Enforced Rules

4 Key excerpts on "Enforced Rules"

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  eBook - ePub

  Organisations and the Business Environment

  • Tom Craig, David Campbell(Authors)
  • 2012(Publication Date)
  • Routledge

    (Publisher)

  In any society, the complex interrelationships between legally responsible parties, such as people and companies, need to be regulated. It is generally understood that limits must be placed upon activities to prevent miscreants and other irresponsible people from abusing their freedom in a democratic state. Such acceptation leads to the enforcement of ‘rules’. However, not all rules carry the same weight. A distinction needs to be drawn between legal rules and other types of rules. We sometimes use the term ‘rules’ to describe norms of behaviour in society. We may consider ourselves to be breaking ‘social rules’ if we act in an antisocial manner, such as dressing in an unconventional way, or if we are rude or insulting to others. Within organisations, rules are imposed to facilitate normal functioning and may take the form of rigid procedures and limits of behaviour, such as a rule that receipts must be provided to support all expense claims.

  Legal rules are different from social and other rules. They are characterised by the fact that they are enforceable by the judiciary which acts on behalf of the state. So whereas the de facto rule ‘do not swear in the office’ is not enforceable by the state, the rule ‘do not steal cars’ is. It is a matter of legal and philosophical debate at which degree of seriousness a rule becomes enforceable in law by the state. The rule ‘do not walk on the grass’ in a public park may, for example, be a rule which some individuals feel should be enforceable in law where others may consider it a matter of utter inconsequence.

  As the law is primarily designed to serve the citizens of a state, it is reasonable to expect that legal rules should vary according to differing national customs and societal expectations. In traditional Islamic law for example, adultery is considered to be illegal (breaking a legal rule) as it is in contravention of the Qu’ran (Koran). In consequence, the act, if discovered, is (theoretically) punishable by the Islamic state. In contrast, the sensibilities of citizens in western nations like the UK renders adultery an act which may contravene most people’s social or ethical code, but is not considered to be punishable by the state. This is not to say that adultery may not lead to indirect legal action in the event that the offended spouse elected to seek a divorce.

  The Purpose of Law

  Legal rules serve essentially the same purpose as other types of rules. It does not take a lot of imagination to conceive of the chaos that would arise if football was deprived of its rules and the same is true of society at large. Laws serve three broad purposes:

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  The Rule of Law and the Separation of Powers

  • Richard Bellamy(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  8 These conditions consist of certain largely formal characteristics that are used to distinguish a system of laws from either a number of ad hoc directives or a collection of customary practices. Some of these qualities relate to the form of law, others to the form of the legal system. With regard to the first, standard criteria include that laws should be general and apply equally to all (though, as we shall see, they may need to take into account relevant differences), be prospective (only invoking retroactivity as a curative measure), public (albeit often through publicly funded experts), clear (avoiding vague terminology open to wide discretionary interpretation) and relatively stable (but not so as to ossify). So far as the second is concerned, laws should be consistent with each other, feasible and congruent with official action. Most importantly, the promulgation, execution and ability to contest the laws should be guided by general, equal, public, clear and relatively stable rules.

  There are numerous familiar legal norms and practices that exemplify these formal qualities of the law, on the one hand, and the legal system, on the other. For example, those associated with the first are reflected in the notion that there can be no crime without a law, while those linked to the second underpin the view that the court system should be free from extraneous pressures and independent of all authority but the law, and operate according to settled and open procedures that are the same for all citizens. These features give law the regularity needed for it to be a system in any moderately well functioning sense. Without at least some of these elements, neither those subject to the laws nor those appointed to implement them will be able to follow and administer the law respectively in any sort of systematic way.

  To the degree that rule is by laws which satisfy these criteria, then rule by law will generate a weak form of the Rule of Law. At least for much of the time, people will comply with the law not out of deference to (or fear of) the persons who have made or are upholding it, nor necessarily because they agree with it, but simply because it is the law. Law so understood will be necessary to some degree in societies of any complexity. It satisfies the need for common decisions that can coordinate the collective life of the community in conditions of reasonable disagreement over the nature of the good society. There are many aspects of social life where having almost any rule outweighs the perils or inconvenience of having none. Those with sharp elbows may not like the rule of ‘first come first served’ in shops, but most people benefit from the arrangement and have a less stressful time as a result. Continuous white lines may annoy those drivers who claim to ‘know’ the road or to possess super-fast reactions, but the rest of us have an interest in such people being severely deterred from acting on this belief and in obeying the law. Even in areas which are not collective action problems and involve more contentious moral issues, the need for a common rule so that we know where we stand can lead us to accept laws we dislike – although, as I noted earlier, the place of that law within a more general system of legality (usually including mechanisms for changing or challenging it) also influences our acceptance.

