sources of law (original) (raw)
A modern civil society is bound by rules, regulations, and laws. Unlike the natural laws that are consistent and predictable, written laws are created by humans which render them fallible, inconsistent, and too often predicated on the judgments centered on prejudice, ignorance, and flawed societal norms. Legal discourse should be fundamentally grounded on sound moral, ethical, and righteous foundations. Authors of legal parameters craft laws based upon past behavioral precedents handed down from historic cultural, religious, and social conditions. It follows, the laws that are written can be flawed, imperfect, and not always properly practiced. The principle or policy of a double standard occurs when two or more individuals or groups, are treated differently, when they should be treated the same way, which is antithetical to the rule of law. The rule of law as practiced by a litigator, jurist, judge, or any legal expert recognizes that a measure of human fallibility can clearly prevail in any judgment; however, the expectation is that when anyone goes before a court, the outcome should be based on the merits of a case, not political status, relation to the court, or other personal characteristics. The rule of law should also apply to an enforcement of all laws, regulations, and formal proclamations of civic control regardless of one's race, religion, nationality, wealth, social status, political position, or perceived personal feelings of entitlement.
1994
T]he establishment of broadly applicable general principles is an essential component of the judicial process.
2019
This Article aims to create a complete typology of the forms of decisional law. Distinguishing “rules” from “standards” is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image. A clearer distinction would be useful in formulating or applying the law. For the law-applier, it would be more useful if expressly focused on whether the law-giver was trying to pin things down and thus narrow the room for discretion. It would be even more useful if it had helped that law-giver to think about how to pin things down.This better top-level distinction lies between binary and scalar directives. If the directive comprises a checklist of ...
Law is a social rule, created in society and originated from its development, so that the behavior of people and the formation of their mutual relations is regulated by certain rules. Law is not the only or the oldest social rule. There are older rules in society such as religious customs, morals, rules of decency, etc. Speaking of the essential properties of a legal rule, it should be noted that for a legal rule its content or rule is not important, nor the fact how long the rule will last. Only two facts are important for the rule. The first is attachment to the state, and the second is its efficiency. A legal rule derives from a state organization, the state through its bodies creates legal rules, directly or indirectly.
Legal Ideals: A Primary Objective of Law is to Benefit Society
Academia Letters, 2022
In present era, the law has evolved into a mandatory instrument that exists in every country. It is possible to assert that there is currently no country in the world that does not establish and apply laws as a rule that must be followed by the entire society. Author sees laws as a set of rules that govern social and state life, with consequences for those who break them, and these rules must provide benefits and justice to the entire society. The balance of elements in the law is essential in order for people to voluntarily obey the law based on mutual respect for one another. Sanctions are necessary to emphasize the importance of following the law and to make people afraid to break it. Benefits and justice must also be included in the legal element, because the law serves not only to maintain order, but also to fulfill the expectations of those who seek protection for themselves. It is hoped that the rule of law will be implemented if the law can elaborate on these two points. The existence of law is thought to be a result of the existence of society. Marcus Tullius Cicero introduced the phrase "ubi societas ibi ius", which interprets as "where there is society, there is law". However, other sources claim that the phrase was introduced by Baron Heinrich von Cocceji (Shidarta, 2014). In line with this idea, Satjipto Rahardjo believes that the law is created not in a vacuum, but rather from the provisions that exist in society (Rahardjo, 2004). Law is created by society as a collection of individuals to protect themselves and their property. The formation of the state as a collection of these communities was forced by the growth of an increasingly large society. The state is then charged with enacting laws through state institutions that govern state life as well as all aspects of society life. The existence of law at this time is an effort to bring order to the society. According to Sudikno Mertokusumo (Mertokusumo, 1999), the purpose of law is to bring order and balance to people's lives. Order is intended to preserve each individual's relationship with
Law and Human Nature: The Social-Adaptive Function of the Normative Behavior
The objective of this article is to offer a critical (re)interpretation of genesis and evolution, object and purpose, as well as useful qualified methods for interpreting, justifying and applying modern practical law, all with the intention of putting philosophic thought and contemporary formal theory of reason at the service of hermeutics and juridical argumentation. Law is no more-no less-than an social-adaptive strategy, evermore complex, but always noticeably deficient, used to articulate argumentatively-in fact, not always with justicethrough the virtue of prudence, elementary relational social ties through which men construct approved styles of interaction and social structure, i.e., to organize and ethically improve political and social life in such a way as to permit that no free citizen-rich or poor-should fear the arbitrary interference of other social actors in his life plan.
Legalism: Rules and Categories
2015
Mainstream historians in recent decades have often treated formal categories and rules as something to be ‘used’ by individuals, as one might use a stick or stone, and the gains of an earlier legal history are often needlessly set aside. Anthropologists, meanwhile, have treated rules as analytic error and categories as an imposition by outside powers or by analysts, leaving a very thin notion of ‘practice’ as the stuff of social life. Philosophy of an older vintage, as well as the work of for instance Charles Taylor, provides fresh approaches when applied imaginatively to cases beyond the philosophers’ home-ground of modern Europe and North America. Not only are different kinds of rule and category open to examination, but the very notion of a rule can be explored more deeply. This volume approaches rules and categories as constitutive of action and hence of social life, but also as providing means of criticism and imagination. A general theoretical framework is derived from analytical philosophy, from Wittgenstein to his critics and beyond, and from recent legal thinkers such as Schauer and Waldron. Case-studies are presented from a broad range of periods and regions, from Amazonia via northern Chad, Tibet, and medieval Russia to the scholarly worlds of Roman law, Islam, and Classical India. As the third volume in the legalism series, this collection brings out common themes that run through the first two volumes, consolidating them in a framework that suggests a new approach to rule-bound systems.