Khachen
Techahadsadin
ID.507030
What
Made Rule and Law Different
Nowadays people are living society
that had law control people into right ways. Law was something that used to be
control people but it different from rule. If someone asked that what is law?
One answer is that a law is a type of rule, but clearly there are many rules
which are not law: rules of etiquette, school or club rules, and moral rules,
for example. One way to get knowledge and understand more about what law is to
look at what distinguish between legal rules from other types of rule.
Law was an instrument of the government to controlled
citizen and made them live in peacefully, a code that regulates the behavior of
members of a society. It affects almost everything we do - buying a house,
getting a job, and making a will or getting divorced, for example. Law was divided
to many types of law such as the law of contract, company law. Rules were
different from rules.
Rules
were using for control people; they tend to apply to people in general or
specific class, rather than singling out individuals. They were normative,
meaning that they set standard of how things ought to be, rather than how they
are such as ‘cars should be driven on the road’ it was a normative statement, a
rule stating how things ought to be, in contrast to ‘car were driven on the
road’ which is simply a factual statement. All rules whether they were legal,
justice, moral or just customary we were under the rule and had to behavior to
which we ought to conform it the rule affects us. Rules were only one thing
which in concept of law.
Sometimes
rules may command action, meaning that we had to follow the command or order,
they say something must or must not be done, and there may be a penalty for disobedience;
or they may tell you how to behavior, by saying what ought or ought not to be
done. They tend to cover situation which have happened in the past and are likely
to happened again; if we didn’t know that a particular situation could happen,
there will be no rules to guide behavior
in that situation. Rules may be written down, or we simple known among
those whom they affect. Principles can be distinguished from the rules; the
former may have a similar form but tend to be more general, and usually have to
be translated into rules before they can be put into use. Legal rules clearly
fit into the definition of rules, and are different from legal principles, but
what made rules different from law.
In
the seventeenth- century John Austin, writer of the book call The Province of
Jurisprudence. He argued that law different from other rules because it was the
command of sovereign body, which the state could enforce by means of
punishment. The relevant sovereign body would vary in different countries; in
Britain it was the Queen in Parliament, but in other countries it might be the
king alone, or president.
Austin’s
definition had clear application to some area of law, most obviously criminal
law, where we were told we must do or not do certain things, with penalties for
disobedience. But there were large areas which fall outside it. Contract law,
for example details the permission which can be enforce when contracts were
broken, but it didn’t command us to make contracts in the first place. The law
concerning marriage didn’t order anyone to marry; it simple sets out the
conditions under which people can do so it they wish, the procedure they should
follow to make the marriage legally valid, and the legal consequences of being
married. The rules about marriage and contracts could be described as rules
giving power, in contrast to the rules imposing duties which comprise criminal
law; they have different functions, but both types are legal rules.
As
professor Hart and other legal philosophers have pointed out, there were an enormous
number of legal rules which neither make commands, nor impose sanctions. The
complexity and variety of legal rules make it impossible to cover them all with
the proposition that laws are commands.
Professor
Hart made his idea about primary and secondary rules. He tried to like types of
rules with types of legal systems. He divided legal rules into primary rules
and secondary rules, and argued that the existence of secondary rules was a
mark of a developed legal system.
Primary
rules were described as those which any society needs in order to survive.
There rules disallow the most socially destructive forms of behavior, regularly
murder, robbery, cheat, also cover civil law, such as tort. According to Hart,
simple societies, which generally have a high degree of social union, can
survive only these basic rules but as a society becomes more complex, it will
require secondary rules.
Secondary
rules discuss power rather than impose duties, and can be divided into three
types: rules of adjudication, rules of change and rules of recognition.
The first type of
second rule was rules of adjudication. Rules of adjudication happen because as
societies become larger and more complex, these bonds are broken, and social
pressures will not be enough to shape behavior. As a result the community needs
some means of giving authority to its rules, and the secondary rules of
adjudication are designed to provide this. They enable officials to decide
disputes, and to define the procedures to be followed and the sanctions which
can be applied when rules are broken. Examples of secondary rules in our
society are those which lay down what kind of issues can be decided by courts,
which is qualified to be a judge and sentencing legislation for criminal cases.
The second type of
secondary rule was rule of change which concerned with making new rules, both
primary and secondary. Rules of changes
lay down the procedure to be followed in making new rules or changing old ones
because society is develop and it need these to respond to new situations,
perhaps the clearest example in our society were the huge number of laws
introduced over the century as a result of the invention of motorized
transport. In our system, the main rules of change are those concerning how
legislation was made and how judicial decisions become part of the common law.
