LAW - The legislative pronouncement of the rules which should guide one’s actions in society; “the aggregate of those rules and principles of conduct promulgated

LAW - The legislative pronouncement of the rules which should guide one’s actions in society; “the aggregate of those rules and principles of conduct promulgated by the legislative authority [court decisions], or established by local custom. Our laws are… derived from a combination of the divine or moral laws, the laws of nature, and human experience, as [each] … has been evolved by human intellect influenced by the virtues of the ages.Human laws must therefore or necessity continually change as human experience shall prove the necessity of new laws to meet new evils, or evils which have taken upon themselves new forms, or as the public conscience shall change, thus viewing matters from a different moral viewpoint”

ENLIGHTENED HISTORY OF “COLLECTIVE WILL”

Hobbes, in Leviathan (1651) introduced an early version of the social contract (or contractarian) theory, arguing that to overcome the “nasty, brutish and short” quality of the life without the cooperation of other human beings, people must join in a “commonwealth” and submit to a “Sovereigne [sic] Power” that is able to compel them to act in the common good. This expediency argument attracted many of the early proponents of sovereignty. Hobbes deduced from the definition of sovereignty that it must be:


ABSOLUTE: because conditions could only be imposed on a sovereign if there were some outside arbitrator to determine when he has violated them, in which case the sovereign would not be the final authority.

INVISIBLE: The sovereign is the only final authority in his territory; he does not share final authority with any other entity. Hobbes held this to be true because otherwise there would be no way of resolving a disagreement between the multiple authorities.


Hobbes’ hypothesis that the ruler’s sovereignty is contracted to him by the people in return for his maintaining their safety, led him to conclude that if the ruler fails to do this, the people are released from the obligation to obey him.


Bodin’s and Hobbes’s theories would decisively shape the concept of sovereignty, which we can find again in social contract theories, for example in Rousseau's (1712 – 1778) definition of popular sovereignty (with early antecedents in Francisco Suárez’s theory of the origin of power), which only differs in that that he considers the people to be the legitimate sovereign. Likewise, it is inalienable – Rousseau condemned the distinction between the origin and the exercise of sovereignty, a distinction upon which constitutional monarch or representative democracy are founded. Niccoló Machiavelli, Thomas Hobbes, John Locke, and Montesquieu are also key figures in the unfolding of the concept of sovereignty.


The second book of Jean-Jacques Rousseau’s Du Contrat Social, ou Principes du droit politique (1762) deals with sovereignty and its rights. Sovereignty, or the general will, is inalienable, for the will cannot be transmitted; it is indivisible, since it is essentially general; it is infallible and always right, determined and limited in its power by the common interest; it acts through laws. Law is the decision of the general will in regard to some object of common interest, but though the general will is always right and desires only good, its judgment is not always enlightened, and consequently does not always see wherein the common good lies; hence the necessity of the legislator. But the legislator has, of himself, no authority; he is only a guide who drafts and proposes laws, but the people alone (that is, the sovereign or general will) has authority to make and impose them.


Rousseau, in his 1763 treatise Of the Social Contract argued, “the growth of the State giving the trustees of public authority more and means to abuse their power, the more the Government has to have force to contain the people, the more force the Sovereign should have in turn in order to contain the Government,” with the understanding that the Sovereign is “a collective being of wonder” (Book II, Chapter I) resulting from the “general will” of the people, and that “what any man, whoever he may be, orders on his own, is not law” (Book II, Chapter VI) – and furthermore predicated on the assumption that the people have an unbiased means by which to ascertain the general. Thus the legal maxim, “there is no law without a sovereign.”

The 1789 French Revolution shifted the possession of sovereignty from the sovereign ruler to the nation and its people.

