Bulletin Winter 1978

of the legal system impersonally and, except as provided for in the rules themselves, are to be obeyed irrespective of persons and individual circumstances. Law's prior, impersonal and objective character ensures certainty and impartiality, and prevents unauthorised arbitrariness. It can achieve order even in a heterogeneous society. In this sense, law is an intrinsically value-free technique of social regulation with a great deal to commend it. Which values or interests it protects depends, however, upon the law-giver. Social Values Reflected in Legal Rules As distinct from law as a technique, the legal rules within a legal system reflect always the wishes and values of, by the nature o f things, the prevailing section of the community in which the system operates, by which is meant simply that section of the community who have the intention and, in conjunction with all those who support them through fear or favour, the ability of making their will effective. Legal rules are always man-made. Whether the law-giver has been inspired by God, natural reason, love of mankind, greed or any other motive is a different matter and must depend on the man and the community in question. Unless the prevailing section of a community have only newly found themselves in that position, there is a natural bias for the laws of a society to favour the status quo. This status quo reflects what the prevailing section regard as a just and reasonable balance of the diverse interests in society, a view which, depending on the society in question, may or may not be shared by the rest of the community. Ideally, one should seek the maximum consensus, and aim at bringing about the greatest happiness for all members of the community, and not (pace Jeremy Bentham) merely for the greatest number. In the West as the Primary Means of Social Regulation In the West, notwithstanding occasional dissents, law has, almost from the beginning, always been regarded as indispensable as a means of social regulation (Ubisocietas ibi jus: where there is society, there is law), and given an exalted place in the hierarchy of normative values. Law comes second, one may almost say, only to the will of God. When thus elevated to become the primary means of social regulation, law can also have the effect of greatly simplifying human relations in dividing all human actions clearly between, on the one hand, those which are unlawful and prohibite and, on the other hand, those which are lawful, permissible and, therefore, protected by law. Government by law, besides reinforcing the other qualities of law as a means of social regulation, has thus the added virtue of affording those who have not infringed the law an assurance of security. As a result of the importance attached to law, legal institutions and the science of law have reached in the West a degree of development and sophistication unrivalled elsewhere. China's Traditional Attitude towards Law Historically China, notwithstanding the urgings of the Legalists, preferred a different system. Society, instead of being regulated primarily by rules which were, so to speak, exterior to each individual, relied first and foremost on the innate or acquired sense of socio-moral duty which each member of the communit felt or should feel within himself. In traditional China, the smooth operation of such a method of social regulation was helped by a fairly structured system of human relations, divided into those between sovereign and subjects, parents and children, husband and wife, brothers and sisters, and friends. Society also expected certain values and interests to be protected, but instead of being given pre- established rules, each individual was to fulfil, within such a social framework, his "natural" duty. Resort to law was regarded as essentially an admission of failure in human and societal relations. Law, instead of being used directly to protect individual interests, served much more as a deterrent against a recurrence of such breakdowns. Such a system works only in a homogeneous society. The relegation of law to only a secondary role inevitably inhibited the development of legal institutions and legal science in China. 16