Defining law is complex, like blind people visualizing an elephant.
Generally, law is a system of rules and guidelines enforced by social institutions to govern behavior.
There is no universally accepted definition of law; definitions vary based on perspective.
Definitions of Law
Shorter Oxford English Dictionary: Law is the body of rules, enacted or customary, recognized by a state or community as governing its members, enforced by penalties.
LB Curzon Dictionary of Law: Law is the body of rules recognized as binding among people of a community or state, enforced by appropriate sanctions.
Blackstone: Law signifies a rule of action, applied to all kinds of action.
John Salmond (1862-1924): Law is the body of principles recognized and applied by the state in the administration of justice.
John Austin (1790-1859): Law is a command given by a sovereign (King, council, or Parliament), backed by coercion, with penalties for violations.
Basic Components of Law
Law is a set of rules.
Made by an authorized authority.
To maintain law and order.
Imposing sanctions if the law is breached.
Law & Morality
Should law reflect moral values?
What is law? What is morality?
Morality
Morals are sets of rules, beliefs, and values shared by a society or a section of society, defining what is right or wrong (Elliott & Quinn, Law for AQA, p. 640).
Twining & Miers: Morality is a general norm mandating or guiding conduct.
Norm: A rule or standard of behavior expected of each member of a special group.
Beliefs & values shared by a society or a section of society.
A body of rules which govern a group’s behaviour.
Comparison of Law and Morality
Law is a set of rules; Morality is a set of rules.
A rule determines behavior, either voluntarily (moral rules) or due to potential sanctions (legal rules).
HLA Hart: Rules are obeyed because:
They carry a moral obligation.
They are reasonable and relevant.
A penalty may be imposed if the rule is broken.
Morality is:
Heavily influenced by religion.
Often centered around sexual issues (e.g., sex before marriage, homosexuality, pornography).
Attitudes tend to change over time.
Differences Between Law and Morality
Source:
Law: Rules made by a sovereign and enforced by sanction.
Morality: From society or God.
Aim & Objective:
Law: To bring a safe environment to society and settle issues.
Morality: To promote discipline, ethics, and religious value.
Areas of Coverage:
Law: Pervasive.
Morality: More into ethics, human relation, sex & religion.
Legal Enforcement:
Law: Formal, uniform, and standard.
Morality: Informal, non-uniform, and non-standardized.
Obedience:
Law: Strict, with consequences for non-compliance.
Morality: Very loose, depending on individual conscience.
Predictability:
Law: Predictable, clear, and precise; question of right and wrong is clear.
Morality: Unpredictable, vague; question of right and wrong is blur.
Law can be introduced instantly, while morality develops over a long period.
Law can be altered by legislation; morality cannot be deliberately changed.
Morality depends on a voluntary code of conduct.
Breaches of moral code generally carry no official sanction.
Morality relies on the individual’s shame or guilt.
Breaches of moral rules are not formally acknowledged.
Law is enforceable; breaches of law are ruled on by a legal system, often in court.
Legal vs. Moral Rules
Sir John Salmond: Legal rules are principles recognized and applied by the state in the administration of justice.
Phil Harris: Morals are a set of beliefs, values, principles, and standards of behavior.
Compliance with legal rules is compulsory; compliance with moral rules is voluntary.
A breach of legal rules leads to state sanctions; a breach of moral rules leads to informal sanctions.
Legal rules must be accepted; morals cannot.
Legal rules can change instantly; morals cannot.
Legal rules can exist without a moral element whatsoever.
Legal rules continue to exist even if there is social pressure to ignore them.
Interlocking Circles Theory by Salmond
Some things are regulated by law, some by morals, and some by both.
Some conduct is immoral, some is illegal, and some is both (e.g., murder, theft).
Law Reflecting Moral Values in Modern Society
Modern society is pluralistic, made up of many faiths and cultures with different moral views.