FORCES INFLUENCING LAW1. Law is a Product of Social Forces.2. Social Environment of Law

Educational & Religious Institution Family Unit Unions Corporation, Trade Associations Fraternal Organizations Neighborhood Associations Political Parties Pressure Groups Power of Tradition, Habits, Ideas and Ideals e.g.. Abortion,

Segregation, Affirmative Action “Climate of Opinion – Natural Justice, Divine laws Human Inertia, Greed, Altruism, Prejudices, Ignorance and Sheer

Accident

FORCES INFLUENCING LAW3. W. Holmes's book “The Common Law” – 1881

(S.C. Judge) indicated that:

“The life of the law has not been logic: It has been experience based on: The felt necessities of the time The prevalent moral and Political theories Institutions of Public Policy – avowed or

unconscious Prejudices which judges share with their fellow

menThese have had a good deal more to do than the

Syllogism in determining the rules by which men should be governed.

FORCES INFLUENCING LAWOTHER FORCES

1.Intellectual and charismatic forces exerted by particular individuals. The “greats” among judges, legislators, administrators and advocates.

- Roscoe Pound commented on traditional legal notions of justice in terms of the ‘tenacity of taught tradition’, received ideas of rightness and wrongness and “received techniques” of utilizing “principles” to bring about a body of logically independent PRECEPTS.

2.Ambiguities of principle & competition among principles, precedents, analogies & maxims.

ROLE OF LAW“To organize, channel,

letigitimize and in a substantial measure to redirect, the course of changes that started

outside the law”.

FUNCTIONS OF LAW1. Dispute Settling

2. Enforcement Role – e.g. To enforce Arbitration3. Maintaining order – Through Criminal Law,

against violence or aggravated harm to persons or property by the threat of Penalties of Imprisonment and/or fines. Also includes the Entire judicature– Police, courts, Prosecutors, Parole/ Probation officers.

Also Sedition & Related Laws, Violent Overthrow of Governments.

FUNCTIONS OF LAW4. A framework within which certain common

expectations about the transactions, relationships, planned happenings and accidents of daily life can be met – PREDICTABILITY function (Certainty) which can also be an extension of maintenance of order.

5. Providing efficiency, harmony and balance in the functioning of the government machinery – through Constitution – Separation of Powers, Full Employment Acts, Fiscal & Monetary Planning, Zoning, Land Use Controls, Conservation Laws and Environmental Protections.

FUNCTIONS OF LAW6. Protection of citizens against excessive or

unfair government power – Bill of Rights

7. Due Process – fair procedure & freedom from arbitrariness.

8. Protecting people against excessive or unfair private power – anti trust laws, minimum wage laws, anti-discrimination laws, compelling collective bargaining with Unions, SEC regulations in Corporate Sale of Securities

FUNCTIONS OF LAW9. Assuring people an opportunity to enjoy the

minimum decencies of life – Protecting Economic & Health Interests – Unemployment Insurance, Social Security, Medicare, Public Housing, Welfare/Anti-Poverty Programs, Bankruptcy and Garnishment Protection, Psychic Health, Privacy Laws, Environmental Laws.

DOES LAW HAVE AN ETHICAL OR MORAL FUNCTION?

YES!1. Settling Disputes – MORAL, aims at fair and

socially desirable end.

2. Criminal Laws – They mostly carry out ETHICAL PRECEPTS of CONDUCT – Many are in the 10 COMMANDMENTS.

3. Tort Law – Principles concerning either negligent or intentional infliction of injury may be traced to the ‘GOLDEN RULE’ - MORAL


4. Contract Law – The obligation to keep one’s promises is ETHICAL Obligation

5. Judicature – Functions to bring about SOCIALLY DESIRABLE results – MORAL

6. Protecting people from Unfair Exercise of Public or Private Power – ETHICAL AND MORAL

7. Raising Standard of living of Disadvantaged – Minimum Wage, Public Health – MORAL & ETHICAL


8. Legislations and Legal Principles uses EXPLICITLY ETHICAL TERMS – e.g. ‘GOOD FAITH’, ‘NOT PROFITING FROM ONE’S OWN WRONG’, FAIR & EQUITABLE’, ‘UNJUST ENRICHMENT’

9. Constitutions speaks in terms of EQUALITY, FAIRNESS AND DUE PROCESS.

10.MORAL DUTIES imposed by courts e.g. Helping out a BLIND MAN cross the street. The courts do so on the assumption that its choice will better serve the public welfare – even though no legal duties.


11.The law is honeycombed with “ought” propositions that purport to be rationally based.

