Chapter 2: Law as Rules - PDF

# Chapter 2: Law as Rules ## LAW034 ### Prepared by: - Cartazi Ummi Sya waeda Bt Jaiman - Pusat Asasi UiTM Dengkil ## **Hello!** At the end of lecture, the student must be able to: - Demonstrate basic knowledge on the concept of rule, regulation - Identify issues and problem pertaining to the...

# Chapter 2: Law as Rules ## LAW034 ### Prepared by: - Cartazi Ummi Sya waeda Bt Jaiman - Pusat Asasi UiTM Dengkil ## **Hello!** At the end of lecture, the student must be able to: - Demonstrate basic knowledge on the concept of rule, regulation - Identify issues and problem pertaining to the weaknesses of social value as a form of social control in society. - Apply academic and critical thinking pertaining to why we obey legal rule, techniques of social control - Apply basic knowledge of characteristics and significance of rules ## Table of Contents - **2.1** Definition and Characteristics - **2.2** Different types of Rules - **2.3** Why we obey Rules: - **2.3.1** Truism about human nature - **2.3.2** Law as social control - **2.4** Primary and Secondary Rules by HLA - **2.5** Distinction between legal rules and social rules ## We will talk about this first ### 2.1 Definition of Rules ### Definition of Rules: - Twining and Miers in "How to do Things with rules" defined rule as: - "a general norm guiding conduct or action in a given type of situation. It is a measure or standard by which conduct is gauged". ### Did you know that... - Since rule guides us in what we may, ought or ought not to do, it is said to be prescriptive/normative. - All rules, whether legal, moral or customary are normative, laying down standards of behavior to which we ought to conform if the rules affect us. ### Lon Fuller: - "Law as a set of rules create power and duty which govern the pattern behaviour in a given society." ### Characteristics of rules ### Characteristics of rules: 1. Rules are imperative 2. Rules may be written or unwritten - Eg: Statute (written), and Custom (unwritten) 3. Some rules are commands 4. Most rules have exceptions 5. Rules are normative. They prescribe desirable or undesirable conduct, which is valid, good or lawful. 6. Rules provide justification for a decision or course of action and its source can persuade a person to obey. ## 2.2 - Different types of rules ### Different types of rules - **A. Legal Rules** - **B. Social Rules** - i. Religion Rules - ii. Ethics - iii. Moral Rules - iv. Customary Rules - v. Fashion - vi. Taboo ### A) Legal Rules - Law, official or formal rules. - Legal rules exist as part of a system with enforcement and amendment mechanisms. - The legislative body and judiciary are among the officials authorized to make, apply and amend the legal rules. - Eg. Criminal Law - Police and courts are vested with legitimate authority to enforce the law in the case of criminal law and prosecutions will be brought in the name of the State. ### B) Social Rules ### i. Religion Rules: - Religion is the original source of law. - Muslims look to the Holy Quran, Sunnah and other secondary sources for guidance on what is right and wrong. - Jews to the Torah. - Christians to the Holy Bible. ### ii. Ethics/ Rules of Etiquette: - The word "ethics" is derived from the Greek word ethos (character) and from the Latin word mores (customs). Together, they combine to define how individuals choose to interact with one another. - Defines what is good for individuals and society, and establishes the nature of conduct. i.e. very little to do with laws made by the authority - Ethical rules are a branch of morality and usually regulate the conduct of professional people such as doctors, lawyers and teachers, and their dealings with patients, clients and students. ### iii. Moral Rules: - Manner, character, proper behavior. - What is believed to be right and wrong differ from one individual to another. - Every society has expectations of what is considered appropriate, based on values (shared ideas) common practices. - Morality may be founded in religious belief and social pressures. - Kelsen: There is a social order in the form of moral order. If somebody disapproves the commanded behaviour or approves the opposite, he is said to have behaved immorally, and must himself be disapproved. ### iv. Customary Rules: - The usual and generally accepted behavior among most people and society. It is a community based characteristics passed from one generation to the next. - Customary rules were obeyed willingly as it was developed out of real acts of the people. - Hart: custom has no legal status unless recognized by a law or particular legal system. ### v. Fashion Rules: - The style considered the best during a period or at a place. - The trend of society in a certain time and area pertaining to what is the best style of dressing or hairstyling for a particular age, job, season, occasion and function. ### vi. Taboos: - Means any expression, word, object or action that is forbidden because of a religious, superstitious belief or social reason for strong disapproval. - Although not unlawful, may lead to social repercussions such as shame and rudeness. ## 2.3 Why do we need rules? ## Why do we need rules? ### 2.3.1 Truism about Human Nature: - To govern the inter-relationship of members - Hart: there exists a natural necessity for certain set of principles or a minimum form of protection for persons, property and promises. ### A. Human Vulnerability - Humans are weak and can be easily intimidated. Humans are clouded with jealousy, anger, depression, lust and - Could be easily influenced to commit violence and crime. That is why the most important law for social life are laws that prohibits and restricts the use of violence