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1.1.1 Definition of ‘law’
A brief definition of ‘law’ is difficult, but the following are some suggestions.
1 Law is a set of rules that plays an important part in the creation and maintenance of social order.
2 John Austin defined law as a command issued from a Sovereign power to an inferior and enforced by coercion.
3 Sir John Salmond defined law as being ‘the body of principles recognised and applied by the State in the administration of justice’.
4 Although law is a formal mechanism for controlling society, it is not the only mechanism; less formal rules of morality and custom also play a part.
1.1.2 Law and morality
1 Morality is what is right and wrong according to a set of values or beliefs governing a group’s behaviour.
2 Morality is not fixed and will vary from one group/society to another. Moral values may also change over time.
3 Law and morality usually overlap on major issues, but may differ on other matters.
4 Murder is an example of an overlap. It is both legally and morally wrong. However, even on this major issue there are some who believe that euthanasia should be allowed, and legally it has been ruled that the withdrawal of sustenance from a person in a persistent vegetative state is not murder (Airedale NHS Trust v Bland (1993)).
5 Law and morality diverge on many issues. For example:
• abortion is legal under the Abortion Act 1967, but some groups believe it is morally wrong;
• smoking cannabis is legally wrong but many people believe it is not morally wrong.
6 Whether law and morality should be the same is a question that is debated. Positivists such as Hart and Kelsen state that law and morality are essentially separate, but proponents of the natural law theory (based on the theories of Aristotle and St. Thomas Aquinas) believe that law and morality should coincide.
1.1.3 A legal system
Professor Hart suggested five factors that he believed had to co-exist to create a legal system. These are:
a) | rules that forbid certain conduct and rules that compel certain conduct on pain of sanctions; |
b) | rules requiring people to compensate those whom they injure; |
c) | rules stating what needs to be done in certain ‘mechanical’ areas of law, such as making a contract or making a will; |
d) | a system of courts to determine what the rules are, whether they have been broken, and what the appropriate sanction is; |
e) | a body whose responsibility it is to make rules and amend or repeal them when necessary. |
1.2 Classification of law It is possible to classify law in many ways. For a law student, the most important ways are by:
• the type of law (ie the matters that the law is regulating);
• the source from which it comes; this affects the status of the law.
1.2.1 Classification by types of law
1 Law can be classified as international or national (domestic).
2 International law can be divided into public international law, which governs relationships between countries, and private international law, which governs which country’s law should apply to individuals where there are links with at least two different countries. For example, which country’s law should govern who inherits on a person’s death.
3 National law can also be divided into public law and private law. Public law involves the State in some way, while private (civil) la...