12.THE LAW IS NOT AN END IN ITSELF BUT A MEANS TO AN END – IT IS A MEANS FOR THE ACHIEVEMENT OF SOCIAL ENDS – Even THE SABBATH we are told, was made for man, not man for the SABBATH


13.Judges want their decisions to be logically consistent with a REASONABLE VIEW of the requirements of the CONSTITUTION, STATUTE AND JUDICIAL PRECEDENT – In difficult cases judges are concerned with questions like FAIRNESS & SOCIAL REASONABLENESS of the result.

An Astute legal Scholar in the name of Cohen (Ethical System and legal Ideals) said “JUDICIAL DECISIONS ARE NOT TRUE OR FALSE, BUT RATHER GOOD OR BAD”.

STARE DECISIS Practice of deciding new cases

based on Precedent. A higher court decision based on

certain facts and law, is a binding authority on lower courts.

Helps court stay efficient

EQUITABLE REMEDIES REMEDY: means to enforce a right or

compensate for injury to their right. REMEDY AT LAW: In Kings courts, remedies

were restricted to damages in either money or property.

EQUITABLE REMEDY: Based on justice and fair dealing. A Chancery court does what is right: Specific Performance, Injunction, Rescission.

PLAINTIFFS: Injured party initiating the lawsuit,

DEFENDANT : Allegedly caused injury

SOME CIVIL LAW COUNTRIESEgypt ArgentinaAustria France GermanyGreeceBrazil

COMMON LAW COUNTRIESAustraliaCanadaGhanaNigeriaU. K. KenyaNew ZealandJamaicaUnited States

PROCEDURAL DIFFERENCES BETWEEN AN ACTION AT LAW AND AN ACTION IN EQUITY

PROCEDUREACTION AT

LAWACTION IN

EQUITYInitiation of law suit

By filing a compliant

By filing a compliant

Decision By Jury or Judge By Judge (No Jury)

Result Judgment Decree

Remedy Monetary Damages

Injunction, Specific Performance or Rescission

COMMON LAWCOMMON LAW- The system of jurisprudence, which

originated in England and was later applied in the United States, which is based on judicial precedent rather than statutory laws, which are legislative enactments; it is to be contrasted with civil law (the descendant of Roman Law prevalent in other western countries). Originally based on the unwritten laws of England, the common law is “generally derived from principles rather than rules; it does not consist of absolute, fixed, and inflexible rules, but rather of broad and comprehensive principles based on justice, reason, and common sense. It is of judicial origin and promulgation. Its principles have been determined by the social needs of the community and have changed with changes in such needs. These principles are susceptible of adaptation to new conditions, interests, relations, and usages as the progress of society may require. Also referred to as “Case Law”

SESSION LAWS

SESSION LAWS are laws bound in volumes in the order of their enactment by a state legislature, before possible codification.

CODECODE is a systematic compilation of laws. The

criminal code refers to the Penal Laws of the jurisdiction, the Motor vehicle Code to the Laws relating to Automobiles, etc. Today most jurisdictions have codified a substantial part of their laws.

All organisations record each new law in a volume of session of Laws or Statutes at large; e.g. Public Law No. 91 – 112 (e.g. the 112th Law passed by the 91st Congress of the United States). If the laws are not codified, they will be in the volume of Session Laws.

STATUTE STATUTE is an act of the legislature, adopted

pursuant to its constitution authority, by prescribed means and in certain form such that it becomes the law governing conduct within its scope. STATUTES are enacted to prescribe conduct, define crimes, create inferior governmental bodies, appropriate public monies, and in general to promote the public good and welfare. Lesser governmental bodies adopt ordinances; administrative agencies adopt regulations.

SUBSTANTIVE LAWSUBSTANTIVE LAW “the positive law

which creates, defines and regulates the rights and duties of the parties and which may give rise to a cause of action, as distinguished from adjective law which pertains to and prescribes the practice and procedure or the legal machinery by which the substantive law is determined or made effective.”

Documents

LAW - The legislative pronouncement of the rules which should guide one’s actions in society; “the aggregate of those rules and principles of conduct promulgated