LAW AS RULES Introduction to Law 1 LAW012

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LESSON OUTLINEa)Introduction & Definition of Rulesb)Function of rulesc)Characteristic of rulesd)Type of Rulese)Rules as a form of social controlf) Legal Rules v Social Rulesg)Conclusion

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WHAT IS RULES??Definition of Rules• Standard of ruling for a particular activities or conduct – should or should not, how the activities should be conducted. • Lon Fuller - a jurist define law as the enterprise of subjecting human conduct to the governance of rules. Law as a set of rules that governs the behavior of the society • Twining and Miers - define rules as a general norm guiding conduct or action in a given type of situation.3

• Rules for imposing self-restraint – we might submit to temptation and take property or life of someone in the weak position.

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• Need to develop a rules in order to avoid uncertainty in the society (rule of change) – since there is a recognize rules of conduct govern the society. • All rules whether legal, customary or moral is considers as normative, laying down the standards of behaviour to which we ought to conform if the rules affect us. • Family, school, government bodies, agencies exists and operate by way of rules. 5

FUNCTION OF RULES • Function of rules according to HLA Hart:a) Truism about human nature– Human vulnerability – people susceptible to physical attack– Approximate Equality – even strongest must sleep at times– Limited altruism – people selfish– Limited resources – Limited understanding and strength of willThat’s why we need rules as natural necessity for protection

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b)‘Minimum content of law’ to protect society from violence, satisfy needs and survival.– Law must have restrictions on free exercise of violence– Law must be based on mutual forbearance– Law must regulate the use of property– Law must provide creation of obligations– Law must provide sanctions if they are not obeyed.

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CHARACTERISTICS OF RULES• Imperative (very important/crucial)• Unwritten or written• Negative and Positive terms• Deals with punishment/penalty• Command from authority• Have exception• Guide standard of behaviour• Normative – prescribe the desirable or undesirable conduct, lawful or unlawful. • Justification for decision – why rules should be obeyed.

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TYPES OF RULES

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PRIMARY RULES• Forbid or require certain actions and can generate duties or obligations (imposing duties). • For a citizen with an internal perspective to the law, the existence of a primary rule will create an obligation for him or her to behave a certain way.• Example: walking out of the Apple Store with an IPod without paying or the law requiring you to stop at a red light - criminal law.

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SECONDARY RULES • Set up the procedures through which primary rules can be introduced, modified, or enforced (rules about the rules).• Example: a coach is permitted to challenge a call by the referee, but must accept the final decision of the ref following the viewing of the instant replay. • Without secondary rules the society would be very static – must have variation. • 3 types of secondary rules: a) rules of recognition – how to identify law, which rules is valid.b) rules of change - to facilitate the legislative to change the primary rules.11

c) rules of adjudication - The rules which give power to officials to pass judgment in cases of alleged wrongs e.g. by ordering the payment of money or putting someone in prison

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Rules as a form of social control

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What is social control?• Refers to the way members of a society maintain order and promote predictability of behaviour. It is to make sure that the member of the society to conform with society’s expectation.• E.A Ross define ‘social control’ as a broad term to cover not only law but also public opinion, religion, education, custom and other less obvious things such as art.• Apart from legal enforcement, social control seeks to play its informal role to control the behaviour of the society.

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LEGAL RULES/LAW• Law as a form of social control that declares certain types of act or omission as unlawful and subjected to punishment – criminal law• Criminal law aims at:- Punishment-Deterrence- Retribution• Example???

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SOCIAL RULESa)RELIGION• Al-Quran and Bible• Roscoe Pound said that not all matters are governed by law. Therefore, some interests are taken care of by religion.• Durkheim observes that religion is the original source of law, morality, science or philosophy - Imposes moral restrain on action• Different religion promotes different set of beliefs and morality but ultimately they aims to teach the society to behave accordingly. 16

b) MORAL• Individual beliefs what is right or wrong.• Expectation on morality based on society values, folkways, religious belief.• What is moral and immoral are familiar part of argument – each society shares certain expectation about what is considered appropriate and desirable, good or evil. • Moral obligation is referring to general view supported by our society – adultery as immoral conduct is a view of society.• It is enforced by social pressures such as critism of the culprit and sympathy for the victim. 17

c) ETHIC• Concern with what is right, fair, just or good. • The word ‘ethics’ derived from the Greek word ‘Ethos’

which means character and from the Latin word mores (customs) – how individuals choose to interact with one another.

