Legal Rules

7 Key excerpts on "Legal Rules"

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  Organisations and the Business Environment

  • Tom Craig, David Campbell(Authors)
  • 2012(Publication Date)
  • Routledge

    (Publisher)

  The Legal Environment

  DOI: 10.4324/9780080454603-14

  Learning Objectives

  After studying this chapter, students should be able to describe:

  • the nature of law and Legal Rules;
  • the nature of and difference between civil law and criminal law;
  • the nature of and difference between common law and statute law;
  • the purpose and structure of the British and European Union(EU) judiciaries;
  • the types of EU law and the EU legislative process;
  • the key areas of business law and the relevant legislation.

  14.1 What is Law?

  When we consider how legal matters affect businesses and other organisations, we should consider it to be essentially a part of the political environment. However, its complexities and importance necessitate a more detailed discussion. This is the objective of this chapter.

  Definition and Purpose of Law

  A System of Rules

  In any society, the complex interrelationships between legally responsible parties, such as people and companies, need to be regulated. It is generally understood that limits must be placed upon activities to prevent miscreants and other irresponsible people from abusing their freedom in a democratic state. Such acceptation leads to the enforcement of ‘rules’. However, not all rules carry the same weight. A distinction needs to be drawn between Legal Rules and other types of rules. We sometimes use the term ‘rules’ to describe norms of behaviour in society. We may consider ourselves to be breaking ‘social rules’ if we act in an antisocial manner, such as dressing in an unconventional way, or if we are rude or insulting to others. Within organisations, rules are imposed to facilitate normal functioning and may take the form of rigid procedures and limits of behaviour, such as a rule that receipts must be provided to support all expense claims.

  Legal Rules are different from social and other rules. They are characterised by the fact that they are enforceable by the judiciary which acts on behalf of the state. So whereas the de facto

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  Sociology of Law as the Science of Norms

  • Håkan Hydén(Author)
  • 2021(Publication Date)
  • Routledge

    (Publisher)

  They risk portraying Legal Rules as categorically different from norms in general. Legal Rules are, according to the present book’s point of view, nothing more than norms that have gained some specific characteristics by being endowed with the status of Legal Rules. By being elevated to Legal Rules, state authority becomes linked to enforcing the norm. 14 Émile Durkheim argues that what distinguishes Legal Rules from other norms is that they are administered and implemented in a particular order. 15 According to Francis Sejersted, in the book Demokratisk kapitalism (Democratic Capitalism), society consists of the norms and rules applicable when individuals interact. 16 A part of this norm system is codified within a more formal system of laws. Sejersted argues that this part gains unique characteristics by being backed up by legal force. It is also gains particular stability by being put down in writing and being the subject of deliberate interpretation and further elaboration. The famous English legal philosopher H.L.A. Hart argued that law consists of two kinds of rules: primary rules concerning rights and obligations and secondary rules that deal with how to identify, implement and change primary rules. 17 Secondary rules, in other words, serve the purpose of maintaining a division between norms and Legal Rules. Aubert, Vilhelm (1976, p. 23). Durkheim, Émile (1997, p. 29). Sejersted, Francis (1993). Hart, H.L. (1961, p. 91 ff). Analyses of Legal Rules have tended to focus on what makes a norm a legal rule rather than on the factors that have contributed to making the norm into a legal rule, or on what characterizes norms as such

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  Law, Politics, and the Judicial Process in Canada, 4th Edition

  • F.L. Morton, Dave Snow(Authors)
  • 2018(Publication Date)
  • University of Calgary Press

    (Publisher)

  tribunaux administratifs ) of France. The notion which lies at the bottom of the “administrative law” known to foreign countries is, that affairs or disputes in which the government or its servants are concerned are beyond the sphere of the civil Courts and must be dealt with by special and more or less official bodies. This idea is utterly unknown to the law of England, and indeed is fundamentally inconsistent with our traditions and customs.

  The “rule of law,” lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the Courts; that, in short, the principles of private law have with us been by the action of the Courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land.