The third was rule of
recognition. To develop society according to Hart developed rules of recognition
which of the many rules that govern society we must wait and see whether a
potential rule gets accepted as a rule or not. In a system with a basic rule of
recognition we can say before a rule is actually made that it will be valid if
it conforms to the requirements of the rule of recognition. The fact that in
simple forms of society rules are enforced by social pressure means that they
are only blinding if the community accept them. With in small scale, close-knit
community it will usually be obvious to all what the accepted rules are. But
for rule of recognition wasn’t for complex society because there may be many
rules, some of them complex, and individuals can’t be expected to know them
all.
In nineteenth-century
French sociologist, Emile Durkheim, looked at the issue of social cohesion,
searching for what keeps a society together, and concluded that law was the
important role for them. He looked at the role of law in two contrasting types
of society. The first type of society was a relatively simply, technologically
undeveloped society. The second type of society was highly developed in terms
of technology and social structure.
Durkheim argued that in
the first type of society, the whole group would have clearly certain common aims,
and all would work to achieve them. The interests of any individual within the
group would be exactly the same as those of the group as a whole. A moral and
legal code based on these aims would be recognized and accepted by all, and
would keep the group working together. Durkheim called this mechanical
solidarity. An individual who deviated from this system would be punished, and
their punishment would support the system by reflecting the group’s disapproval
of the wrong doing.
According to Durkheim’s
analysis, as social groups become larger and more complex, developing links
with other social groups, the interests of individual members become less
closely linked to those of the group as a whole. In a developed society
individuals and families look after their own interests. Social solidarity
didn’t disappear but becomes based on increasing interdependence, which itself
stems from the division of worker.
Whereas, for example, in the small-scale society, each family would make
its own bread, in the developed society this job is share between farmer, flour
mill, bakery and retailer, all dependent on each other and the consumers. This
interdependence means that the individual had social importance in their own
right, rather than occupying a social position simply as one member of the
group.
Durkheim argued that
these changes would be accompanied by a corresponding change in the type of the
law present in the society. Penal law would become less important and be
replaced by compensatory law. Compensatory law objected wasn’t to punish but to
resolve complaints by restoring the injured party to the position they were in
before the dispute arose. There would be less need for resolving of disputes
between individuals and society, and more for resolving those between individuals.
Durkheim’s analysis has
been criticized for overestimating the extent to which criminal law would
decline and give way to make up law in an industrialized society. If anything,
industrialized societies have increased the application of criminal law, and
indeed, industrialization has create new crimes, such as computer hack, cheat
and pollution. Anthropological studies have shown that he also underestimated
the degree to which compensatory or civil law already exists in simple
societies.
Professor Hart argues
that human being needed the main function of law to survive in a community. He
proposes that there are certain truths about human existence which, without
rules leading our behavior, would make life very dangerous. Each member of
society has, more or less, the same physical strength and intelligence, and our
powers of both self-restraint and willingness to help others are limited. As a
result we all faced the danger of attack from the others and competition for
our resources. Any group of humans will soon know that it needs rules decrease
individual desires and impulses. We realize that, if we attack people or take
their goods when they are weaker, the same could happen to us. To protect
ourselves we must accept limitations on our behavior. The option would be a
degree of conflict that would make it impossible for the group to stay
together. Individual members might be even less safe if they had to face the
world alone.
The realization that we
are not safe in the world alone and can only be safe in a community if there
are rules of self-restraint, lead to the development of such rules, protecting
the property and person of others. It also leads to acceptance of the idea that
observance of the rules must be guaranteed by some kind of penalty directed against
the rule-breaker. Hart maintains that such rules are the minimum necessary
content of law in any society.
As
a result law is need for every society to survive and rules are the thing that
control people in small group to doing right. Nowadays we are living in society
that used law and rules to control us. Law helps us to living in our society in
peaceful. Rules help us know how to behavior in society and made us know manner
for culture for each place. The way of life we life everyday had law and rules
to control everything such as in school, university, company, till in public
place. We had law as a thing to lead our behavior and get rid of bad people,
but even though societies have law to control people in our society still have
a lot of people who making illegal things. The Societies are developing more
and more technology, so the crimes also invent new ways to making illegal, Because
of that the societies must always improving our law and rules for everyone to had
a better society.
Bibliographies
-
Peter
Stone, The Conflict of Laws. (1995),
Longman. [Book]
- Clare De Thon and Edwin Shorts,
International Criminal Law and Human
rights. (2003),
Sweet & Maxwell. [Book]
- Catherine Elliott & France Quinn, As Law. (2004),
Pearson Longman. [Book]
-
Philosophy of Law. [Internet]
Available
from: <http://www.iep.utm.edu/l/law-phil.htm>
[Access November 15, 2007]
- The
Moral Law and Cultural Relativism. [Internet]
Available from: <http://homepages.paradise.net.nz/mischedj/ca_cultrelativism.html>
[Access November 15, 2007]
