1. The nature of Law pag 2 a) The classification of Law pag 3 b) The sources of English Law pag 4 2. The administration of the Law - the Background pag 7 a) The Common Law pag 7 b) Equity pag 8 3. Bibliography pag 11
The law is a set of rules wich form the pattern of behaviour of a given society. The laws with which we have to deal differ from the laws of nature which are rules derived from observation of the physical universe. One school of thought which has persisted through the ages, and which was epitomized by the work of John Austin (1790- 1859) a follower of Jeremy Bentham (1748 1832) has it that law has nothing to do with justice or morality because it is a command of political superiors ultimately backed by a sanction, an unpleasant consequence (such as imprisonment), in case of disobedience. This theory (like the Marxist theory, which sees law as the will of a ruling class) is attractive, if only because it is simple: it derives ultimately from the image of imperial Rome and is connected with the work of Jean Bodin (1530 1596) who saw in the emergent structure of nation states and absolute monarchies of the post reformation a social structure based upon the sovereignty of the monarch, whose word was law L etat, said Louis XIV, c est moi: and that was true. But this was an inadequate picture: for not only may laws be broken without anything in the nature of punishment (as, for instance, the rules which prescribe the forms for making a will) but in a complex modern State, with its political checks and balances, it is by no means easy to detect a sovereign in anything more than a formal sense. Another, and an older, school of thought envisages two sorts of laws. One sort is unconnected with morality: such as the legal rule of the road left or right. Such a rule is neutral and unchallengeable, whether decreed by a tyrant or enacted by a democracy. The other sort is concerned with matters which have a moral bearing; so that in relation to them the context of legal rules (enforced by the state) becomes coincident with that of moral rules: the must of the law and the ought of morality meet on common ground. Thou shalt not steal is, in our society, at least, both a legal and a moral rule. Where rules do thus have a double context the school in question (the natural law school) contrasts natural law with civil (state) law and asserts that the latter must accord with the demands of the former; or, at least, must always strive to do so. This school derives from Plato and Aristotle and beyond, and it has had its triumphs. Embedded in stoic philosophy and propagated by Cicero, it provided much of the inspiration for the work of the superlative jurists of the classical period of Roman law whose works became enshrined in the Corpus Juris Civilis, and thence became the basic of the civil law of Europe. And, indeed, natural law, as thaught by Saint Thomas Aquinas (1224 1273), in the guise of divine law revealed to man by human reason, underlay much of the stability of the middle ages; for, as Bracton had it, even the King himself was subject to it. (A doctrine, of course, to be violently repudiated by Machiavelli ...
- Introduction to English Law (Tenth edition) - Philips James London, Butterworths 1979 - www.law.duke.edu/lib/ Research Guides/English/englishframe. Html
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