FOUN1301 What is Law? Lecture Notes PDF

FOUN1301 George A. Pilgrim B.A M.Sc. 1  Law prescribes rules for conduct in a society What is Law binds members of a community together in law adherence of recognized values and standards Law reflects the...

FOUN1301 George A. Pilgrim B.A M.Sc. 1  Law prescribes rules for conduct in a society What is Law binds members of a community together in law adherence of recognized values and standards Law reflects the society and engineers the society 2 What makes Law different Enforceability of the rules in the courts. A very basic definition of law, could be: a rule which is backed by a sanction for its breach, ultimately enforceable by a court. 3 What is law “In every language there is a word for law, in the sense of rules of conduct that are considered obligatory by members of a community… laws prescribe rules of conduct in society. Law in this sense is common to all societies. There is no society that does not have rule breakers, and no society without discord. 4 What is law It is hard to imagine a society where there are no common rules. cohabitation and cooperation are not possible except on the basis of some common understanding of what behaviour is acceptable and what is not. 5 What is law The rules that indicate the right and wrong ways of behaving are generally identified by the term ‘law’ or a word of equivalent meaning. There are many kinds of law, such as moral law, religious law, laws of equitee, customary law, common law, royal law, state law, and so forth Source..Suri Ratnapala, Jurisprudence (third edition), CUP 2017; p 5 6 What is law Law requires a certain minimum degree of regularity and certainty, for without this it would be impossible to assert that what was operating in a given territory amounted to a legal system. Clearly, however, no exact criterion can be applied for determining what degree of regularity or certainty is necessary to achieve this aim, and states may vary from arbitrary tyrannies, where all are subject to the momentary caprices of a tyrant, to the elaborate and orderly governed states associated with liberal democracies. 7 Caribbean It appears that we are successful legal civilizations if we judge ourselves [the Caribbean] by how admirably we have retained and maintained the English jurisprudence that we inherited or, more accurately, was thrust upon us. However, we have exhibited failure in our inability to put our own stamp, our own face, on our justice. Ultimately, law is meant to reflect society and to engineer society. Yet our law still looks very alien and foreign to many Source Rose Marie Belle Antoine, Commonwealth Caribbean Law and Legal Systems, p 5 8 What is law The region’s law and legal systems are still ‘striving’ to be West Indian. Apart from deviations from Westminster- style democracy, as evidenced by the written Constitutions, there have been experiments with socialism and democratic socialism in at least three countries: Jamaica, Guyana and Grenada. In the latter two nations, the impact of these political changes extended to their Constitutions. Source Rose Marie Belle Antoine, Commonwealth Caribbean Law and Legal Systems, p 5 9 What is law Grenada, the change was profound, even including a suspension of the Constitution under a revolutionary government, with a substantial change to the court structure which necessitated complex jurisprudential questions about State legitimacy. In addition, while the base of the law and legal systems remains the common law, the detail of that law has been changed according to the social, political and economic needs of the region, albeit not substantially enough in the eyes of many.” Source Rose Marie Belle Antoine, Commonwealth Caribbean Law and Legal Systems, p 5 10 What is Law ? Definition offered may depend on the theoretical school to which the individual offering an answer belongs. Or rather, type of definition offered may fit the scholar into one theoretical school and not another. 11 Theories of law? Positivist Natural Law 12 Links https://youtu.be/TRNA_nFnnVA. Positivists https://youtu.be/kqtsExnYeFI. Natural law 13 Legal positivism Legal positivism promotes a morally neutral idea of the law as something we should strive towards. It is premised on the idea that there is a separation between descriptions of law and morality regarding law as it stands and how the law should be changed. It also assumes that descriptions of what is law should be separate from what law should be 14 Austin’s Command Theory of Law Austin 1790-1859 (legal positivist) "Law is the command of a sovereign backed by sanctions." Austin presented a ‘command theory’, which identified law as a set of commands (orders backed by threats) from a sovereign (that is the superior habitually obeyed by inferior but does not obey anyone else) to citizens in a legal system. 15 Legal positivist According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.) Austin notes: ‘The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exits, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.’ Source [The Province of Jurisprudence Determined, Lecture V, CUP, 1995 (originally published in 1832) p. 157] 16 Hart Hart* 1907-1992 (legal positivist): A legal system must be a system of rules. Law is a union of two distinct types of rules, primary and secondary. Rules of the first type concern actions involving physical movement or changes. Rules of the second type specify how rules of the first type are to be created, amended, abolished, interpreted, and applied. While primary rules regulate behavior, secondary rules regulate or inform other rules. 17  Natural Law Natural law is an old way of thinking about the nature of law. It is premised on the idea that law is not formally identified in courts but that there are principles of natural law. These principles are said to ‘objective moral principles which depend upon the nature of the universe and can only be discovered by reason. The rules that govern human conduct are connected to the ‘immanent truths concerning human nature’ 18 Natural law theorist Thomas Aquinas 1225-1272 “Law is an ordination of reason, by the proper authority, for the common good, and promulgated.” Q: Can you see that whether something can be regarded as law is assessed by having regard to some kind of moral value? 19 NATURAL Legal positivism – Analysis of LAW AND law is kept separate from moral evaluation. LEGAL POSITIVI Natural law - moral evaluation is considered central or necessary to SM either determining the content of legal rules, evaluating the legal status of particular rules or rule systems, or the analysis of the nature of law. 20 IS AN UNJUST LAW A LAW? Hart (positivist): courts have no alternative but to apply a properly enacted statute however evil its aims may be. A victim of such law may rebel on moral grounds but, legally speaking, he has no case; he must, at his own risk, choose between his (legal) duty to obey the law and his (moral) duty not to do or abet evil. Fuller 1902-1978 (secular naturalist): When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the streets, which no one dares challenge, in order to escape even those scant restraints imposed by the pretense of legality- when all these things have become true of a dictatorship, it is not hard for me, at least, to deny to it the name of law. 21