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does law do? What is its purpose?
John Stuart Mill
philosopher born 1806 - [Godson of Bentham]), On Liberty (1859)
held that liberalism, seeks to promote as much individual liberty as is
compatible with everyone else having the same liberty, the state should
not use the criminal law to prevent immoral conduct that does not cause
harm or offence to others,
JS Mill’s "Harm to
stated "The only time law can be used to prevent someone doing an act, is
to prevent harm to others". The problem is he didn't say what harm is, and
he didn't say who others were. One could ask, “Should you use law to
prevent 'harm' in all cases?”
Take for example
adultery and suicide, both would cause 'harm' to others. However, the law
will say nothing about such behaviour.
argued that a utilitarian view of the law is that the law should produce
the best consequences. The utilitarian approach is most often seen the
relation between law and economics where the law supports the creation of
Positivists such as
see law as a system of commands backed by sanctions. Others such as
Professor Hart stress rules and their pedigree as the
essential elements of a legal system. Ronald
philosopher born 1931) disagrees, and said law involves principles as well
How does the
positivist distinguish commands that count as law from commands that do
not, without appealing to morality?
argues that law is distinguished from other commands by being the command
of the sovereign; he wrote in “Lectures on Jurisprudence” (1869)) that the
gunman’s command lacks this pedigree.
Who then is
sovereign? Not someone who has a right to rule, or who rules legitimately,
for this would interject morality into the law. Rather, it is someone who
is sovereign, who is in fact obeyed.
answers this by saying that it makes the legal system nothing more than “a
gunman writ large”.
Hart adapted Kelsen's
illustration of a gunman demanding money from a bank:-
The gunman commands the clerk to hand over the money. The gunman backs up
this command with the threat that if he does not do so he will be shot.
The clerk feels obliged to hand over the money.
It follows therefore that law cannot simply
be made up of commands
For Hart we
distinguish laws from other commands by viewing law as a union of primary
and secondary rules. Laws consist largely of primary rules.
concluded that there are some essential primary rules.
In "The Concept of
Law” Hart says the reason for primary rules is our knowledge of
certain self-evident truths.
Such truths, says
Hart, are the minimum necessary that any society will recognise.
We know we are all
vulnerable to attack from others.
Human beings are vulnerable to bodily attack and need protection. No man
alone can dominate others for more than a short period - he must stop to
sleep, and then he in his turn needs to be protected.
We all have
approximately equal physical and intellectual powers.
Men are not infinitely wise or strong-minded, and sanctions are needed
to ensure that those who comply voluntarily with the rules are not
sacrificed to those who do not.
We all have
limited concern for others and limited will power.
Men are neither devils nor angels; they act largely from self-interest
but generally care for the interests of others close to them.
Finally, we know
that we live in a world of limited resources.
The basic needs of life - food, clothes, shelter etc - are scarce and
require some effort to obtain: this requires rules to protect rights of
ownership and to allow ownership to be transferred.
appears not to
include rules that limit sexual impulses or rules imposing duties
on parents to care for their children, and on younger people to care for
Just because society
is governed by rules, does not mean that it has a legal system.
primitive societies have rules based only on informal custom.
The customs will be
well known by everyone, when disputes do occur they will be resolved by
group discussion and conciliation.
Changing the rules
occurs as the pace of change demands.
societies will require more complex rules to deal with the economic,
social and political complexities that inevitably follow. The simple
societies have a cohesion bonded by the simple rules this is lost as
societies become more complex.
describes these three types of rule as:
To avoid uncertainty, the complex societies develop rules of conduct,
which are recognised, particularly by the officials.
These rules will lay down who can change the rules.
Rules of adjudication, defining the procedures to resolve dispute will
be developed. This may lead to a court system
He calls these
Secondary rules to distinguish them from the primary rules.
He says that this
'union of primary and secondary rules is at the centre of a legal system.'
Some jurists believe
the real test of whether a legal system exists is simply the institution
of a court.
called purposive adjudication, defended by Dworkin ("Law’s Empire",
1986), holds that law is not, as Hart says, merely a set of rules,
but of rules as well as underlying principles, and judges should appeal to
these principles - to the spirit or purpose of the law - not just narrowly
to the letter of the law. This is different from appealing to a natural
moral order, which is entirely subjective, principles are often objective.
Dworkin uses as an example the legal
rule that the last will and testament of the deceased should be respected
is modified by the principle that no one should profit from his or her own
Dworkin proposes a scenario of a son who murders his father, he
will not benefit from his father's will because of the legal principle
that he should not profit from his own wrong, despite the legal rule that
he should inherit in line with the terms of his father's will ("Taking
Rights Seriously", 1977).
Law is a necessary
evil to resolve disputes
It is certainly true
that law plays a less important role in some societies than it does in
England: in China and Japan, for example, law is seen as a last resort and
disputes are resolved partly by reference to tradition and partly by a
process of conciliation.
Even here, however,
most scholars see law as a necessary evil:
(Algerian Christian philosopher, born 345) said it was a natural necessity
to curb man's sinful nature. Secular scholars also tend to agree on
the need for law to respond to human nature.
identified five "law jobs"
Law in any community
conflicts within the community.
Law helps maintain a peaceful, orderly society, and contribute to this
stability by providing a means of resolving disputes.
between members of the community.
Property law facilitates business activities, while laws limiting the
powers of government help ensure some individual freedom.
changes in the circumstances of the community and its members.
also be a means of accomplishing social change, as for example in the
prohibition of racial discrimination on the one hand and the
establishment of national health and social security systems on the
authority structure of the community,
procedural rules for performing other tasks
wrote in The Common Law (1881) that the life of the law is not logic but
experience, “The prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law”;
(American jurist born 1870) named the informal practices of legal
institutions “the law-in-action,” contrasting it to “the
law-in-the-books,” by which he meant formally enacted legal doctrine.
Would see the law as
characterising the values and principles of society and maintaining these
values by securing compliance. The law is symbolic, and
expresses wrong by providing a remedy for those who feel they are victims
of wrongdoing. By providing a deterrent, compliance can be assured, at
least among ‘...some of the population, some of the time, in some
‘The Some Theory’)
said in “The Concept of Law” ‘Law is the means by which we articulate
displeasure at anti-social conduct.’
The function and
role of law are defined at a particular point in history
Albert Venn Dicey (English academic born 1835) writing in 1885,
claimed the law at that time operated a formal equality at the expense of
a substantive quality. The law was blind to the differences of wealth or
power and assumed all possessed abstract rights and duties.
FA von Hayek
(Austrian economist born 1899) thought the law should apply to all and
benefit none in particular.
regretted the role of the law (in 1944) to be what he saw as supporting an
interventionist state replacing a free-market economy. The law
provided a legal framework for a particular form of economic activity.
Is the role of law
to protect the subjects from an encroaching modern state?
(British prime minister born 1925) advocated the ‘rolling back of the
state’ where individuals were responsible for their actions and welfare.
(English Marxist historian born 1924) was critical of what has in fact
been the increasing role of the law in the lives of individual subjects in
a way that has undermined civil liberties while following its own concept
of public interest.
Thompson’s writing there have been a number of high profile cases of
civil liberties being ridden over to support the state’s interest, for
example the Matrix Churchill trial.
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