Introduction to Law I

Section One
What is Law?

• [B]y 'particular' law I mean that which an individual community lays

down for itself * * * ; and by 'universal' law I mean the law of nature.
For there is a natural and universal notion of right and wrong, one
which all men instinctively apprehend * * * --Aristotle, Rhetoric
1373b (Cooper trans. 1932), p.73.
• Law is a command from the sovereign person or body in the political
society to a member or members of society. --Austin, Lectures on
Jurisprudence (1885), p.215.
H.L.A Hart on Legal System
• Rules that forbid certain conduct and rules that compel certain
conduct on pain of sanctions;
• Rules requiring people to compensate whom they injur;
• Rules stating what needs to be done in certain mechanical areas of
the law, such as making a contract or making a will;
• A system of courts to determine what the rules are, whether they
have been broken, and what the appropriate sanction is;
• A body whose responsibility is to make rules and amend or repeal
them when necessary.
Continued
• Law is a rule of moral action obliging to that which is right. --Grotius,
De Jure Belli ac Pacis (1625), p.1
• Law is the sum of the compulsory rules in force in a state. --von
Jhering, Law as a Means to an End (1914), pp.239-40.
• This doing of something about disputes, this doing of it reasonably, is
the business of law. And the people who have the doing in charge,
whether they be judges or sheriffs or clerks pr jailers or lawyers, are
officials of the law. What these officials do about disputes is, to my
mind, the law itself. --Llewellyn, The Bramble Bush (1930), p.3
Continued
• [T]he state is an organ of class dominance--an organ whereby one
class crushes another * * *. Law is a system of norms established by
the state to safeguard the existing order of social organization. It is
the activity reflected will of the dominant class, sanctifying and
perpetuating the economic and political interests of that class. --
Yudin, in Soviet Legal Philosophy (Babb trans. 1951), p.284.
Definition of Law
• John Austin defined law as being a command of sovereign (issued
from a superior ‘the state’ to an inferior ‘the individual’) and enforced
by sanctions.
• John Salmond defined law as being ‘the body of principles recognized
and applied by the state in the administration of justice’.
• Law has been defined as “the body of rules, whether formally enacted
or customary, which a particular state or community recognises as
governing the action of its subjects or its members and which it may
enforce by imposing sanctions” Oxford Dictionary.
The Function of law in Society
• Law and public order, e.g the protection of civil liberties and human
rights, the freedom of speech as enshrined in the Human Rights Act
1998.
• Law and political order, underpinning the constitutional function of
the law.
• UK has no written constitution, law regulates the way in which
political system operates
• Creation of Supreme Court and reformation of House of Lords, fixed
term parliament and referendum on voting reform
Continued
• British membership of the EU, set limits to legislative power, the
sovereignty of British parliament, as recognized in the European
Communities Act 1972
• The Scotland Act 1998 and the Wales Act 1998, devolution of powers
from Government in London to the Scottish parliament and Welsh
Assembly
• Freedom of Information Act 2000, determines extent to which
government can operate openly or in secret
Law and Social order
• The present social order and the law that supports that social order have the effect of
protecting the rights of those with property and economic power to enter and enforce
contractual arrangements
• Law and promotion of dynamic social order, ensuring society is not locked in historic
structures that sustain inequality but based on principles of equality and prevention of
social exclusion
• How to attack inequality is subject of fierce debate, equality of opportunity vs removal of
differences between people
• Modern rules promote equality of opportunity
• Eg. The Equality Act 2010, replaces anti discrimination laws with a single Act making it
more simple
• Protected characteristics include age, disability, gender, marriage and civil partnership,
pregnancy and maternity, race, religion or belief, sex, sexual orientation.
Continued
• Since 19th century , and development of welfare state, equality
promoted by the taxing the better off more than the poor and law
plays a key role in this
• Equality not yet fully realized
• As law protects private property, some see it as having a political
function, supporting the existing social order instead of promoting a
new one
• Extent to which law and legal systems promote social justice is
limited, as it is more a political function, but it may support steps to
achieve it, just not in isolation of other non legal factors
Law and economic order
• Law defines ownership rights in property and lays procedures of transfer of
those rights
• Market economies bad at delivering desirable social outcomes, without
legislation those working in factories may operate without regard for health
and safety measures as was in the 19th century
• Monopoly power and legal mechanisms used to promote competition and
stave off monopolistic positions
• Housing law regulates relationship with tenant and landlord
• Employment law regulates relations between employer and employee
• Law legitimates tools essential for the operation of commercial context and
limited the excess of unregulated market capitalism
Continued
• Law and international order, eg dealing against crimes against
humanity in international criminal tribunals, regulation of world trade,
regulation of the use of sea and space
• Regulation of human relationships such as marriage, treatment of
children etc
• Defining limits of acceptable behavior, prohibition of violent crime
and use of drugs
• Not all undesirable behavior is criminalized however when
consequences of such behavior impinge on rights of others, the law
steps in, eg dangerous driving
Continued
• What is criminal in one country is not necessarily criminal in another,
as they are often culturally determined, set by demands of specific
society
• Boundaries of criminal law are dynamic as activity which was
historically regarded as criminal may not be so forever, alcohol
prohibition in the US in the 1920s is an example
• Defining consequences of certain forms of behavior
• Creating regulatory frameworks, such as activities of lawyers, doctors,
architects etc
• Regulation of prices, protection of environment
Continued
• Giving authority to state agents to take actions against citizens, police
and doctors in mental facilities, social workers and removal of children,
taking money from public through taxation
• Preventing abuse of power by officials, eg Police and Criminal evidence
Act 1984
• Giving power to officials to assist the public, eg Appropriation Acts,
giving authority for the expenditure of public money, on programs run by
government, eg social security
• Prescribing procedures for the use of law, procedural law controls the
way in which courts operate, limiting evidence that can be brought up in
cases
Conclusion
• All functions of law, depend upon the stage in the development of society
• The laws that exist and the way they are used depend on ideology and politics in
a particular country, eg social justice in the UK, these may change in the future
• Functions of law are not consistent, preservation of social order may conflict
with civil liberties, the role of law in advancing equality or social justice may be
in conflict with its role in supporting current social and economic orders
• Mechanisms outside the law, regulate and alter peoples behavior
• Social security benefits are contingent upon conditions, hence are not available
to everyone, the fact that the rhetoric of law employs a concept of justice or
liberty does not mean that it delivers social justice to those in the UK.
Law and morality
• The law of a country will usually reflect moral values accepted by the
majority of the country, but the law is unlikely to be exactly the same
as the moral code.
• Differences:
1. Morality cannot be deliberately changed, it evolves slowly;
2. Morality is voluntary with consequences, but generally carry no
official sanctions;
3. Breaches of morality are not usually subject to adjudication.
Natural Law
• “The term "natural law" is ambiguous. It refers to a type of moral
theory, as well as to a type of legal theory, but the core claims of the
two kinds of theory are logically independent. It does not refer to the
laws of nature, the laws that science aims to describe. According to
natural law moral theory, the moral standards that govern human
behavior are, in some sense, objectively derived from the nature of
human beings and the nature of the world. While being logically
independent of natural law legal theory, the two theories intersect.”
Continued
• “According to natural law legal theory, the authority of legal standards
necessarily derives, at least in part, from considerations having to do
with the moral merit of those standards. There are a number of
different kinds of natural law legal theories, differing from each other
with respect to the role that morality plays in determining the
authority of legal norms.”
• Source:https://www.iep.utm.edu/natlaw/
Legal Positivism
• “Legal positivism is a philosophy of law that emphasizes the
conventional nature of law—that it is socially constructed. According
to legal positivism, law is synonymous with positive norms, that is,
norms made by the legislator or considered as common law or case
law. Formal criteria of law’s origin, law enforcement and legal
effectiveness are all sufficient for social norms to be considered law.
Legal positivism does not base law on divine commandments, reason,
or human rights. As an historical matter, positivism arose in
opposition to classical natural law theory, according to which there
are necessary moral constraints on the content of law.”
Continued
• “Legal positivism does not imply an ethical justification for the
content of the law, nor a decision for or against the obedience to law.
Positivists do not judge laws by questions of justice or humanity, but
merely by the ways in which the laws have been created. This includes
the view that judges make new law in deciding cases not falling
clearly under a legal rule. Practicing, deciding or tolerating certain
practices of law can each be considered a way of creating law.”
• Bentham & Austin
• H.L.A Hart
• Source:https://www.iep.utm.edu/legalpos/
Law
• Sanctions are invariably imposed
for the infringement of a legal
obligation
• Law is deliberately changed by
Parliament and/or the courts
• Legal principles need to
incorporate a degree of certainty
• Source:https://www.open.edu/
openlearn/ocw/mod/
oucontent/view.php?
id=68341&section=3.2
Morality
• There is no official sanction for
immoral behaviour, although
society often creates its own
form of censorship
• Morality cannot be deliberately
changed, rather it evolves slowly
• Morality is invariably much more
flexible and variable
Law V Morality
Law and justice
• It is unlikely that law will ever produce justice in every case, although
that justice is probably the ultimate goal towards which law should
strive.
• People’s concept of what is justice may not be the same.
Divisions of law
• International law and national law.
• Public law and private law.

