LAWS AND THE LEGAL SYSTEM

Sunday, September 13, 2009

Why do we have laws and legal systems? At one level, laws can be seen as a type of rule which is meant to govern behaviour between people. Many organisations use rules to govern behaviour between people. Families may have rules about keeping one’s bedroom tidy or not staying out late. Schools have rules about doing homework and not running in corridors. Football associations have rules about not using hands (except for goalkeepers) and not swearing at the referee. So, rules seem to be an almost inevitable part of any organised social interaction, and societies have almost always developed such rules.




Primitive societies will have relatively few formal rules, and such rules as exist will often be derived from other moral codes such as religion. So, a prohibition on murder and theft may exist, but it may be left to individuals to decide what other arrangements they should make for themselves.



In more complex societies, such as the United Kingdom, two developments occur:



rules grow in extent. The basic purposes of law often revolve around ideas of protection and the maintenance of the peace, which are basic functions of any state. So, laws are passed about crime and disorder and also the peaceful settlement of disputes between citizens. But as social and economic interaction develops, there will also be rules about how commerce can be practiced and how the state can care for the needs of its citizens. So, there are rules about industrial processes, land use, and motoring, and also social welfare, health, housing and education, none of which exists in primitive societies

rules develop about rules - how to make or change rules, how to determine the validity or meaning of rules. In this way the rules become systematised.

When a complex legal system has developed, it is important to realise that it does not solely consist of rules. Legal principles can come into play in order to make sense of collections of rules and to provide the basis for future development. Legal principles are more generalised statements than legal rules and will often be akin to moral precepts.



Though there can be bad laws and good laws, it has been argued that laws should only be recognised as having authority as such if they comply with the requirements of the rule of law. In this way, we should be able to distinguish between a system of laws and a system of terror. This is a very noble idea - the rule of law is associated with requirements such as "due process" (laws which are clear, discussed in advance and equal in application) as well as broader aims such as respect for individual rights and social equality and justice. However, the more demanding meanings of the rule of law are in the realms of political morality rather than legal validity. Many dictatorships and evil regimes have been able to rule by law, though not in accordance with the doctrine of the rule of law.