LLB 130 Study Guide - Final Guide: Legal Ethics, Legal Education, Individualism
Foundations of Law B
Law in Context
Fundamental legal concepts
❖ What is law?
• “iple defiitio of la The la is a sste of ules ade the state ad efoeale poseutio o
litigatio disegads a uestioig of justie, ethis ad politics, and focusing on a narrow description of
what the law is. This definition is not broad enough to encompass all the different facets of the law. Law
pays more attention to values. Law is spoken about in a variety of contexts other than just of the state
• Several different definitions of law, many emotive and powerful, differences in the ways it is perceived and
described
❖ Categories of law
• Substantive: the system of legal rules that set out the rights and obligations of individuals and the state
• Procedural: system of legal rules that regulate legal process such as civil litigation or criminal prosecution
• Public: concerned with the relationship between the individual and the state (constitutional, criminal,
taxation)
• Private: concerned with the relationships between persons within the community, rights and obligations of
individuals interacting with other individuals (contract, tort, property)
• Criminal: establishes criminal offences and penalties for their infringement
• Civil: equates with private law, between two or more individuals
• Domestic: regulates persons within a particular jurisdiction such as a nation or state
• Public international: set of rules regulating the relationships between states
• Private international: set of rules that determine which states las should e applied to esole a dispute
between people in different states
❖ The need for law
• Without law, the stronger would prey on the less, education is difficult to accomplish, economic activity
is unreliable and insecure
• There is an evident need for persons who will articulate and enforce standards of conduct which will
tend to promote the common good of bodily security, stable access to resources, cooperation in
economic and educational activities, and rectification through punishment, compensation and
restitution
• Law has reflected societal standards, values, norms and expectations, and therefore has contributed to
shaping the way in which we determine our own ethical compass. Therefore, if law were to be made
absent, it could be assumed majority of people would carry out in a well-functioning society based on
the well-established moral compass of humans. However, those with different values and perceptions
on the law and behaviour may abuse the absence and therefore, there is an ongoing need for social
order
❖ Purposes of law
• Resolve disputes: parties to a dispute can refer to the relevant legal rules and resolve disputes
themselves, or with legal advice or litigation
• Maintaining social order: to keep the peace and to prevent chaos/anarchy, a clear set of standards for
compliance ensures maintenance of order
• Reinforcing community values: law ensures these values are applied equitably and respected by all
members of the community
• Helping the disadvantaged: law is a mechanism for ensuring the resources and opportunities are
distributed fairly within a community (tax laws, discrimination laws, welfare laws)
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• Stabilising and growing the economy: the economic consequences of law changes to maintain flow
• Preventing tyranny or misuse of power: the rule of law: the government authority must be exercised
only in accordance with written and publicly disclosed laws made and enforced in accordance with
established procedure. Prevent arbitrary use of power.
❖ The changing law
• Law is dynamic, sometimes changing slowly and other times changing quickly. Reasons for change are:
o Political change: a change in government which implements different policies by changing laws
o Correcting errors: lawyers may find loopholes in the law enabling them to circumvent the
intended effects of the law, remedying the effects of law
o Changing values: law must change to keep up with the pace of values to reflect them.
o Lobby groups: pressure exerted from groups in the community, as a result of a perceived
inequity or injustice in the existing law
o Changing technology (e.g. inventions and updates in cars or air traffic regulations)
Law and extrinsic standards
❖ What are the standards with which we expect the law to comply?
