دروس في المصطلحات الإنجليزية لطلبة السنة الأولى حقوق
للسنة الجامعية 2023-2024
من إعداد الأستاذ دربال عبد الرزاق
What is law? What do we mean when we say that something is the law?
One answer is that a law is a type of rule, but clearly, there are many rules, which are not law: rules of school or club rules, and moral rules, for example.
One way to understand more about what law is, is to look at what distinguishes legal rules from other types of rules.
The nineteenth-century writer John Austin, argued that law differed from other rules because it was the command of a sovereign body.
This theory attempt to define what law is, without examining what it says: it could be said to look at the outside appearance of law, rather than defining it by its content. This approach is called positivism.
Another school of thought, the natural law theory, defines law by its content: only laws which conform to a particular moral code, seen as a higher form of law, can be called law.
Some writers have taken the view that law is best understood by looking at the role it plays in society: what is it for?
Professor Hart argues that the main function of law is simply to allow human beings to survive in a community.
We realise that, if we attack people or take their goods when they are weak, the same could easily happen to us. To protect ourselves we must accept limitations on our behaviour.
The German sociologist, Max Weber (1979), argues that the primary role of law is to maintain order in society. But this ignores many other factors which make our society relatively orderly. In many cases we obey the law not because it is the law, but because of social or moral pressures.
المحاضرة الثانية في المصطلحات القانونية الإنجليزية
A radical alternative to the views of writers such as Durkheim and Weber is put forward by Karl Marx (1933). Durkheim and Weber accepted the idea that law must in some way be of benefit to society as a whole. Marx, however, rejected the idea that there was a common interest in society which law could serve. He argued that society was composed of classes whose interests were fundamentally opposed to each other. Law, Marx maintained, was not made in the interests of society as a whole, but in the interests of the small group which dominates society; through law.
Law and Morals
Morals are beliefs and values, which are shared by a society, or a section of a society; they tell those who share them what is right or wrong. In our - western societies - society, moral values have been heavily influenced by the religion, though this is not our only source of moral values. Moral values also shape attitudes towards money and property, friendship, behavior at work.
It has been observed that, moral attitudes tend to change over time. In a technologically advanced society such as our own, where individuals differ widely in social status, income, occupation, ethnic background and so on, its members are unlikely to share identical moral values, even if they largely agree on some basic points. For example, most people agree that it is usually wrong to kill or steal, but there is much less consensus on whether it is wrong to take drugs, experiment on animals or help a terminally ill person to die.
Both law and morals are normative; they specify what ought to be done, and aim to mark the boundaries between acceptable and unacceptable conduct. Moral rules are often reinforced by pressures like the disapproval of family and friends, loss of status and being rejected by the community. Some areas of law, Tort law, for example, and especially negligence, is built around the principle that those who harm others should compensate for the damage done. Contract, is based around the principle that promises should be kept. In reality, law and morals were closely interlinked in Re A (Children) (Conjoined Twins: Surgical Separation) (2001), that case concerned the legality of an operation to separate conjoined twins. The operation would inevitably lead to the death of the weaker twin, but was the sole chance of saving the life of the stronger twin. The judgment of the court of Appeal is based on the principle of the sanctity of life, which itself is a moral commitment.
المحاضرة
الثالثة Natural law Natural law theorists argue
that law should strongly reflect morality. Though their specific
theories differ, their shared premise is that there is a kind of higher law,
known as the natural law, to which we can turn for a basic moral code:
some, such as St Thomas Aquinas, see this higher law as coming from God,
others see it as simply the foundations of a human society. The principles in
this higher law should be reflected in the laws societies make for themselves;
laws which do not reflect these principles cannot really be called law
at all, and in some cases need not be obeyed. The campaign, during the
1980s, against payment of the Poll Tax on the grounds that it was unfair
might be seen as an example of this kind of disobedience. Different natural law
theorists disagree as to the actual content of natural law, but it is
usually felt to embody basic human rights which governments should
respect. Bills of Rights, like that in the US Constitution, could be seen as
embodying natural law principles. Professor Fuller, in The Morality of
Law (1969), talked about law’s inner morality which he formulated in terms of eight
procedural requirements of a legal system: 1 Generality: there should
be rules, not ad hoc judgments. 2 Promulgation: the rules
should be made known to all those affected by them. 3 Non-retroactivity: rules
should not have retrospective effect. 4 Clarity: rules should be
understandable. 5 Consistency: rules should
not conflict. 6 Realism: people should not
be required to do the impossible. 7 Constancy: rules should
not be changed so frequently that people cannot use them to guide their
behaviour. 8 Congruence: the actual
administration of the rules should coincide with the information available to
the public about them.
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