour is based on the values and practices of the society concerned.
In the article we are concerned with 'law' in this second sense,i.e.,law in relation to human actions. Several attempts have been made by eminent jurists as well as anthropologists to define the word law it would be unnecessary ,within the scope of this book to examine the various definitions of 'law'. It would be unnecessary,within the scope of this article to examine the various definitions of 'law'. But it should be pointed out that the lawyer and the layman slightly different ideas of law. To the lawyer,law consist of those rules of han conduct that the courts normally would apply or enforce. But to the layman, law includes all rules of conduct which people are generally expected to observe. The layman's law, therefore has a broader scope than the lawyers's law, and may lnclude those rules and regulations which guide human behaviour, the breach of which the people of a given state or community may frown upon and which such a state or community can enforce. In otherwords, the layman's law includes those traditional and religious usages and norms which court of recognize, much less enforce.
Law can be defined as the entire body of principles that govern human conduct, and the observance of which can be enforced among the members of a given state. It is the bond that regulates people's behaviour in a society. According to Professor D.R. Cole,'the law of a given community is the body of rules which are recognised as obligatory by its members.' From this definition , it is evident that the rules may derive from custom, legislation or case law. In the case of custom, only that which is obligatory and which the society will enforce can be law.
In a traditional society,law consist mainly of the traditional usages and customs of the people inherited from their immemorial past. It changes often unconsciously and imperceptibly with the changing social,economic and religious ideas and needs of the people. Obedience to them is secured by social pressures and rarely by judicial actions. Today, the importance of these customary rules of conduct is on the wane, even in the traditional society. Legal rules now come mainly from law-makers and courts.
IMPORTANCE OF COMMERCIAL LAW
In any organised society in which there are developments in commerce and communication, there emerges the great need of fashioning laws to regulate people's mutual rights and obligations. If there are ,however, no man-made laws,it may be that people would be guided by principles of morality; and choose to live and act in the same ways as they do today. Man would conduct himself in accordance with the dictates of his conscience, the precepts of right living that are part of his religion, and the ethical concepts that are generally in his community. However, problems may arise when a few individuals, who, while enjoying the advantages of living in a civilized society, may be unwilling to conform to the established mode of behaviour, which makevthe civilised community possible in the first instance, by evading laws which are obeyed by others.
The regulatory effect of law on human conduct, in present day society, cannot be over-emphasized. Law makes man's behaviour in any given situation predictable. Therefore, when we live or move about in the company of our neighbours, we are relatively sure that our society is guaranteed,because we know their limits under the law. Law in a society means order,peace,stability stability and progress. In the absense of law and a general disposition to obey law, life would be impossible, for chaos, confusion, and a general feeling of in security would be the order of the day.
It is hard to appreciate fully the importance of the law in a society without forming a mental picture of what life in a lawless community would be. The antithesis of law and order is a state of lawlessness, often called a state of anarchy. When in a society people take to killing or injuring their neighbours, to committing crimes and to breaking agreements with impunity, we know that a state of anarchy or lawlessness is at the doorstep, and in the absense of any supreme temporal authority to hold this vices in check, the future will certainly be sad, bleak and uncertain. No man would safely go about his business to make a living and none would confidently enter into any agreement with his neighbour. Economic machinery of the society would grind to a halt. All politcal, social and economic institutions of the society would crumble. All the treasured values inherited from immemorial past would be debased, if not completely destroyed. In fact, the entire social fabric would give away,for there would would be no bond, no social ties to hold the people together.
Man may even become wild and a wolf to his fellow man,for there would be no mutual respect, no responsibility and no accountability. In short, the place would lose all the features and qualities of a society and cease to have any attraction for people. Man will then go back to the State of Nature, where, according to Thomas Hobbes, 'Life was solitary,poor,nasty,brutish and short'. Because many would take to their heels, that might mean an end to the community, unless a saviour emerges to re-establish a government and restore order by means of laws.
Man owes his dignity and basic rights to law. Even our religious life cannot be maintained in the absence of law. Our family life and relationships are recognized and well protected by law which stipulated remedies any uninvited invasion of our recognised rights. Because we and our belongings, our homes and families are secure under the law, we generally can afford to rest or sleep peacefully, work and save and think and plan for the future.
Often changes in the political, economic and social structures are initiated by law. For example, the change from parliamentary to a presidential system of government for, United states of america, was brought about by the promulgation of a legal instrument.
In an effort to articulate the type of law we are concerned with, we should put the United States of American situation with regard to business practices in constant perspective. It would appear that in the United States of America community, the bulk of the people we term 'businessmen and women' hardly ever stop to think of employing law in their activities. The need to consider the legal consequences of their engagements in business is either not fully appreciated or is not considered necessary at all. Consequently, law is resorted to when there is already a gross mistake in the conduct of business, resulting in a substantial damage.
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