Week 2: What is Law The Nature and Functions of Law

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Week 2 What is Law? The Nature and Functions
of Law

• Monday 30 April 2007

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• Many scholars have expounded on the true nature
  of law

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What is law?

• One constant theme in this discussion is that the
  idea of law (or the ideas of what it could or
  might be) has always been a contested one

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There are at least 2 senses to the question of
What is law?

• 1st Sense - Form
• When some people discuss the law, they are often
  referring to the form of the law
• Eg they may equate law with a set of rules/law
  (eg statutes regulations) or with one rule of
  law in particular eg Magna Carta

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Form a) Institutions

• Others may equate law with government a legal
  system
• In this sense law (a legal system) may include
• Institutions eg
• Parliament (which makes laws like statutes
  regulations)

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a) Institutions

• Courts - which make law by interpreting the laws
  made by Parl, by changing the common law (case
  law). The courts resolve disputes by referring to
  both sets of law

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a) Institutions

• Prisons (which serve as a sanction or penalty
  for those who are convicted of breaking the law)

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Form b) Personnel

• Others may equate law with specific personnel who
  carry out law roles
• Eg Police who are part of the govt bureaucracy.
  Police help administer enforce the law

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b) Personnel

• Legal Profession (solicitors, barristers) who
  represent clients. They try to persuade the
  courts or judges to accept their legal argument
  interpret the law in the favour of their client

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b) Personnel

• Judges who make law by interpreting
  Parliament-made law (statutes, regulations) and
  common law (cases)

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Form c) Legal Processes

• Again, some may equate law with legal processes
  
• Eg judicial processes adjudication or the
  judging of cases by judges

• Eg legislative processes the making of
  legislation (statutes regulations)

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Summary 1st sense of What is Law

• Refers in some way to the form of the law eg Law
  
• A set of rules (content)
• A government and/or legal system
• Institutions
• personnel
• A set of legal processes
• Legislative
• adjudicative

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2nd sense of What is law - function

• One example of a norm is all societies prohibit
  incest (but their ideas of what constitutes
  incest may differ markedly)

• This is the prescriptive or normative sense
• When we speak of law in this sense we are
  referring to standards of conduct that are
  regarded accepted as the norm

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2nd sense of What is Law

• But when we consider law in this way (as a set of
  standards of conduct), many questions arise eg

• Where do these standards come from?
• Are the value systems underpinning them,
  universally accepted or applicable?
• Are they a product of human activity or are they
  derived from other sources?

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Problems

• Problems may also arise when one person treats
  his/her understanding of law as definitive
• This person may assume that their understanding
  of the law what the law is for everyone
• This person may then deny others the right to
  call their arrangements law

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Problems

• This has been evident in clashes between
  different cultures
• When discussing law it is often assumed that it
  must have the features found in developed (mostly
  Western) legal systems
• Eg it must have a Western system or hierarchy of
  courts

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Wi Parata v Bishop of Wellington

• Another example of this can be seen in the above
  case. Here, Judge Prendergast held the Treaty of
  Waitangi to be a nullity because Maori
• lacked the capacity to cede a treaty of
  sovereignty
• lacked a civil polity (ie the institutions
  infrastructure considered essential to a
  civilised sovereign nation eg a western-style
  central government and legal system)
• English notions of law overrode Maori
  understandings practices of law
• As a result many Maori viewed the English law as
  a tool of oppression (see Karl Marx)

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A Selection of views on what is law

• Remember that each writers views are coloured by
  the environment in which he or she wrote. The
  idea were put forward as a remedy for some
  perceived existing evil

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Natural Law
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Natural Law

• All law derives from nature or natural world or a
  supreme being
• Just laws are immanent in nature ie they can be
  discovered or found by use of human reason
• Law contains desirable standards of conduct for
  man to follow

• Law exists independent outside of positive law
  (man-made law, legal system and processes)
• NL holds that man has certain inherent rights
  independent of positive law

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Natural Law

• Eg Declaration of Indep all men are created
  equal and endowed with certain inalienable
  rights
• Laws must conform to NL ie must be moral / just.
  An unjust law is no law at all

• Focused on human condition or pursuit of
  happiness
• The State responsible for bringing subjects
  happiness
• Function of law provide a code of conduct
  (temporal moral) for man to live by bring him
  happiness

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St Thomas Aquinas (NL)

• Law an ordinance of reason for the common
  good, made by him who has care of the community
  and promulgated
• The established order is supported by eternal law
• If the lawmakers are corrupt evil, if they
  make wicked laws, those laws will not be
  binding

• Function of law promote the common good in
  society

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Therefore according to NL

• Drunkenness is wrong - it injures the health
  worse, destroys ones ability to reason (man is a
  rational being)
• Theft is wrong it destroys social relations,
  man is by nature a social animal
• Martin Luther King invoked NL stating that
  man-made (positive) laws that he broke were not
  in accord with the moral law or the Law of God
  (NL) therefore, he was not bound by them

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???

• But what happens when human laws do not match up
  with natural law?
• Are human laws then inferior to natural law?
• Do we accept them as law but deny that we are
  morally bound to obey them or vice versa?

• Does it make any difference if human laws are
  corrupt or evil in comparison to natural law?

