WHAT IS MEANT BY LAW? Unit 1

Structure 1. Definitions of law 2. Purpose of law 3. Classification of law 4. Law and morality 5. Law and religion 6. Law and justice:Revill v Newbery (1996) 7. Exercises 8. Legal terms

What is law? ‘Law, says the judge as he looks down his nose, Speaking clearly and most severely Law is as I’ve told you before, Law is as you know I suppose, Law is but let me explain it once more, Law is The Law’ (W.H.Auden. Extract from Law is Like Love)

Lead-in 1. How would you define law?

Definitions - a system of rules that is backed by a sanction for its breach, ultimately enforceable by courts. - a formal mechanism of social control.

Definitions of law ‘The body of principles recognised and applied by the state in the administration of justice‘ (Sir John Salmond) ‘A command issued from a Sovereign power to an inferior and enforced by coercion'. (John Austin)

Definitions of the law The most common definition of the law in English legal textbooks: “(1) rules of conduct (2) imposed by a state upon its members and (3) enforced by the courts.”

The concept of law Ideas that underlie the concept of law: 1) order, in the sense of method or system; and 2) compulsion, i.e. the enforcement of obedience to the rules or laws laid down.

Law: translation equivalents zakon pravo propis pravilo pravna znanost pravna profesija

Functions of law 1) It lays down certain basic rules. Murder is wrong. So is theft. Legal rules against these and other forms of antisocial behaviour are the most obvious instances of legal regulation.

Functions of law 2) The law establishes a framework within which disputes may be resolved. Courts are the principal forum for the resolution of conflict.

Functions of law 3) It facilitates certain social and economic arrangements. It provides the rules to enable parties to enter into the contract of marriage, employment, or purchase and sale. Company law, inheritance law, property law furnish the means by which we are able to pursue the activities that constitute social life.

Functions of law 4) Another major function - the protection of property. Rules identify who owns what and this determines who has the strongest right or claim to things.

Functions of law 5) the protection of individual rights. The law of many countries includes a bill of rights as a means of protecting individuals against the violation of rights that are considered fundamental. In some cases a bill of rights is enshrined in a constitution

The purpose of law to set up authoritative mechanisms whereby social order can be established and maintained, social change managed, disputes settled, and policies and goals for the community adopted.  

Law and religion History: law closely linked to religion Today: law should not be used to support religious order Law should protect the ability of those of different religious beliefs to hold and practise their religion (European Convention of Human Rights, Article 9)

Law and morality: natural law Natural law has a long history dating back to ancient Greece. Its proponents believe that certain rights or values are inherent by virtue of human nature and can be universally understood through human reason.

Law and morality: legal positivism For legal positivists, law is a collection of valid rules, commands, or norms that may lack any moral content. Legal positivists do not deny that legal rules often coincide with moral principles, but they insist that such a connection with morality is not a necessary feature of the concept of law.

Law and morality The moral standards of a community have a profound influence on the development of law; but in complex societies, morality and law are never likely to be co-extensive.

Law and morality Major breaches of a moral code (such as murder and robbery) will also be against the law; but in other matters there may not be a consensus (e.g. abortion, euthanasia, same-sex marriage).

Differences between law and morality Morality cannot be deliberately changed; law - altered by legislation Morality: no official sanction; individual’s sense of shame or guilt; law makes certain behaviour obligatory with legal sanctions to enforce it Breaches of morality – not subject to formal adjudication; breaches of law -ruled on by a formal legal system

Hart v. Fuller debate At the heart of the debate was a decision of a post-war West-German court. In 1944, during Nazi rule, a woman denounced her husband to the Gestapo for insulting remarks he had made about Hitler's conduct of the war. The husband was tried and sentenced to death, though his sentence was converted to service as a soldier on the Russian front.

Hart v. Fuller debate After the war the wife was prosecuted for being responsible for her husband's loss of liberty. Her defence was that he had committed an offence under a Nazi statute of 1934. The court convicted her on the ground that the statute under which the husband had been punished offended the 'sound conscience and sense of justice of all decent human beings'.

