IDEA OF LAW

by Dennis Lloyd

PREFACE

Law
o institution central to social nature of man
o w/o it man would be a different creature
o has a major role in human affairs
o one of the great civilizing forces
o growth of civilization due to the development of legal
rules
o found with moral codes
o relationship of law to morality
o related to controversial issues in society & implies a
tension between law and morality
homosexuality
capital punishment
sanctity of human life
euthanasia
abortion
suicide
divorce
Plato & Marx
o law is evil & mankind wants to rid itself from it
Moral Law
o has impact to the thoughts of man about the Actual Law
that prevails in society
o resulted to the belief that there exists a higher law by
which mere man-made law can be judged
o usually contradicts, nullifies the actual rules of society
o citizen becomes relieved of his noncompliance to the
actual law
lawful basis to wage revolt against legitimate
authority of the state
o e.g. those who argue that Moral Law guarantees basic
human rights, hence, segregation laws, which, contrary
to morality, discriminates class of people in society may
consider these as invalid, thus, legally entitling them to
refuse to adhere to these laws.
MOST VITAL ISSUE
o meaning of freedom of the citizen
o measures to preserve this freedom
Law & Liberty, where law:
o is an instrument for tyranny
o confers security upon the citizen in his person &
property
o is a means of giving effect to those basic freedoms
expression
association
employment
enjoyment of benefits emanating from Rule of
Law
relief from basic insecurities due to want &
misfortune
Welfare States pose legal problems to these liberties.
Law & Sovereign Power
o important consequences to national & international
legal systems
o If states are sovereign, how come they can be subjected
under international law?
treaties
Common Market and UK
Social Sciences
o relation to human thought and activity
o have impact to legal thinking and practice
o link of legal thinking w/ anthropology, psychology,
sociology and criminology
o its claims depend on its ability to aid legal institutions
and render assistance in solving actual legal problems
Lawyers
o practical man, especially in common-law countries
o task is to solve practical problems
o better equipped by his legal experience


Judiciary
o its role has immense social significance in a modern
legal system
o so, this book attempts to discuss:
nature of judicial process
its vital contribution in the effective functioning
of the law
structure of legal reasoning
o judges and courts essential role in developing the law
and adapting it to the needs of their society
o For readers to see what involves in the process of
applying and interpreting legal rules and principles in a
modern legal system, this book provides:
the general way in w/c these result & processes
are achieved
detailed illustrations of these processes
Conclusion
o this book discusses more urgent legal problems
o it is the task of those concerned with the exposition,
application and practice of the law, to continually
improve the image of law, so its relevance to social
realities will remain.






















































ARIS BATO
- what would life be like w/o law?
- if we can answer this question, we can answer
W/N law is necessary
- if life would be the same w/o law, then law must
not be necessary
- why ask?