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???

• Do humans need laws or can we live together
  without them?
• Is there something in our nature that makes law a
  necessity?
• Do our laws have to be produced in a particular
  way in order to be law?

• Eg must there be some deliberate act or can laws
  just emerge over time?
• If laws are created by deliberate acts, whose
  acts count?

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The Social Contract

• Social contract theorists, such as Hobbes, Locke
  or Rousseau believed in a natural law and in
  natural rights, which were transferred from the
  individual subject to the sovereign state
• The State would then protect individuals from
  each other through its monopoly on the legitimate
  use of force
• All members of society agree to the terms of the
  contract by their choice to stay within the
  society without violating the contract
• Any violation signaled an attempt to return to a
  state of nature

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Thomas Hobbes

• Peace can only be maintained if man is controlled
  (by the use of coercive power)
• Law is the means of control
• To facilitate this, man must surrender his rights
  to a sovereign (State)
• Law what the sovereign commands

• Man lives in a state of nature with unlimited
  freedom including freedom to harm others who
  threaten him
• Man is brutish is plagued by endless war
• Society can provide man with civility, peace
  protection

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Thomas Hobbes

• Because the sovereign is now the ultimate source
  of law law need not be grounded in morality
  (Legal Positivism is born see Jeremy Bentham)
• Function of law
• to be coercive
• to control man establish a civil society
• The all-powerful sovereign is outside the law
  can never be unjust

• Since the law is made by the sovereign, it too
  can never be unjust

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Montesquieu Separation of Powers

• Locke saw the danger of concentrating power in
  the hands of the sovereign
• He argued for limits to be placed on the
  sovereigns power
• Montesquieu refined this by advocating a
  separation of powers
• Sovereign would remain lawmaker
• But individual was protected from excesses of
  sovereign

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Separation of Powers

• The 3 powers are the legislature (Parl),
  executive (Gov Gen, PM, cabinet, govt
  departments, public service, local bodies etc
• The best way to control power was to invest the 3
  powers in separate persons or institutions

• The US system of government is based upon this
  concept
• NZ observes a separation of powers but does not
  use a pure form eg Helen Clark is or has a role
• As member of the executive (as PM)
• As member of the legislature (as MP)
• judicial appointments

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John Austin

• Law A command of the sovereign backed by
  threat of sanction

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Karl Llewellyn

• Law What officials do about disputes
• Function of law resolve disputes

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Hans Kelsen

• Law A set of conditions for the legitimate use
  of force

• Function of law to regulate behaviour of man by
  prescribing the conditions under which man will
  be deprived of their rights freedoms

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Von Savigny

• Law The customs generated by the spirit of the
  people, living and working in common in all
  individuals

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Adam Ferguson

• Law A treaty to which all members of the same
  community have agreed (see Hobbes idea of the
  social contract)
• Function of law to regulate and control the
  behaviour of man

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Karl Marx

• Law An instrument of force and ideology used by
  the ruling class to maintain its dominant position

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Karl Marx

• Function of law to sustain the power of one
  class in society - the ruling class. The system
  (govt legal order) and many of the laws in it
  will be coercive in form will benefit the
  ruling class in direct indirect ways
• In a communist society, its regulations in theory
  enable the people and does not coerce therefore
  (according to Marx) it will not be counted as
  law by western systems

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Lon Fuller

• Law The enterprise of subjecting human conduct
  to the governance of rules

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Greek Sophists Plato Socrates

• Greek Sophists
• Law was a matter of expediency a device to serve
  the interests of the strong (see Marx)

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Law Form, Function, Content

• What counts as law or a legal system is
  controversial
• The debate is wide-ranging but it will include
  all or some of the following
• The form law takes
• The function it performs
• The content it can include
• The nature context of the society under
  discussion, will determine the mix of the above
  features

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NZ Legal System

• Has elements of all the views put forward
• the element of expediency consent
• The power of Parl appears absolute, such as that
  of Hobbess sovereign
• In other societies today the will or command of
  one person or group may be regarded as law
• Each society will develop a system of law which
  suits its own needs

• Some systems of law can cause problems between
  nations
• eg the denial of human rights by totalitarian
  states has been criticised by western nations
• Eg brutal penalties such as beheadings
  floggings in some religious fundamentalist states
• What is regarded as an offence in one country may
  not be regarded so in another

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Questions

• Given the range of views on this issue, how
  should we approach the question What is Law?
• Should we state there is no definitive answer?
  Should we abandon the question altogether?
• We need to remember we are looking at, what is
  law in one society

• Therefore
• The information we study will be partial (only
  one perspective)
• Any conclusions we draw will be limited
• This does not mean it is wrong but that we may
  need to consider other views of what is law to
  fully appreciate its complexity

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A simple answer to what is law

• A set of rules
• Why do we need laws?
• to regulate control human behaviour so all can
  live in a fair peaceful society
• How (specifically) does the law regulate
  control society?
• Permits certain behaviour (driving if a licence
  is obtained)

• Provides standards of care, of fairness or
  justice for a cooperative society
• Provides programmes for welfare good of society
• Prohibits certain behaviour (murder)
• Punishes lawbreakers
• Resolves disputes (courts)