Part 1 (2).pdf

Part 1: The Theory of Law 1 Law Definition In Arabic, the word "law" (‫ )ﻗﺎﻧﻮن‬finds its origins in Greek, where the term "Kanon" metaphorically refers to a "straight stick." This metaphorical expression conveyed the idea of a rule ("Regula" or "la Règle" in Latin and French, respectively) symb...

Part 1: The Theory of Law 1 Law Definition In Arabic, the word "law" (‫ )ﻗﺎﻧﻮن‬finds its origins in Greek, where the term "Kanon" metaphorically refers to a "straight stick." This metaphorical expression conveyed the idea of a rule ("Regula" or "la Règle" in Latin and French, respectively) symbolized by a straight line in contrast to a curved, deviated, or broken line. This term embodies several significant meanings, including integrity ("la Rectitude"), candor ("la Franchise"), and loyalty ("la Loyauté") in human relationships. Essentially, the term "law" serves as a benchmark for assessing deviations from the prescribed societal norms – essentially, how closely individuals adhere to the path society has established for their interactions (Sarhan & Others, 2012, p. 12). In its broadest sense, law refers to the collection of rules that govern individuals’ conduct within a specific society at a given time. Moreover, the term "law" is also used to refer to the body of laws related to a particular branch of legal practice, regulating specific aspects of social life. Furthermore, "law" denotes a compilation of legal texts organized systematically, typically belonging to a particular branch of legislation. These compilations are often called "codes," such as the civil code, which governs financial transactions among individuals; the criminal code, which outlines offenses and their associated penalties; and the commercial code, which regulates business transactions among merchants. These legal collections, or "codes," are typically divided into articles, each numbered and sometimes subdivided into multiple subparagraphs (Alrafaeii, 2007, pp. 6–9) However, by considering the fundamental objective of law, which is to maintain public order and security within society through the regulation of individuals' conduct via legislatively enacted, imperative, and obligatory legal principles established by the governing authority and overseen in their implementation by the judiciary, one can propose the following definition of the term "law." Law is the binding rule regulating individuals' conduct in society. 2 Law Characteristics The definition of law, as mentioned above, reveals that legal norms govern relations among individuals in addition to relations between the state and individuals. This regulation applies to specific areas of social life, involving the control of various activities conducted by groups or individuals, and it influences people's daily behavior. A legal norm is a norm of social behavior, the observance and implementation of which the public authority guarantees from all its addressees. This obligation is embodied in the penalty prescribed by law for those who refrain from implementing that rule or violate it, and this obligation is the element that distinguishes the legal norm from other rules, such as the rules of religion and morality. Since the legal norm does not specifically address an individual, it remains general and abstract. Moreover, it maintains its validity for a lifetime, provided all its conditions are met, rendering it a permanent fixture in the legal framework. 1  Governs conducts Mandatory General Rules Rules Characteristi cs of Law Figure 1: Characteris0cs of Law 2.1 General Rules A legal norm is considered the basic core of the law, a speech formulated by the legislator in abstract terms since it does not concern a particular person or a certain group of people but must be applied to every person or act that meets its conditions. What is meant by generality and abstraction as one of the characteristics of a legal norm? The generality of the legal norm means that it is applied to all persons who are subject to its judgment and to all acts that enter into its content (Hegazy, 1972, p. 133). It demands that the legal norm be formulated so that it is devoid of special qualities and conditions that may lead to its application to a particular person by itself or to a particular act. If it addresses individuals, the rule does not mention a specific person by name, nor a specific act in particular, but by mentioning the descriptions by which the persons intended by this speech must be and the conditions that must be met in the acts to which the legal text applies (Faraj, n.d., p. 22). This means that for every person in whom these descriptions are met and every act in which these conditions are met, the legal norm applies to them (Alrafaeii, 2007, p. 20). Article 25 UAE Constitution: All persons shall be equal before the law. Article 168 (1) UAE Penal Code: Shall be sentenced to imprisonment and/or fine, whoever: (1) Flies over any area of the state territory in breach of the prohibition imposed by the competent authorities. Article 282 Civil Transaction Code: “Any harm done to another shall render the actor liable to compensation. 