Keith Mack
Law is a set of rules that are created and enforced by social or governmental institutions to regulate behaviour. The world contains a vast number of national legal systems, and the United Nations brings together representatives of more than 190 states. Law can be compared to a system of governance, with different types of laws and legal systems in place around the world. The study of these differences and similarities is called comparative law. The concept of comparative law is not new, with Aristotle in the 4th century BC collating the constitutions of 158 city-states to devise a model constitution. Comparative law allows for the classification of legal systems, with law families as the basic level of classification. For example, common law systems such as Australia's are moving away from the idea of consideration as a requirement in contracts. In contrast, civil law jurisdictions like Australia treat contracts differently, with a more interventionist role for the state in formation and enforcement.
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What You'll Learn
A law to a set of rules
A law can be compared to a set of rules. Laws are a set of rules that are created and enforced by social or governmental institutions to regulate behaviour. They are influenced by a variety of factors, including the constitution, the rights encoded therein, and the political and philosophical beliefs of lawmakers. For example, Hugo Grotius, the founder of a purely rationalistic system of natural law, argued that law arises from a social impulse and reason. Immanuel Kant believed that a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".
The process of creating and enforcing laws can vary depending on the country and the type of legal system in place. In common law jurisdictions, such as the United States, laws can be made by a legislature, resulting in statutes; by the executive through decrees and regulations; or by judges' decisions, which form precedents. The United States Congress is the law-making branch of the federal government, and the process of creating a law begins with a bill, which is a proposal for a new law or a change to an existing one. A bill can be proposed by a sitting member of Congress or during an election campaign, or it can be petitioned by citizen groups. Once introduced, the bill is assigned to a committee, which researches, discusses, and makes changes before putting it before the chamber for a vote. If the bill passes one body of Congress, it goes through a similar process in the other body, and if it passes both, any differences between the two versions must be worked out. Finally, the bill goes to the president for approval, who can sign it into law or veto it.
In contrast, civil law jurisdictions, such as those in continental Europe, have a more centralised system where a legislature or other central body creates and consolidates the law. For example, in medieval England during the Norman Conquest, the law varied depending on the shire due to disparate tribal customs. It was not until the reign of Henry II in the 12th century that a unified system of common law was established, with judges appointed to create and enforce the law across the country.
The scope of laws can be divided into two main domains: public law and private law. Public law concerns the government and society, including areas such as constitutional law, administrative law, and criminal law. On the other hand, private law deals with legal disputes between parties in areas such as contracts, property, torts, delicts, and commercial law. The distinction between public and private law is stronger in civil law countries, while in common law jurisdictions, the divide is less pronounced.
Laws also raise important issues concerning equality, fairness, and justice. While some philosophers, like Immanuel Kant, believe that morality should be a guiding principle in creating laws, others, like Jeremy Bentham and his student Austin, argue that law and morality are separate. They advocate for law's positivism, which states that real law is entirely distinct from "morality". Despite these differing philosophical perspectives, laws serve as a critical framework for shaping politics, economics, history, and society, as well as mediating relations between individuals.
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Law to a science or art
The comparison of law to science or art is a nuanced topic that has been discussed by various scholars and practitioners. Some argue that law encompasses elements of both science and art, while others emphasise the dominance of one over the other. Here is an exploration of the different perspectives:
Law as a Science
The scientific aspect of law pertains to its systematic and analytical nature. Law, similar to science, involves a structured process of research, analysis, and interpretation. This is evident in the legislative process, where bills undergo rigorous scrutiny, discussion, and amendment before being enacted into law. The legal profession also shares similarities with the scientific method, as lawyers gather facts, apply established principles, and utilise logical reasoning to reach conclusions.
Furthermore, the concept of "comparative law" exemplifies the scientific nature of law. Comparative law involves the study of different legal systems and the comparison of their similarities and differences. This analytical approach treats law as a science, with legal systems being categorised into "families" based on criteria such as historical background, institutions, sources of law, and dominant ideology. By comparing laws across jurisdictions, scholars and practitioners gain a deeper understanding of legal systems and their applications.
Law as an Art
On the other hand, law is often regarded as an art due to its creative and skill-based nature. The practice of law involves negotiation, persuasion, and tailoring solutions to meet the unique needs of clients. Lawyers must possess excellent communication skills and the ability to craft compelling arguments, much like artists who use their creativity to express ideas and evoke emotions.
The art of law is particularly evident in the courtroom, where lawyers engage in oral advocacy and strive to present their cases in the most favourable light. It also extends to drafting legal documents, where lawyers must carefully select words to capture the intentions and interests of their clients. Additionally, the interpretation of laws and their application to specific situations can involve a degree of creativity, further emphasising the artistic aspect of legal practice.
A Synthesis of Science and Art
While the scientific aspects of law may be more susceptible to automation and technological advancements, the artistic elements are likely to remain integral to the profession. The future of law may lie in a synthesis of science and art, where technology streamlines repetitive tasks, allowing lawyers to focus more on the creative and strategic aspects of their work. This integration has the potential to enhance the efficiency, accessibility, and innovation within the legal field.
