The Nature of Law - Paper three

Concepts of Law

Chapter One: The Nature of Law

Distinction between law and other norms

Rules -  

The oxford dictionary defines a rule as “One of a set of explicit or understood regulations or principles governing conduct or procedure within a particular area of activity.” 

Twining and Miers (2010) defined a rule as a ‘general norm mandating or guiding conduct’.  

Norms are informal rules that govern behaviour in groups or societies.

Rules, whether legal or otherwise, determine the way we behave. 

Legal Rules-

H.L.A. Hart – One of the key differences between legal rules and other norms, such as practices or habits, it that legal rules are enforceable.

Legal rules generally apply to everyone in society and are promulgated (made widely known). 

Legal rules are obeyed for one of three reasons:

1.They carry a sense of moral obligation with them. For example, it is seen as morally wrong to commit theft, taking something that doesn’t belong to you but to another.

2.They are reasonable and relevant. Their relevance comes from the fact that legal rules are democratically made.

3.They carry a penalty, e.g. Damages in Tort or Contract Law, or Imprisonment in Criminal Law.

Legal rules compared to moral rules – 

Moral rules – Morality comes from the l=Latin word Moralis, meaning actions that are right or wrong. Moral rules are normative, in that they set out what is right and wrong.

Similarities:

-  Habit of obedience in society generally in relation to both and people feel they ought to follow them.

-  Moral rules and some legal rules are normative which means they tell us which behaviour is right and which it wrong.

Differences: 

-       One example is the source of the rules, Legal rules can usually be traced back to a specific case, such as RvR (1991) in respect of outlawing marital ****, or to a specific statute, for example the Homicide Act 1957 in relation to murder. The source or moral rules on the other hand can be much more difficult to establish. Some can be found in religious texts such as the Bible, the Torah and the Quran; others are established by culture or peer groups.

-       Disagreements, In respect of Legal rules can be resolved by referring to statute – for example, the difference between section 9(1)(a) and (b) in the Theft act 1968 – or to judicial interpretation. In contrast disagreements in respect of moral rules are not so easily resolved, and some may say they do not have a ‘right’ answer.

-       Legal and moral rules also differ in the way that which change occurs. To change a legal rule Parliament can pass an Act, or judges may overrule a previous principle, as they did when abolishing objective recklessness in R v G&R. In contrast moral rules change much more incrementally as opinion on an issue gradually shifts. A good example of this is the recent referendum in the Republic of Ireland which approved legalising abortion.

-       Another difference concerns the maintenance…