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Whoever wished to concern himself seriously with the law must first of all whence comes its name. Law (ius) is derived from justice (iustitia) - Justinians Corpus Juris Civilis Law is the art of the good and the fair (bonum et aequum) - Celsus
The three basic points of Austin's theory of law are that : What is law?
the law is command issued by the uncommanded commanderthe sovereign; such commands are backed by threats; and a sovereign is one who is habitually obeyed Who is the sovereign? Will anybody who is habitually obeyed be called the sovereign? In a democratic society how the sovereign is to be determined? Is it always a command backed by threats?
Roscoe Pound also says that law is an instrument of social engineering. As an architect law builds and rebuilds the society. Law is the product of society. It is true, society is not static. It is dynamic. So, law is changing with the needs of changing society.
Functions of law
Creates institutions, processes and authorities
For maintenance of law and order
Enforcement of law and order Acts which are prejudicial to peace, order and interests of the society at large are resisted by law and its authorities
Functions of law
Creates legal attributes
Creates rights and remedies Defines roles, responsibilities, functions and obligations Endows powers, privileges and immunities, if any,
Law and Morality : share a degree of commonality yet they are different significantly
Law
Supposed to be for the good of the people in general Law defines standard of conduct and so it is determinative and definitive
Morality
Supposed to be for the good of the people in general Prescribes standard of conduct and so it is prescriptive and subjective
Legal obligations are enforceable by the force and effect of law A public affair Government has overwhelming role in the matters of law Enactment, enforcement and repeal of law is a well defined and institutionalized process
Moral obligations are not enforceable by the force and effect of law A private affair in a secular state Government is not expected to have much role
Making and unmaking of the moral precepts is not an institutionalized process
Right
Wenar, Leif, "Rights", The Stanford Encyclopedia of Philosophy (Fall 2011 Edition), Edward N. Zalta (ed.), URL =
<http://plato.stanford.edu/archives/fall2011/entries/rights/>.
One of the key concepts of the modern day legal order Rights are entitlements (not) to perform certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain actions or (not) be in certain states. Rights dominate modern understandings of what actions are permissible and which institutions are just. Rights structure the form of governments, the content of laws, and the shape of morality as it is currently perceived. To accept a set of rights is to approve a distribution of freedom and authority, and so to endorse a certain view of what may, must, and must not be done.
What is right?
To have a right is to have a valid claim. (Feinberg 1970, 257) In the strictest sense all rights are claims. (Hohfeld 1919, 36) A right, in the most important sense, is the conjunction of a [privilege] and a claim-right. (Mackie 1979, 169) Rights are permissions rather than requirements. Rights tell us what the bearer is at liberty to do. (Louden 1983, 95) No one ever has a right to do something; he only has a right that some one else shall do (or refrain from doing) something. (Williams 1968, 125) A right is an established way of acting. (Martin 1993, 1) A person who says to another I have a right to do it is not saying that it is not wrong to do it. He is claiming that the other has a duty not to interfere. (Raz 1994, 275) It is hard to think of rights except as capable of exercise. (Hart 1982, 185) A right is a power which a creature ought to possess. (Plamenatz 1938, 82) All rights are essentially property rights. (Steiner 1994, 93) Rights are themselves property, things we own. (Feinberg 1973, 75)
When we call anything a person's right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. (Mill 1861, 54)
The four basic components of rights are known as the Hohfeldian incidents after Wesley Hohfeld (18791918), the American legal theorist who discovered them. Analysis reveals that most familiar rights, such as the right to free expression or the right of private property, have a complex internal structure. Such rights are ordered arrangements of basic components, much in the same way that most molecules are ordered arrangements of chemical elements. These four basic elements are the privilege, the claim, the power, and the immunity. Each of these Hohfeldian incidents has a distinctive logical form, and the incidents fit together in characteristic ways to create complex molecular rights.
Incidents of Right
Privilege
You have a right to pick up a shell that you find on the beach. This right is a privilege: A has a privilege to X if and only if A has no duty not to X.
Claim
A contract between employer and employee confers on the employee a right to be paid his wages. This right is a claim: A has a claim that B pays wages if and only if B has a duty to A to pay wages.
Power
A has a power if and only if A has the ability within a set of rules to alter her own or another's Hohfeldian incidents. When A has the ability to alter B's Hohfeldian incidents, then A has a power. A ship's captain has the power-right to order a midshipman to scrub the deck. The captain's exercise of this power changes the sailor's normative situation: it imposes a new duty upon him and so annuls one of his Hohfeldian privileges (not to scrub the deck).
When A lacks the ability to alter B's Hohfeldian incidents, then B has an immunity: B has an immunity if and only if A lacks the ability within a set of rules to alter B's Hohfeldian incidents.
Hohfeld arranged the four incidents in tables of opposites and correlatives so as to display the logical structure of his system.
Opposites
If A has a Claim, then A lacks a No-claim If A has a Privilege, then A lacks duty If A has a Power, then A lacks disability If A has an Immunity, then A lacks liability.
Correlatives
If A has a Claim, then some person B has a Duty If A has a Privilege, then some person B has Noclaim If A has a Power, then some person B has Liability If A has an Immunity, then some person B has Disability.