SOWK2001: Law & Human Services PDF

SOWK2001: Law & Human seSWOrvices SOWK2001: LAW & HUMAN SERVICES LECTURER: Ms Sandra Latibeaudiere, MSW : an uneasy coexistenceLL Contents What is law? Who makes the law Sources, classification and types of law Limitations of the law Law & social wor...

SOWK2001: Law & Human seSWOrvices SOWK2001: LAW & HUMAN SERVICES LECTURER: Ms Sandra Latibeaudiere, MSW : an uneasy coexistenceLL Contents What is law? Who makes the law Sources, classification and types of law Limitations of the law Law & social work an uneasy co-existence WHAT IS LAW? Rules that are applied to a conflict between Law provides rules that govern many of our parties with the hope of achieving a legal activities within society: remedy (Albert, 2000) Responsibilities of parents A law is an obligatory rule of conduct Disposing of property imposed and enforced by the Sovereign Relationships between persons (State); the law is the body of principles Relationships between people and recognized and applied by the State in the business entities administration of justice. (L. Orlando Miller, The Jamaican Business Law Module) What is law? A law is a rule so important that society attaches legal consequences for its breach. The legal consequences may be a criminal prosecution, civil lawsuit, or both. (Batts, 2022) Role of LAW It is a rule of conduct or law reflects a It is a means of creating and normative order – law reflects the will maintaining social order through the of the people as expressed through resolution of arguments and conflicts their elected or appointed enforcement is through the courts and representatives and officials is therefore legitimated and public It provides the framework for our society in that it is predictable – similar legal disputes must usually be resolved in the same way – stare decisis (precedent) Law & legal systems A body of laws together create a legal system. Legal systems reflect the legal traditions, or traditions, from which the laws emerged. Categories of law Categories of law Law is a very large field, and can be classified in a number of ways:  Common law  Civil law  Statute or Statutory law  Private law and public law  Criminal law  Private & Public law  Substantive and procedural WHO MAKES THE LAW  Criminal Law Criminal Law identifies offenses against the state that can result in a fine or a loss of liberty in jail or prison These behaviours are identified as “crimes” Criminal Law punishes people Criminal Law is usually what people think of when they think about “The Law”  Civil Law Refers to a great body of law ranging from the law of contracts and property to the law of torts and wills, and the relationships between individual citizens Its purpose is to settle arguments between individuals It helps people to find remedies it doesn’t really punish people  Criminal Law v. Civil Law A very important difference between criminal law and civil law relates to court cases In a criminal case, the prosecutors (ie the State) must prove their case beyond reasonable doubt In a civil case, the parties only have to prove their case on the balance of probabilities Balance of probabilities - A duty placed upon a civil or criminal defendant to prove or disprove a disputed fact.  Civil Law & criminal law Some laws can have both criminal and civil aspects – child abuse for example can In a civil trial, the parties are the plaintiff or claimant ie the person making a claim and the defendant In a criminal trial, the parties are the prosecutor (state) and the defendant (person charged with the crime)  Common Law and Statue Law Common Law is the law and procedures created by courts (ie judges) Statute Law is legislation created by the government Private & Public Law Private Law Public Law Private Law deals with the Public Law deals with the relationships between ordinary relationships between government people in everyday transactions organisations and ordinary citizens That includes you and me, as also between different well as businesses and government organisations companies Public Law includes constitutional law, administrative law, and Private Law includes the law of criminal law contract and the law of tort Private Law Private Law deals with the relationships between ordinary people in everyday transactions That includes you and me, as well as businesses and companies Private Law includes the law of contract and the law of tort Public Law Public Law deals with the relationships between government organisations and ordinary citizens also between different government organisations Public Law includes constitutional law, administrative law, and criminal law  Substantive and procedural law Substantive law includes that body of Procedural has to do with the law which defines the right, duties, and procedures by which substantive law is obligations of the citizens and of the applied state Common law  The source of the longest vintage is the common law, received in Jamaica from England by virtue of their former colonial relationship.  Common law legal system has two main features:  Under common law, the decisions of judges are themselves rules of law (case law)  Statutory Law – Parliament (Batts, 2022)  Common law Statutory law - Parliament – law Case Law- precedent making institutions Role of case law Each decision on a case becomes a binding precedent so that another similar case would be decided in a similar manner. Judges in this way, are said not to make laws; they only declare the law. Decisions of the judges are reported in books called law reports. Judicial precedents involve lawyers searching law reports to find a decided case on similar facts. Statutory law BASED ON THE LAW-MAKING INSTITUTION (PARLIAMENT) AND HOW IT IS STRUCTURED 1. House of Parliament – statutory law- statutes or legislation 1. The Legislature-Parliament is the law-making organ of the Government Through the creation of statues Acts of Parliament Repeal or amend PARLIAMENT OF JAMAICA The Parliament of Jamaica is the legislative branch of the government of Jamaica. It is a bicameral body, composed of an appointed Senate and an elected House of Representatives. The Senate (Upper House) – the direct successor of a pre-Independence body known as the "Legislative Council" – comprises 21 senators appointed by the governor-general: thirteen on the advice of the Prime Minister and eight on the advice of the Leader of the Opposition. PARLIAMENT OF JAMAICA The house of representatives consists of 63 (previously 60) Members of Parliament, elected to five-year terms on a first-past-the-post basis in single-seat constituencies. The Prime Minister, the Governor General, and the House of Representatives form the Cabinet. 