The nature and functions of the law PDF

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Table of content The nature and functions of the law…………………………………………….…………………3 UNIT ONE……………………………………………………………….………………………3 1.0 Introduction………………………………………………..…………………………………3 1.1 objectives……………………………………………….……………………………..……..3 1.2 The nature of the law…………………………………………………………………………4 (a) Law and morality……………………………………………………………………………..4 (b) Law, authority and force…………………………..………………………………………….6 1.3 The functions of the law……………………………………………………………………….7 (1) To provide order in individual and social life……………………………………….………….8 1.4the obligation to obey the law……………………………………….……….………………10 4.3 law and the problems of obedience and sanctions……………….........……………………...11 UNIT TWO………………………/..…………………………………………………………….13 Theories of justice……………………………………………………………………………..13 2.0 introduction…………………………………………………………………………………13 2.1 objectives………………………………………………………………………………….13 2.2 modern philosophical expositions of the theory of justice…………………………..............16 UNIT THREE……………………………………………………………..……………………25 Law and women: feminist jurisprudence……………………………………………………….25 3.0 Introduction…………………………………………………………..…………………….25 3.1 Objectives……………………………………………………………..……………………25 3.2 Engaging with existentialist feminism……………………………………………………..26 3.3 Liberal feminists……………………………………………………………………………27 1

3.4 Marxist feminists……………………………………………………….……………28 3.5 Radical feminists…………………………………………………………………………28 3.6 The power relations within the “public” and “private” realms……………………………29 3.7 Critique of the gendered defense of provocation……………………………………………..30 3.8 The lack of justice for women in “Rape” cases……………………………………………….39 3.8.1 The golden Bola cases……………………....…………………………………………39 3.8.2 The Zuma rape case…………………………………………………………………40 3.8.3 The Strauss-khan case……………………………………………..45 3.9 critical analysis of the offence of infanticide……………………….46 UNIT FOUR……………………………………………………………………………………..50 Law as an instrument of change in a developing society……………………………………50 4.0 introduction…………………………………………………..……………………………50 4.1 objectives …………………………………………………………………..50 4.2 process of achieving gender equality through law reform………………………………..50 4.3 anti-gender based violence Act of 2011: analysis of salient provisions……………………..52 UNIT FIVE………………………………………………………………………………………56 Theories adjudication…………………………………………………………………………………….56 5.0 introduction………………………………………………………………………….56 5.1 objectives………………………………………………………………………………………56 5.2 The nature of the judicial process…………………………………………..56 5.3 stare decisis…………………………………………………………57 5.4 The common law approach………………………………………………………………..58 2

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5.5 interpretation………………………………………………………………………………..59 5.6 Why precedent?.....................................................................................................................61 5.7 constitutional interpretation…………………………………………62 5.8

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intent…………………………………………………………………………………………..63 UNIT SIX………………………………………………………………….66 Law and democracy……………………………………………………………………..66 6.0 introduction………………………………………………………………………………………66 6.1 objectives……………………………………………………………………………………….66 6.2 exercise of democracy in society………………………………………………………….66 6.3 law and the promotion of/observance of human rights…………………………..67 6.4 Human rights are claims upon the states……………………………….68 REFERENCES………………………………………………………………………….71

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UNIT ONE

The Nature and Function of Law in Society

1. O Introduction The aim of this unit is to introduce a student to the nature and function of law in society. To a large extent, the unit will unpack weather there is a connection between law and morality, weather people obey the law for fear of sanctions or due to moral obligations, analyse weather morals are part of the law or not. A critique of the function of the law will be made and ascertain whether society has the obligation to obey the law or not. 1.1 objectives At the end of the unit you should be able to: 

Appreciate weather the law and morality are interwoven or not;

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Understand the nature and function of the law;

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establish weather morals are part of the law or not and;

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understand weather society has the obligation to obey the law or not.

