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WHAT IS LAW?

teacher of English Gymnasium # 10
Member Since
Oct 2017
Published Books
1

“The law must be stable, but it must not stand still.”

Roscoe Pound

What Is Law?

The question “What is law?” has troubled people for many years. Many definitions of law exist. For our purposes, however, law can be defined as the rules and regulations made and enforced by government that regulate the conduct of people within a society.

As a child, you learned about rules first at home and later at school. At home, your parents or guardians made and enforced rules concerning issues such as chores and bedtimes. Teachers and principals established rules about classroom behavior. Rules made and enforced by the government are called laws. The government makes laws that affect almost every aspect of daily life.

One thing is certain: Every society that has ever existed has recognized the need for laws. These laws may have been unwritten, but even preindustrial societies had rules to regulate people’s conduct. Without laws, there would be confusion and disorder. This does not mean that all laws are fair or even good, but imagine how people might take advantage of one another without a set of rules.

A democratic system of government cannot function effectively unless its laws are respected by the people the laws are intended to govern. In other words, society must be based on the “rule of law.” The rule of law requires that the rules by which we are governed be known in advance and created through democratic processes. Rules should not be made up after the fact by arbitrary actions or decrees. All members of society — average citizens and government officials such as senators, judges, and even the president—are required to support the legal system and obey its laws. No one is above the law.

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WHAT IS LAW? by Tatiana Kachan - Ourboox.com

“Liberty means responsibility. That is why most men dread it.”

George Bernard Shaw

Law and Values

Laws generally reflect and promote a society’s values. Our legal system is influenced by our society’s traditional ideas of right and wrong. For example, laws against murder reflect the moral belief that killing another person is wrong. However, not everything that is immoral is also illegal. For example, lying to a friend may be immoral but is usually not illegal.

We expect our legal system to achieve many goals. These include:

  • protecting basic human rights,
  • promoting fairness,
  • helping resolve conflicts,
  • promoting order and stability,
  • promoting desirable social and economic behavior,
  • representing the will of the majority, and
  • protecting the rights of minorities.

Many of society’s most difficult problems involve conflicts among these goals. For example, some laws give preference to minorities. Critics of these laws argue that they promote reverse discrimination and racial conflict. Proponents of such laws, however, argue that they make up for past discrimination and promote fairness by leveling an uneven playing field in society today.

Achieving the goals just listed while trying to minimize conflict is a difficult task for our legal system. Laws must balance rights with responsibilities, the will of the majority with the rights of the minority, and the need for order with the need for basic human rights. Reasonable people sometimes disagree over how the law can protect the rights of some without violating the rights of others. However, everyone must remember that laws are intended to protect people and resolve conflicts in everyday life.

Laws can be based on moral, economic, political, or social values. As values change, so can laws. Moral values deal with fundamental questions of right and wrong. For example, laws against killing promote society’s primary moral value—the protection of life. However, even this shared moral value— protection of life—is not absolute or universal because in limited circumstances such as self-defense or war, the law allows intentional killing.

Economic values deal with the accumulation, preservation, use, and distribution of wealth. Many laws promote economic values by encouraging certain economic decisions and discouraging others. For example, the law encourages home ownership by giving tax benefits to people who borrow money from a bank to pay for a home. Laws against shoplifting protect property and discourage stealing by providing a criminal penalty.

Political values reflect the relationship between government and individuals. Laws making it easier to vote promote citizen participation in the political process, a basic political value.

Social values concern issues that are important to society. For example, it is a American social value that all students are provided with free public education at least through high school. Consequently, all states have laws providing for such education. Like other values, social values can change. In the past, for example, society believed that school sports were not as important for girls as for boys. This value has changed. Laws now reflect the belief that females should be provided with sports opportunities similar to those offered to males.

Many laws combine moral, economic, political, and social values. For example, laws against theft deal with the moral issue of stealing, the economic issue of protection of property, the political issue of how government punishes those who violate criminal statutes, and the social issue of respecting the property of others.