2 By way of exception, the principle of generality in law does not necessitate total applicability to all members of society. The legal norm may address the speech to a particular sect without the rest of the sects delineated by their descriptions rather than their inherent attributes. This is the same as the rule that regulates professions such as (e.g. traders, students, doctors, judges, employees, women, individuals with disabilities, etc.). It is not required in generality, as one might guess, that the rule should be applied to all people, but it is sufficient that it should apply to a certain category of people by its descriptions and not by itself. Article 60 Paragraph 1 UAE Commercial Transactions Code: “The trader shall write his trade name on the facade of his business premises, and he must carry out his commercial transactions under his trade name. Article 24 UAE Labor Code: “No child shall be employed on any job that is hazardous or detrimental to health… Article 30 UAE Labor Code: “A female worker shall be entitled to maternity leave with full pay for a period of forty-five days”. Article 10 UAE Law of The Rights of People with Special Needs: “Each UAE national person with special needs has the right to benefit from the health and rehabilitation services and the support services at the expense of the State, including: ……”. Moreover, the application of the law can attain greater specificity by delineating it in relation to a particular individual's role or office, as exemplified by legislative provisions governing the powers of the head of state, prime minister, or the president of the Federal Supreme Court (Al-Sarhan, 2018, p. 23). Generality is available if the text does not address a person by name. For example, the rule governing the powers of the head of state is considered a general rule, even though there can be only one head of state at a time. This rule addresses the legal status of the president of the state without referring to the president's name (Alrafaeii, 2007, p. 23). Article 54 UAE Constitution: The President of the Union shall have the following responsibilities: … Article 59 UAE Constitution: “The Prime Minister shall be responsible for…..”. Furthermore, a legal provision can be promulgated with a finite temporal scope, exemplified by emergency legislation operative to a certain territory without the rest of the territories or during times of armed conflict or warfare. Additionally, there are instances of legislative measures instituted by international governments to address the COVID-19 pandemic at the global level. This is a continuation of the rule of generality and abstraction. Article 145 UAE Constitution: “Under no circumstances may any of the provisions of this constitution be suspended, except through a declaration of martial law and within the limits prescribed by the law providing for such martial law”. Conversely, decisions such as appointing an individual to a specific job or transferring them to another position are not classified as legal norms but rather as administrative or individual decisions, as well as the decision to grant UAE citizenship to a foreigner or to expropriate land for public benefit (Sarhan et al., 2018, p. 14). Also, the adjudication of punishment of a particular person for a crime committed by him is considered a judicial ruling and not a legal norm. Also, the issued adjudication obliges a 3 certain person to pay monetary compensation to another due to the damage caused to him. All these decisions and judgments are not considered legal norms because they are addressed to specific people. Conduct Specific Conduct Position Specific Group Conduct Conduct all Specific Time Persons Gernerality of Law Figure 2: Generality of Law 2.2 Governs Individuals Conducts The legal norm governs the conduct of individuals within society by regulating interactions among them. Consequently, a legal norm is intricately tied to a social system that facilitates the application of legal principles (in essence, there can be no legal norm without a functioning society). This principle exhibits variability across different societies, over time, and in various geographical locations. As a result, many laws that were once in effect have been modified or replaced by other legislation to adapt to society's evolving needs. For the above, the law does not consider individuals’ intentions unless they manifest in concrete actions indicative of such intentions. An individual's intention that remains hidden within their thoughts, without any direct or indirect expression, falls outside the purview of the law and carries no legal consequences (Alrafaeii, 2007, p. 27). A person cannot be legally held accountable for the intent to murder unless they have taken an executive action that explicitly expresses this intent (Sarhan et al., 2018, p. 15). Consider a scenario where a salesperson is required to deliver the goods sold by the end of September 2023 but contemplates breaching this obligation before the due date. Can the buyer file a lawsuit in this situation? The buyer's right to sue the seller and compel delivery only arises after the due date if that date has passed and the seller has failed to fulfill the obligation (a real breach) instead of mere intent to breach. Article 16 UAE Penal Code: The provisions of this law shall apply to anyone who perpetrates (acts) a crime within the territory of the State…. 