Hart v. Fuller debate H.L.A. Hart, Professor of jurisprudence at Oxford, contended that the decision of the court was wrong because the Nazi law of 1934 was a formally valid law.

Hart v. Fuller debate Prof. Lon Fuller of Harvard Law School, argued that, since Nazi 'law' deviated so much from morality, it failed to qualify as law. He defended the court's decision, though both jurists expressed their preference for the enactment of retroactive legislation under which the woman could have been prosecuted.

The tale of king Rex For Fuller, law has an 'internal morality'. A legal system is the purposive human 'enterprise of subjecting human conduct to the guidance and control of general rules'.

The tale of king Rex A legal system must conform to certain procedural standards, otherwise what seems to be a legal system is simply the bare exercise of state coercion. The 'inner morality of law‘: 8 essential principles, failure to comply with any one of them suggests that 'law' does not exist in that society.

The tale of king Rex King Rex, who neglects these 8 principles: 1.He fails to make rules at all, deciding questions ad hoc. 2.He fails also to publicize the rules. 3.He enacts rules which are retroactive, difficult to understand, contradictory, and which require conduct beyond the powers of the affected party.

The tale of king Rex 4. His rules change so often that his subjects cannot adjust their actions by them. 5. There is no correspondence between the rules as announced and their actual administration.

The tale of king Rex King Rex's failures are, Fuller explains, mirrored by 8 forms of 'legal excellence' which are embodied in the 'inner morality of law'.

Eight forms of legal excellence according to Fuller 1.generality, 2.promulgation, 3.non-retroactivity, 4.clarity, 5.non-contradiction, 6.possibility of compliance, 7.constancy, 8. congruence between declared rule and official action.

Law and justice It is often said that the law provides justice, yet this is not always so. Justice - the ultimate goal towards which the law should strive; it is unlikely that law will ever produce 'justice' in every case. In some situations people's concept of justice may not be the same

Law and justice Justice can be seen as applying the rules in the same way to all people, but even this may lead to perceived injustices

Law and justice Rigid application of rules may actually produce injustice. Justice can be attained by a legal system if its rules are reasonable, general, equal, predictable, and certain. None of these objectives can be achieved in absolute terms; they are ideals.

Law and justice An impartial, independent judicial system A competent and independent legal profession Procedural justice: access to legal advice, assistance and representation; the guarantee of a fair trial

Law and the State Laws apply to a defined geographical area usually corresponding to the territorial limits of a State

What is the State? A State is a territorial division in which a community of people lives subject to a uniform system of law administered by a sovereign authority, e.g. a parliament.

Composition of the UK The United Kingdom, comprising England, Wales, Scotland, and Northern Ireland, is a state. In the UK there is not a single legal system.

The UK legal systems English law and the English legal system apply in England and Wales. Many aspects of the legal system of Scotland - markedly different: as opposed to the legal system of England and Wales, the legal system of Scotland has been considerably influenced by Roman law.

Form nouns and adjectives from the verbs where applicable (PERSON) (OBJECT) ADJECTIVE apply claim constitute contract enforce resolve violate

Match the terms with their definitions 1.breach A punishment for an act which goes against what is generally accepted behaviour 2.claim A General agreement 3. consensus B The place in which a case is being heard 4. dispute C Property which is received by someone from a person who has died 5. enforcement D Things that are owned by someone 6. forum E An assertion of a legal right 7. inheritance F Failure to obey the law 8. property G The power to force someone to comply with the law H A disagreement or argument between parties

Classification of law The legal order has a systemic character: each element of the order forms part of a greater whole. Law can be classified by: 1) the type of law (i.e. matters that the law is regulating) and 2) the source from which it comes.

Substantive and procedural law While substantive law regulates areas of human activity, procedural law sets down rules for the manner of enforcing the law in relation to that activity.