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  Understanding Public Law

  • Hilaire Barnett(Author)
  • 2009(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  23 Parliament had given a general power to tax inspectors to enter and search private premises. The court was powerless to protect the citizen against entry into and search of property in light of this wide-ranging power conferred by statute.

  However, the Human Rights Act 1998 now provides an additional jurisdiction for the judges to protect rights. Parliament must be informed as to whether or not a Bill complies with Convention rights. In addition, the courts are ‘public bodies’ within the meaning of section 6 of the Act, a definition that compels the judges to interpret the law in a manner that protects Convention rights. As will be seen in Chapter 10 , however, there are limits to this protection. It is not as absolute as the protection provided under a written constitution with a Bill of Rights. Nevertheless, it is correct to argue that the Human Rights Act 1998 undoubtedly reinforces the rule of law and extends the protection of rights and freedoms.

  Summary

  The rule of law is a controversial concept that lends itself to several interpretations that reflect very different political arrangements – the Western liberal interpretation, the Marxist interpretation and the traditional oriental interpretation being just three. From the Western liberal perspective, law is a positive force in society, providing a framework for government under law and accountable to law, and a framework also for the maximisation of individual freedom and rights within the law and protected by the courts.

  The rule of law also has a very practical application. The rule of law can act as a yardstick for measuring the extent to which a legal system complies with the concepts of legality and constitutionalism. The requirement of certainty in law underpins the idea that no one shall be punished except for a breach of law. The idea of equality before the law, so easily misunderstood, acts as a guide to the manner in which a legal system must be arranged to maximise access to law and the protection of the law. It also requires that those who hold special powers are accountable to the law: that no one, irrespective of rank and station, is above the law.

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  Constitutional Law

  • Ian D. Loveland(Author)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  The formal conception of the rule of law which I am defending does not object to particular legal orders as long as they are stable, clear, etc. But of course particular legal orders are mostly used by government agencies to introduce flexibility into the law. A police constable regulating traffic, a licensing authority granting a licence under certain conditions, all these and their like are among the more ephemeral parts of the law. As such they run counter to the basic idea of the rule of law. They make it difficult for people to plan ahead on the basis of their knowledge of the law. This difficulty is overcome to a large extent if particular laws of an ephemeral status are enacted only within a framework set by general laws which are more durable and which impose limits on the unpredictability introduced by the particular orders.

  Two kinds of general rules create the framework for the enactment of particular laws: Those which confer the necessary powers for making valid orders and those which impose duties instructing the power-holders how to exercise their powers. Both have equal importance in creating a stable framework for the creation of particular legal orders.

  Clearly, similar considerations apply to general legal regulations which do not meet the requirement of stability. They too should be circumscribed to conform to a stable framework. Hence the requirement that much of the subordinate administrative law-making should be made to conform to detailed ground rules laid down in framework laws. It is essential, however, not to confuse this argument with democratic arguments for the close supervision of popularly-elected bodies over law-making by non-elected ones. These further arguments may be valid but have nothing to do with the rule of law, and though sometimes they reinforce rule of law type arguments, on other occasions they support different and even conflicting conclusions.

  (4) The independence of the judiciary must be guaranteed. It is of the essence of municipal legal systems that they institute judicial bodies charged, among other things, with the duty of applying the law to cases brought before them and whose judgments and conclusions as to the legal merits of those cases are final. Since just about any matter arising under any law can be subject to a conclusive court judgment it is obvious that it is futile to guide one’s action on the basis of the law if when the matter comes to adjudication the courts will not apply the law and will act for some other reasons. The point can be put even more strongly. Since the court’s judgment establishes conclusively what is the law in the case before it, the litigants can be guided by law only if the judges apply the law correctly.6

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