The law is a set of rules that are seen as binding on the community as a whole, a set of rules that can be enforced and are officially recognized. Most importantly, laws are universal, apply to everyone and reflect the values of society.
Laws:
- Are binding on the whole community
- Can be enforced
- Are officially recognized by courts, governments etc.
- Are discoverable
- Relate to public interest
- Reflect rights and duties
Customs are a type of behavior that has emerged over time and is followed by a group by mutual consent.
Rules however apply only to certain groups or at certain times. They are not always written down, but can be recorded using symbols. They are more enforceable than customs.
Values and Ethics
Values are principles or attitudes that a society holds as important.
Ethics are a set of moral beliefs governing behaviour. They are concerned with choosing between values, with what we ought to do and what is right, in a particular situation.
Neither values nor ethics are constant. Therefore the law must be adaptable to cope with these changes in society.
Neither values nor ethics are constant. Therefore the law must be adaptable to cope with these changes in society.
Characteristics of Just Laws
A valid law is one that is just. Just Laws must be:
- Equal – applies to all the same
- Based on widespread values
- Made to benefit society as a whole
- Aimed at redressing inequalities
- Minimize delay
- Not be retrospective – must be designed for the future and not change the past.
- Discoverable
The Nature of Justice
Equality: Justice requires laws that do not discriminate and that are applied equally to all people. The enforcement of the law must also be equalFairness: Fairness is another feature of justice. Key factors of fairness include ensuring the law does not have a particularly harsh affect on an individual and the right to appeal a decision. Fairness and equality are not often mutual.
Access: Individuals have to be able to access the law in order for justice to be achieved. Law should be understandable.
Procedural Fairness
Procedural Fairness, also known as “natural justice” is a doctrine of the law with the overriding principle being the concept of fair treatment before the law. This doctrine includes:
- The right of a person to participate in the legal proceedings in which they have interest
- The right of a person accused of wrongdoing to know of what they have been accused.
- The right of a defendant to have a hearing
- The right for the matter to be heard in a court free from bias.
- The right to test the evidence presented in a case eg. Cross-examination of a witness
- The right of the accused to not have previous criminal convictions or accusations brought against them in a trial.
The rule of law is a key principle in legal systems of democratic societies which prevents the use of arbitrary power, unrestrained use of power or decisions made without reference to the law. The other critical element of the rule of law is that the law must be known and its application certain.
Key features of a legal system that follows the rule of law are:
- Separation of powers: Separation of the executive (those that administer the law), the legislative (those who make the law) and the judiciary (those who enforce the law.)
- Controls to ensure that those who enforce the law do not abuse their power
- The accused should not be forced into incriminating themselves.
- The defense should be free to operate without interference from the prosecution
- The accused must be informed of the allegations against them.
- Criminal laws must not be retrospective
- Governments are bound by a constitution
- Humans rights are protected.
Anarchy and Tyranny
Anarchy is a state of lawlessness eg. Post earthquake HatiTyranny is a state where there is no check on lawmakers or enforcers. Law is there, but the rule of law is absent.
Notes by Torchi.
Edited by Frankie.