Substantive and procedural law Substantive law - the body of rules of law which regulate the rights, duties and liabilities among citizens and governments. Procedural law lays down the rules governing the manner in which a right is enforced under civil law, or a crime is prosecuted under the criminal law.

National and international law National law - the law which applies within a State: each State has its own national law and there are often considerable differences between the laws of individual states. One branch of national law is the law relating to conflict of laws, otherwise known as private international law, which determines which national law governs a case in which there is a foreign element

Public international law Public international law governs the relationships between states and other entities operating on the international plane.   It is contained in conventions and treaties devised and agreed to by states

National law Public (involves the State or government) Private (disputes between private individuals or businesses)

Public law Constitutional law Administrative law Criminal law

Constitutional law Constitutional law has been defined as the rules which regulate the structure of the main branches of government, namely the executive, the legislature, and the judiciary, and their relationship to each other, and determine their main functions. Moreover, constitutional law defines the rights of the citizens.  

Administrative law Controls how Ministers of State or other public bodies such as local councils should operate Judicial review – review by a higher court of the actions of a lower court or of an administrative body (nadzor nad zakonitošću; sudska kontrola; sudski nadzor; postupak protiv javnih tijela i službenika

Criminal law Criminal law sets out the types of behaviour which are forbidden at risk of punishment. A person who commits a crime is said to have offended against the State, and so the State has the right to prosecute them. At the end of the case, if the defendant is found guilty, the court will punish them for the offence, because they have broken the criminal law.

Private law Also: civil law Contract, tort, family law, law of succession, company law, employment law

Introduction to law: basic terms The following terms introduce you to the law and basic legal terminology: Authority, court, govern, judge, law enforcement agency, lawyers, legal action, legal system, legislation, rule, the judiciary, tribunal Below are definitions. Find the definition for each term.

1. A body that is appointed to make a judgement or enquiry_________ Authority, court, govern, judge, law enforcement agency, lawyers, legal action, legal system, legislation, rule, the judiciary, tribunal 1. A body that is appointed to make a judgement or enquiry_________ 2. a country’s body of judges________ 3. an act or acts passed by a law-making body_______ 4. behaviour recognized by a community as binding or enforceable by authority_____

5. legal proceedings_______ Authority, court, govern, judge, law enforcement agency, lawyers, legal action, legal system, legislation, rule, the judiciary, tribunal 5. legal proceedings_______ 6. an official body that has authority to try criminals, resolve disputes, or make other legal decisions_______ 7. an organization responsible for enforcing the law, especially the police_____ 8. a senior official in a court of law______

11. members of the legal profession_____ Authority, court, govern, judge, law enforcement agency, lawyers, legal action, legal system, legislation, rule, the judiciary, tribunal 9. The body or system of rules recognized by a community that are enforceable by established process _______ 10. the control resulting from following a community’s system of rules_______ 11. members of the legal profession_____ 12. to rule a society and control the behaviour of its members

Introduction to law: basic concepts Complete the following text about basic legal concepts using the following words and phrases. Use each term once: authority, court, govern, judges, law enforcement agency, lawyers, legal action, legal systems, legislation, rule, the judiciary, tribunal

authority, court, govern, judges, law enforcement agency, lawyers, legal action, legal systems, legislation, rule, the judiciary, tribunal Why do we have laws and legal systems? At one level, laws can be seen as a type of _____which is meant to ____ behaviour between people. We can find these rules in nearly all social organizations, such as families and sports clubs.

authority, court, govern, judges, law enforcement agency, lawyers, legal action, legal systems, legislation, rule, the judiciary, tribunal Law, the body of official rules and regulations, generally found in constitutions and____, is used to govern a society and to control the behaviour of its members. In modern societies, a body with ____, such as a ____ or the legislature, makes the law; and a ____, such as the police, makes sure it is observed.

authority, court, govern, judges, law enforcement agency, lawyers, legal action, legal systems, legislation, rule, the judiciary, tribunal In addition to enforcement, a body of expert____ is needed to apply the law. This is the role of ____, the body of _____ in a particular country. Of course, legal systems vary between countries, as well as the basis for bringing a case before a court or ____. One thing, however, seems to be true all over the world – starting a ____is both expensive and time-consuming.

