ABOUT LAW? Unit 2

Overview 1. Introduction 2. Definitions of law 2. Functions of law 3. The purpose of of law 4. Law and morality 5. Law and religion 6. Law and justice 7. Law and the State 8. Summary

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? 2. Where do we encounter law in everyday life? 3. How would you interpret the saying: „We are slaves of the law so that we may be free.” (Cicero)?

Introduction Societies govern themselves by rules, written or unwritten. Without these codes of acceptable behaviour, there would be no society, no order, only chaos and anarchy. We conduct our lives according to learned or agreed rules of conduct.

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 the law (1) Rules of conduct (2) imposed by a state upon its members and (3) enforced by the courts.”

Definitions of law ‘The body of principles recognised and applied by the state in the administration of justice‘ (Sir John Salmond, 1862 -1924) ‘A command issued from a Sovereign power to an inferior and enforced by coercion'. (John Austin, 1790-1859)

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)

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.

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

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

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.

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

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.

Summary 1. law is necessary for order; 2. law is about force and coercion: defining things which must and must not be done; 3. law is about rules, where the rules are discoverable and known; 4. law should strive to achieve justice in the sense of treating different individuals impartially

Answer the following questions: 1. How can we define law? 2. What are the functions of law? 3. What is the purpose of law? 4. How can we define the state? 5. What does the UK consist of? 6. Is there a single legal system in the UK? 7. Where does English law apply? 8. How does the legal system of Scotland differ from English law?

Match the words with their definitions 1. breach a. A punishment 2. claim b. General agreement 3. consensus c. Place where a case is heard 4. dispute d. Property of a deceased person 5. enforcement e. Things owned by someone 6. forum f. Assertion of a legal right 7. inheritance g. Failure to obey the law 8. property h. Power to force someone to obey the law 9. sanction i. Disagreement between parties

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

Match the verbs with the appropriate nouns 1. Lay down a. A law 2. apply b. A rule 3. administer c. A dispute (2x) 4. resolve d. A sanction 5. Enter into e. A contract 6. settle

Match the verbs with the appropriate prepositions 1. apply a. against 2. coincide b. of 3. comply c. to 4. consist d. With (2x) 5. protect

Part Two Law and Morality 1. Should law be based on morality? 2. Do we all share the same moral standards? 3. Should a law be respected even if it deviates from morality?

Hart v. Fuller debate A famous debate between two leading legal philosophers who sought to establish on what grounds, if any, immoral laws may be regarded as ‘law’

Hart v. Fuller debate The debate concerned 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;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 - 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 (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.

Answer the following questions: 1. When did the Hart v Fuller debate take place? 2. What was the debate about? 3. What were the facts of the case? 4. What was the decision of the court? 5. What were Prof. Hart’s arguments? 6. What were Prof. Fuller’s arguments?

Discussion 1. What is your opinion about the case? 2. Would you agree with Prof. Hart or Prof. Fuller? 3. Should retroactive legislation be enacted under any circumstances?

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 neglects these 8 principles: 1.He fails to make rules at all, deciding questions ad hoc. 2.He fails 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.

Discussion 1. What can the tale of King Rex tell us about the nature of the law? 2. Which legal principles should be upheld? 3. What do you think about Fuller’s eight forms of legal excellence?

Match the terms with their definitions 1. coercion a. agreement, conformity 2. compliance b. To find guilty 3. congruence c. The use of force to make someone do sth 4. convict d. To make law 5. enact e. Conforming to a rule 6. grounds f. Putting a law into effect by public announcement 7. jurisprudence g. To bring someone to court to answer a criminal charge 8. promulgation h. An Act of Parliament 9. prosecute i. The study of law and legal theory 10. statute j. Basic reasons

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.

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

Thank you for your attention!