Many people tend to think that laws can be passed to solve all of their problems. In 1919, the U.S. Constitution was amended to prohibit the manufacture and sale of alcoholic beverages in this country. The Eighteenth Amendment was passed in response to a significant national problem. However, prohibition of alcohol was extremely difficult to enforce, and 14 years later it was repealed by another constitutional amendment.

Some laws designed to protect certain values may interfere with other important values. After the terrorist attacks on September 11, 2001, Congress moved quickly to pass the USA Patriot Act, a federal law designed to protect against further attacks. Some people criticized this law, which makes certain searches and electronic eavesdropping easier, as an invasion of the civil liberties Americans cherish. Others believe that they may have to sacrifice some liberty for additional security during dangerous times.

Today, legislators try to deal with the country’s devastating drug and gang problems by passing a wide variety of laws. People disagree on what role the law can play in solving these problems. Experience shows that there is a limit to what laws can reasonably be expected to do.

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WHAT IS LAW? by Tatiana Kachan - Ourboox.com

Human Rights

Human rights are the rights all people have simply because they are human beings. To advocate human rights is to demand that the dignity of all people be respected. Both government and private individuals can violate human rights. Human rights apply in people’s homes, schools, and workplaces. In fact they apply everywhere. We have our human rights from the moment we are born until the moment we die.

The Universal Declaration of Human Rights (UDHR) is a statement of basic human rights and standards for government that has been agreed to by almost every country in the world. First written and adopted by the United Nations (UN) in 1948 under the leadership of Eleanor Roosevelt, it proclaims that all people have the right to liberty, education, political and religious freedom, and economic well-being. The Declaration also bans torture and says that all people have the right to participate in their government process. Today these rights are generally promoted, recognized, and observed by countries that belong to the UN.

The UDHR is not a binding treaty. However, the UN has established a system of international treaties and other legal mechanisms to enforce human rights. These include the following major treaties:

  • The International Covenant on Civil and Political Rights protects the freedoms of speech, religion, and press and the right to participate in government.
  • The International Covenant on Economic, Social and Cultural Rights provides for the right to adequate education, food, housing, health care, protection of property, and employment in safe conditions at an adequate salary.
  • The Convention on the Rights of the Child spells out basic human rights to which children everywhere are entitled, including the right to education and to be free from exploitation.

Some believe the right to a clean environment should be added to the Covenants, while others call for a right to economic development for poor countries. Belarus has signed and ratified the Covenant on Civil and Political Rights and has signed but not ratified both the Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child.

There are other important human rights treaties covering specific areas of human rights, including genocide and discrimination against women. This is done by announcing that a country is taking reservations, which is a legal way of making a provision less enforceable than it might otherwise be (“take a reservation” means that a country could reserve its position (for further negotiation/discussion) on the parts of the document with which they don’t fully agree). The government gives a number of reasons for these reservations, including the fact that the treaty would take away the power of individual states to make law under the system of federalism, as well as the belief that other countries should not impose their views on the states. Those who advocate ratification argue that states could still decide how to implement treaties.

Belarus has adhered to most international human rights and refugee law treaties[1]: Convention on the Elimination of All Forms of Discrimination against Women, International Convention on the Elimination of All Forms of Racial Discrimination, Refugee Convention, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Human rights are standards that all countries can use when writing laws. Sometimes human rights become law in a country when the government signs an international treaty guaranteeing such rights. Human rights also can become law if they are included in a constitution or if the legislature of a country passes laws protecting or guaranteeing these rights. Even though they may not refer to them as “human rights,” there are many provisions that protect human rights (Constitution, state and local laws).

Many of the human rights documents—including the Universal Declaration of Human Rights—mention cultural rights, and it is widely accepted that all people have a right to their own culture. But what does this right to culture mean when culture comes into conflict with other universally accepted human rights? For example, the practice of female infanticide, or the killing of female babies, might be accepted in one culture, but the world community condemns it as a violation of a human right, the right to life. So cultural rights, like many other rights, are not absolute.

