Introduction to Law and Theories

Law and its Theories

• Law refers to rules with legal consequences if breached, with cultural differences leading to varying priorities worldwide.
• Two main theories of law in Western traditions:
  • Natural Law Theory: a universal moral code, linked to John Locke's natural rights, guiding what is good and evil.
  • Legal Positivism: law exists only when declared by an authority, e.g., legislature or court.

Classifications of Law

• International Law (IL):
  • A framework for governing state interactions, with sources including international conventions, customary law, and general principles.
  • Pros: promotes peace, trade, and environmental awareness; cons: power imbalances, political agendas, and non-binding resolutions.
• Private International Law: addresses cross-national issues, e.g., civil, commercial, familial, and business matters.
• Public International Law: regulates state relations, including treaties, conventions, and general principles.

Families of Law

• Civil Law:
  • Originated from Napoleon's Civil Code, with detailed rules, formalized systems, and legislation passed by politicians.
  • Characteristics: legislation-based, judges interpret and apply law according to codified principles.
• Common Law:
  • Developed in England, with a system including rules, values, principles, and institutions.
  • Characteristics: judge-made law, precedent-based, with judges influencing law creation and shaping.

Key Differences between Civil and Common Law

• Main source of law: legislation (Civil Law) vs. judicial decisions (Common Law).
• Role of judges: interpreters (Civil Law) vs. law creators (Common Law).
• Precedent: applicable in Common Law, not in Civil Law.
• Inquisitorial (Civil Law) vs. adversarial (Common Law) systems.

Branches of Law

• Public Law: regulates citizen-state relationships, e.g., criminal law.
• Private Law: regulates individual-organizational relationships, e.g., property crimes.

Civil and Criminal Law

• Civil Law: balance of probabilities, consequences = damages (fines).
• Criminal Law: presumption of innocence, proof beyond reasonable doubt, consequences = fines and/or imprisonment.

Doctrine of Precedent and Court Hierarchy

• Purpose of the Criminal Justice System (CJS):
  • Utilitarian (crime prevention, treatment, reduction) and non-utilitarian (punishment, reinforcing collective moral standards).
• Four elements to find criminal liability:
  • Legal capacity to commit an offence.
  • Actus reus (criminal act) with guilty mind and voluntary understanding.
  • Mens rea (criminal mind), i.e., reckless.
  • Absence of defence, e.g., self-defence.