4 Article 17 UAE Penal Code: The provisions of this law shall apply to crimes that are perpetrated (happened). This character has two consequences: First, it demonstrates its close relationship with the other social sciences. Each of these sciences is rooted in social life and aims to organize it. Secondly, it uncovers a connection between law, time, and place. This is because social circumstances and needs shape the origin and development of law. Since these circumstances and needs vary from one society to another, each society has its unique legal framework. Following such a statement, should an individual believe that intention holds no influence in the realm of the law? The answer is in the negative. While the fundamental principle of the law typically disregards intent, there are instances where intent does play a role when accompanied by physical actions, such as in cases where premeditation enhances the penalty for a crime like murder (Alrafaeii, 2007, p. 28). To illustrate this, one can refer to the UAE Penal Code, which imposes a life sentence for simple premeditated murder, whereas premeditated murder carries the death penalty. Premeditation involves both the intent and prior determination to commit a crime ( ‫ﺳﺑق اﻹﺻرار‬ ‫)واﻟﺗرﺻد‬. In such cases, the combination of intent with observable behavior led lawmakers to increase the punishment from life imprisonment to the death penalty. Article 332 UAE Penal Code: 1- Whoever deliberately takes a human life shall be sanctioned to term or life imprisonment. 2- The penalty shall be capital punishment in case the murder is perpetrated with premeditation or advance determination, in conjunction with or linked to another crime, committed against one of the perpetrator’s ascendants or on a public service or a person in charge of a public service during or because of the discharge of his duties or his service or if a poisonous or explosive substance is used in the crime. Article 333 UAE Penal Code: Premeditation means the intended determination prior to the perpetration of the crime on any person and minutely arranging for the necessary means to perpetrate the act. Laying in means lurking for a person in one or several places for a long or short period in order to murder a person or assault him by any act of violence. Also, the concept of "lawful defense" or "self-defense" is a prominent and well-defined example within legal principles. Lawful defense constitutes a legal rationale that justifies the use of force, ranging from non-lethal to deadly, to safeguard one's own person, protect another individual, or secure property from an imminent threat of harm or damage. Applying this legal doctrine requires the satisfaction of specific conditions, which, for brevity, we shall not delve into in detail within this context. Nevertheless, it is imperative to understand that these conditions must be met for an act of self- defense to be legally valid. Art. 288 UAE Civil Code: “Any person causes damage during the lawful defense of himself, his honor, or his property, or the defense of the person, honor or property of another, shall not be responsible for such damage….: 5 2.3 Mandatory rules Suppose the purpose of a legal norm is to regulate and control the behavior of individuals in society, ensuring that their actions align with the desired standards set by the governing body. In that case, this norm needs to be accompanied by a penalty for non-compliance (Sarhan et al., 2018, p. 16). An obligation forms the foundation of a rule that governs individual behavior, enforced through the command and compulsion of the governing authority. This obligation is established as soon as the competent authority creates and issues the legal norm. For this reason, law introduces provisions that direct people not as advice or guidance but as a matter of order and obligation. They require individuals to adhere to this order, leaving no room for the freedom to violate it. This obligation is absolute, leaving the individual with no choice between compliance and facing penalties. Individuals must adhere to and refrain from violating the legal norm in all cases. Sanction is the consequence of violating a legal norm, and its purpose is to exert pressure on individuals' will to ensure compliance with the law's orders and intentions if the goal of the law is to maintain security and stability in society, allowing individuals the freedom to choose whether or not to respect the legal norm would undermine this objective. However, it should not be assumed that individuals only respect the law out of fear of punishment. Individuals’ compliance can take explicit forms when the wording of the rule imposes specific behavior. For instance, the legal norm found in the civil code that compels a contractor to fulfill their obligations includes an explicit directive for a particular action, which is fulfilling the obligation. Alternatively, it can be a prohibition, such as a legal norm obliging a property owner not to harm their neighbor. Implicit obligations, on the other hand, are not derived from the wording of the legal