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Balancing Rights with Responsibilities

 

The emphasis on rights in the United States, for example, has led some people to criticize the country for being too concerned with rights, while neglecting responsibilities. Some say that “with every right there comes a responsibility” and urge people to act more responsibly toward one another, their families, and their communities.

While individual rights are important, they must be matched by social responsibilities, these critics say. For example, if people wish to be tried by juries of their peers, they must be willing to serve on such juries. If they want to be governed by elected officials who respond to their values and needs, they must not only vote but also get involved in other ways: attend election forums, work for candidates, and run for positions on school boards, city councils, and community associations. Many laws also require people to act responsibly. For example, parents must provide their children with adequate food, shelter, and clothing; drivers must obey traffic laws; and all workers must pay taxes.

Critics of the emphasis on rights also point out that “just because you have a legal right to do (or not to do) something does not mean it is the right thing to do.” For example, the First Amendment protects freedom of speech and sometimes gives people the right to say hateful and abusive things to others. However, it does not make such speech morally right.

Others emphasize the pride that people take because rights have been extended to women, minorities, and persons with disabilities, all of whom had been previously excluded from full participation in society. Striking the correct balance between rights and responsibilities can be difficult.

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Kinds of Laws

Laws fall into two major groups: criminal and civil. Criminal laws regulate public conduct and set out duties owed to society. A criminal case can be brought only by the government against a person charged with committing a crime. Criminal laws have penalties, and convicted offenders are imprisoned, fined, placed under supervision, or punished in some other way. In the U.S. legal system, criminal offenses are divided into felonies and misdemeanors. Felonies, such as murder or robbery, are more serious crimes. The penalty for a felony is a term of more than one year in prison. For a misdemeanor, the penalty is a prison term of one year or less. Less serious crimes, such as simple assault or minor theft, are called misdemeanors.

Civil laws regulate relations between individuals or groups of individuals. A civil action is a lawsuit that can be brought by a person who feels wronged or injured by another person. Courts may award the injured person money for the loss, or they may order the person who committed the wrong to make amends in some other way. An example of a civil action is a lawsuit for recovery of damages suffered in an automobile accident. Civil laws regulate many everyday situations, such as marriage, divorce, contracts, real estate, insurance, consumer protection, and negligence.

Sometimes behavior can violate both civil and criminal laws and can result in two court cases. A criminal case is brought by the government against a defendant, the person accused of committing the crime. A civil case is brought by the plaintiff—the person or company harmed—against the defendant.

In a famous series of cases, former star football player O.J. Simpson was prosecuted in connection with the deaths of his former wife, Nicole Brown Simpson, and her friend, Ron Goldman. The Los Angeles district attorney was the prosecutor in this criminal case. In order to win a conviction, the district attorney had to prove that O.J. Simpson was guilty beyond a reasonable doubt. This means that if the jury (or the judge in a case tried without a jury) has any reasonable doubts about the defendant’s guilt, then it must vote not to convict. The jury verdict in Simpson’s criminal case was not guilty.

Several months later, the parents of Ron Goldman brought a civil suit against O.J. Simpson to recover damages resulting from the wrongful death of their son. In a civil case, the plaintiff wins by convincing the jury (or the judge in a case tried without a jury) by a preponderance of the evidence. The jury (or judge) needs only to decide if it is more likely than not that the plaintiff’s complaint is true. This is a lower requirement for proof than the beyond-a-reasonable-doubt standard used in criminal cases. The reason for the different standards of proof is that a defendant loses money in a civil case but can suffer lengthy imprisonment or even the death penalty as a result of a criminal conviction. The Goldmans won their civil case against O.J. Simpson. Because the public tends not to understand the difference between civil and criminal cases, there was much confusion about how a person could be found not guilty in a criminal case and then responsible in a civil suit for damages for the same act.

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WHAT IS LAW? by Tatiana Kachan - Ourboox.com
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