Nature Of Law

‘Law’ is a word that is used in many different meanings. In all these senses lies a common element of law, which is a general rule of conduct. Thus, there are laws of science, laws of morality, natural justice and laws of God, etc. However, the meaning of ‘law’ is much more narrow for a lawyer. For him the term denotes the rule or system of rules to be applied by a country or community regulating the actions of its members and imposing penalties. It includes rules recognized and followed by the courts. It can be distinguished from other types of rules as follows:

• Legal rules are mandatory: the citizen has no choice but to follow them.
• Legal rules are created by a formal and usually somewhat complex and serious process.
• Disputes concerning their applicability or their violation (breaking of laws) are subject to special procedures that may include lawsuits in courts.
• A regular mechanism exists for the enforcement of laws.

Law And Ethics

It is clear that there is a close relationship and interaction between law and morality: it is possible that if the rules of a legal system do not adequately reflect the moral values of the community, it will not survive for long. On the contrary, the law affects moral values. For example, until the Abortion Act 1967, abortion was illegal under any circumstances. Today it is legal, but some groups like Life consider it morally wrong and illegal to take the life of an unborn child. There is a dilemma over what to do with deep frozen embryos after five years in storage, and in 1996 there was a dispute over a woman who aborted one of her conceived twins when she was unable to raise both of her children. This is an extremely controversial issue and deserves deep consideration for both common people and lawyers. Although both law and morality contain many rules, the nature of legal and moral rules can still be differentiated as follows: • In morality the rule itself is important, while the penalties imposed for its violation are often haphazard.

However, in law, although the rules themselves are not always important, there is a regular and organized system of imposing penalties. • Rules of morality, contrary to the rules of law, are free from intentional change. This means that these will not be changed just for the sake of change. If society considers an act immoral, it may be that society never changes its opinion, or even if it does, it will be a slow process that develops over many years. • Unlike moral liability, legal liability can be independent of blame. This means that you can be held liable for your actions, even if they are the result of an accident, not an intentional act on your part. This is called “strict liability”. • An important purpose of the law is to provide certainty and therefore draw firm lines — Consequently, emphasis is placed on a category of cases rather than on the merits of a particular case. Ethics, on the other hand, tend to be more flexible and less explicit. It depends on personal outlook and understanding of values and morality in the society. • Some laws are moral; some may be considered immoral, while others are immoral.

Law in a state is made by the highest authority. Maybe that country has a parliamentary democracy, as it does in Britain. In the same way, the highest authority could be a dictatorship, as it was under the Nazi regime. When a law is made, it is the law itself, even if it has serious consequences for different sections of the society. Nevertheless, that is good law, however abhorrent, provided that it is made by the highest law-making body of that country.

When we say that this is “good legislation”, we mean that it has been applied correctly, following the proper procedures. We do not necessarily mean that this is a good law which is beneficial for the country and its people. Most of the laws enacted under the Nazi regime were immoral, but still technically sound laws.

Morality is accepted as the general consensus of behavior in society. Sometimes moral behavior and laws come together to become accepted rules of society. Thus, ‘should not kill’ and ‘should not steal’ are rules that are generally accepted as both moral and legal rules of society. People have different attitudes towards divorce and abortion. Not everyone has the same thinking on these issues. In this context it can be argued that these may contain elements of immorality. However, both divorce and abortion are legal – subject to certain conditions.

Some laws may be considered immoral. These laws deal with offences that are strictly statutory and were not considered to be laws until a few years ago. An example of this is double yellow lines to prevent parking on the road. The whole debate on ethics, religious beliefs and political issues will inevitably have an impact on people’s views and legislation.

Law And Justice

It is sometimes said that law exists to achieve justice between man and man, or in human society. Therefore, it is important to establish the nature of justice and understand how to distinguish it from law and morality. With regard to the meaning of the word ‘justice’, it is necessary to distinguish between ‘formal’ and ‘fundamental’ justice. As a formal requirement, justice appears to expect that the rules should apply equally in all circumstances and to all persons to whom they relate. It is easy to understand that the purpose of a system of law should be to achieve justice in this formal sense.