- is this the only reason for considering what life
would be like w/o law?
OTHER REASONS:
- learn about human beings,
- that some laws are less necessary
- that diff. reasons can justify diff. laws
- diff. functions of laws
- unlike traditional political theorists, you are
proposing to approach the question is law
necessary by considering what life would be like
w/o particular laws.
unrealistic and exceedingly difficult to imagine life
w/o any law at all
- not all difficulties will be avoided:
- how to know what life would be like w/o law?
- we cant experiment, only speculate
speculation should be reasoned, based on our
knowledge
what to speculate about?:
- USSR, US
- what point in time
THINGS THAT WILL VARY:
- answers to questions
- country where particular laws are involved
- time when the laws were enforced
2
ND
ADVANTAGE over traditional political
theorists:
- speculation about life w/o law on a particular
country as of a given time
be careful of using US as an example, because:
- it is a modern, highly industrialized society
- questions about life w/o law may be irrelevant
- will tell us only about life w/o law in US in 1960s
- but things may have changed already since then
- our speculation will still have value.
- discuss seemingly representative laws found in
whole US and other developed legal systems
- note unusual circumstances
2 FURTHER QUESTIONS
- are we discussing constitutional, statute or case
laws?
- are we to confine ourselves to federal, state or
local laws?
focus on STATUTE LAWS for they are:
- succinct
- can easily be read
- begin w/ LAWS WHICH MEN NEED MOST
- but what do we really mean by NEED
MAN, DUE TO HIS NATURE, NEEDS SOME THINGS:
- food for survival
- some laws to live in society
- mans need for food is unclear
- mans need for some laws is unclear and
debatable
- diff. laws are justified in diff. ways
- some laws to satisfy mans desire to live in
society is necessary
- what examples of laws do man need as much as
he needs food?
EX. OF LAWS THAT MAN NEED LIKE FOOD
- DUTIES OF POLICE FORCE:
1. preserve the public peace
2. prevent crime and arrest offenders
3. protect the rights of person or property, guard
public health
- laws for legal officials (police, legislators, courts)
are only necessary if there are other more basic
laws that man needs
- laws for treason and protecting legal order
- laws, legal order
laws against theft and violence laws for legal
officials
reason for the need of laws against theft and
violence
- acquisitive, aggressive & vulnerable to attack
nature of man
- overstatement of human nature argument
- use some men, not man
2 LAWS:
1. Theft
- larceny
2. Violence
- assault
- w/o laws, man would abuse his fellowmen
chaos, destruction of property
- San Francisco earthquake, Boston police strike
- day-to-day administration of criminal law = man
is prone to violence, theft, destruction
- look beyond the potential wrongdoer to victim
- Thomas Hobbes: all men are vulnerable
- so, bec. of his nature, man needs laws protecting
him from theft and violence and his property from
destruction
- laws of private property?
- more evidence prove man doesnt need this
- not a full-scale system of private ownership is
necessary
- minimum laws of private ownership
- can human nature argument support property
ownership?
- you only stated laws protecting things from
destruction, BUT:
1. are these property laws?
2. human nature argument must be based on the
nature of all humans, not only some
- laws protecting property
ANSWER TO OBJ. TO HUMAN NATUER ARG.:
- you are focusing on the potential wrongdoear
- look to the possible results of his destructiveness,
since food & water is needed by man to survive, so
it deserves protection
- prove necessity of private ownership first
- human nature argument is based on the
assumption that food and water are limited
- US: people behave well because of education and
conditioning, not out of fear
- law < moral and social education
- man needs some laws, given his nature, his desire
to live and the necessity of living w/n a society
- Hobbes: w/o these laws, life in society would be:
poor, solitary, short, nasty, brutish
- Hobbes: human nature is not static
- men can change (vulnerable perfect/angelic)
- Communisms vision of lawlessness
- Lenin: humans will get the habit of observing
elementary rules w/o the constraint of law
human nature argument only supports few laws - most laws are not for minimum security if they
are to live in society
- laws are for the improvement of the quality of his
life in society
EXAMPLES OF LAWS THAT IMPROVE THE
QUALITY OF MANS LIFE IN A SOCIETY:
1. uniformity of time in US
2. driving speed limit
3. mandatory 10 working hours in mills, factories
or manufacturing establishments
4. illegality of contracts/conspiracy among several
States/foreign nations
5. punishment/sanctions for people (<=$50K /
<=1 year imprisonment) guilty of violating laws
against contracts/conspiracies
6. uniform public school system
TRAFFIC LAWS
- promote safety, make life more orderly and
convenient
SANITATION LAWS
- more healthful
COMPETITION AND EMPLOYMENT LAWS
- improve the economic life of citizenry
EDUCATION

- why include UNIFORMITY OF TIME?
w/o uniformity of time, life would be confusing but people may agree on a standard uniform time
and wasteful for their areas
GOOD REASONS FOR HAVING LAWS REGULATING
TIME
- to avoid disputes in some states over daylight
saving time, bec. diff. time schedules prevail even
in the diff. parts of the same state
- to avoid people missing appointments, trains,
public events
- to avoid people wasting time by being too early
for various events and engagements
- why omit LAWS PROTECTING BASIC FREEDOM?

