Introduction to Law and Theories

Study Notes

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.

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.

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.

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.

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

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

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.