• Certainty: people show be able to go about activities confidently aware of or able to ascertain the
relevant legal rules
• Flexibility: should be able to respond to changes in technology, community values and political contexts,
because of the danger of becoming redundant and irrelevant
• Accessibility: people should be able to find what the relevant law is in any circumstances - the law, legal
advice and legal representation
• Fair, good, consistent with moral values, for the common good of the community (reflecting the
dominant views),
• Jurisprudence is the branch of philosophy concerned with the nature of law, and the branch of legal
theory concerned with the philosophy of law. It raises fundamental questions about the law itself to
reveal historical, moral and cultural underpinnings of legal concepts
• There is an ongoing debate between natural law theories and legal positivists
❖ Natural law theory
• Concerns a necessary relationship between the law and a set of objective standards external to the law
itself (god, nature, principles of justice, moral values, fundamental human rights, basic goods)
• Some things are universally and objectively fair and good/bad, and the law should be made,
administered and interpreted by governments to correspond with these universal, unchanging standards
• An essential ingredient in making the law is that oeig the la is the ight thig to do hatee laks
this is not a law)
• The law is discoverable by human reason, so by using these reasoning skills, one can work out the
natural laws with which all humans must comply
• The positive law must be consistent ith the atual la, ad if it ist the it is ueasoale ad
fundamentally flawed
• Consists of two theories:
o Extrinsic standards: the standards of which law can be judged have objective standing. Things
aet og eause e thik the ae og, ut because they are objectively and absolutely
wrong
o Law: the authority of a legal rule depends upon the relationship between the rule and extrinsic
standards. Inconsistency > deficiency
❖ Historical approaches
• Greek and Roman philosophy
Natural justice provides a standard against which legal justice can be judged (Aristotle)
Natural law is the means by which a rational being lives in accordance with this order (Zeno)
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Positie la that is iosistet ith atual la is ot a la at all. le ijusta o est le
(Cicero)
• Christian philosophy
o Aquinas
Four types of law
Eteal la: Gods pla fo the uiese of hih ol he kos
Natural law: The part of eternal law which can be understood by rational beings
Human life: when natural law is codified by government. Inconsistency > corruption
Divine law: revealed through the Bible
Aquinas gave have natural law moral validity. Even though positive law is inconsistent
with natural law, positive law should still be obeyed if disobedience would lead to public
disorder.
o Hobbes and Locke
The natural law is a set of general rules, discoverable by reason
❖ Modern approaches
• Natural law is relied upon to establish and justify the existence of a set of objective standards
according to which abuses can be condemned. It informs the contents of various bills of rights,
and identification of these fundamental standards and rights
o Finnis: Identifies basic goods as life, knowledge, play, aesthetic experience or beauty,
sociability or friendship, practical reasonableness and religion. A person is acting morally
if they do not harm any of the basic goods
❖ Legal positivism
• Legal theorists should focus on what the law is, not what it ought to be. Law is a social construction,
made by human institutions
Example: 4 cars speeding over speed limit and one gets pulled over. Natural law position to argue that
everyone should be pulled over as this is an injustice. The law should be applied equally to all. Police
officer takes a positivist position and penalises you for simply breaking the law.
• Insists that it is not necessary that extrinsic standards be consistent with the law in order for it to be
valid
o Austin: law is a command issues by a sovereign, backed by sanctions and are habitually obeyed.
Separate from moral rules
o Kelsen: The distinctive feature of law is the fact that it is a statement about how people ought to
behave that is backed up by a threat of sanction. Each norm derives its validity not from
consistency with objective standards but from a superior norm. ]
o Hart: When people do things they have not chosen to do consciously, they do so as a result of
social habit or social rules. Argues that if a primary or secondary rule satisfies the criteria that
are provided by the ultimate rule of recognition, then that rule is legally valid. There is no
necessary logical connection between legal rules and moral values, and legal rules may lack any
moral justification
o Natural law might provide a useful guide for the content of positive legal systems. Hart
recognised that there should be some minimum moral content of a system of law if it is to
maintain order in society.
Pop culture
❖ Images of our understanding of law are cultured by pop-culture and social media. It is popular because we often
see relevant articles everyday, indulgence in entertainment is a powerful motivation, automatic images because
of the pop-culture we interact with, influenced to go into law because of many of these texts
❖ To kill a Mockingbird:
• Lawyers provide an agent for change, more credibility to challenge ideas
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Document Summary
This definition is not broad enough to encompass all the different facets of the law. Law is spoken about in a variety of contexts other than just of the state: several different definitions of law, many emotive and powerful, differences in the ways it is perceived and described. Law has reflected societal standards, values, norms and expectations, and therefore has contributed to shaping the way in which we determine our own ethical compass. Therefore, if law were to be made absent, it could be assumed majority of people would carry out in a well-functioning society based on the well-established moral compass of humans. However, those with different values and perceptions on the law and behaviour may abuse the absence and therefore, there is an ongoing need for social order. Law is dynamic, sometimes changing slowly and other times changing quickly.
