IDEA OF LAW by Dennis Lloyd

PREFACE

Lawo institution central to social nature of mano w/o it man would be a different creatureo has a major role in human affairso one of the great civilizing forces o growth of civilization due to the development of legal

ruleso found with moral codeso relationship of law to moralityo 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 societyo citizen becomes relieved of his noncompliance to the

actual law lawful basis to wage revolt against legitimate

authority of the stateo 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 ISSUEo meaning of freedom of the citizeno measures to preserve this freedom

Law & Liberty, where law:o is an instrument for tyrannyo confers security upon the citizen in his person &

propertyo 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 Scienceso relation to human thought and activityo have impact to legal thinking and practiceo link of legal thinking w/ anthropology, psychology,

sociology and criminologyo 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 countrieso task is to solve practical problemso better equipped by his legal experience

Judiciaryo its role has immense social significance in a modern

legal systemo 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 can’t experiment, only speculate

speculation should be reasoned, based on our knowledge

what to speculate about?:- USSR, US- what point in timeTHINGS THAT WILL VARY:- answers to questions- country where particular laws are involved- time when the laws were enforced

2ND 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

- man’s need for food is unclear- man’s need for some laws is unclear and debatable

- diff. laws are justified in diff. ways- some laws to satisfy man’s 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 peace2. prevent crime and arrest offenders3. 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- larceny2. 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 doesn’t 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 propertyANSWER 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)- Communism’s 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 MAN’S LIFE IN A SOCIETY:1. uniformity of time in US2. driving speed limit3. mandatory 10 working hours in mills, factories or manufacturing establishments4. illegality of contracts/conspiracy among several States/foreign nations5. punishment/sanctions for people (<=$50K / <=1 year imprisonment) guilty of violating laws against contracts/conspiracies6. uniform public school system

TRAFFIC LAWS- promote safety, make life more orderly and convenientSANITATION LAWS- more healthfulCOMPETITION AND EMPLOYMENT LAWS- improve the economic life of citizenryEDUCATION

- 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 areasGOOD 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. truth2. creativity3. genius4. spontaneity5. independence6. self-reliance

how about USSR?- unfree but w/ lots of accomplishments

whether USSR’s 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 & shelter2. laws for legal officials3. laws for the improvement of man’s quality of life in society

- give other kinds of laws2 TYPES OF LAWS OF LAWS IMPROVING MAN’S QUALITY OF LIFE IN SOCIETY1. laws promoting widely accepted ends:- economic well-being, health, safety2. laws which ends are not so widely agreed upon and are debatable

- examples

EXAMPLES OF LAWS WITH NOT SO WIDELY AGREED UPON AND DEBATABLE ENDS1. laws against interracial marriage to keep whie man “pure”2. freedom of religion to make man religious3. university policies/rules/regulations against selling of intoxicating liquor in campus to make him moral

- these laws are doubtful, though defenders believe they improve man’s quality of life

- much evidence say that man can live well w/o these

- indeed, some laws are less necessary than othersLAWS 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 one’s moral duty- some may refuse violence/theft

IF A LENDER COULDN’T 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 short2. 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 relations4. law facilitates peaceful & efficient social change5. 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. Morality2. Education/Science3. Custom4. 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 Law1. Authority

- somebody is entitled to issue a command2. 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