norm but from its context. For example, the rule in UAE law that establishes the civil legal capacity as 21 years implies that anyone below this age is considered a minor. Individuals must consider this when dealing with minors, as their actions may not have legal validity. In the case of a special minor (an individual aged seven to under 21), enforcing their actions requires their guardian's consent. This mandate is inferred from the content of the legal norm. Characteristics of Legal Sanction The sanction accompanying a legal norm possesses three primary characteristics (Sarhan & Others, 2012, p. 20): i. It is enforced by public authority per substantive and procedural rules established by law. This means that the sanction is predetermined before violating the legal norm, ensuring that the public authority does not wait for the violation to occur before considering an appropriate penalty. ii. It is an immediate and non-deferred sanction applied when the punishable act occurs. iii. It is a material sanction rather than a moral one. It can cause harm to the individual, such as execution, restrict their freedom through imprisonment, or impact their finances through fines and compensation. As mentioned below, these characteristics distinguish the sanction within the legal norm from other sanctions found in religious, moral, or courtesy-based rules. 6 Types of Legal Norm Sanctions Sanctions for violating legal norms have evolved throughout history. In early human societies, punishment was left to individuals, leading to uncontrolled and bloody conflicts as individuals or their families and clans sought revenge. As societies developed, retribution (‫ )اﻟﻘﺻﺎص‬emerged as a form of punishment, where the criminal faced the same act they committed. For instance, a killer would be killed, and a hand-cutter would have their hand cut off. This practice was based on certain customs and traditions. Later, retribution was replaced by diyyah (‫)اﻟدﯾﺔ‬, initially as an optional alternative where the deceased's family could accept compensation instead of seeking the life of the murderer. Eventually, diyyah became mandatory. Modern sanctions have replaced these practices, with the ruling authority, typically the state, having the exclusive right to impose penalties on those who violate the law. Courts were established to ensure that individuals could seek justice within the framework of legality and that offenders would be punished per the law. Currently, legal sanctions take the form of organized material harm imposed by the judicial authority, representing the public authority in the state. These sanctions serve to restrain and deter violators. There are several types of sanctions; each is applied based on the nature of the violation and the relevant legal provisions. This section examines three categories of these sanctions: civil, criminal, and administrative. Figure 3: Types of Legal Norm Sanctions First: Criminal Sanction A criminal sanction is a penalty imposed on everyone who violates a provision of the Penal law. It has various forms, including physical harm to the human body, such as execution, financial harm to one's assets, or the restriction of personal freedom through imprisonment (Al-Sarhan, 2018, p. 20). 7 The purpose of criminal punishment is to safeguard social order and the public interest. Therefore, the public prosecution, representing society, has the responsibility of initiating a criminal case. It is important to note that, in general, the victim does not have the right to waive the criminal penalty, as it concerns society rather than solely the individual against whom the offense was committed. However, there are certain cases where reconciliation in a criminal case is permissible, allowing for resolution between the parties involved. Article 168 UAE Penal Code: Shall be sentenced to imprisonment and/or fine, whoever: ….. Second: Civil Sanction Civil sanction is imposed when a rule within private law is breached. Private law aims to protect individual interests. Some forms of civil sanctions include (Sarhan et al., 2018, p. 20). A- Invalidity: This refers to the ineffectiveness of a legal act due to a defect in its essential elements or conditions of validity. It means the agreement is invalid or legally binding for some reason. For example, contracts for the sale of real estate that need to be registered with the appropriate government agencies may be deemed invalid. Similarly, contracts that involve illegal activities or actions performed by individuals lacking legal capacity may also be considered invalid. An invalid act holds no legal value and is rendered ineffective. In these cases, the parties involved are not obligated to perform any obligation. When the agreement is declared invalid, it does not have any existence (as if it never existed in the eyes of the law). The parties are not required to perform any obligations, and any consideration or benefits exchanged may need to be returned or restored. However, the specific rules regarding contract invalidity can vary by jurisdiction and the case circumstances, so it's essential to consult with legal professionals to determine the implications of an invalid contract in a particular