  General propositions, however, as to the nature of the rule of law carry us but a very little way. If we want to understand what that principle in all its different aspects and developments really means, we must try to trace its influence throughout some of the main provisions of the constitution. The best mode of doing this is to examine with care the manner in which the law of England deals with the following topics, namely, the right to personal freedom; the right to freedom of discussion; the right of public meeting; the use of martial law; the rights and duties of the army; the collection and expenditure of the public revenue; and the responsibility of Ministers. The true nature further of the rule of law as it exists in England will be illustrated by contrast with the idea of droit administratif , or administrative law, which prevails in many continental countries. These topics will each be treated of in their due order. The object, however, of this treatise, as the reader should remember, is not to provide minute and full information, e.g. as to the Habeas Corpus

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  The Citizen and the State

  Criminal Justice and Civil Liberties in Conflict

  • Angus Nurse(Author)
  • 2020(Publication Date)
  • Emerald Publishing Limited

    (Publisher)

  This chapter critically analyses contemporary criminal justice within a critical criminological analysis of the rule of law. The chapter argues that within Western justice systems the concept of civil liberties which places limits on state authority and creates the principle that citizens have rights that must be observed by the state has been subtly altered by post-9/11 changes in criminal justice. The chapter contrasts theoretical conceptions on the Rule of Law; the idea that Government action and criminal justice policy and practice are not above the law but must comply with the law and the ‘rules’ laid down to protect civil liberties and individual rights, with the contemporary reality. Dicey's ([1915] 1982) definition of the Rule of Law argues that: (a) a man may be punished for a breach of the law but cannot be punished for anything else; (b) there should be equality before the law and (c) the courts and Parliament determine the constitution as a consequence of the rights of the individual rather than the (written) constitution determining the law. Thus, Dicey argues for active consideration of rights when passing laws, and judicial scrutiny over the application of law and use of state powers consistent with respect for citizens' rights. However, when considering broad notions of ‘national security’ and ‘counter-terrorism’ contemporary justice systems have sought to erode the right to a fair trial, reduce the presumption of innocence, challenge the rights of prisoners and contest the right to silence of the accused in criminal trials. Some recent court cases are discussed throughout this book that include judicial comments that help clarify the extent to which there has been a shift from a reliance on residual rights and trusting the state not to abuse its power, to the assertion of positive rights. This includes instances where individuals and groups have taken the Government to court and won, securing important decisions that enshrine in law the limits on Government power.

  Principles of Civil Liberties and the Rule of Law

  Arguably the rule of law can be complex to interpret in the context of criminal justice powers and processes. Lord Bingham (2008) identified eight criteria that arguably define the rule of law and analysed these as facets of an effective justice system. The core of Bingham's analysis was that ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’ (2008). This basic conception is arguably simple enough, requiring as it does that neither governments nor individuals are above the law, and also identifying that state action is subject to the administration of justice by the courts. However, the eight sub-rules identified by Bingham merit further analysis as they identify a number of areas where the citizen is arguably disadvantaged in their dealing with the state and where effective adherence to the rule of law is necessary to redress the balance.

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  Reaffirming Legal Ethics

  Taking Stock and New Ideas

  • Kieran Tranter, Francesca Bartlett, Lillian Corbin, Michael Robertson, Reid Mortensen(Authors)
  • 2010(Publication Date)
  • Routledge

    (Publisher)

  19 The notion of the rule of law thus carries a connotation of imperialism, because of the appropriation of the term ‘rule of law’ to identify a highly contestable conception of a fair distribution of rights and resources. But there is a core, and I hope less freighted, concept underlying these various conceptions of the rule of law, which is essential to understanding legal ethics in terms of institutional and political values.