• Example : our ways to respect the elders via talking or by conduct, eat, drink, work, relax.

• Ethical rules are branch of morality and usually regulate the conduct of professional people such as lawyers, doctors in dealing with their patients or clients.

• It can also be codified i.e. Legal Profession Ethics rules.

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d) CUSTOMARY RULES • Unwritten laws.• Community based characteristic and it is passed from one generation to another. • Custom is formed through habit and out of practice. It is also based on tradition (Ferdinand Tonnie)• According to Lowie the unwritten laws of customary usage were obeyed far more willingly than our written code.• But for Hart, custom has no legal status unless it is being recognized by law or a particular legal system. • Has no legal status but persuasive.19

e) FASHIONS• The best style at certain period or at a place – trend in society and must be fit to a certain particular situation or group in society.• According to Austin, law of fashion is the law improperly so called, as it is the laws set and enforced by mere opinion.• Fashions may vary according to age, social class, generation, occupation, sexual orientation etc.

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f) TABOO• Derived from the word “Tapu”, a Fijian word which means prohibition/forbidden.• It is a strong social prohibition against certain acts that is deemed offensive by a group, culture, society or community.• For e.g., talking about sexual orientation is a taboo in Malay culture, but not in the West, restriction in using offensive language.

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Legal Rules v Social Rules• Enforcement • Validity• Compliance• Sanction• Dispute settlement

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SOCIAL RULES LEGAL RULES • Informal form of control • Whereby it not exercised through official institution and no special designated person appointed for the purpose of enforcement. • It consists of technique whereby individuals who know each other on a personal basis praise to those who are comply with their expectation and show displeasure to those who do not.

• Formal form of social control • Involved institutions in society and are characteristic by the establishment of procedures and specific enforcement bodies.• Formal criminal justice system having these features:a)Statuteb)Enforcement agenciesc)Judicial institutionsd)Prison institutions

ENFORCEMENT

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SOCIAL RULES LEGAL RULES

• Still valid, it’s just that social rules are informal and unofficial.•Made by deliberate act.

• Golding states that law is distinguished from other rules such as sports rules, moral in term of its criteria of validity.• Hart argue that legal rules are different as they made by legislation. • Austin agrees with Hart and says that the hallmark of law is the manner of its creation.• Law making process is the official one compares to other social rules as the law need the undergone a formal legislative process in order to render it valid.

VALIDITY

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SOCIAL RULES LEGAL RULES• Informal sanction• In the form of social repercussion such as praise, gossip, ridicule, shaming and critism.• Max Weber – a deviation from social rules are not met by strong sanction instead by disapproval of the people.

• Formal sanction• Penal and restitutive punishment are incorporated in the statute and has the force of law.• Done via external pressure. Such pressure is exercised by the State or professional bodies, schools, or labour union.

SANCTION

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SOCIAL RULES LEGAL RULES • Usually done through internal control.• Compliance to social norms as a result of internalization.• The most effective agencies that influence the socialization of the individual are family, school, religion, mass media and etc.

• Usually done via external pressures.• Exercise by either state or non-state institutions such as professional bodies, school, labour union and etc.• These institution hold certain level of authority to make rules and orders and to ensure compliance.

COMPLIANCE

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SOCIAL RULES LEGAL RULES• Informal mode of dispute settlement.• Robert Simon says that it may include the use of physical force, resort to supernatural power and self help.

• Formal mode of dispute settlement • Legal and non-legal proceeding (ADR)

DISPUTE SETTLEMENT

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THANK YOU

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