The subject matter of the legal system Lawyers often divide the law into criminal and civil. Classify the following terms into the appropriate column. Two terms can appear in both columns: Criminal Civil

Classify the following: Compensation, contract, crime, damages, family law, intellectual property, plaintiff, police, private individual, prosecution, the accused, the defendant, theft, to bring a case, to bring an action, to fine, to charge someone with something

Read the text and decide if the terms relate to civil or criminal law or both Most civil cases are settled out of court. If the claimant sues the defendant the case is heard before a single judge who decides on fact and law in a civil court. If the judge finds the civil case proven, they enter judgment for the claimant.  They may make an order, e.g. an award of damages, against the defendant. If the judge does not find the case proven, they enter judgment for the defendant.

Read the text and decide if the terms relate to civil or criminal law or both The prosecutor prosecutes the defendant, or the accused, in a criminal court. Criminal cases are heard without a trial if the defendant pleads guilty.  If the accused pleads not guilty, the case goes to trial. In common law countries, the jury decides issues of fact and passes the verdict: guilty or not guilty. The judge rules on points of law and passes a sentence on the defendant, e.g. a fine or a term of imprisonment. If the judge and the jury find the case is not proven, they acquit the defendant.

Legal terms: general Adjudication: the act of giving a judgement or of deciding a legal problem Sudska odluka, donošenje odluke, sudski postupak adjudicate

Legal terms Appeal: the act of asking a higher court to change a decision of a lower court Žalba Submit/bring an appeal Uložiti žalbu Dismiss an appeal Odbaciti žalbu

Legal terms: general Court: a body established by law for the administration of justice by judges Tribunal: a specialist court outside the judicial system which examines special problems and makes judgements Lawyer: a wide term which refers to all professionals working in the legal profession; it does not refer to a specific job

Legal terms: general Jurist: a person who has specialised in the study and practice of law Pravni stručnjak Enforce: to make sure something is done or is obeyed Provoditi (odredbe, zakone), primijeniti Avenge: If you avenge a wrong or harmful act, you punish the person who is responsible

Legal terms: general Neglect: failure to do a duty; a lack of care towards someone or something Nebriga, nemar, zanemarivanje Infraction: breach, violation, infringement Kršenje, povreda Coercion: the use of force to make someone to do some act Prisila, prinuda

Legal terms: criminal law Criminal proceeding Kazneni postupak Criminal offence Kazneno djelo

Legal terms: criminal law Criminal charge: an official statement in a court accusing someone of having committed a crime Optužnica To answer charges: to plead guilty or not guilty To withdraw/drop charges Odbaciti optužbe To charge someone with a crime optužiti

Legal terms: criminal law Prosecute Podignuti optužnicu Plead Izjasniti se o krivnji Sentence (osuđujuća) presuda, kazna To pass sentence on someone: to give a convicted person the official legal punishment

Legal terms: civil law Dispute: disagreement between parties Spor, parnica Civil proceedings Parnični postupak Plaintiff (claimant) Tužitelj u građanskom postupku; podnositelj tužbe, oštećenik Bring an action Pokrenuti postupak

Legal terms: civil law Claim Tužbeni zahtjev u građanskom pravu Damages Novčana naknada, (novčana) odšteta Claim damages Tražiti odštetu Award damages Dosuditi odštetu

Translate: What exactly do we mean by “the law”? Law is a common word, so common that most people never stop to consider what it means. Even jurists and social scientists find it hard to define the term law.

Questions for discussion Is it necessary for a society to reach a particular level of development before law can play a useful role? What are the consequences for a country or society of not accepting the importance of the rule of law? Can law protect the economically weak?

Questions for discussion What should be the relationship between law and morality? When should things we disapprove of be made unlawful? How successful is law in shaping human behaviour?

Thank you for your attention!