Answer to Question #174261 in Sociology for Kwame Hay

Question #174261

Question 1

a) Prerogative writs are public law remedies and not private law remedies and so lie only against public companies and will not lie against private ones. Discuss to some details three of such writs within the Ghanaian context of law.

b) Law plays important roles in every society around the world. Clearly examine any three significant roles of law in society.

c) According to Emile Durkheim, Law is a measure of the type of solidarity in society. With illustrations, distinguish between the types of law he stipulated in his attempt to justify his statement.

Expert's answer

A prerogative writ is an official order directing another arm of government's behavior, such as an agency, official, or another court. There are five types of Writs: Habeas Corpus, Mandamus, Certiorari, Quo Warranto, and Prohibition, and all these writs are an effective method of enforcing the rights of the people and compelling the authorities to fulfill the duties which are bound to perform under the law. Habeas corpus is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court determines if the person's imprisonment or detention is lawful. Mandamus is a writ issued by a superior court commanding a specified official act or duty by a public entity. Certiorari is a court process to seek judicial review of a lower court or government agency's decision.

Law has several roles in society: firstly, it serves as a norm of conduct for citizens. Secondly, it provides for proper guidelines and order upon all citizens' behavior and to sustain the equity on the three branches of the government and, lastly, it provides resolutions to conflicts within the society to maintain order.

Emile Durkheim identified several types of laws to explain the type of solidarity in society, such as; Restitutive law or civil law, which corresponds to a completely different type of social solidarity than repressive law corresponding type of social solidarity. It does not entail retribution--that is, punishment of the individual. The purpose of restitutive law is to restore relations to the way they were a return in state. Secondly, there is repressive law that equals crime; crime equals punishment. Repressive law is penal law. He argues that penal law announces the fundamental conditions of social life. The legitimacy of penal law and its sanctioning of individuals are derived from the necessity of these laws. It is derived from the customs that they protect. The behaviors that these laws sanction are universally disapproved of by all members of each society. It is also referred to as private law. Thirdly, he also identified contract law; Durkheim argues that the contract is, par excellence, the juridical expression of cooperation. It regulates interactions among individuals explicitly. Contract law has the power to bind individuals in mutual agreement. The law legitimates obligations among individuals through contract law. It lends this obligatory force only to contracts that have in them a social value. 

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