1. What Is Law and Why Is It Necessary

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Many laws are specifically designed to protect certain groups of people. Laws such as the Civil Rights Act (United States) and the Sex Discrimination Act (Australia) make discrimination illegal. These types of laws protect so-called “negative rights,” that is, the right to be free from something like discrimination. Anyone can be discriminated against, but as history shows, some people are more at risk. Laws to prevent discrimination based on race, sex, gender, religion and more protect these groups and give them better access to justice. One definition is that the law is a system of rules and guidelines applied by social institutions to regulate behavior. [2] In The Concept of Law, Hart argued that the law is a “system of rules”; [35] Austin said the law was “the command of a sovereign, supported by the threat of sanctions”; [36] Dworkin describes the law in his Law`s Empire as an “interpretive concept” for obtaining justice; [37] and Raz argues that the law is an “authority” to convey people`s interests. [38] Holmes said, “Prophecies about what the courts will actually do, and nothing more presumptuous, are what I mean by the law.” [39] In his treatise on law, Aquinas argues that law is a rational order of things concerning the common good proclaimed by the one who is responsible for caring for the community. [40] This definition contains both positivist and naturalistic elements. [41] The independence of the judiciary means that judges are independent of political pressure and influence in their decisions. An independent judiciary is essential to respect for the rule of law.

Judges should not be pressured by a political party, private interest or public opinion when asked to determine what the law requires. The independence of the judiciary from these influences ensures that everyone has a fair chance to take their case to court and that judges are impartial in their decisions. Judges must also explain their decisions in public written submissions, and their decisions can be challenged in a higher court for review. These elements of judicial decision-making ensure that judges remain accountable to the rule of law. Im 18. In the nineteenth century, Adam Smith provided a philosophical basis for explaining the relationship between law and economics. [227] Discipline stems in part from criticism of unions and U.S. antitrust law.

The most influential proponents, such as Richard Posner and Oliver Williamson and the so-called Chicago School of Economists and Lawyers such as Milton Friedman and Gary Becker, are generally proponents of deregulation and privatization and are hostile to government regulation or what they see as restrictions on the functioning of free markets. [228] “Politics is the blueprint of what a government will do and what it can accomplish for society as a whole.” Politics” also means what a government does not intend to do. It also develops the principles necessary to achieve the goal. Policies are just documents and not a law, but these policies can lead to new laws. Understanding the difference between law and policy and the overlap between the two can be helpful in understanding what kind of career path you want to pursue and whether additional training (such as law school, a master`s degree in public administration, or both) is needed. The law is good, it is necessary, its enforcement is bad, and customs judges laws on the basis of how they are enforced. [44] In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book Die reine Rechtstheorie. [51] Kelsen believed that although the law is distinct from morality, it is endowed with “normativity,” which means that we should obey it. Although the laws are positive statements (e.g. the fine for reversing on a motorway is €500); The law tells us what we “must” do.

Thus, any legal system can be assumed that it has a basic norm that commands us to obey. Kelsen`s main opponent, Carl Schmitt, rejected both positivism and the idea of the rule of law because he did not accept the primacy of abstract normative principles over concrete political positions and decisions. [52] Schmitt therefore argued in favour of exceptional case law (state of emergency), which denied that legal norms could encompass the entire political experience. [53] Making laws that man cannot and will not obey serves to despise all law. It is very important in a republic that the people respect the laws, because if we beat them in the wind, what will happen to a civilian government? How many times a day does someone tell you what to do? How many times do you have to stop yourself from doing what you want because you know that this action is forbidden or wrong? Basically, the law aims to mitigate conflicts. When creating laws, corporations rely on what causes conflicts. Some things – like murder and theft – are obvious and have been incorporated into laws dating back to ancient times. However, over time and as societies change, what is considered acceptable also changes. Legal systems adapt in such a way as to provide clarity and context for unacceptable measures. They also provide guidelines for appropriate consequences. The most prominent economic analyst of the law is the 1991 Nobel laureate, Ronald Coase, whose first major article, The Nature of the Firm (1937), argued that the reason for the existence of companies (companies, partnerships, etc.) is the presence of transaction costs. [230] Rational individuals negotiate through bilateral agreements in open markets until the cost of transactions means that using firms to manufacture things is more profitable.

His second major paper, The Problem of Social Cost (1960), argued that if we lived in a world without transaction costs, people would negotiate with each other to create the same distribution of resources, regardless of how a court might rule in property disputes. [231] Coase used the example of a nuisance called Sturges v Bridgman, in which a noisy confectionery manufacturer and a silent doctor were neighbors and went to court to see who should move. [210] Coase stated that regardless of whether the judge ruled that the confectionery manufacturer should stop using its machines or that the physician had to live with it, he could enter into a mutually beneficial agreement on who moves that achieves the same result of resource distribution. Only the presence of transaction costs can prevent this. [232] The law should therefore anticipate what would happen and be guided by the most effective solution. The idea is that law and regulation are not as important or effective in helping people as lawyers and government planners believe. [233] Coase and others like him wanted a change of approach to place the burden of proof of the positive impact on a government that intervened in the market by analyzing the costs of the action. [234] There can be no free society without rights administered by an independent judiciary. If a person can be allowed to determine for himself what the law is, every human being can.

It means first chaos, then tyranny. The rule of law is a term that is often used but difficult to define. A common saying is that the rule of law means the government of the law, not men. But what is meant by “a government of the law, not the people”? But after all, what is a law? […] When I say that the object of laws is always general, I mean that the law considers mass subjects and actions in an abstract way and never a particular person or action. […] From this point of view, we immediately see that it is no longer possible to ask who is responsible for the task of enacting laws, since they are acts of the general will; nor if the prince is above the law, since he is a member of the state; nor whether the law can be unjust, since no one is unjust to himself; nor how we can be both free and subject to the laws, since they are only registers of our will. Hegel believed that civil society and the state were polar opposites within the framework of his dialectical theory of history. The modern dipole state – civil society was reproduced in the theories of Alexis de Tocqueville and Karl Marx. [165] [166] In postmodern theory, civil society is necessarily a source of law in the sense that it is the basis on which people form opinions and defend what they believe to be right.