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]