Block 1 - Units 1&2

Block 1 - Units 1&2

1. Classified by system/source

   • International Law
     • Governs the external relations of states with one another and international institutions (e.g. the United Nations). It derives from customs, practices, international agreements, treaties and conventions. It is consensual - the states agree to be bound by conventions. There is no world government or legislature which creates and enforces international law.
   • National Law
     • Applies within a country and laws are created in accordance with the constitution.
     • Civil Law system
       • Most prevalent in Europe and is based on Roman law. Law is created by state's legislature and comprises a series of legal codes on different issues. Judges role in a civil legal systems is to interpret and apply the relevant code to the situation before them.
     • Common Law system
       • Term given to all legal systems that have adopted the English Legal System. It developed as a case law centred system, focusing on legal principles created by judicial decisions.
       • Common Law
         • Originated as a system in which judge-made case law played a central part. Overtime, a body of legal principles developed from the judgements of the courts. In making a decision on how the law apples to a particular set of facts, a system of precedent is applied.
       • Statute
         • Laws created in Parliament by an Act of Parliament
       • Equity
         • Developed as a result of the limitations of the common law in the twelfth century and created its own principles and way of doing things. Based on fairness and recognises legal rights and responsibilities in areas not covered by the common law.

2. Classified by application

   • National Law
     • Can be divided into public and private law.  The former concerns the legal rights and responsibilities of the government and state institutions, while the latter is concerned with matters considered to be for private individuals to regulate.
     • Public Law
       • Constitutional
         • Sets out the powers of the main organs of government.  Also concerns the relationship between the individual and the state, and encompasses the civil liberties of individual citizens.
       • Administrative
         • Defines the relationship between the state and individuals affected by the different organs of government, including government departments, local authorities, the NHS and state-funded schools. Provides the legal authority under which these institutions operate and allows private individuals and businesses to seek redress where these institutions have failed to act or abused their powers. National courts have the power to review the legitimacy of a decision by a public institution by a system of 'judicial review'.
       • Criminal
         • Certain anti-social behaviour has been categorised as 'criminal' and is prohibited. The state is responsible for enforcing this body of law by taking action against those who infringe it.
     • Private Law
       • Contract
         • Law of contract governs the rights and obligations of those who enter into contractual agreements.
       • Tort
         • Law of tort deals with liability. The courts impose certain standards of behaviour. Any failure in the standards of care will result in liability for the losses suffered by those affected.
       • Family
         • Family law controls people's private relationships, e.g. marriage, civil law partnership, divorce etc.
       • Succession
         • Law of succession governs the disposal of property on a person's death. It specifies how people make wills and makes provision for situations where people die without having made a will.
       • Others

3. Rights and Responsibilities

   • Law defines the rights and responsibilities that people have in a society and provides the mechanisms to enforce them. But balancing these is not straightforward and can be controversial. It often leads to more questions than it answers.

