Introduction to Law Analysis

Most people would agree that the law governs human behaviour by rules. It forbids certain ways of behaving and prescribes others. Legal rules are also called norms. For example: Law forbids stealing, killing or exceeding speed limits and prescribes taxes or driving on the right lane. The law does not stop at setting up rules. It also secures compliance with them by threatening persons who disregard a rule with some disadvantage. This consequence is called a sanction.

For example: Due to law people may be imprisoned or have to pay fines.

The task of the state is to put the sanction into effect which means to put the offender into prison or to take the money from him. We say: the sanction is enforced by the state.

Is and Ought

Legal rules do not describe facts: they do not tell us anything about reality. Instead they specify facts and describe what should happen if they are fulfilled. It says what ought to happen in certain situations and what consequences should follow if this does not happen.

For example: A newspaper reports facts by saying: “Elfriede Blauensteiner was sentenced to jail for life for killing her husband.” What happened was that she treated him an overdosis of medicaments. The relevant legal provision (º 75 StGB û Austrian Penal Code) specifies facts and their consequences by saying: “Whoever kills another person will be sentenced to jail for life or to be imprisoned between 10 and 20 years”.

Thus if reality resembles the legally specified fact, legal consequences will follow if the event is brought to the attention of the state administration.

The legal rule has several effects: Firstly, it prohibits murder; secondly, specifying that a murder has been committed, it describes what should happen to the perpetrator.

Right and Wrong

Many people think that the law not only prescribes or forbids certain acts but also indicates what is right and what is wrong. But how do we know whether the rules set up by the law are fundamentally right? How can we be sure that they are just?

The Doctrine of Natural Law tries to answer this question by referring to meta-legal authority. According to its adherents law is correct if it conforms to the human nature (Plato), to divine revelation (Augustinus, St.Thomas Aquinas, John Duns Scotus, William Ockham) or to reason (Cicero, Grotius, Hobbes, Locke, Rousseau, Kant).

The Positivist Doctrine accepts that we have no means of deriving law from ahigher authority. It points out that the law is made up of social norms which are generally accepted and adhered to (Jellinek) or are formally enacted (Radbruch) or are regularly enforced (Austin, Holmes, Llewllyn).

For example: Abortion is still very restricted in some e.g. African countries and even individual states of the USA on basis of religious belief, whereas it is regulated very liberally e.g. in western European countries or China as its practise is accepted in society.

A lawyer’s description

Law books usually describe the law as a system of rules enforceable by public authority requiring the members of a community to meet certain standards of conduct. The law makes sure that societies remain stable as their members are able to pursue their interests and disputes are settled efficiently. To this purpose the law should conform to public morality, without, however turning all moral norms into legal rules.

2. Generality – Why study law?Law addresses itself to all members of a community or all persons living within the state. A state has power to regulate any set of facts with the exception of an exempt sphere guaranteed by Human Rights. The legislator is free to make rules for specific groups of the community

e.g. entrepreneurs and for specific fields of activity.Every member of the society is supposed to know the law. Not to know the law is no excuse for liability. In business, like in ordinary life, managers and their companies may become liable to damages or penalties if they do not conform with the legal requirements of their business. Knowing the law improves one’s understanding of the courses of action available.

3. The Legal SystemGiven generality it is necessary to arrange legal provisions in certain ways to make them operable. There are three main sets of classifications:

Public Law – Private Law

Public law governs the relations between the state and the subjects e.g. people as well as between the different state powers and authorities. Private law is concerned with the rights and duties among individuals.