2. The Judiciary – headed by the Chief Justice Hon Mr. Justice Bryan Sykes, OJ, CD Decision making by Interpret and apply the precedent – decision law (ie deciding matters which guide subsequent where the law or its decisions once they are application is in doubt or similar or identical (case dispute law) 3. Executive Chief of state is England (Queen more recently the King) with the Governor General representing the Monarch Executive branch of Government – elected members of parliament and appointed members of the senate who form the Cabinet, headed by the Prime Minister Charged with the function (and power) to formulate and execute policy. In other words, the cabinet exercises executive control over the Administration 3. Executive The Executive arm of the state also controls security and the public service and include among other offices, the Offices of the Attorney General, and Director of Public Prosecutions. Sources of law in Jamaica FIVE Sources of Law in Jamaica The Constitution Legislation Case law/Common Law/Judicial Decisions/Delegated Regulations Custom International Law NB custom and international law are the least popular sources. Custom is declining, International law is developing as a source of domestic law.  The supreme law of the land. Sets out the fundamental rights and freedoms of Jamaicans. Came into effect in 1962 when Jamaica gained independence The Provides the framework for all levels of the legal system – all other laws must be in accordance with it Constitution Dictates how laws are created, the structure and operation of the legal system, the authority of officers, duties and obligations of officers, the procedure for access to the court process. Established the three arms of the state: The Executive, The Legislative and the Judicial. The constitution – Separation of powers The political system of governance in Jamaica is guided by the doctrine of separation of powers, this system purports to prevent abuse of power by any one arm of the Government. According to the doctrine of separation of power, the three branches of the state, the Executive, the Legislature and the Judiciary, must be separated and perform their functions individually without exerting any power or influence over the other Legislation -2nd tier Each piece of legislation is an Act of Parliament Established through a majority vote of the Senate and the House of Representative They are recorded in statute books which anyone can refer to Case law or common law Law created by the decisions of Judges when they interpret and administer legislation or adjudicate upon matters that come before the court. The common law system relies upon the doctrine of stare decisis (Latin for “the decision stand”). Under this doctrine Courts are obligated to follow the decisions of previously decided cases, or precedents, where the issues and circumstances are similar, therefore a court’s decision is binding authority upon the same court or lower courts. Such decisions are not binding on courts of higher jurisdiction but may be regarded as persuasive authority Case law (cont’d) Established text including law reports regarded as good sources of law, as they set forth and make known the principles of the law  Least popular of the sources. Customs are declining in Regarded as a source of law Customs because they are principles that have been accepted by the populace from time immemorial The rule of law At the core of the law of the land is the notion of the “Rule of Law” This means that society is governed by the law, and that arbitrary power is curtailed; it is also contemplated that everyone is equal before the law. The state should use its power according to agreed rules and not arbitrarily (i) that there should be no sanction without breach, meaning that nobody should be punished by the state unless they had broken the law Arguable?????? – within the context of socio- economic structures of class and status Limitations of the law It cannot prescribe an answer or procedure for every human condition. It can only provide a framework. There are no standardised courses of action to take in certain circumstances. Professional practice is always ahead of the law. Social workers (and other social service professionals) are guided by a code of ethics and the law does not provide for these* The changes in the social sphere are always ahead of those in the legal sphere. Social work practice is founded on and informed by a value base; however, this value base is uncertain and changing (Shardlow, 1998). Law & HSOs: an uneasy coexistence The histories, cultures, and rituals of law and human services are dissimilar, as are many of the roles and functions of lawyers and human service workers. Van Wormer (1992) professional attitudes of law and social work. In her comparison, law’s historical origins lie in professional combat, and it values attack, “tricks of the trade”, and winning through battle; it is concerned with clients’ civil rights; it aims to shift responsibility for client behavior to others; its knowledge base is precedent; lawyers are largely private practitioners; and it has been male-dominated, privileged and elitist (p.123).  Law & HSOs: an uneasy coexistence Contrast social work, origins of social work lie in charitable work, it emphasizes both means and outcomes, resolution through negotiation, individual responsibility, and client rehabilitation; its knowledge base is in social research; workers have been largely employees; and it is female dominated with attendant low social status.  Law & HSOs: an uneasy coexistence Social stereotypes of both lawyers and human service workers tend to be fairly or unfairly negative... Each maintains a poor image of the other. The image of the villainous and soulless lawyer is common in society (Ross, 2009). Kennedy, Richards & Leiman (2013) interviewed human service students about lawyers words such as “greedy”, “smart’, “untrustworthy”, “rich”, “well-dressed”, “amoral”, and “conceited” were constant. While human service worker title was less well known. Other commentators have pursued the question of divergence more critically in relation to values, knowledge, training, and methodologies. Applying the law to social work “Collaboration will not be realised without discussion of values, power, objectives, expertise, knowledge and structures.” (Braye & Preston-Shoot,1997) Works cited Braye, S. & Preston-Shoot, M. (1997). Practising Human Work Law. Hampshire: Macmillian Raymond Albert - Law & Social Work practice L. Orlando Miller – The Jamaican Business Law Module Dickson, D. (1995). Law in the Health and Human Services: A guide for human workers, psychologists, psychiatrists, and related professionals. New York: the Free Press. Hasenfeld, Y. (1983). Human Service Organization. Prentice- Hall Van Wormer, Katherine and Besthorn, Fred H. (2011). Human Behavior and the Social Environment: Groups, Communities and Organisations. 2nd Ed. Oxford University Press Inc. Batts, D. (2022). The law and constitution for every Jamaican. The Caribbean Law Publishing Company.