Man has always felt the need for order in society, that is to say, the need for restraint, predictability, consistency, reciprocity and persistence in human behavior. In every organize society there must be an authority who issues decrees or commands to ensure order in the community. In simple terms, there must be law to foster social order. Law itself commands authority, largely because a certain aura of legitimacy surrounds it. This aura of legitimacy stems from the belief that one has moral obligation to obey the law (anyangwe 2005). Law is “normative” as it is founded upon “ought” propositions, were by it demands compliance. As by way of example the Zambian penal code 1 does not politely say be “careful avoid sex with minor girls”. It seems outlaws any sexual activity with a girl child by stating

1 Cap 87 of the laws of zambia

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that section 138(1) any person who unlawfully and carnally knows any girl under the age of sixteen is guilty of a felony and is liable to imprisonment for life. Going by this provision of the law, police officers are commanded to deal with those violating ots provisions. It also means that the court on finding the accused guilty as charged must impose a sentence of imprisonment or any sentence the court deems appropriate. The application of section 138 does review another characteristic of the law. Which is the “coercive nature of law”, whereby it is claimed that a law must be enforceable against those who willfully choose to ignore or defy its requirements. The positivists argued in favor of the coercive element of the law. St Augustin emphasized the dimension of the force of the law as an instrument of the suppression of the vice (kulusika 2008) 1.2 the nature of law (a) law and morality In jurisprudence (one) you may have appreciated the fact that the normative structure of the law resembles that of ethics, a point that is brought out by their common use of “ought”, “obligations” and “duty”. Even linguistically, however, this may be no coincidence, for it has been argued that logically you lay yourself open to a request for reasons to asserting a moral duty, whereas legal obligation is more in the nature of a command, depending not on reason but on authority. In this respect law resembles a religion more closely than ethics, for religion also appeals to authority in the shape of what is decreed by God. Some ethical approaches, however, such as that of certain natural law thinkers, have reduced morals to a series of imperatives, comparatives, comparable to the rules of law, but that have often involved a close interconnection between religion and moral obligation (freeman 2008) Apart from differences in the language of law and morals, attempts have long been to detect distinctions of substance between these two closely related spheres. Thus the natural lawyer’s recognized the two do not altogether coincide, and there is a field of positive law and, therefore, morally neutral. Certainly one of the feminist tenets of the positivists jurist Bentham and Austin onwards has been that positive law is quite distinct from and its validity in no way dependent upon morals. This is not put forward as a purely logical or formal contrast, but as asserting a distinction de facto between two normative systems to be found side by side in human society. As a matter of social fact, there may be many reasons why these two systems should fail to correspond in particular instances, even though a broad measure of coincidence between them may be essential to 5

the working of human society. Moral sentiments on some matters may be insufficiently developed or mobilized to be translated into law. Is it then possible to point to any distinction of substance if they can enable us to differentiate legal from moral norms? The more philosophical approach has generally to follow or adapt the thought kant by regarding law as describing external conduct whereas morals describe moral conducts, that is, morals alone are concerned with subjective factors, such as motive. Thus it is said that law, even when purporting to deal with motives is really only concerned with its external manifestation, on the well-known principle that “the thought of man is not triable, for the devil himself knoweth not the thought of man”. Yet for the lawyer this is a really matter of difficulty of proof, it is hardly possible to draw a precise line of the point where law can be said to ignore subjective consideration. Lawyers have, therefore, tendered to put their faith rather in the element of sanctions as the characteristics feature differentiating law from morals. Yet even morals are not without a sanctioning element, if only in the form of incurring peer disapprobation, which may be indeed be the most powerful of all pressures in human society. This difficulty is sought to overcome by asserting that law calls for a regularized, if not a specific sanction. It should be pointed out that; the sanitationist do not rely upon this as a merely formal characteristics of legal rules but appeal to the history of human society as bearing out the indispensability of regular sanctions as part of any recognized legal systems(freeman 2008: 42-43) Law is apprehended as something made by man for man and to be judged in purely human terms. In other words; law refers to the positive law, ‘man-made and not the moral or “natural law” of the olden days, were religions were treated as inevitably interwoven. For example, according to biblical teaching the Ten Commandments are traceable directly to a divine law giver-God himself. Other laws place origin to human sources, but these law givers were regarded as divinely inspired. Hegel’s philosophy posits that; the state is supreme and represents the very embodiment of morality. As a result, citizens have a moral duty to ibey the state without question. Rules of morality are not enforceable by the courts. They depend for their effect solely on the forces of public opinions or one sown own conscience and convictions. Whereas the purpose of law is to maintain peace and order, that of morality is to prefer man’s inner self. Th elaw imposes a far shorter list of duties toward s ones neighbor than morality does. Law imposed duties are narrowly defined. Moral obligations are wide and appeal to justice generally and even to charity. The biblical counsel to return good for evil is a moral precept; but such a concept would be the very subversion of the criminal law (finnis 1986) 6

