Understanding Law: Definitions, Functions, and Perspectives

1. ABOUT LAW Unit 2

2. Overview • 1. Introduction • 2. Definitionsoflaw • 2. Functionsoflaw • 3. Thepurposeofoflaw • 4. Lawandmorality • 5. Lawandreligion • 6. Lawandjustice • 7. Lawandthe State • 8. Summary

3. What is law? ‘Law, saysthejudge as he looksdown his nose, Speakingclearlyand most severely Law is as I’ve toldyoubefore, Law is as youknow I suppose, Law is but let me explain it once more, Law is TheLaw’ (W.H.Auden. ExtractfromLaw is Like Love)

4. Lead-in • 1. How would you define law? • 2. Where do weencounterlawineverydaylife? • 3. How wouldyou interpret thesaying: „We are slavesofthelawsothatwemaybe free.” (Cicero)?

5. Introduction • Societiesgovernthemselvesbyrules, writtenorunwritten. • Withoutthesecodesofacceptablebehaviour, therewouldbe no society, no order, onlychaosandanarchy. • Weconductourlivesaccording to learnedoragreedrulesofconduct.

6. Definitions • -a system of rules that is backed by a sanctionfor its breach, ultimately enforceable bycourts. • - a formal mechanism of social control.

7. Definitions of the law • (1) Rulesofconduct (2) imposedby a stateuponitsmembersand (3) enforcedbythecourts.”

8. Definitionsoflaw • ‘The body of principles recognised and applied by the state in the administration of justice‘ (Sir John Salmond, 1862 -1924) • ‘A command issued from a Sovereign power to an inferior and enforced bycoercion'. (John Austin, 1790-1859)

9. Theconceptoflaw • Ideasthatunderlie the concept of law: • 1) order, in the sense of method or system; and • 2) compulsion, i.e. the enforcement of obedience to the rulesor laws laid down.

10. Law: translationequivalents • zakon • pravo • propis • pravilo • pravna znanost • pravna profesija

11. Functionsoflaw • 1) It lays down certain basic rules. Murder is wrong. So is theft. Legal rules against these and other forms of antisocial behaviour are the most obvious instances of legal regulation.

12. Functionsoflaw • 2) The law establishes a framework within which disputes may be resolved. • Courts are the principal forum for the resolution of conflict.

13. Functionsoflaw • 3) Itfacilitatescertain social and economic arrangements. • It provides the rules to enable parties to enter into the contract of marriage, employment, or purchase and sale. Company law, inheritance law, property lawfurnish the means by which we are able to pursue the activities that constitute social life.

14. Functionsoflaw • 4) Another major function -the protection of property. • Rules identify who owns what and this determines who has the strongest right or claim to things.

15. Functionsoflaw • 5) the protection of individual rights. • The law of many countries includes a bill of rights as a means of protectingindividuals against the violationof rights that are considered fundamental. In some cases a bill of rights is enshrinedin aconstitution

16. Thepurposeoflaw • to set up authoritative mechanisms whereby social order can be established and maintained, social change managed, disputes settled, and policies and goals for the community adopted.

17. Law and religion • History: law closely linked to religion • Today: law should not be used to support religious order • Law should protect the ability of those of different religious beliefs to hold and practise their religion (European Convention of Human Rights, Article 9)

18. Natural law • Natural law has a long history dating back to ancient Greece. • Its proponents believe thatcertainrightsorvalues are inherentbyvirtueof human nature andcanbeuniversallyunderstoodthrough human reason.

19. Legal positivism • For legal positivists, law is a collection of valid rules, commands, or norms that may lack any moral content. • Legal positivists do not deny that legal rules often coincide with moral principles, but they insist that such a connection with morality is not a necessary feature of the concept of law.

20. Lawandmorality • The moral standards of a community havea profound influence on the development of law; but • in complex societies, morality and law are never likely to be co-extensive.

21. Lawandmorality • Major breaches of a moral code (such as murder and robbery) will also be against the law; but in other matters there may not be a consensus (e.g. abortion, euthanasia, same-sex marriage).

22. Differences between law and morality • Morality cannot be deliberately changed; law - altered by legislation • Morality: no official sanction; individual’s sense of shame or guilt; law makes certain behaviour obligatory with legal sanctions to enforce it • Breaches of morality – not subject to formal adjudication; breaches of law -ruled on by a formal legal system

23. Law and justice • It is often said that the law provides justice, yet this is not always so. • Justice - the ultimate goal towards which the law should strive; it is unlikely that law will ever produce 'justice' in every case. • In some situations people's concept of justice may not be the same

24. Lawandjustice • Justice can be seen as applying the rules in the same way to all people, but even this may lead to perceived injustices

25. Lawandjustice • Rigidapplication of rules may actually produce injustice. • Justice can be attained by a legal system if its rules arereasonable,general,equal, predictable, and certain. • None of these objectives can be achieved in absolute terms; they are ideals.