Fundamental justice, on the other hand, deals with the subject matter of law, and a law will be considered fundamentally just only if it conforms to the criteria that are to be used to determine justice in a particular situation. Justice, in this sense, is no more than another term for the entire moral code in force in the community concerned.

Thus, the term ‘justice’ can either be used broadly in line with the meaning of morality in general, making no significant contribution to the discussion, or it can be used more usefully in a relatively narrow formal sense. Could. In this case, it represents only a relatively limited feature of the moral code, yet it has great importance in the operation of a law and order. If you are particularly interested in the theory and philosophy of law, there are plenty of books available on this topic. These books are often found under the topic “Jurisprudence”, which has been mentioned earlier.

Need For Law

Bearing in mind that laws are not the only rules of social regulation, the question has often been raised as to whether there is even a need for legislation. In fact, many prominent law thinkers (jurists) have argued that laws are not only undesirable and unnecessary, but also a positive evil. The law, based on violence, he argues, distorts or corrupts man’s true nature. Such ideas are usually found to be based on a belief in the inner goodness of man or, at least, in his perfection by proper teaching.

Those who support this view see man as inherently peace-loving in his natural state and ready to live harmoniously with his neighbours. They say that the evils of human society and its laws corrupt and distract man from his true nature. On the contrary, many other thinkers have held that without the benefit of a social order supported by law, man’s life in its natural state would be nothing but a state of constant war.

Both approaches appear to be extreme and in fact the regularity and predictability required in an orderly society require some form of legislation. In particular, it provides members of society with the necessary guarantees against disruption of their social and economic activities. The law provides the basis for a stable society. It ensures to a large extent the possibility of existence, freedom and the creation and maintenance of the type of civilization in which equal people are treated equally in the legal process, and in which ‘natural justice’ prevails. Law lags behind public opinion. This is because legislators take time to react to public opinion. This was also true in the case of the Abortion Act 1967. By contrast, in recent surveys the majority of the country is in favour of the death penalty, but Parliament firmly refuses to reintroduce the death penalty. Every argument has pros and cons. It is essential that you are able to argue both sides of the matter.

Classification Of Law

Law can be classified in different ways, but the most important division is between public and private.

1. Public law

Public law deals with matters that affect the state as a community. Includes:

• Constitutional law: It deals with determining the principal functions of the main organs of government and regulating their interrelationships.
• Administrative law: It is defined as the set of legal principles that relate to the rights and duties arising from the impact on the individual of the actual functioning of the executive instruments of government.
• Criminal law: This is the piece of legislation that treats certain types of wrongful acts as crimes against the state and punishable by the state. These crimes should not be violative of a private right which, although they may do so, the State endeavours to redress the balance.

2. Private law

Private law deals with matters that affect the rights and duties of individuals among themselves. Includes:

• Contract law: It deals with the branch of law that determines whether a promise is legally enforceable and its legal consequences.
• Tort law: It deals with the determination of the circumstances in which one person is liable to make restitution for damage caused to another person. It is not necessary that the injury caused physical harm, the torts include negligence and nuisance and ‘injury’ may cause inconvenience or financial loss.
• Trust law: This is the part of the law that determines the transfer of property.
• Family law: It deals with marriage, co-residence and divorce, as well as the rights and duties of parents and children.

English Law And Its Characteristics

‘English law’ means the law of England. England also includes Wales for these purposes. Some of the distinguishing features of English law are:

• Antiquity and continuity: English law shows a continuous evolution from the earliest period of our national independence. 560 AD. There has been no violent or revolutionary change in its history since the Anglo-Saxon laws of King Ethelbert of Kent in 1757. However, the Anglo-Saxon account is so scant that the Norman Conquest is the best starting point!
• Uncodified: Unlike the law of continental countries, English law is not codified (organized into a set of rules and set out in an act of parliament – a statute). Some subjects of English law are codified (e.g., sale of goods, company law), but in general this law is uncodified and therefore flexible.
• Judicial character: One consequence of the uncodified nature of our law is its judicial character. This factor is particularly important and the role of the judiciary in the development of our justice system will become clearer with the progress of your study. Sometimes, this results in some decisions that are not the best decisions; this can result in an act being passed by Parliament to rectify this, thereby codifying an uncodified area of legislation.
• The impact of the process: The impact of the process on the development of our law is still clearly visible in the nature of our Basic Law today. Litigation in the royal courts was initiated by any of a limited number of writs. Thus, the sum total of the law could be found in the sum of the writs (or forms of action) authorized at any time. Where there was a writ, there was authority. On the contrary, if not a writ, then not a right! Although the forms of action were eventually abolished by the Common Law Procedure Act 1852 (and indeed they were not completely abolished until the Judicature Act 1873-75), our Basic Law still reflects them, as the four corners of the writs were found to contain the set of general legal rights.
• Feudal existence: English law still has some feudal elements. These were particularly prevalent in the field of land law, where, despite the reforms of 1925, some still exist (such as, the principle that the monarch is the ultimate lord of all the land of England).
• No reception of Roman law: Despite the use of a lot of Latin words, there has been no real reception of Roman law, although Roman influence appears in some areas of English law, such as contracts and administration and indirectly, wills and family law.
• Independence of the judiciary: Based on the Act of Settlement of 1701, this independence is reinforced by tradition, conservatism, and practice. When we talk about independence, we mean that the courts should not be unduly influenced by other branches of government or private interests. Closely associated with this is the independence of the legal profession and the private nature of legal reporting.
• English law is common law: Ultimately, English law is common law – a law throughout the country.
• Stare decisis, ratio decidendi and obiter dicta: Many Latin phrases have become part of the language of English law. These are the three most common phrases you need to remember.

‘Stare decisis’ means ‘to stand firm on the decisions taken’. This means the legal principle of determining points based on prior decisions (i.e. prior decisions) in litigation. ‘Ratio decidendi’ means the reason for the decision, i.e. the fundamental point of law considered by the judge/judges and resulting in the decision. In English law, there must always be a reason! ‘Obiter dicta’ refers to comments made by the judge/judges ‘in conversation’ which were not basic and necessary for the decision. We will consider these principles in more detail in further lessons.

Important Quiz

1. A law is a set of rules or principles that are recognized and applied by the State in the administration of justice.

2. Legal regulations are mandatory and are made either with the consent of the people – common law – or by an elaborate and serious set of procedures. There is an enforcement mechanism to deal with disputes. Contrast these with ethical rules that are generally less clear, unenforceable, and independent of blame.

3. Laws are principles or rules that must be maintained for the benefit of society. Justice is what rules are maintained from, but justice in itself cannot lead to a freer and more equitable state.

4. It is possible to pass laws that are immoral, against the public interest and against human rights, such as the Nazi regime of the Third Reich.

5. The jurisdiction of English law covers the territories of England and Wales and is based on • common law principles• case law, stare decisis and ratio decidendi• statute law (codified law).

6. Public law (and, most importantly, criminal law) is one area and private/civil law (in the sense of common law) is another. The areas of civil law are contracts, torts, families and trusts.

7. Public law is related to the state in various forms. Criminal law, administrative law (issuance of licenses), constitutional law; You can also include Acts of Parliament in it. Private law deals with contracts, torts and trusts. This is because these aspects of the law are governed by individuals and their decisions about what they want to do.

8. Civil law deals with the rights and duties of the individual and between individuals; Relates to contracts, tort laws and trusts. If these rules are violated, restitution may be sought, payable by the person causing the damage. Public law or criminal law relates to wrongdoings committed by any person/persons or in some cases by any body corporate. Criminal law is punishable by the state.

9. A tort is a civil wrongful act, where a person must be compensated for a wrongful act done to him; for example, trespass on person, goods, land; negligence; nuisance.

10. Contractual liability is where a person violates an agreement made between the parties. A tort is one where someone else’s person, property, or land has been unlawfully interfered with.

11. Criminal law is public law; it applies to every person in the country.

12. The law of trust deals with the transfer (transfer) of property.

13. Codified law is law that is written as a set of rules.

14. Family law deals with rights and duties between parents and children.

15. Stare decisis means ‘to stick to what has been decided’.

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