Introduction to law and the legal system PDF

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Introduction to law...

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Introduction to law and the legal system 1.1 Law: (What is Law?) The rules by which societies agree to live, which are enforceable by the coercive power of the state. Law certainly is not the same everywhere, it will reflect different values in different cultures and different epochs. For example, adultery is not considered as crime in the modern English law, whereas, in Islamic law the Quran prohibits adultery by making it a crime and subject the parties to the Hudud punishment of flogging or stoning. 1.2 Functions of Law: (What is Law for?) According to Partington, Law has both broad “macro” functions and more specific “micro” functions. The broad or macro functions of law are to maintain public, political, social, economic, international and moral order. For example, laws relating to business transactions support economic activity by ensuring that commercial transactions are fair and carried out in an orderly way. The micro functions of law are to achieve more specific social objectives. For example, one of the micro functions of law is to define the limits of acceptable behavior by specifying action that is so morally reprehensible that it will attract a criminal penalty like murder or theft of property. Some behaviors are morally wrong but not criminally wrong, such as careless driving that causes damage and which will attract a civil penalty rather than a criminal penalty. Another important micro function of law is to ensure that those in public office do not abuse their power. Partington points out that one of the problems of the many functions of law is that sometimes functions can be in conflict. For example, the objective of preserving social order may conflict with the protection of civil liberties or the right to expression. This conflict occurs when citizens want to take to the streets to demonstrate to express their dissatisfaction about some issue and the police are concerned that such a demonstration might lead to violent disorder. Which objective should prevail? Freedom of expression or social order? 1.3 Sources of Law: In the English common law system, there are four principal sources of law:  Law made by Parliament – referred to as ‘legislation’, ‘statute law’ or ‘Acts of Parliament’ . Written laws that express the will of the legislature.  Law decided in the courts – referred to as ‘common law’ or ‘case law’. Decisions of judges in particular cases applied by other judges in later cases through the process of precedent (combined common law and equity).  European Union law – referred to as ‘EU law’ comprising law emanating from the European Commission, Council of Ministers and Court of Justice of the European Union.  European Convention on Human Rights – referred to as Human Rights Law or ECHR, emanating from the European Court of Human Rights (ECtHR) and now incorporated into UK law through the Human Rights Act 1998. Parliament and statutes In England and Wales the supreme law-making body is Parliament. Parliament has two ‘chambers’: (i) The House of Commons comprising democratically elected Members of Parliament (MPs) (ii) The House of Lords comprising members who are appointed and some who have inherited the right to serve in the House. A valid ‘Act of Parliament’ is written law and is the end product of a long process following the introduction of a draft ‘Bill’ in Parliament. Before a Bill is introduced to Parliament, the government will normally go through a process of consultation. They will publish what is called a ‘ Green Paper ’ which sets out the tentative proposals for changes to the law and invite comments. Green Papers were first used in 1967 and are now usually used as part of the legislative process. This will be followed by a ‘White Paper’ which contains the government’s firm proposals for new law and may have the draft Bill attached. Following consultation, the draft Bill is introduced in Parliament and then debated, discussed and amended. Once a Bill has gone through all of the necessary Parliamentary processes it will be signed by the Queen (Royal Assent) and then published as an Act. A valid Act of Parliament takes precedence over common law or case law. Indeed, it takes precedence over everything except EU law....