situation. Article 201 UAE Civil Code: If the subject matter is impossible at the time the contract is made, the contract shall be void. B- Termination: This is the act of ending a contractual relationship due to one party's failure to fulfill their obligations as stipulated in the contract. For instance, if a tenant refuses to pay rent for a certain period, the property owner may have the right to terminate the lease agreement. Similarly, an employer may terminate an employment contract if it is discovered that the employee provided false credentials during the hiring process. Art. 877 UAE Civil Transactions Code: The contractor must complete the work in accordance with the conditions of the contract. If it appears that he is carrying out what he has undertaken to do in a defective manner or in a manner in breach of the agreed conditions, the employer may require that the contract be terminated immediately C- Specific Performance: This involves compelling a debtor to fulfill their contractual obligations if it is feasible and does not violate their personal rights. For example, a buyer may be forced to pay the 8 agreed-upon price or a tenant may be compelled to pay rent. If a debtor refuses to fulfill their obligations as required by law voluntarily, the competent courts can enforce specific performance through the state's authority. Article 380 Para. 1 UAE Civil Transactions Code: An obligor shall, after being given notice, be compelled to perform his obligation by way of specific performance, if that is possible. D- Compensation: This refers to the payment of money by the party who violated the legal norm to compensate those who have suffered damages due to the violation. Compensation is typically monetary and aims to address the harm caused to the injured party due to the breach of contractual obligations or harmful acts. Article 380 Para. 2 UAE Civil Transactions Code: if specific performance would be oppressive (hard) for the obligor, the judge may, upon the application of the obligor, restrict the right of the obligee to a monetary substitute unless that would cause him serious loss. Third: Administrative Sanction Administrative sanctions are imposed on state employees and workers who violate employment regulations. Its purpose is to ensure the proper functioning of public utilities within the state and the satisfactory performance of duties by employees in general. For instance, a lawyer or doctor who breaches professional confidentiality may face disciplinary action from their respective unions and potential criminal and civil penalties. Disciplinary measures can range from removing from union membership to losing certain benefits. Similarly, a student who violates exam rules and etiquette may be subject to disciplinary sanctions from their educational institution, such as dismissal or denial of exam participation. An administrative sanction can be imposed alongside other civil or criminal penalties or applied independently (Abu Al-Saud, Ramadn & Mansour, 2003, p. 352; Sarhan et al., 2018, p. 21). The question raised in this context is: Should one note that multiple sanctions can be applied to the same act? It is worth noting that multiple forms of punishment can be applied to the same act. For example, if an employee or worker physically assaults his co-worker, resulting in permanent disability, three types of sanctions may be combined: i. The employer can impose an administrative penalty for breaching job duties (administrative sanction) ii. The criminal courts shall impose a criminal penalty for violating provisions of the Penal Code (criminal sanction) iii. He shall compensate the injured party for losses, such as medical expenses (civil penalty). 9 Review Questions First: True/False 1. Legal norms govern the external behavior of individuals. 2. Legal norms must be documented in writing. 3. Legal norms do not consider intentions, even when external behavior exists. 4. The law considers individuals' intentions when determining penalties in certain cases. 5. Legal norms are not limited to a specific group. 6. Society enforces the sanctions outlined in legal rules. 7. Sanctions associated with the moral characteristics of individuals, such as being considered unkind, are considered legal sanctions. 8. Legal norms can apply to an individual in their professional capacity. Second: Type of Sanction (Civil- Criminal- Administrative) 1. The landlord shall terminate the lease contract if the tenant fails to pay rent for six consecutive months. 2. An employee forfeits severance pay if they are dismissed for assaulting a coworker. 3. The sales contract becomes invalid if the parties do not agree on the sale price. 4. Anyone who publishes someone's private information without their permission may face imprisonment as a punishment. 5. The driver shall compensate the injured party for all bodily injuries from the accident. 6. The vendor shall hand over the car to the purchaser. 7. Students may lose their spot in the course if they exceed the permitted number of absences. 8. The municipality has the authority to rectify any irregularities in buildings. 9. Ministry of National Economy employees have the right to confiscate expired products. 10