FUNDAMENTALS OF LAWS - LECTURE 1 - INTRODUCTION TO LAW (1).ppt

FUNDAMENTAL S OF LAWS INTRODUCTION TO LAW FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo 1  2 WEEK 1 LECTURES 1 AND 2 We shall cover the...

FUNDAMENTAL S OF LAWS INTRODUCTION TO LAW FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo 1  2 WEEK 1 LECTURES 1 AND 2 We shall cover the following topics: 1.The objectives of Legal Education; 2.The Meaning of Law; 3.The Nature of Law; and 4.Law and Social Sciences; and 5.Law and other Normative Systems FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  3 Overview  The purpose of studying the above topics is to:  Examine the concept of law;  Analyse the role law performs in society; and  Study the relationship of law with other normative systems. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  4 Learning Objectives  At the end of this lecture, students should:  Understand the meaning of law;  Be familiar with the functions law performs in society; and  Know how law differs from other normative systems in society. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  5 The objectives of legal education  The 2 main aims of education is: 1. To impart knowledge in various areas of the law; and 2. To help develop legal skills. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  6 Objectives of legal education  Legal education should be able to do all of the following:  Encourage flexibility of thought and independence of mind.;  Enhance the capacity to reason and improve the ability to communicate effectively. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  7 The Meaning of Law A general definition of law is a set of rules governing the lives and activities of people in society. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  8 Law: A Social Science and an Art  Law is a social science – concerned with the lives and activities of people in society.  Natural sciences relate to the study of matter in the world around us: e.g. Physics, Chemistry, Biology, Astronomy, etc.  By contrast, social sciences deal with patterns of human behaviour and their interactions in society: e.g. Ethics, History, Economics, Philosophy, etc. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  9 Activity 1  Make a list of social sciences.  Make a list of natural sciences.  Explain how you can differentiate between a social science subject and a physical science subject. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  10 Law: A Social Science and an Art  Natural sciences are dominated by causation (example the Law of Gravity or Newton’s Law).  However, social sciences are related with the manifestation of human will in man’s social organisation.  This expresses itself in such areas as Ethics, Law, Criminology, History, Economics, etc.  As such, legal responsibility is founded on freedom of choice (man exercises a choice in his action) – the defence of insanity in a criminal charge constitutes an exception to this general rule. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  11 Law as an Art  Law is also an art, similar to literature, music and drama, religion, history and archaeology, philosophy, and languages.  The Romans referred to law as spelling out rules that tend towards an ideal of justice and goodness.  Law is interdisciplinary in nature – it is a mixture of arts, science and social science. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  12 The Role of the Lawyer – juggling with the interdisciplinary nature and character of Law  Law is concerned with the structure and organisation of society; while guaranteeing freedom in society.  Law has links with philosophy, politics, ethics, economics and sociology.  The lawyer has to be able to turn general ideas and broad concepts into precise and workable rules.  He needs to express rules in a form of words, into persuasive argument.  He thus needs to combine the scientists respect for logic, rigour, reason and definition with the artist’s intuitive feel for words and meaning. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  13 Law as a Normative System  Law is a normative system as it prescribes conduct.  It does not express how human beings are actually behaving but dictates what they may, ought, or ought not to do.  Religion, ethics, and morality are also examples of normative systems, as they regulate human behaviour in society. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  14 Definition of Law  Law can be defined in a number of ways. The definition depends on the field of study, whether same is done by jurists or philosophers or depending on the school of thought. (Natural Law, Legal positivism, Legal realism etc)  John Austin (19th Century legal theorist): “the aggregate of rules set by men as a political supervisor, or sovereign, to men politically subject” – Law is the command of sovereign. It imposes a duty and is backed by sanction. (from the legal positivism school of thought) FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  15 Definition of Law (ctd)  In simple terms, law is an aggregate of rules originating from a sovereign to regulate the conduct of members in a society and breaches may entail penalties.  Law, in principle, is general and interpersonal as it is not applied to a specific person but to a group or the whole society. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  16 Law as a Normative System  Law is a normative system as it prescribes conduct; it does not purport to account how human beings are actually behaving but what they may, ought or ought not to do.  It is to be noted that Law is not the only normative system in society: religion, mores, ethics and morality also purport to regulate human behaviour in society.  Law is one of the institutions which are central to the social nature of man and without which he/she would be a very different creature. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  17 Law as a Normative System (ctd)  Rulesare necessary for the organisation of human co-existence; otherwise it's 'the state of nature' or ‘the law of the jungle’ FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  18 The Legal Rule  Law consists of norms of conduct set for a given community - and accepted by it as binding - by an authority equipped with the power to lay down norms of a degree of general application and to enforce them by a variety of sanctions  Authority: The Legal Rule is a Norm of Conduct emanating from a formally recognised source (règle émanant de l'Etat ou consacrée par lui)  Generality: The legal rule is not framed for an individual or an act; it is meant for all persons and acts covered by a given situation. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  19 The Legal Rule (ctd)  Binding: Therefore these rules have to be followed by those targeted. A distinction is to be made between imperative norms which cannot be derogated from and facultative norms which are binding only to the extent that the parties have not expressed the wish to be governed by other norms.  Sanctions:  Preventive: e.g. not allowing a person to get married again as his/her first marriage has not yet been dissolved (CSA)  Remedial: e.g. award of damages, exécution forcée  Punitive: e.g. fines, imprisonment FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  20 Other Normative Systems  Religion: It differs from law in relation to its mode of compliance and the consequences of non-compliance.  Law is concerned, as a rule, with conforming conduct (actions) whilst religious rules require conformity both in conduct and mental attitude (not to have bad ideas, not to pass judgment on people etc)  In religion sanction would include amongst others, consequences in the next or further world; it may mean loss of salvation – damnation, disapproval of fellow believers, expulsion from group ect.  You often have religious rules that are integrated in the legal system. There can also be tensions between legal rules and religious beliefs. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  21 Other Normative Systems  Mores (moeurs): These are the habitual practices that exist in a society.  For example the way of dressing or giving up your seat in a bus for a pregnant woman, a child or an elderly person.  People feel that they have to do what everyone is doing, or their conduct will meet with social disapproval or ridicule.  Mores can help shape the law, for instance the courteous habit of not smoking in a public transport has become a legal obligation in many countries FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  22 Other Normative Systems  Morality:  Sources: Divine Revelation and Human Conscience  Moral rules are concerned not only with the duties of men/women towards other men/women, but also of the individual towards himself/herself and towards God (or should he/she be agnostic, towards his/her Creator)  As a matter of principle Law is not concerned with the internal thoughts of the individual. There are however certain exceptions. For ex in a case of murder, the prosecution has to prove the element of intention.  Law confers rights and imposes obligations/duties whereas moral rules only confer duties. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  23 Other Normative Systems  Sanction for non-compliance: It is mostly internal, for example feeling guilty. On the other hand for non- compliance with the law, the consequence is external, for example award of damages, fines or imprisonment.  Law and Morality are inseparable, but not all Moral values are incorporated by any Legal System.  Examples of incorporation of morality into the law: murder, larceny etc  Examples of non-incorporation: help those who are in need, whoever they may be (art 205-207 CCM, obligation to provide aliments to ascendants and descendants only)  Sometimes the law even consolidates an immoral situation rather than sanction it – for example the provisions of the Code Napoléon (Articles 2261 & 2262) relating to acquisitive prescription enables someone who has continuously occupied an immovable property in bad faith (that is knowing full well that he has no title to the land) to become the owner if the occupation has lasted thirty years. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  24 Interaction between law and other normative systems  This is illustrated by the various attitudes, for example, towards the death penalty (capital punishment), how the law should treat people with a different sexual orientation (homosexuals), how the law is to react to prostitution, whether abortion should be a criminal offence or rather be provided as a health service, how to tackle drug consumption (treat drug addicts as criminals or treat drug addiction as an illness as much as alcoholism or still permit the consumption of soft drugs while criminalizing addiction to hard drugs), what should be the status of the child born out of wedlock (including that of the adulterine child), what is to be the status of the concubin/concubine compared with that of the married spouse. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  25 Functions of Law in Society  Preservation of Law & Order  Lawas an Instrument of Social Co- operation  Lawas an Instrument of Social and Economic Change FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  26 How to ensure the law performs its functions?  The maintenance of a Police Force and other Law- Enforcement agencies are required to detect and prosecute offenders for violations of the criminal law and to maintain peace and order.  A system of Courts is needed to determine whether persons prosecuted are guilty as charged  The existence of Civil Courts are needed to process claims resulting from a breach of contract or from some tort. And the availability of Alternative Dispute Resolution Methods  Prison or other Custody Centres (Rehabilitation Service) exist for the punishment and rehabilitation of criminals.  Availability of Alternative Dispute Resolution methods. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  27 Law and the Social Order  We cannot imagine a society in which there exists no law.  Law and society are inseparable.  Law is necessary given the nature of man.  Law is one of the central institutions in society. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  28 Law and the Social Order  Rules are necessary for the organisation of human co-existence.  Otherwise, there would be a ‘state of natur e’, as depicted by the English philosopher Thomas Hobbes in his work ‘The Leviathan’.  Rules lay down the conditions under which humankind may live together such as:  Rules governing family relationships;  Rules governing the conditions under which economic activities are to be organised; and  Rules defining the exclusion of acts regarded as contrary to the welfare of the family or of society itself. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  29 Characteristics of the Legal Rule “Law consists of norms of conduct set for a given community – and accepted by it as binding – by an authority equipped with the power to lay down norms of a degree of general application and to enforce them by a variety of sanctions.” FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  30 Characteristics of a Legal Rule 1) The legal rule is a norm of conduct emanating from a formally recognised source (règle émanant de l’Etat ou consacré par lui); 2) The legal rule is laid down with a degree of generality  La règle juridique est générale et abstraite.  This means that the legal rule is not framed for an individual or an act; it is meant for all persons and acts covered by a given situation.  For example, the law governing the powers and responsibilities of the President of the Republic, the Prime Minister or the Leader of the Opposition applies to any person called upon to perform those functions, and is not linked with the identity of the present holder of the office. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  31 Characteristics of a Legal Rule 3) Binding character of the legal rule Distinction between Imperative and Facultative norms.  Imperative norms (règles impératives are those from which it is not possible to derogate; they are binding irrespective of the will of the parties concerned.  Facultative norms (règles supplétives) are binding only to the extent that the parties have not expressed the wish to be governed by other norms.  For example, every marriage is governed by imperative rules (‘Régime Matrimonial Primaire’ or ‘Régime Matrimoniale de base’).  These rules are supplemented by other rules, which will constitute the ‘Régime Matrimonial proprement dit’. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  Characteristics of a Legal 32 Rule 4) Non-compliance with the legal rule is met with a sanction. This legal sanction can take various forms:  Preventive For example, under the Civil Status Act, a person whose first marriage has not been dissolved or does not fulfill the necessary conditions for a valid marriage, can have the marriage objected to.  Remedial The award of damages for a civil wrong suffered or an order issued against a public authority quashing its decision taken in excess of jurisdiction (e.g. the Municipality of Port Louis demolishes a private property without authorisation from the Court).  Punitive Imposition of a fine or a term of imprisonment for the commission of an offence under the criminal law. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  33 Law and its Relationship with Other Normative Systems FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  34 Law and Religion  Religion is more than a system of norms.  It purports to be an account of creation, of what it is and why it is there, as well as a set of rituals, practices and prescriptions.  It concerns the relationship between God and its people, what God expects of them, and what is their reward if they lead a good life.  In so far as religion purports to prescribe right living, to regulate behaviour, its overlap with law is obvious.  The difference between law and religion as normative systems relate to their mode of compliance and the consequence of non- compliance. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  35 Difference between Law and Religion  The difference between law and religion as normative systems relate to their mode of compliance and the consequences of non- compliance.  Mode of Compliance: Law is concerned, as a rule, with conforming conduct. Religious rules require conformity both in conduct and mental attitude (to do good, not to pass judgment, to be in communion with God).  Consequences of Non-Compliance: Non-compliance with religious rules entail consequences in the next or further world; it may mean damnation – it will carry consequences in this world such as disapproval of God, fellow believers and religious leaders. Non-compliance with legal rules result in preventive, remedial or punitive action. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  36 Difference between a Religious state and a Secular state  In a religious state, the relationship between the two systems is a fused one: all or almost all, the religious rules, are integrated by the legal system.  In a secular state, some religious rules are incorporated: there can be tensions between the legal rule and the religious belief of people in society (e.g. the wearing of the Islamic veil in France; or abortion in the USA). FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  37 Law and Ethics  Religion and law both depend on authority (divine or secular).  Ethics depends more upon reason.  Ethics: branch of philosophy.  Concerned theoretical study of values and conduct.  Influences what sort of life we should live; and what sort of things have ultimate value.  Distinguishes right from wrong.  Ethics is concerned with the types, sources and justifications of moral values, it is automatically related to Law. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  38 Law and Mores (‘Mores’)  Mores reflect the habitual practices existing in a society.  For example, the way of dressing or the habit of leaving the seat in the bus to an elderly person, a child, or a pregnant woman.  Mores may not appear as a normative system in that they are concerned with what is habitually done, rather than what one has or ought to or is told to do.  But this difference does not persist as people soon come to the conclusion that they ought to do what everyone is doing.  Otherwise their conduct will meet with social disapproval, ridicule, and even ostracism. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo  39 Law and Mores (‘Mores’)  Mores can help shape the law.  In a customary law society, this is the major source of new principles and the reinforcement of old ones.  Recurrent practices give rise to customary rules where binding rules are created out of belief of conforming with a system.  In a non-customary society, norms can influence the legislator.  For example, the courteous habit of not smoking in public places, has now been enshrined in the law of many countries. FUNDAMENTALS OF LAWS - BSC FINANCE AND BSC FINANCE MIN LAW - 2024-2025 - UoM - Ms K A Appadoo