To define the law it is best to understand the reason why we have laws. This is done through the study of Jurisprudence which is defined as the “study of why we have laws”1 To define “law” we turn to the dictionary2 “A rule or set of rules instituted by Act of Parliament, custom or practice, in order to punish those who offend the conventions of Society”. However, a better definition is one found in the Unit 1 Study text “The law is a body or set of rules within a State, which the State will enforce and which are designed to regulate human conduct within that state”.
Within this definition one can extract out the following three pieces of information; 1. In a very simplistic view, the law is merely a set of rules to regulate the way in which Society is expected to conduct itself. 2. Law will vary between states and countries. For example English Law differs from German Law. Thus each country will have its own set of rules in which they regulate the conduct of its own Society. 3. Lastly each State is required to enforce the law. So when someone from its own Society has broken a law the State may do something about it or allow another individual to do something about it.
In this frame the question is asked as to why a society needs that set of laws? With the realisation of the limitations of wealth, of resources, of knowledge and skills, of health, of opportunities, of strength and power within Society it can therefore be seen that no matter who we are there are others who have greater advantages and benefits. Thus leaving us all open to exploitation by others, unfortunately it is also true that some are more vulnerable to exploitation than others. In the United Kingdom we live under a democracy which means Society insists upon fundamental rights and freedoms.
For example: the freedom of speech, of movement, of religion, and of privacy. There are limitations to these freedoms in so much as that in order to exercise these freedoms it is sometimes invariably that another’s freedoms are impeached upon. So in order to exercise these rights and to ensure that in doing so other people’s rights are not infringed upon, rules “laws” are therefore needed to guarantee this. So the law is seen to be the protector of our fundamental rights and ensuring that everyone respects them; and as societies get more complex so do the laws.
The rules of law need to be distinguished from other rules. We have different rules, for example, there are rules of morality, private rules and rules of natural justice which all affect our lives. There are some rules which when breached are not legal however are unacceptable to society and therefore moral rules. Then there are laws which are not considered to be immoral by society. For example, if we look at homosexuality between consenting adults in private is not illegal, thus there is no law prohibiting this conduct. Abortion is also not illegal when it takes place within the provisions of The Abortion Act.
Where as adultery is not illegal but in society there are some which consider this conduct to be morally unacceptable. On the other hand in order to obtain a divorce it is necessary to prove that the marriage is irretrievably broken down, so in effect “adultery” is used as the means to obtain a divorce. Another legal rule is if a car is parked on double yellow lines, this is illegal and punishable by the State, there are however not many who would fine this morally offensive. Private rules are rules which enable clubs, associations and any other private beings to operate.
For example, you might wish to go to a restaurant and find they do no accept male patrons who do not wear ties and jackets. This is not a legal rule but rather a private rule enforceable by the management of the restaurant and not by the State. In distinguishing between Rules of Law and Justice we find that the two are not always synonymous. As shown by the case Lewis -v- Averay (1972). There are always two parties involved in any legal dispute, each one thinks they are right and the others wrong, however there is always one winner and the loser will almost certainly feel that Justice has not been served.
Generally speaking there are 3 types or rules of law. These types apply only to the law in England and Wales as the law in Scotland is different from that of England and Wales. Scottish law is based on Roman law, for historical reasons. Whereas, English Law is based on the common law; 1. Criminal Law – those which forbid certain types of behaviour which carry certain penalties or punishments. 2. Civil Wrongs – those which require some type of compensation to be paid by those who may cause damage or loss to others by infringing of their legal rights.
This also includes Torts and breaches of Contract. 3. Procedural laws – those which specify what must be done in which order to bring about an event which is recognised by law. For example to be legally married. Criminal Law and Civil Wrongs are known as substantive law i. e. containing or being the essential element of law4 In order for a law to be respected and upheld by the Society it needs to be a good law. So what makes a good law? 1. Firstly, the rules need to be acceptable to Society as a whole.
If Society does not like a law they are able to pressurise Parliament (who in the UK is the body which passes laws). If the public opinion is ignored it is possible that the pubic will show their displeasure when voting at the next general election. For example, at the moment there is a move to try and ban hunting, this is an issue which many country people see as a moral issue and so far has not been passed as a law. Thus the Parliament of the day could be said to be pressure on a moral issue from the strongest public opinion.
Secondly, it needs to be seen as free from corruption, so the majority of court hearing are held in public, thus anybody can go into the Courts and listen to what is going on. It is also important that the Judiciary are free from the Government’s control. In the UK they are independent of the Government and the Civil Service. It is important as they often decide issues against the Government or at times individual Ministers. 3. Thirdly, if there are disputes arising over or around the rules of law there is a need to have an independent and adequate system to resolve the disputes.
The main system we have in the UK is the Court system. There are however other types of systems, for example, there are Tribunals which is a court or forum of justice and at times arbitration is used to resolve disputes as well as mediation. 4. Fourthly, the ability to change. There are more ways than one to change, create or abolish laws. The system in England and Wales is based on precedent (i. e. case law) which is that the law can be adapted by Judges to suit changing circumstances. It would be true to say in some circumstances that the law enforces moral values.
On the other hand it is also true to say that there are circumstances in which the law does not enforce morality. There is an overlap between what the law enforces and what is moral rule, a legal rule or some other form of rule. The best example is from the Ten Commandments which is an overlap of a moral rule and a legal rule. In the Ten Commandments it states that “Thou shalt not commit adultery”, it is a primary moral rule in this country but is not a legal rule as the state will not punish anyone who does commit adultery, but can be used as a means to obtain a divorce. Then there is “Thou shalt not steal”, this is a legal rule part of the Theft Act 1968, as well as a moral rule.
References
1 As defined in Unit 1. The English Legal System, The Nature and development of English Law, Lesson 1 2 Collins Dictionary 3 As defined in Unit 1. The English Legal System, The Nature and development of English Law, Lesson 1 4 As defined in Unit 1. The English Legal System, The Nature and development of English Law, Lesson 1 5 LAW 10th Edition, David Barker & Colin Padfield