B) Law, authority and force Anyangwe (2005; 64) argues that; for society to survive there must be order, and for there to be order, there must be an authority to issue commands backed by force to ensure compliance. Order demands the combination of authority and force. The concept of authority implies the existence of a superior party (the ruler or governor) entitled to issue commands to inferior party (the governed) who must then obey because whether s/he accepts or desires the orders or not. The inferior obeys orders because s/he feels obliged to do so. The element of legitimate authority is essential to the functioning of law in society. But law cannot in any practical sense, be possible if it is not ultimately backed by effective force, for law is essential coercive in character. In the field of international law, however, there exists a system of rules which all countries acknowledge to be binding upon them. These rules are not enforceable by coercion for, there are no regular international forces empowered to perform the role of the policeman. Yet these rules are treated as a system of international law. Law does not limit itself to element of force to guarantee its continuance. It seeks in addition to establish and cultivate a belief in its legitimacy, that is, in its authenticity or genuiness. The legitimacy of the law may be based on the charismatic qualities of particular leaders, or the impersonal rational authority of the law, in respect of the nature of law, Bentham’s position was that: A law may be defined as an assemblage of signs declaratives of a volition, conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons , who in the case in question are or are supposed to be subject to his power. Such volition trusting for its accomplishment to should upon occasion be a means of bringing to pas and the prospect of which it is intended should act as motive upon those conduct is in question (Kulusika, 2008:12).

C) Morals as part of the law Some jurists asserts that even if law and morals are distinguishable, it remains true that morality is in some way part of the law. In Zambia specific reference can be made to chapter XV of the Penal Code,2which deals with offences against morality by prohibiting rape, abduction, defilements, operating 2 Chapter 87 of the laws of zambia

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brothels, practices involving unnatural practices such as incests etc, whereby in the Zambian context ;morality is “ secreted in the interstices” of the legal system, and to that extent is inseparable from it. There are various ways in which this view point has been put forward. Thus it has been said that law in action is not a mere system of rules, but involves the use of certain principles, such as that of the equitable and the good ( aequum et bonum). By the skilled application of these principles to leal rules, the judicial process distils a moral content out of the legal order, though it is admitted that this ideas does not permit the themselves to be rejected on the general ground of their immorality ( Freeman, 2004; 43). Another approach would go much and confer upon the legal process ab inherent power tp reject immoral rules as essentially non legal; this seems to resemble the classical natural law mode of thought, but, it is urged, the difference is that according to the present doctrine it is a matter of the internal structure of the legal system, which treats immoral rules as inadmissible rather than as being annulled by an external law of nature. At any rate, it should not be overlooked that even positivist does not deny that many factors, including morality, may and do concur in the development of a legal rule, and that where there is a possible choice of adjudication, moral or other extra-legal considerations may induce the coming to one decision rather than another. What the positivist insists is, that once the rule is laid down or determined, it does not cease to be law because it can be shown to be in conflict with morality (Freeman, 2008: 43-44). 1.3 The function of law As stated by Benthem and Austin in command theory of law. Law’s primary concern it to focus on factors by and through which a legal directive is made operative. The most important aspect of law is; it’s imperative sovereign expression and its coercive maintenance. ‘In the view of contemporary naturists, law is a regulatory mechanism founded upon a moral view of society. In this way it may be claimed that law generates legal moral obligation. The American realist Karl N Llewellyn posited that; under the law jobs would appear to refer to a function view of law as a mechanism calculated for the performance of certain tasks. In postulating the purp[ose of law (law-jobs), he stated that law is an ‘ intention’ which is necessary in society and which is composed not only of rules but also contains an ideology and a body of persuasive and powerful ideas which are largely unspoken and largely implicit (kulusika, 2008;10-11). The jobs, according to Liewellyn, law does include: i The disposition of the trouble ease a wrong grievance , a dispute 8

