TEXT 1: LAW AS A SYSTEM OF RULE
Law is a word that means different things at different times. Black's Law
Dictionary defines law as "a body of rules of action or conduct prescribed by
controlling authority and having binding legal force."
Law is a system of rules created and enforced through social or
governmental institutions to regulate behavior. It has been described as
science and the art of justice.
Laws can be made by group legislature or a single legislator, through
statutes, executive decrees, or established by judges through precedents in
common law jurisdictions.
Private individuals can also create legally binding contracts, including
arbitration agreements that adopt alternative dispute resolution methods.
The law shapes politics, economics, history, and society in various ways, and
serves as a mediator of relations between people.
Legal systems vary between countries, with differences analyzed in
comparative law. Civil law systems codify the law, while common law
systems rely more on precedent.
Law's scope can be divided into two domains - public law (government and
society, including constitutional law, administrative law and criminal law)
and private law (legal relations between individuals/organizations, including
contracts, property, torts and commercial law).
The distinction between public and private law is stronger in civil law
countries, particularly those with separate administrative courts.
In common law jurisdictions, the public-private law divide is less
pronounced.
Law provides a source of scholarly inquiry into legal history, philosophy,
economic analysis, and sociology, and also raises important and complex
issues concerning equality, fairness, and justice.
TEXT 2: LAW AS A GUARDIAN OF SOCIAL INTERESTS
Law should be seen as a "scheme of social control" rather than "a scheme of
individual control."
The individual is free to control their own conduct, choose their vocation,
domicile, and regulate their conduct, as long as it does not affect others.
However, if the individual's conduct affects the lives of others, then there is
a possibility of control by the law.
While law is a scheme of social control, it does not attempt to control all
social relations.
It only controls social relations to the extent that social interests require such
control. As humans have more wants and social interests, the need for legal
regulation increases.
At early history, especially in Greek, Roman, and English history, paramount
interest was preservation of peace → maintenance of status quo
Modern times, social interest is determined (theoretically) by the sovereign
power – in US by the majority of the people in the state
The determination of what social interests should be recognized is often a
difficult matter, as society is made up of many conflicting and overlapping
groups with different interests.
In the complex modern world, if many social interests were not recognized
and protected, "life would be intolerable."
The importance of law in maintaining social order and preventing the human
race from destroying itself through "warfare, degeneracy, ignorance and
laziness."
Law, as a scheme of social control, serves to protect those social interests
that society decides need to be protected.
TEXT 3: SCHOOLS OF LEGAL PHILOSOPHY
1. Law as Power
Core Idea: The validity of laws depends on the power of the government
enforcing them, not on their moral or social merits.
Examples:
o Tyrannies, monarchies, and democracies have all produced laws that
are both beneficial and harmful.
Criticisms:
o Ignores moral and ethical dimensions, leading to arbitrariness, abuses
of power, and unjust laws.
o Suggests laws are valid simply because they can be enforced, not
because they serve justice.
Modern Implication: While pragmatic in defining law as an instrument of
authority, this view undermines the legitimacy of law when power is
misused.
2. Natural Law
Core Idea: Laws are derived from a universal sense of morality and justice
inherent in human nature or God-given principles.
Key Concepts:
o Moral goodness exists independent of government institutions.
o A law that violates moral goodness (e.g., apartheid laws in South
Africa) is not true "law."
Historical Influence:
o Influenced political reforms and revolutions in 17th- and 18th-century
Europe.
o Laid the groundwork for civil rights movements in the U.S., arguing
against discriminatory statutes.
Challenges:
o Lack of societal consensus on morality reduces its practical
application.
o Modern debates on issues like abortion and assisted suicide highlight
the difficulty of using natural law in pluralistic societies.
Strengths:
o Provides a moral benchmark to critique unjust laws.
o Connects law to ethical principles that transcend governmental
authority.
3. Historical Jurisprudence
Core Idea: Laws evolve over time, rooted in cultural traditions and the
“spirit of the people.” Valid laws align with long-standing customs and
societal values.
Key Concepts:
o The will of the sovereign must align with established practices and
customs.
o Stability is prioritized, as laws are not arbitrarily imposed but evolve
gradually.
Examples:
o Massachusetts' mandatory seatbelt law was repealed when citizens felt
it violated customary personal freedoms.
Advantages:
o Promotes stability and continuity in law.
o Grounded in judicially approved customs, making laws socially
accepted over time.
Challenges:
o Determining when a practice becomes a "custom" is subjective.
o May resist necessary reforms when customs are outdated or unjust.
Modern Implication: While it emphasizes stability, historical jurisprudence
risks perpetuating inequality by defending the status quo.
4. Utilitarian Law
Core Idea: Laws should maximize societal happiness and minimize pain,
focusing on practical outcomes rather than abstract notions of justice.
Key Concepts:
o Governments should enact laws that promote the greatest good for the
greatest number.
o Legislators use incentives and disincentives to encourage socially
beneficial behaviors.
o Examples include criminal deterrence and protecting property rights
for economic growth.
Advantages:
o Practical and outcome-focused.
o Promotes simplification of legal processes, reducing costs and
inefficiencies.
Criticisms:
o Subjective: Not everyone agrees on what constitutes happiness or
pain.
o Idealistic: Assumes legislators act solely based on the "pleasure-pain"
principle, which is often disputed in politics.
Modern Implication: Utilitarianism offers a pragmatic framework for
policymaking but can oversimplify complex moral and social issues.
Comparative Analysis
Philosophical Focus:
o Law as Power: Authority and enforcement.
o Natural Law: Morality and universal justice.
o Historical Jurisprudence: Tradition and cultural evolution.
o Utilitarian Law: Practical outcomes and societal happiness.
Strengths:
o Law as Power is pragmatic in describing the reality of law
enforcement.
o Natural Law provides a moral compass for critiquing unjust laws.
o Historical Jurisprudence ensures stability and continuity in legal
systems.
o Utilitarian Law emphasizes practicality and societal benefits.
Weaknesses:
o Law as Power can justify tyranny and oppression.
o Natural Law struggles with societal disagreements on morality.
o Historical Jurisprudence risks defending outdated traditions.
o Utilitarian Law may oversimplify or overlook minority perspectives.
