IDEA OF LAW by Dennis Lloyd
PREFACE
Law
institution central to social nature of man w/o it man would be a different creature o has a major role in human affairs o one of the great civilizing forces o growth of civilization due to the development of legal o rules found with moral codes o relationship of law to morality o related to controversial issues in society & implies a o tension between law and morality homosexuality capital punishment sanctity of human life euthanasia abortion suicide divorce Plato & Marx law is evil & mankind wants to rid itself from it o Moral Law has impact to the thoughts of man about the Actual Law o that prevails in society resulted to the belief that there exists a higher law by o which mere man-made law can be judged usually contradicts, nullifies the actual rules of society o citizen becomes relieved of his noncompliance to the o actual law lawful basis to wage revolt against legitimate authority of the state e.g. those who argue that Moral Law guarantees basic o human rights, hence, segregation laws, which, contrary to morality, discriminates class of people in society may o
consider these as invalid, thus, legally entitling them to refuse to adhere to these laws. MOST VITAL ISSUE meaning of freedom of the citizen o measures to preserve this freedom o Law & Liberty, where law: is an instrument for tyranny o confers security upon the citizen in his person & o property is a means of giving effect to those basic freedoms o expression association employment enjoyment of benefits emanating from Rule of Law relief from basic insecurities due to want & misfortune Welfare States pose legal problems to these liberties. Law & Sovereign Power important consequences to national & international o legal systems If states are sovereign, how come they can be subjected o under international law? treaties Common Market and UK Social Sciences relation to human thought and activity o have impact to legal thinking and practice o link of legal thinking w/ anthropology, psychology, o sociology and criminology its claims depend on its ability to aid legal institutions o and render assistance in solving actual legal problems Lawyers practical man, especially in common-law countries o task is to solve practical problems o better equipped by his legal experience o
Judiciary its role has immense social significance in a modern o legal system so, this book attempts to discuss: o nature of judicial process its vital contribution in the effective functioning of the law structure of legal reasoning judges’ and courts’ essential role in developing the law o and adapting it to the needs of their society For readers to see what involves in the process of o applying and interpreting legal rules and principles in a modern legal system, this book provides: the general way in w/c these result & processes are achieved detailed illustrations of these processes Conclusion this book discusses more urgent legal problems o it is the task of those concerned with the exposition, o application and practice of the law, to continually improve the image of law, so its relevance to social realities will remain.
ARIS - what would life be like w/o law? - if we can answer this question, we can answer “W/N law is necessary” - if life would be the same w/o law, then law must not be necessary OTHER REASONS: - learn about human beings, - that some laws are less necessary - that diff. reasons can justify diff. laws - diff. functions of laws unrealistic and exceedingly difficult to imagine life w/o any law at all
speculation should be reasoned, based on our knowledge
2ND ADVANTAGE over traditional political theorists: - speculation about life w/o law on a particular country as of a given time - our speculation will still have value. - discuss seemingly “representative laws” found in whole US and other developed legal systems
BATO
- why ask?
- is this the only reason for considering what life would be like w/o law? - unlike traditional political theorists, you are proposing to approach the question “is law necessary” by considering “what life would be like w/o particular laws”. - not all difficulties will be avoided: - how to know what life would be like w/o law? - we can’t experiment, only speculate what to speculate about?: - USSR, US - what point in time THINGS THAT WILL VARY: - answers to questions - country where particular laws are involved - time when the laws were enforced be careful of using US as an example, because: - it is a modern, highly industrialized society - questions about life w/o law may be irrelevant - will tell us only about life w/o law in US in 1960s - but things may have changed already since then 2 FURTHER QUESTIONS - are we discussing constitutional, statute or case laws?