1. list was not exhaustive
- US Constitution as example, guaranteeing
freedoms of: speech, press, religion, assembly, etc.
- John Stuart Mill: extent of freedom man enjoys
affects his quality of life in society
- W/O FREEDOM MAN CANNOT KNOW:
1. truth
2. creativity
3. genius
4. spontaneity
5. independence
6. self-reliance
how about USSR?
- unfree but w/ lots of accomplishments

whether USSRs accomplishment have been
because of or in spite of the unfree character of its
society
SUMMARY OF DISCUSSION:
1. basic laws that man needs like food & shelter
2. laws for legal officials
3. laws for the improvement of mans quality of life
in society

- give other kinds of laws
2 TYPES OF LAWS OF LAWS IMPROVING MANS
QUALITY OF LIFE IN SOCIETY
1. laws promoting widely accepted ends:
- economic well-being, health, safety
2. laws which ends are not so widely agreed upon
and are debatable
- examples
EXAMPLES OF LAWS WITH NOT SO WIDELY
AGREED UPON AND DEBATABLE ENDS
1. laws against interracial marriage
to keep whie man pure
2. freedom of religion
to make man religious
3. university policies/rules/regulations against
selling of intoxicating liquor in campus
to make him moral

- these laws are doubtful, though defenders
believe they improve mans quality of life
- much evidence say that man can live well w/o
these
- indeed, some laws are less necessary than others
LAWS THAT PROVIDE FOR REDRESS OF HARM OR
BROKEN AGREEMENTS
what would life be like w/o these laws?















- for the just distribution of losses that arise in
human relations

W/O LAWS PROVIDING FOR COMPENSATION OF
DAMAGES/LOSS & W/O JUDGES TO DETERMINE
THE VALIDITY OF CLAIMS TO COMPENSATION
- life & property would not be secure
Why?
IF ONE WHO SUFFERED LOSS DEMANDS
COMPENSATION FROM THE PERSON WHO
CAUSED THE LOSS:
- some may voluntarily compensate for the injured
party, out of social pressure or recognition of ones
moral duty
- some may refuse violence/theft

IF A LENDER COULDNT LEGALLY ENFORCE HIS
CLAIM AGAINST A BORROWER:
- no only would make loans economy suffers
- your answer is speculative
- no modern legal system has no laws for redress
of harm or broken agreements
- laws change
- men introduce new laws from time to time

ONE OF THE PRINCIPAL FUNCTIONS OF
DEVELOPED LEGAL SYSTEMS
- provide orderly means of social change
- w/o these means, social problems would not be
solved peaceably and efficiently
SUMMARY OF DISCUSSION:
1. life w/o basic laws against theft, violence and
destruction would be solitary, poor, nasty, brutish
and short
2. life w/o some laws would be less orderly, less
safe, less healthful, less wholesome, etc.
3. some laws provide for the just distribution of
significant losses arising from human relations
4. law facilitates peaceful & efficient social change
5. many laws are necessary
- some laws are necessary
- in modern legal systems, there are numerous
laws
- how can an average citizen know all of these and
how they apply?

THEREFORE, TO ASSIST THE AVERAGE CITIZEN ABOUT THESE LAWS,
MEN LEARNED IN LAW (e.g. lawyers, judges) ARE NECESSARY.
NOTES

June 4, 2014

If you live alone in a cave, do you need a law?
- no
If you live with others, law is needed.
For Plato and Marx, law is unnecessary.
Infancy of States
Law is great civilizing

What are other civilizing factors in society?
1. Morality
2. Education/Science
3. Custom
4. Religion

Which between Written Law or Custom Law is more certain?
- Just because custom law becomes written, means that written
law becomes certain

Elements of Law
1. Authority
- somebody is entitled to issue a command
2. Sanctions/Punishment
- in case of noncompliance/disobedience

If we do not see police force much along the streets, then the
society must be a well-regulated society, for people follow laws
without force.

If people do not follow moral rules, people may criticize those
who do not follow.

Legality adds force to sanction of rules.
Moral Law is a metaphysical reality.


Human Rights/Bill of Rights
Freedom
Freedom to Contract
Right to Property
Right to Association
Freedom of Labor
Freedom of Speech
Freedom of the Press
Right to Social Security
Personal Freedom
Procedural Due Process

Natural Rights vs Human Rights
Natural Rights
- one is born with these

Human Rights
- based on history of mankind