This pluralism can make it difficult to find a consensus on issues like euthanasia and abortion.
While murder and rape are universally condemned, controversial areas like euthanasia, abortion, and prostitution exist.
These behaviors are often illegal but occur between consenting adults in private.
Does the state have the right to make these behaviors illegal simply because society disagrees with them?
Views on Law and Morality
Libertarian/Positivist/Hart:
John Stuart Mill
Hart
Wolfenden Report 1957
Authoritarian/Natural Law/Devlin:
St. Thomas Aquinas
Mr Justice Stephens
Lord Devlin
John Stuart Mill
A 19th-century philosopher who believed people should be able to do what they wish, providing they are consenting adults in private and not causing harm.
Individuals should be free to choose their own conduct as long as they do not harm others (Utilitarianism).
Law should not impose its own ideas of morality unless it prevents harm to others.
Harm to Others principle: Law can only be used to prevent someone doing an act if it prevents harm to others.
The infliction of harm upon another person is what makes an action wrong.
Undang2 tidak boleh menghalang perlaksanaan hak asasi individu untuk membuat pilihan bebas tanpa ‘good cause’ atau sebab yang baik. Jika ada good cause atau sebab yang baik, undang2 boleh menghalang perlaksanaan hak asasi individu untk membuat pilihan bebas.
John Stuart Mill - ‘Good Cause’
As long as it does not harm the person concerned.
Hart
We should not base law on morality because:
Unnecessary – a pluralistic society can hold conflicting views and stay together.
Undesirable.
Unacceptable – we have no right to limit the choices of the individual if it doesn’t cause harm.
Hart gave 4 reasons why law should not uphold morals:
Punishing the offenders harms them when they have done no harm to others.
It is wrong to interfere with an individual’s rights to free choice.
Exercising free choice allows individuals to experiment & learn.
Suppression of sexual impulses affects the development of the individual’s emotional life, happiness & personality which does them harm.
Wolfenden Report 1957: “Report on Homosexual Offences & Prostitution”
Suggested homosexual behavior between consenting adults should no longer be a criminal offense.
The committee was set up by the Parliament & chaired by Sir John Wolfenden.
The committee asked the question, ‘What is the function of criminal law?’, looking at prostitution and homosexuality.
Came to the conclusion that the law should not interfere with people’s private lives simply because it disagrees with them.
The Committee on Homosexual Offences and Prostitution in Great Britain came to the conclusion that outlawing homosexuality impinged upon civil liberties.
It said society and the law should respect “individual freedom of actions in matters of private morality”.
Ultimately, private morality or immorality was "not the law's business".
It defined "adult" as being a person over the age of 21 and that such acts should be decriminalised (not considered crime) only if they took place "in private" and with consent.
St. Thomas Aquinas & Mr Justice Stephens
They are in favor that law should strongly reflect morality.
Justice James Fitzjames Stephens argued against JS Mill & said that many crimes which seem only to affect the person who commits the crime do, in fact affect other people e.g. crimes involving possession and use of drugs
Lord Devlin
Rejected the Wolfenden Report and said:
An act of immorality may be a criminal offence simply because it is immoral
There is only one explanation of what has hitherto (until now) been accepted as the basis of the criminal law & that is that there are certain standards of behaviour or moral principles which society requires to be observed; & the breach of them is an offence not merely against the person who is injured but against society as a whole
Immorality, then..is what every right-minded person is presumed to consider to be immoral
JS Mill was too concerned about individual rights
Law should uphold morality
There are acts so gross & outrageous that they must be prevented at any cost
Legal Cases
Mrs Gillick Case:
Sought a declaration that it would be unlawful for a doctor to prescribe contraceptives to girls under 16 without parental consent. The declaration was refused.
Court held: If a patient (boy or girl) is capable of understanding and expressing their wishes, there is no reason to lack the capacity to authorize medical treatment.
Human Earrings Case:
The defendants exhibited a model's head with earrings made out of freeze-dried human fetuses.
