Summary
Summary Law info
- Course
- GNED 1308 (GNED)
- Institution
- Durham College ( )
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Definition Of Law:● Set of rules that enable people to live together and respect each other’s rights
○ Focuses on law as having a function of regulating behaviour and instilling tolerance and
forbearance
● Body of rules for the guidance of human conduct which are imposed upon and enforced among
the members of a given state
○ Refers to ordering behaviour
■ Introduces further ideas of legal rules as being imposed externally applied within
a state and being enforced if disobeyed
● Statement of circumstances in which the public force will be brought to bear through the courts
○ In some situations, you will be compelled by state force to obey the law
■ It doesn’t state which obedience will be compelled
● That which is laid down, ordained or established
○ It focuses on regulating and ordering behaviour and again talks about imposing rules
externally and enforcing them against those who disobey
● Several Themes Emerge:
○ Laws are rules imposed on us by an external body
○ The law enables us to live together by controlling conflict
○ Law teaches us to tolerate and respect others
○ Laws compel us to behave in certain ways because sanctions are applied if we behave
improperly
○ The law indicates when the force of the state will be used to compel you to behave in
certain ways
What is A Legal Rule:
● Legal rules have certain features
○ Backed or enforced by the authority and power of the state
● Deemed to be very important in preventing a society from becoming dysfunctional and breaking
down into anarchy and chaos
○ Legal rules help create order and certainty and control the use of force and fraud by
individuals
■ Ownership of property, exchange of property rights, and methods to resolve
conflicts and disputes
■ Society must agree to be bound by them or face consequences of not obeying the
rules
The Hobbesian and Lockean View
,What are the Limits of Law
● No one is above the law
○ We are all subject to the law equally
○ Accept obligations knowing there is a company
○ Those elected by the government must also obey the law
● You cannot expect the law to solve every problem
○ WWII nazi had done many crimes
■ Laws were not made until after the war
○ It would have to violate fundamental principles about how the rule of law should operate
■ Punish people for offences which were not known legal offences at the time
when committed
● Law is also limited when the population does not support it
○ Prohibition in the USA banned alcohol
○ But the population ignored that soon repealed the law
○ The same can be said with cannabis tried to prevent it but failed
● When individuals decide that the law is wrong evil or even silly may engage in civil disobedience
○ Blacks in the 1950s-1960s challenged segregation
○ Made a political statement
Should Law Reflect Morality? Whose Morality?
● Civil Rights protesters believed that the law was wrong and immoral
● The perception of law reflects morality or should reflect morality
● Natural Law
○ Origins in Roman Law and Religious Law of the Middle Ages
○ Those who favour would agree too
■ Through religious or secular perspective, it is possible, through the use of reason,
to discover the true morality that law should reflect. Divine or natural law is
superior to human law, and human law should mirror natural or divine law
■ Human law that does not reflect the moral content of natural or divine law is not
valid
■ The law that is not valid need not be obeyed
○ Civil rights protestors could argue that segregation laws were immoral
■ Contrary to natural law principles and therefore not be obeyed
● The abortion debate illustrates the problem concerning the relationship between law and morals
○ Can’t prove that one side is morally right than the other
● To answer the problem of morality a law has been proposed in another legal theory called Legal
Positivism
○ Positivists say that natural law is nonsense on stilts
■ It is ridiculous to suppose that
○ Positivists answer the following
■ Law is more than the language that expresses it
■ The law should accurately interpret the language of the law without distorting the
meaning of the language used
■ Should not be concerned with the moral content of the law as a test for validity
○ Positivist law in simple terms
, ■ It may be morally obnoxious but the answer is not to deny that is law but to
recognize it as a law that needs to be altered
■ Duty is to apply the law as he or she finds it
■ Positivist is content if the law meets those procedural requirements
● Law is made according to the rules in a given society and operates within
order
○ If it does then the law is valid
Judicial Realism
● Judge's political social or moral values or personality type
○ Affects their decision
○ Bias
What is Justice
● Natural Law
○ Justice is providing a morally acceptable outcome
● Positivist
○ Justice is applying legal rules literally without injecting morality or values
● Realism
○ Justice is a legal outcome dependent on the psychosocial makeup of those who decide
and interpret the law
Does Law Lead or Follow Social Change
● Rules can be made that may change societal institutions and forms of conduct or behaviour
● Divorce Act of 1968
○ Created more single parents
■ Wanst seen as a disgrace or a social stigma
● Rule makers make changes in law to accommodate changes already occurring in society
○ Responding to social change that has already occurred
● Law can be seen as an agent for transformation in society
○ Can also be seen as the opposite
Judicial Activist and Strict Constructionist
● Judicial Activist
○ Sees interpretation as a quasi-legislative function where law is interpreted in a way that is
consistent with identifiable principles
● Strict Constructionist
○ Looking at the plain or literal meaning found in the language of law ignoring social
policies or values
Lon Fuller
● Legal theorist
● Reliance on law rather on brute force is a reliance on a rational consensual approach to
problem-solving
○ Taking the same legal actions and providing help can create a better society which will
then follow the law knowing that they’re protected
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