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Law to a moral imperative
A law can be compared to a moral imperative, a strongly felt principle that compels a person to act. Immanuel Kant's notion of a "categorical imperative" is a universal ethical principle stating that one should always respect the humanity in others and act in accordance with rules that could hold for everyone.
Kant's philosophy emphasizes the importance of acting rationally and in alignment with a universal moral law. He argues that moral requirements have a unique force as reasons to act, and their content is universal. This leads to the principle that one should "act only in accordance with that maxim through which you can at the same time will that it becomes a universal law."
In other words, when considering an action, one should first formulate a maxim or general rule that encapsulates the intended behavior. Then, one should imagine this maxim as a universal law, applicable to all rational agents. If it is possible to will that everyone act according to this maxim, then the action is morally permissible. For example, the maxim "I shall lie when it will get me out of trouble" fails this test because, in a world where everyone lies to get out of trouble, the very act of lying becomes impossible, as it requires the presupposition of truthfulness.
Kant's moral philosophy also includes the idea that moral law is a truth of reason and that all rational creatures are bound by it. He believed that reflecting on the moral law leads to a justified belief in concepts such as free will, God, and the immortality of the soul.
Comparing law to a moral imperative highlights the idea that laws should be based on fundamental moral principles that promote respect for humanity and universal applicability. This comparison underscores the importance of aligning legal systems with ethical values and the inherent reasonableness of moral conduct.
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Law to a social impulse
Hugo Grotius, the founder of a purely rationalistic system of natural law, argued that law arises from a social impulse and reason. Rudolf Steiner referred to the Fundamental Sociological Law as a law, meaning that it has the same stringent effect for society as natural laws have for the realm of nature. It is a developmental law that unfolds over time.
The sociological fundamental law is not limited to the state but includes all associative formations that are developed with a posture that accords with their time. That is, forms of living together that do not hinder individual development but promote progress. Dieter Brll indicates that the sociological law concerns the representation of the individual evolution of consciousness. The question arises: Which forms of society are conducive to the development stages of humanity?
The present form of society, driven by neo-capitalism, has achieved the guarantee of equality for citizens before the law but has created a new inequality in the form of a huge gap between the rich and the poor. The free economy has maximized profit with hardly any regard for social needs. The dependent working individuals are almost completely subservient to the interests of capital.
In essence, law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behaviour. It has been described as a science and as the art of justice. State-enforced laws can be made by a legislature, resulting in statutes, by the executive through decrees and regulations, or by judges' decisions, which form precedents in common law jurisdictions. Law shapes politics, economics, history, and society in various ways and also serves as a mediator of relations between people.
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Law to a unifying factor
Law as a unifying factor can be understood in several ways. Firstly, law can be seen as a unifying force within a society, bringing together diverse groups of people under a shared set of rules and regulations. This aspect of law has been recognised since ancient times, with Aristotle collating the constitutions of 158 city-states to devise a model constitution. Similarly, in medieval England, the concept of "common law" emerged under Henry II, creating a unified system of law for the country.
Secondly, law can facilitate unification across different jurisdictions or countries. With globalisation and increasing international cooperation, comparative law has gained importance. This field of study examines the similarities and differences between legal systems worldwide, allowing for a classification of law families. For instance, an American lawyer must consider not only federal law but also the laws of the fifty states, a task similar to a microcomparative legal analysis. Comparative law can inform international legal institutions, such as the United Nations, in understanding the diverse legal systems of their member states.
Thirdly, law can be a unifying factor by providing a common framework for resolving disputes and regulating behaviour. This function of law is particularly crucial in diverse societies, where varying cultural, religious, and social norms may exist. By establishing a set of rules enforceable by governmental institutions, law ensures a degree of consistency and predictability in social interactions. For example, civil law jurisdictions, such as those in Europe, have a more centralised role in creating and interpreting contracts, providing a unified approach to commercial transactions.
Lastly, law can serve as a unifying factor by shaping politics, economics, history, and society. It influences and is influenced by these domains, providing a framework for social organisation and governance. For instance, the development of law can be traced through historical periods, such as the Norman Conquest in England, where law varied based on tribal customs. Law also shapes economic systems, such as through taxation laws, and it raises issues of equality, fairness, and justice, which are fundamental to social cohesion.
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Frequently asked questions
A law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behaviour.
Laws can be compared to each other, with comparative law being the study of differences and similarities between the law and legal systems of different countries.
An American lawyer must take into account the 50 state systems and the federal law in their practice of the law. Similarly, an Australian, Indian or Kenyan lawyer must consider their own national system as well as the laws of England and other common-law jurisdictions in the Commonwealth.
The purposes of comparative law are to attain a deeper knowledge of the legal systems in effect and possibly, to contribute to a unification of legal systems.
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