in killing or inflicting body. ### B. Approximate Equality: - Besides of being approximately equal, we accept that even the strongest must sleep, must eat and must die. - We also have to submit that men differ from each other in physical strength, agility and intellectual. An individual could be more powerful than others that he is able to dominate or subdue others, albeit for a short period of time. ### C. Limited Altruism: - We are in general selfish. - Men are not devils, neither are they angels. Human beings are selfish, self-centered, manipulative and opportunist. As human altruism is limited in range and intermittent, the tendencies to aggression are frequent enough to be fatal to social life if not controlled.. ### D. Limited Resources: - We need food, clothes and shelter and they are limited - Need some form of property rights and some rules to respect the rights such rules against trespass and theft. ### E. Limited understanding and strength of will: - Not all men could really understand the long term interest and benefits of respecting persons, property or promises. - In the absence of special organization for their detection and punishment, many would succumb to the temptation of preferring their own interest. ### 2.3.2 Law as Social Control - Social control is the way members of a society maintain order and promote predictability of behaviour. - A process by which individuals are influenced to conduct themselves in conformity to society's expectation. - Law as a form of social control declares certain types of acts as punishable. - Dias- law, morality, religion, fashion and opinion also served as modes of social control in that they prescribe in various ways how people ought to behave. ## 2.4 Primary and Secondary rules according to HLA Hart ## According to Hart: - **RULES** - **Internal Aspect** - **External Aspect** - **Internal** - A rule is a common standard of people's behavior. - i.e how you ought to behave - **External** - Refers to observations made by an outsider on how people conduct themselves in respect to a rule. - i.e. how people judge your behavior ## Primary and Secondary Rules: - **RULES** - **Primary Rules** - **Secondary Rules** ### A. Primary Rules - Rules which impose duties or obligations and regulates conduct. - "Basic" rules- they tell citizen what one can and cannot do under the law. ### B. Secondary Rules - Provide for operations or changes, and the creation or variation of duties or obligations. - Specify the ways in which the primary rules may be ascertained, introduced, eliminated or in the case of its violation. ## Hart Explanation: - **PRIMARY RULES:** - Human beings are required to do or abstain from certain actions, whether they wish or not - Impose duties - **SECONDARY RULES:** - In a sense parasitic upon or secondary to first - Provide human beings may be doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations ## 3 Drawbacks of Primary Rules: - **1)Uncertainty of rules** - **2) Static** - **3) Inefficient because of absence of authoritative arbiters** ## Secondary Rules - **RULES OF RECOGNITION** - Uncertainty of PR: - The process of identifying the law by courts or officials - **RULES OF CHANGE** - PR are static: - Facilitate legislative or judicial changes - **RULES OF ADJUDICATION** - Maintenance of PR: - Further power to punish wrongdoers or settle disputes. ## 2.5 Distinction between Legal Rules and Social Rules ### Distinction between Legal Rules and Social Rules | Legal Rules | Social Rules | |:---:|:---:| | Validity: Law making process | Hart- legal rules are made by legislation | Informal or unofficial in character. | | Enforcement: Incorporated enforcement mechanisms | Formal social control- characterized by system of specialized agencies and standard techniques. Eg. Enforcement agencies, prosecutors and lawyers | Informal social controls, an established norms of common practices. There is no specially designated person in charge of enforcement. | | Compliance : Internal or external control | External control – compliance of law in the form of actions or threats. Involve coercion or force. Exercise by state or non-state institution for instance schools, professional bodies or labour union. | Internal control – compliance to social norms not because of external pressure such as: fear of being caught or fear of punishment. The process of learning the rules of behavior and individuals develop self-control by being taught early what is appropriate, expected or desirable in specific situations. The most effective agencies that influence the socialization of the individual are the family, schools, peer group religion and mass media. | | Sanction: Incorporation of punishment | Legal sanction- penal and restitutive punishment Formal – through legal proceedings | Informal social control exercise informal sanctions. In society- social outcast, takes no legal action but social repercussion as society react towards one's social crime Informal – through non-legal means | | Dispute Settlement: Legal proceeding, physical force. | | | ## Law as a system of rules: - Hart points out 3 defects of social control through a regime of unofficial rules or social values such as customs: - 1) The rules by which the group lives will not form a system, but simply set a standard to be observed. No proper procedure nor authoritative texts when there are doubts. - 2) The rules are static. The only mode of change in the rules known to the society will be the slow progress of growth, become first habitual or usual, and then obligatory. - 3) No agency specially empowered to determine whether there is a violation of rules. ## Thank you! Do you have any questions? - Twitter - Facebook - Instagram