They were charged with and convicted of outraging public decency contrary to common law.
Freedom of the Individual in Society
This view maintains that the freedom of the individual in society is paramount & more important than a conception of morality which may not be held by all members of society.
Judges should apply the law as it stands & should not have their decisions influenced by the majority’s moral standpoint
Law Reflecting Morality
This view states that law should strongly reflect morality, that there is a kind of higher law (natural law) which judges should look to & this higher law according to St. Thomas Aquinas came from God.
Shariah Components
Shariah has 3 components:
Sanctions relating to beliefs (‘Aqidah) eg. Belief in Allah,
Sanctions relating to moral & ethics (Akhlaq) eg. Telling the truth,
Sanctions relating to sayings & doings of individuals (Fiqh) eg. Prayers.
All 3 components play important role in Shariah.
Legal System
An operating set of legal institutions, procedures, and rules.
Legal system refers to a procedure or process for interpreting and enforcing the law.
Nature and content of the law generally, and the structure and methods whereby it is legislated (create laws) upon, adjudicated (hear & settle case) upon and administered, within a given jurisdiction
Types of Legal Systems
Romano-Germanic (Civil Law):
Principal legal system in the world.
Evolved primarily as private law, regulating relationships between individual citizens.
Expansion owed to colonization.
Codified law: compilation of legislation that states the law comprehensively.
Common Law:
Origin: Law of England.
Great expansion throughout the world on account of colonization and reception.
Forms second family of law.
Basis: Judicial decisions (decisions of judges).
Uncodified (No comprehensive compilation of legal rules & statutes).
Common law is a judge-made law.
Judicial decisions (i.e. in cases) has been to apply and to define legal rules.
The principles crystallise slowly from decisions in particular cases.
Socialist Law:
Historical Origin: Bolshevist Revolution of 1917
Law only a superstructure. In reality, law only translates the interests of those in command in any given society.
Law – instrument for those exercising dictatorship in the society
Law – a means of oppressing the exploited class
Equity
Common law supplemented by Equity
A body of rules
Evolved mainly in the 15th and 16th centuries
Applied by Court of the Chancellor
Applied to complete & occasionally correct the Common law system
The rise of equity is because of the insufficiency and defect of Common law
‘A gloss (a supplement) on the Common law’
Filling in the gaps and making the English legal system more complete
Those who did not get justice in the Common law courts:
sent petitions to King
King & his council examined
Relief was granted or refused
later, petitions were sent to Lord Chancellor (Chief Secretary of State) who dealt with them alone
Equity – flexible (as Common law was rigid) but led to uncertainty in the 17th century
With the passing of the Judicature Acts (1873-1875), all English courts were able to order the equitable remedies as well as apply the rules of Common law
Dualism of common law & equity – eliminated
Classification of Law
Law
Islamic law
Secular law
International law
National law
Private law
Contract
Tort
Family law
Company law
Land law
Many more..
Public law
Constitutional law
Criminal law
Administrative law
Islamic Law vs. Secular Law
Islamic Law:
Revealed by Allah
Do not change with time and circumstances
Perfect & suits all mankind, irrespective of time
Secular Law:
Man-made
Can be created, altered or revoked at any time
Imperfect & suits to the needs of the society
International Law vs. National Law
International law
Concerned with disputes between nations
Much of this law comes from treaties which have been agreed by the governments of the countries
National Law
Applies within a country
Each country will have its own national law
Public Law vs. Private Law
Public Law
This involves the state or government in some way
Undang-undang yang mengawal hubungan antara individu dan negara
Private Law
This is concerned with disputes between private individuals or businesses
Also known as Civil law
Criminal Law vs. Civil Law
Criminal Law
Public law
It is part of public law because crime is regarded as an action against the state & society as a whole.
Civil Law
Private law
It is called private law because issues it deals with are between 2 individuals.