Text 1. What is law?

Descriptive and prescriptive.

(1) The English word “law” refers to limits upon various forms of behavior. Some laws are descriptive: they simply describe how people, or even natural phenomena, usually behave. An example is the rather consistent law of gravity: another is the less consistent laws of economics. Other laws are prescriptive – they prescribe how people ought to behave. For example, the speed limits imposed upon drivers are laws that prescribe how fast we should drive. They rarely describe how fast we actually do drive, of course.

Social morality, rules and laws (2) In all societies, relations between people are regulated by prescriptive laws. Some of them are customs – that is, informal rules of social and moral behavior. Some are the rules we accept if we belong to particular social institutions, such as religious, educational and cultural groups. And some are precise laws made by nations and enforced against all citizens within their power.

(3) Customs need not be made by governments, and they need not be written down. We learn how we are expected to behave in society through the instruction of family and teachers, the advice of friends, and our experiences in dealing with strangers. Sometimes, we can break these rules without suffering any penalty. But if we continually break the rules, or break a very important one, other members of society may ridicule us, criticize us, act violently toward us or refuse to have anything to do with us. The ways in which people talk, eat and drink, work, and relax together are usually guided by many such informal rules which have very little to do with laws created by governments.

(4) The rules of social institutions tend to be more formal than customs, carrying precise penalties for those who break them. They are not, however, enforceable by any political authority. Sports clubs, for example, often have detailed rules for their members. But if a member breaks a rule and refuses to accept any punishment, the club may have no power other than to ask him or her to leave the club.

(5) However, when governments make laws for their citizens, they use a system of courts backed by the power of the police to enforce these laws. Of course, there may be instances where the law is not enforced against someone – such as when young children commit crimes, when the police have to concentrate on certain crimes and therefore ignore others, or in countries where there is so much political corruption that certain people are able to escape justice by using their money or influence. But the general nature of the law is that it is enforced equally against all members of the nation.

(6) Government-made laws are nevertheless often patterned upon informal rules of conduct already existing in society, and relations between people are regulated by a combination of all these rules. This relationship can be demonstrated using the example of a sports club.

(7) Suppose a member of a rugby club is so angry with the referee during a club game that he hits him and breaks his nose. At the most informal level of social custom, it is probable that people seeing or hearing about the incident would criticize the player and try to persuade him to apologize and perhaps compensate the referee in some way. At a more formal level, the player would find he had broken the rules of his club and perhaps of a wider institution governing the conduct of all people playing rugby, and would face punishment, such as a fine or a suspension before he would be allowed to play another game. Finally, the player might also face prosecution for attacking the referee under laws created by the government of his country. In many countries there might be two kinds of prosecution. First, the referee could conduct a civil action against the player, demanding compensation for his injury and getting his claim enforced by a court of law if the player failed to agree privately. Second, the police might also start an action against the player for a crime of violence. If found guilty, the player might be sent to prison, or he might be made to pay a fine to the court – that is, punishment for an offence against the state, since governments often consider anti-social behavior not simply as a matter between two individuals but as a danger to the well-being and order of society as a whole.

(8) What motives do governments have in making and enforcing laws? Social control is undoubtedly one purpose. Public laws establish the authority of the government itself, and civil laws provide a framework for interaction among citizens. Without laws, it is argued, there would be anarchy in society (although anarchists themselves argue that human beings would de able to interact peacefully without laws if there were no governments to interfere in our lives).

(9) Another purpose is the implementation of justice. Justice is a concept that most people feel is very important but few are able to define. Sometimes a just decision is simply a decision that most people feel is fair. But will we create a just society by simply observing public opinion? If we are always fair to majorities, we will often be unfair to minorities. If we do what seems to be fair at the moment, we may create unfairness in the future. What should the court decide, for example, when a man kills his wife because she has a painful illness and begs him to help her die? It seems unjust to find him guilty of crime, yet if we do not, isn’t there a danger that such mercy-killing will become so widespread that abuses will occur? Many philosophers have proposed concepts of justice that are much more theoretical than everyday notions of fairness. And sometimes governments are influenced by philosophers, such as the French revolutionaries who tried to implement Montesqieu’s doctrine of the separation of powers; or the Russian revolutionaries who accepted Marx’s assertion that systems of law exist to protect the property of those who have political power. But in general, governments are guided by more practical considerations such as rising crime rates or the lobbying of pressure groups.

(10) Sometimes laws are simply an attempt to implement common sense. It is obvious to most people that dangerous driving should be punished; that fathers should provide financial support for their children if they desert their families; that a person should be compensated for losses when someone else breaks an agreement with him or her. But in order to be enforced, common sense needs to be defined in law, and when definitions are being written, it becomes clear that common sense is not such a simple matter. Instead, it is a complex skill based upon long observation of many different people in different situations. Laws based upon common don’t necessarily look much like common sense when they have been put into words!

(11) In practice, governments are neither institutions solely interested in retaining power, nor clear-thinking bodies implementing justice and common sense. They combine many purposes and inherit many traditions. The laws that they make and enforce reflect this confusion.

The laws made by the government of one country are often very different from the laws of another country. But although there is a growing body of international law, the law is, to a large extent, a complex of different and relatively independent national systems.

(12) Most of the examples given there come from English law. Despite major revisions over the centuries, the legal system of England and Wales is one of the oldest still operating in the modern world. (Scotland and Northern Ireland have their own internal legal systems, although many laws made by British government operate throughout Britain.) English law has directly influenced the law of former British colonies such as Australia, India, Canada and the nation where law plays a bigger part in everyday life than anywhere else, the United States. In addition, although the legal systems of western Europe and Japan come from rather different traditions, there are enough similarities of principle and institution to make comparison useful here too.