Girolamo Tessuto » 1.Introduction Concepts and Classification of Law

Introduction

Concepts and Classification of Law

This short introductory Chapter provides you with a practical explanation of the concepts and the main divisions of law.

What is Law?

1. rule (or body of rules = the law of a state) command, order, dictum
2. study of rules ≠ jurisprudence
3. legal profession
4. command, order, dictum
5. the police
6. common law, statute ≠ equity
7. PHRASES

Law as enforcement

• A law is an obligatory rule of conduct. The commands of him or them that have coercive power (Hobbes).
• A law is a rule of conduct imposed and enforced by the Sovereign (Austin).
• [But] the law is the body of principles recognised and applied by the State in the administration of justice (Salmond).

Osborn’s Concise Law Dictionary (2001)

• case law definition of law:

“The body of rules and guidelines within which society requires its judges to administer justice”: per Lord Scarman in Duport Steels Ltd v Sirs [1980] ICR 161

The notion of enforcement, ie to compel observance of, or compliance with a law, rule, or obligation, lies behind the notion of law.

Law > enforcement

• compel observance of / compliance with
• (law, rule, obligation)
• compulsion, coercion
• {force ~ sanction}

Law as a duty

The content of law may be seen as either obedience or disobedience of the rule, and the requirement set by it is spoken of as a duty.

• break the law: the conduct taken is legally wrong as in much English criminal law or tort law system
• a breach of duty (conduct)

legal remedies (eg, punishment and compensation) = sanction inherent in the law

THEREFORE: law includes various aspects (ie, the rules of law, the legal system and its processes) leading to a useful but brief and simple way of defining law as a method of social control which maintains public order in society.

Law > duty

obedience / disobedience of

break the law > wrong

breach of duty ~ sanction

Law as justice

The primary aim of any legal system is to deliver justice

Concept of justice: utilitarian theory + liberal theory

• formal justice (the system of justice >> courts, tribunals, police)
• substantive justice (the results produced by such system – i.e. stare decisis, overruling)

Law > justice

formal justice: tribunals / courts administrating law

substantive justice: judicial precedent, overruling etc

Law and morality

The fairness of a particular law in delivering justice in order to regulate social conduct also entails the relationship between moral codes (morality) and legal codes (law).

Morality: the body of principles or values which are held by a community, and such moral standards may have an effect on the law. It is this effect which often emphasises concerns over whether the law (legal codes) should be used to enforce moral standards through the courts, thus being concerned with how people shall behave.

Example: the law may allow conduct which some people consider to be morally wrong (abortion), or it may forbid conduct which is not viewed as morally wrong.

Law > Morality: overlapping

Law > Morality

values + principles (moral codes)

affecting legal codes

• You shall not deliberately kill

(euthanasia) = should it be allowed

when a person is terminally-ill?

Law versus right

The relationship between morality and law is a vital source to describe the concept of right, which has profound consequences for the nature and protection of freedoms in any legal system.

Right: “moral or legal entitlement to something” (New Oxford Dictionary of English, 1998)

human rights, natural rights, right to the enjoyment of private property etc.

Right: “an interest or privilege recognised and protected by law, respect for which is a duty and disregard of which is a wrong” (Salmond) (Osborn’s Concise Law Dictionary, 2001)

This definition provides food for thought as regards the content of law, and clearly implies that the idea of a wrong follows that of a breach of duty.