4. Defining Law

   • Law is notoriously difficult to define, although many attempts have been made. It is a broad and complex concept and can mean different things in different contexts.
   • A system of rules
     • Law can be viewed as a system of rules that regulate the conduct of people in society. But what sets law apart from other non-legal social rules?
     • Envisaging law in terms of a rules-based system helps to identify law by indicating some of the qualities necessary to be a law, but it only provides limited insight into the context in which law is created and what function it serves.
     • John Austin's Command Theory
       • The Command Theory: Law is created by a formal, recognised process; Legal rules are obligatory; There is an enforcement mechanism to ensure laws are enforced. But in our complex, modern world, Austin's theory is limited and does not adequately explain the network of laws which now exist.
     • Prof. H. L. A. Hart's Primary and Secondary Rules
       • Prof. Hart divided law into primary and secondary rules, and related them to the society in which they are applied.
       • Primary Rules
         • These are sufficient for simple societies to survive and include rules which prohibit certain socially destructive behaviour and also impose civil law duties.
       • Secondary Rules
         • Necessary for more complex, developed societies and divided into three types.
         • Rules of adjudication
           • Which type of dispute is heard by which court, who is qualified to determine the dispute and the sanction to be applied.
         • Rules of change
           • the rules governing the procedure by which the primary and secondary rules can change.
         • Rules of recognition
           • indicate which rules have legal force.
   • The role of law
     • It may be that law is best understood by considering the role it plays in society.  There are different theories about its purpose.
     • For survival
       • Hart argued that law is necessary for human survival in a community, as it provides the necessary limited on individual behaviour. Ultimately, there is a greater chance of survival and success as a member of society, even if this means showing self-restraint and compromising individual desires. Hart believed that law developed from the need to provide and encourage a degree of social cohesion necessary as society develops. Law supports the division of labour and interdependence of individuals in a more advanced society.
     • To provide order
       • Max Weber argued that law's prime function was to maintain order in society. Individuals accept the binding nature of law and, in the main, adhere to it. Those who don't comply are sanctioned in some way.
     • To provide social cohesion
       • Emile Durkheim argued that law was an important device to keep society together, especially asa society becomes more developed and complex. Karl Marx however did not envisage law as a benefit to society. He conceived of society as being composed of different classes whose interests oppose each other. He believed that law was the creation of the ruling classes to promote their own interests and suppress the interests of the working classes.
   • As a mechanism for achieving order
     • Law is regarded as a formal mechanism of social control. It creates legal obligations and rights that are enforceable, adjudicates disputes and settles conflicts bn a peaceful and regulated way.
     • Political order
       • Law underpins the political order of the state. The constitution of a country sets out the system of government. It provides the way the country is to be governed and the way in which laws are to be created, and creates a justice system which applies and enforces the law.
     • Economic order
       • In developed societies law provides the regulatory framework that enables the functioning of the economy. Law sets out the principles on which businesses are created and operated. It recognises legally enforceable agreements in the form of contracts, and creates and applies specialist rules for the trading of different industrial sectors. Employment laws regulate the supply of labour, and health and safety regulations provide protection from exploitation.
     • Public order
       • This is regarded as one of the most important functions of law, as without public order, it is difficult, if not impossible, to maintain a functioning society. Most democratic societies subscribe to the [rinciple that there is a balance to be struck, and public order should not be maintained at the expense of people's freedom of expression. The legal limit on what is deemed acceptable for people to say and do in public varies in different societies and cultures and has evolved over the years.
     • Social order
       • Law is a key ingredient in the way society is organised and operates. Society comprises a complex network of institutions, customs, values and social and economic forces which determine how people interact and live tougher. Law's role in this is a controversial and complex issue. Should law protect the status quo and entrenched interests in society, or should it act as a force for social mobility? Law is in many ways an instrument of the government of the day. Government policy in areas such as education, employment, taxation, social benefits and the economy affects whether the laws which put the policy into practice are socially or economically progressive. Law has the potential to affect social order so that it is more inclusive and fair.

5. Influences shaping law

   • When considering what function law has in society, it is important to consider that law is a product of the society in which it is created and applied and has many important influences.
   • Cultural
   • Political
   • Historical
   • Social change
   • Economic
   • Moral attitudes
   • Philosophical
   • Religious

6. Morality and Justice

   • Law and morality
     • The moral values of a society set out the principles on how oepople should live their lives and what is considered right and wrong. So can law be separated from a moral code, or are the two inextricably liked?
     • The influence of morality in a very general sense is also implicit in a wide range of different laws. however, lw is influenced by a wide range of political, social, economic and cultural factors, and in practice, many laws have little or no connection with morality.
     • Historical context
       • Historically, the moral and religious values if a society have influenced the development of law. Early laws were derived form God (natural law). In principle, natural law principles should be reflected in man-made laws and if they are not, then those laws should not be recognised a laws.
       • In the nineteenth century, arguments were made for a rational man-made view of law, and utilitarianism was born. The purpose of law was to work toward the greatest good for the greatest number of people, and to minimise suffering. Under utilitarian construct, individual freedom is important; people should be free to choose their own conduct so long as they do not harm others. Or, if they do, the harm should not outweigh the harm done by the restriction of people's personal freedom.
     • Differences
       • Behaviour which is considered as immoral is often also illegal. however, legal and moral principles can be distinguished from each other
       • Sanctions
         • MORAL: There is no official sanction for immoral behaviour, although society often creates its own form of censorship. LAW: Sanctions ae invariably imposed for the infringement of a legal obligation.
       • Change
         • MORAL: Morality cannot be deliberately changed, rather it evolves slowly. LAW: Law is deliberately changed by Parliament and/or the courts
       • Permanance
         • MORAL: Morality is invariably much more flexible and variable. LAW: Legal principles need to incorporate  degree of certainty.
   • Law and Justice
     • Interconnected with concepts of law and morality is the notion of justice. Achieving justice is the ultimate goal towards which  the law should strive. When trying to understand the nature of justice, it can be helpful to divide it into substantive justice and formal justice.
     • Substantive justice
       • Concerned with the content of the law. The legal principles created by Parliament and the courts need to be regarded as 'just'. The moral and cultural values of the society in which the law is created are especially influential in determining whether the law can be regarded as just.
     • Formal justice
       • Concerned that the legal principles are applied in a way which is fair. Like case should be treated alike. It is important that judges are unbiased when hearing cases, and that the same rules of procedure are applied to everyone in the same way.