Introduction to the Nature of law

1.1.1 The Character of a rule

• All societies have rules for keeping order. Developed from 'norms of behaviour'; the behaviour of that society, over a long period of time, accepted as 'correct'/'normal' behaviour,
• Rule determines how we behave.
• We either submit ourselves to it voluntarily, the case with moral rules, or becuase it is enforceable in some way, the case with law.
• Rules that come through practice or custom involve disapproval from community rather than legal sanction, such rules are enforced by a feeling of self-guilt.
• Rules are generally obeyed because:

- they carry with them a sense of obligation.

- the rule is reasonable or relevant.

- a penalty may be imposed if the rule is broken.

1.1.2 Legal rules

• Law has been described as a formal mechanism of social control.
• It is a set of rules imposed and enforced by the state. There is a system of courts which apply and enforce the law.
• In criminal law there are penalties for breaking the law.
• In civil law the courts can order the party who has broken the rules to compensate the innocent party.

1.1.3 Law and Rules

• Law applies throughout a country to the people genrally.
• Also unwritten rules within communities. These come from local customs or practices or religious beliefs.
• Breaking these rules mean others in the community may disaprove of actions, but there is no legal sanction.

1.1.4 Norms of Behaviour

• Norms are values, customs and traditions which represent individuals basic knowledge of what others do and what they think they should do.
• Norms exist as collective representations of acceptable group conduct as well as individual perceptions of particular group conduct.
• The law of country will reflect the moral values accepted by the majority of the country, but the law is unlikely to be the same as the common moral relgious code.

- For example, adultery is against the moral codes for both Christians and Muslims but in most Christian countries it is not against the law however in some Muslim countries it is against the criminal law.

1.2.1 Law and morality

• The moral values of comunities lay down a frame work for how people should behave. Concepts of morality differ from culture to culture, most outlaw extreme behviour.
• The moral standards of a communtiy are recognised as having a profound influence on the development of law but morality and law are never likely to be co-extensive.
• In England and Wales there has been a move away from religious beliefs and the way the law has developed reflects this. Abortion was legalised in 1967, yet many still believe it is morally wrong.

Right to die

• Another area where the law and morality conflict.
• In medical cases, doctors and nurses should act in the patients best interest. This may conflict with the patients wishes. Where a patient is mentally capable of deciding treatment, the medical staff must act in line with those wishes.
• Case Re B (Adult: Refusal of Medical Treatment) (2002) : Woman was paralysed requested her ventilator to be switched off. Doctors refused to do this so she applied to High Court for a declaration that she had the necessary capacity to refuse treatment. Court held that she was competent to decide her medical treatment and any continued treatment would be unlawful.

Differences between law and morality

• Law and morality in the way the two develop and the sanctions imposed.
• 1. Morality cannot be deliberately changed; it evolves slowly and changes according to the will of the people. Law can be altered deliberately by legislation: this means that behaviour which was against the law can be 'decriminalised' overnight. Behaviour which was lawful can be decleared unlawful.
• 2. Morality is volutntary with consequences, but generallly carries no offcial sanction; morallly relies for its effectiveness on the individual sense of shame or guilt. Law makes certain behaviour obligatory with legal sanctions to enforce it.
• 3. Breaches of morality are not usually subject to formal adjudication; breaches of law will be ruled on by a formal legal system.

1.2.2 Law and Justice

• Justice is the ultimate goal towards which the law should strive, but it is unlikely that law will ever produce 'justice' in every case.
• First there is a problem of what is meant by 'justice'.
• In some situations people's concept of what is justice may not be the same. Justice can be seen as applying the same rules in the same way to all people, but even this may lead to percieved injustices.
• Case London & North Eastern Railway Co. v Berriman (1946): Mr Berriman a railway worker was killed whilst doing maintance work, oiling points on a railway line. Regulations said that a look-out person should eb provided for those working on the railway line 'for the purposes of relaying or repairing'. Mrs Berriman claimed compensation for her husbands death, but her claim was rejected becuase he had not been 'relaying or repairing'.
• This illustrates that not following the exact wording of the law can lead to an injustice.

1.2.3 Morality and Justice

• People's ideas of what justice is may be founded on their religious beliefs and the moral code they follow.
• There is an overlap between morality and justice.
• Many people with no religious views will still have a sense of justice. This may come from the law that operates in their country or it may come from a wide view on what is just.

1.3.1 Civil law

• Civil law is about private disputes between individuals and/or businesses. Several different types of civil law:

- law of tort

- contract law

- human rights

- family law

- empolyment law

- company law

Law of tort

• The tort of negligence, the tort of nuisnace, all fall under law of tort.
• A tort occurs where the civil law holds that, even though there is no contract between them, one person owes legal responsibility of some kind to another.
• The court can award damages - that is, a sum of money to compensate the person.
• Where the situation is continuing it is also possible for the court to award an injuction. This is an order to the defendant to do or to stop doing something.

Law of contract

• A contract is where the parties have made an agreement and each side has put something into the agreement.
• If one party to the contract has not kept their side of the bargin, then the other party can bring a claim against them.

Human rights

• Human rights are upheld in the English courts. There is also a right to take the case to the European Court of Human Rights.
• Compensation can be awarded where there is a breach of human rights. It is possible for other remedies to be given, such as an injuction to prevent the future publication of photographs.

1.3.2 Criminal law

• Criminal law sets out the types of behaviour that 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 a right to prosecute them. This is so even though there is usually an individual victim of the crime as well.
• At the end of a case where the defendant is found guilty that defendant will be sentenced.
• Any individual victim of the crime will not necessarily be given any compensation, where possible, the courts will order the offender to pay the victim compensation, as well as passing a sentence.

1.3.3 Differences between civil and criminal law - Purpose of the law

• Civil law upholds the rights of individuals and the courts can order compensation in an effort at putting the parties in the postiion they would have been in if there had not been a breach of civil law.
• Criminal law is aimed at maintaining law and order. When someone is found guilty of an offense they will be punished. There are also the aims of trying to protect society and deter crimal behaviour, and these are the justifications of sending offenders to prison.

Person starting the case

• In civil cases the person starting the case is the individual or business which has suffered as a result of the breach of civil law.
• Criminal cases are taken on behalf of the state, so there is a Crown Prosecution Service responsible for conducting most cases.
• In civil cases the person starting the case is the Claimant (person or organisation starting a civil claim in the courts), while in criminal cases they are referred to as the Prosecutor (person or organisation bringing a criminal charge against a defendant).

Courts

• Civil cases are heard in the High Court or the County Court. High Court deals with serious cases where as County Court deals with lower value cases.
• Family cases take place in the Family Court.
• In both High and County Court a judge will try the case.
• Criminal cases will be tried in either the Magistrates Court or the Crown Court. The Magistrates Court deals with less serious offences and is tried by a panel of lay magistrates or by a single legally qualified District judge. While the Crown Court deals with serious offences and is tried by a judge sitting with a jury. Judge decides points of law and the jury decides the verdit (guilty or not guilty).

Outcome of cases

• A defendant in a civil case is found liable or not liable.
• A defendant in a criminal case is found guilty or not guilty (convicted or aquitted).
• The courts have various sentences avaliable depending on the seriousness of the offence.
• At the end of a civil case, anyone found liable will be ordered to put rights the matter as far as possible. This is usually done by an award of money in compensation or an injunction.

Standard of proof

• Criminal cases must be proved beyond reasonable doubt. This is a very high standard of proof and is necesssary since a conviction could result in the defendant serving a long prison sentence.
• Civil cases have to be proved on the balance of probabilities. This is much more lower standard of proof where the judge decides who is most likely to be right.