  The classic ideal of the rule of law is that ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefitof laws publicly and prospectively promulgated and publicly administered by the courts.’20 Legal institutions can therefore be designed and criticized with reference to the ideal of acting according to pre-established rules and standards that are applicable to everyone, including state actors themselves. This core concept of the rule of law – what we might call the value of legality – emphasizes constraint on the arbitrary exercise of power.21 Philosophers who have given content to this core notion, including Joseph Raz, John Finnis and Lon Fuller, have argued that the law and legal institutions must have certain formal features if they are to perform well their function of safeguarding against the arbitrary exercise of power.22 (Interestingly, there always seem to be eight enumerated criteria, the number eight apparently having a deep mystical connection with the rule of law.) While these criteria vary somewhat, I think the most important aspects, for the purposes of legal ethics, can be boiled down to a distinction between power as such and lawful power. The point of the law is to differentiate between de facto

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  The Rule of Law and the Separation of Powers

  • Richard Bellamy, Richard Bellamy(Authors)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  96 The traditional notion of law as rules cannot readily accommodate the idea that the contours of the law may shift through no legislative or official act but merely through social change. At what point in the process of coming-to-be-rule-like do we treat something as law?

  The point of “the Rule of Law, not of individuals” is that the rules are supposed to rule . The easiest (most “natural”) way to achieve that in our historical and philosophical context is to assume that rules apply to particular cases in an analytical or self-applying way. “Individuals”—judges, police, administrators—are needed to make sure these self-evident applications are carried out, but these individuals are not supposed to rule . They are to be rule-bound, merely instrumental functionaries.

  Once we admit that rules are mutable and inextricable from material social practice, we will at least experience a psychological change in the way we perceive our roles as legal actors. This alone may have subtle but pervasive consequences in our practices. For example, suppose the majority of lawyers and judges come to see legal decisionmaking as pragmatic work in the sense described by Duncan Kennedy.97 Kennedy describes the interaction between the views and desires of the legal actor and the “normative power of the field.”98 Even though the actor will sometimes find the field to be “impacted”—perceive it to be stubbornly rule-like—this cannot be read from the face of the legal materials. Often what looks at first to be rule-like will turn out not to be. I agree with Kennedy that on some not-quite-conscious level good lawyers know this. But if conscious awareness of this malleability in response to legal work—this non-pre-existing-ness of the law—replaces the prevailing positivist rhetoric about decisions predetermined by the plain meaning of rules, the character of our practice will change in ways we cannot now predict very well.99

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  Slapper and Kelly's The English Legal System

  • David Kelly(Author)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  2 THE RULE OF LAW AND HUMAN RIGHTS

  2.1 INTRODUCTION

  This chapter considers two concepts that are not always, or indeed usually, dealt with in English legal system textbooks: the two interrelated concepts are ‘the rule of law’ and ‘human rights’. However, it is the contention of the authors that ideas about the rule of law and human rights are, and always should have been, at the core of our understanding and assessment of any, and certainly our own, legal system, and further that they are assuming a more apparent and increased centrality and importance in relation to its operation and justification. However, it has to be recognised from the outset that any consideration of the specific ideas inherent in these general concepts cannot be approached satisfactorily from the purely ‘black letter’ legal perspective, but must engage the student in a related consideration of the socio-political context from which they derive and to which they relate and on which they operate. Further, the concepts themselves are fluid and, as will be seen, different commentators have adopted widely varying approaches to them.

  2.2 THE RULE OF LAW

  The ‘rule of law’ represents a symbolic ideal against which proponents of widely divergent political persuasions measure and criticise the shortcomings of contemporary state practice. This varied recourse to the rule of law is, of course, possible only because of the lack of precision in the actual meaning of the concept; its meaning tends to change over time and, as will be seen further on, to change in direct correspondence with the beliefs of those who claim its support and claim, in turn, to support it. It is undeniable that the form and content of law and legal procedure have changed substantially in the course of the twentieth and twenty-first centuries. It is usual to explain such changes as being a consequence of the way in which, and the increased extent to which, the modern state intervenes in everyday life, be it economic or social. As the state increasingly took over the regulation of many areas of social activity, it delegated wide-ranging discretionary powers to various people and bodies in an attempt to ensure the successful implementation of its policies. The assumption and delegation of such power on the part of the state brought it into potential conflict with previous understandings of the rule of law, which had entailed a strictly limited ambit of state activity. The impact of this on the understanding and operation of the principle of the rule of law and its implications in relation to the judiciary are traced out in the rest of this chapter and will be returned to in Chapter 12

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