26. Lawandjustice • Animpartial, independentjudicialsystem • A competentandindependent legal profession • Proceduraljustice: access to legal advice, assistanceandrepresentation; theguaranteeof a fairtrial

27. Whatisthe State? • A State is a territorial division in which a community of people lives subject to a uniform system of law administered by a sovereign authority, e.g. a parliament.

28. Law and the State • Laws apply to a defined geographical area usually corresponding to the territorial limits of a State

29. Compositionofthe UK • The United Kingdom, comprising England, Wales, Scotland, and Northern Ireland, is a state. • In the UK there is not a single legal system.

30. The UK legalsystems • English law and the English legal system apply in England and Wales. • Many aspects of the legal system of Scotland -markedlydifferent:as opposed to the legal system of England and Wales, the legal system of Scotland has been considerably influenced by Roman law.

31. Summary • 1. lawisnecessary for order; • 2. lawisaboutforceandcoercion: definingthingswhich must and must notbedone; • 3. lawisaboutrules, wheretherules are discoverableandknown; • 4. lawshouldstrive to achievejusticeinthesenseoftreatingdifferentindividualsimpartially

32. Answerthefollowingquestions: • 1. How canwedefinelaw? • 2. What are thefunctionsoflaw? • 3. Whatisthepurposeoflaw? • 4. How canwedefinethestate? • 5. Whatdoesthe UK consistof? • 6. Isthere a single legal system inthe UK? • 7. Wheredoes English lawapply? • 8. How doesthelegal system of Scotland differfrom English law?

33. Matchthewordswiththeirdefinitions

34. Form nouns and adjectives from the verbs where applicable

35. Matchtheverbswiththeappropriatenouns

36. Matchtheverbswiththeappropriateprepositions

37. PartTwoLawandMorality • 1. Shouldlawbebased on morality? • 2. Do weallsharethe same moral standards? • 3. Should a lawberespectedevenifitdeviatesfrommorality?

38. Hart v. Fuller debate • A famous debate betweentwoleadinglegalphilosopherswhosought to establish on whatgrounds, ifany, immorallawsmayberegarded as ‘law’

39. Hart v. Fuller debate • The debate concerneda decision of a post-war West-German court. • In 1944, during Nazi rule, a woman denounced her husband to the Gestapo for insulting remarks he had made about Hitler's conduct of the war. • The husband was tried and sentenced to death;his sentence was converted to service as a soldier on the Russian front.

40. Hart v. Fuller debate • After the war the wife was prosecuted for being responsible for her husband's loss of liberty. • Her defence- that he had committed an offence under a Nazi statute of 1934. • The court convicted her on the ground that the statute under which the husband had been punished offended the 'sound conscience and sense of justice of all decent human beings'.

41. Hart v. Fuller debate • H.L.A. Hart, Professor of jurisprudence at Oxford, contended that the decision of the court was wrong because the Nazi law of 1934 was a formally valid law.

42. Hart v. Fuller debate • Prof. Lon Fuller (Harvard Law School), argued that, since Nazi 'law' deviated so much from morality, it failed to qualify as law. • He defended the court's decision, though both jurists expressed their preference for the enactment of retroactive legislation under which the woman could have been prosecuted.

43. Answerthefollowingquestions: • 1. WhendidtheHart v Fuller debate take place? • 2. Whatwasthe debate about? • 3. Whatwerethefactsofthecase? • 4. Whatwasthedecisionofthecourt? 5. Whatwere Prof. Hart’sarguments? 6. Whatwere Prof. Fuller’sarguments?

44. Discussion • 1. Whatisyouropinionaboutthecase? • 2. Wouldyouagreewith Prof. Hartor Prof. Fuller? • 3. Shouldretroactivelegislationbeenactedunderanycircumstances?

45. The tale ofkingRex • For Fuller, law has an 'internal morality'. • Alegal system is the purposive human 'enterprise of subjecting human conduct to the guidance and control of general rules'.

46. The tale ofkingRex • A legal system must conform to certain procedural standards, otherwise what seems to be a legal system is simply the bare exercise of state coercion. • The 'inner morality of law‘: 8 essential principles, failure to comply with any one of themsuggests that 'law' does not exist in that society.

47. The tale ofkingRex • King Rexneglects these 8 principles: • 1.He fails to make rules at all, deciding questions ad hoc. • 2.He fails to publicize the rules. • 3.He enacts rules which are retroactive, difficult to understand, contradictory, and whichrequire conduct beyond the powers of the affected party.

48. The tale ofkingRex • 4.His rules change so often that his subjects cannot adjust their actions by them. • 5. There is no correspondence between the rules as announced and their actual administration.

49. The tale ofkingRex • King Rex's failures are, Fuller explains, mirrored by 8 forms of 'legal excellence' which are embodied in the 'inner morality of law'.

50. Eightformsoflegalexcellenceaccording to Fuller • 1.generality, • 2.promulgation, • 3.non-retroactivity, • 4.clarity, • 5.non-contradiction, • 6.possibility of compliance, • 7.constancy, • 8. congruence between declared rule and official action.