2 LAWS: 1. Theft - larceny 2. Violence - assault - w/o laws, man would abuse his fellowmen chaos, destruction of property - San Francisco earthquake, Boston police strike - day-to-day administration of criminal law = man is prone to violence, theft, destruction - look beyond the potential wrongdoer to victim - Thomas Hobbes: all men are vulnerable - so, bec. of his nature, man needs laws protecting him from theft and violence and his property from destruction - not a full-scale system of private ownership is necessary - minimum laws of private ownership
- laws of private property? - more evidence prove man doesn’t need this
- can “human nature” argument support property ownership? - you only stated laws protecting things from destruction, BUT: 1. are these property laws? 2. human nature argument must be based on the nature of all humans, not only some - laws protecting property - prove necessity of private ownership first ANSWER TO OBJ. TO HUMAN NATUER ARG.: - human nature argument is based on the - you are focusing on the potential wrongdoear assumption that food and water are limited - look to the possible results of his destructiveness, - US: people behave well because of education and since food & water is needed by man to survive, so conditioning, not out of fear it deserves protection - law < moral and social education - Hobbes: human nature is not static
and wasteful GOOD REASONS FOR HAVING LAWS REGULATING TIME - to avoid disputes in some states over daylight saving time, bec. diff. time schedules prevail even in the diff. parts of the same state - to avoid people missing appointments, trains, public events - to avoid people wasting time by being too early for various events and engagements 1. list was not exhaustive - US Constitution as example, guaranteeing freedoms of: speech, press, religion, assembly, etc. - John Stuart Mill: extent of freedom man enjoys affects his quality of life in society - W/O FREEDOM MAN CANNOT KNOW: 1. truth 2. creativity 3. genius 4. spontaneity 5. independence 6. self-reliance whether USSR’s accomplishment have been because of or in spite of the unfree character of its society
for their areas - why omit LAWS PROTECTING BASIC FREEDOM?
how about USSR? - unfree but w/ lots of accomplishments
SUMMARY OF DISCUSSION: 1. basic laws that man needs like food & shelter 2. laws for legal officials 3. laws for the improvement of man’s quality of life in society - give other kinds of laws
- for the just distribution of losses that arise in human relations W/O LAWS PROVIDING FOR COMPENSATION OF DAMAGES/LOSS & W/O JUDGES TO DETERMINE THE VALIDITY OF CLAIMS TO COMPENSATION - life & property would not be secure IF ONE WHO SUFFERED LOSS DEMANDS COMPENSATION FROM THE PERSON WHO CAUSED THE LOSS: - some may voluntarily compensate for the injured party, out of social pressure or recognition of one’s moral duty - some may refuse violence/theft IF A LENDER COULDN’T LEGALLY ENFORCE HIS CLAIM AGAINST A BORROWER: - no only would make loans economy suffers - laws change - men introduce new laws from time to time
ONE OF THE PRINCIPAL FUNCTIONS OF DEVELOPED LEGAL SYSTEMS - provide orderly means of social change - w/o these means, social problems would not be solved peaceably and efficiently
- some laws are necessary
Why?
- your answer is speculative - no modern legal system has no laws for redress of harm or broken agreements
SUMMARY OF DISCUSSION: 1. life w/o basic laws against theft, violence and destruction would be solitary, poor, nasty, brutish and short 2. life w/o some laws would be less orderly, less safe, less healthful, less wholesome, etc. 3. some laws provide for the just distribution of significant losses arising from human relations 4. law facilitates peaceful & efficient social change 5. many laws are necessary
NOTES
June 4, 2014
Human Rights/Bill of Rights Freedom Freedom to Contract Right to Property Right to Association Freedom of Labor Freedom of Speech Freedom of the Press Right to Social Security Personal Freedom Procedural Due Process
If you live alone in a cave, do you need a law? - no If you live with others, law is needed. For Plato and Marx, law is unnecessary. Infancy of States Law is great civilizing
What are other civilizing factors in society? 1. Morality 2. Education/Science 3. Custom 4. Religion Which between Written Law or Custom Law is more certain? - Just because custom law becomes written, means that written law becomes certain Elements of Law 1. Authority - somebody is entitled to issue a command 2. Sanctions/Punishment - in case of noncompliance/disobedience
If we do not see police force much along the streets, then the society must be a well-regulated society, for people follow laws without force. If people do not follow moral rules, people may criticize those who do not follow. Legality adds force to sanction of rules. Moral Law is a metaphysical reality.
Natural Rights vs Human Rights Natural Rights - one is born with these
Human Rights - based on history of mankind