ii The preventative channeling of conduct and expectation, in order to avoid trouble in being authoritative. iii the allocation of authority and the arrangement of procedure which Make action as being authoritative iv the organization of society in order to achieve and sustain integration direction and augment incentives (Kulusika, 2008;11)

1 providing order in individual and social life As innaturem order plays a significant role in the life of human beings. Most people follow certain habits I n the conduct of their individual lives and organize their activities and leisure time. In family life, certain patterns or customary ways are usually observed by the members of the family. Meals are taken at certain hours, some choice are assigned to certain members of the family; sometimes are set aside for common family activities. In a large society, the scope or normative regulation assumes even larger dimensions. It comprises, among many other objectives, the basic structure of family units the making of contractual agreements, and the acquisition and disposition of property. The legal order also proscribe certain palpable manifestation of antisocial behavior such as assault. O.A.B.H, fraud, and the grosser forms of deceit. Many societies enact basic laws which define the procedure of political decision making and the fundamental rights of the citizens. As societies progress and become more populous diversified, and complex, the measure of regulatory social control, tends to increase.

In

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modern civilized state, the number of official and unofficial prescription designed to insure a smooth and orderly running of the major social processes is exceedingly large (Bodenheimer, 2006) John Austin took the position that the term ‘law’ should be restricted to the general pronouncement of the sovereign power and withheld from specific court judgements and administrative determinations. On the other hand, it has been argued that the law consists of the sum total of individual decisions handed down by the courts and administrative agencies.

The law should neither be identified with

politics nor become drowned in whirlpool of ephemeral expediency. Many of its institutions are designed to protect the security of rights and expectations against tempering by powerful forces that seek to weaken the integrity of the legal structure for reasons of public or private advantage. IN order to accomplish this objective, the ;law must be able to resist the impact of political or economic pressures 9

that seek to convert might into right. This does not mean however, that legal fabric can remain untouched by the play of social force4 that shape and transform the texture of life in society. In essence law cannot escape the effect of changes in the moral and social consciousness of the community. A jurist’s dogmatism which sets out to prove the inevitability of the legal result without regard to its ethical and practical consequences is often self-defeating and deceptive. While a system of concept and rules is necessary in order to guarantee the reign of law in society, it must always be kept in mind that such rules and concepts were created in order to meet the needs of life, and that care must be taken lest life be necessarily and senselessly forced into the straitjacket of over rigid legal order. Law cannot be reduced to a system of mathematics or scholastic logic. While its normative standards and generalized will prevent the law from becoming excessively fluid or fleeting. Its arrangements are subject are subject to periodic appraisals in the light of the necessities of human social life and requirements of fairness and justice .Thus , the autonomy of the law can be a partial one only. An attempt to keep the law completely insulated from the external social forces beating against the armor by which the law seeks to protect its internal structure will necessarily be demand to failure (Bodenheimer, 2006)

1.4 the obligation to know the law For long, there was considerable discussion whether there was moral obligation to obey an unjust law. This was seen in jurisprudence (1) where you probably dealt with the hart-fuller debate about the Nazi law. But more recently the law has been posed whether ther...