Public law:
1. Constitutional law
2. Administrative law
3. Criminal law
Private and Public Law
• Private law deals with relations between individuals where state is not
directly involved
• Public law relates to the inter relationship of the state and the general
population
• However, under the English legal system, the state can enter in to
private law relationships
• The growth of public law has mirrored the growth and increased
activity of the contemporary state
Continued
• Matters located within the private sphere are seen as purely a matter
for individuals to regulate, without direct interference of the state,
whose role is of provision of forum for deciding contentious issues
and mechanisms for the enforcement of such decisions.
• Contract is classic example of private law
• However extent to which this purely private legal area has been
regulated by the state, in areas such as consumer protection, should
not be underestimated.
Civil law and Criminal law
• The purpose of civil law is to settle disputes between individuals and
to provide remedies
• The role of the state in relation to civil law is to establish the general
framework and to provide the legal institutions to operate those
rights.
• Criminal law on the other hand is an aspect of public law and relates
to conduct which the state considers with disapproval which it seeks
to control or eradicate.
• Criminal cases are brought by the state in the name of the crown
(Regina V or Rv)
Continued
• In distinguishing between criminal and civil law, it must be
remembered that an event may give rise to both, as in the example of
dangerous driving.
• Crucial distinction in criminal and civil law is standard of proof
required
• Beyond reasonable doubt in criminal cases, balance of probabilities in
civil cases.
• Burden of proof on prosecutor/claimant in both criminal and civil
cases.
Continued
• There are situations where a court issues a civil order against a
person, with the attached sanction that any breach of the order will
be subject to punishment as a criminal offence.
• Ex. Protection from harassment Act 1997.
• S2A of the PfHA under which a person was guilty of criminal offence
of stalking if they perused a course of conduct in breach of the
prohibition on harassment in s1(1).
• Magistrates and Crown Courts for criminal cases, County and High
court for Civil law cases.
• Private law (also referred to as civil law)
- Contract
- Tort
- Commercial
- Company
- Family
- Other ………