Law is a set of rules and regulations that are created by a government or society, which citizens must abide by or face punishment. These can include laws governing business, crime, social relationships, property, and finance.
Legal systems are designed to keep the peace, maintain the status quo, preserve individual rights, protect minorities against majorities, promote social justice, and provide for orderly social change. Different countries have different legal systems that are better or worse at accomplishing these goals, and it is often a matter of personal preference to choose which one to live by.
1. Pure Theory of Law (Hans Kelsen)
Hans Kelsen is a Swedish philosopher who developed the ‘pure theory of law’ which states that “law is a normative science.” This means that it describes only certain rules of conduct that must be followed in order to avoid breaking the law and being punished.
2. Historical Law Definitions of Law (Friedrich Karl von Savigny)
Friedrich Karl von Savigny is a German philosopher who developed the ‘historical law’ which states that “law is based on the customs and practices of a society”. This means that law comes from a culture or group and it is not only defined by a government but also by people.
3. Constitutional Law/Use of Law in a Nation
A constitution is a document that outlines the rules of a country. This is usually done by the legislature or the executive, and it can be based on a previous constitution or can be made up of new rules.
4. Common law systems and the doctrine of precedent (stare decisis)
In common law systems, courts are given equal status to statutes and regulations passed by a government. The “doctrine of precedent” is used to ensure that future courts follow the same reasoning as past judges.
5. Civil Codes and Judicial Decisions
In many jurisdictions, courts make decisions that are recognized as part of the “law”. These cases can be cited in other court proceedings, and may have to be decided in court.
6. Legal Rules/Judicial Decisions that Create Rights
The creation of rights is a complex process, with several basic mechanisms. There are two primary mechanisms: “acts of law” or “judicial decisions directly bestowing rights,” and “constitutive legal recognition” of certain actions intended to create rights.
Generally speaking, “acts of law” include statutes, decrees, and regulations, as well as other legal documents such as contracts and wills. “Constitutive legal recognition” of legal rights includes judicial decisions that direct that certain legal duties correlate to specific legal rights.
A legal right is a claim to something, for or on behalf of the owner of the thing that is protected by the claim.
Some examples of such a right are a right in rem to a specific object, a right of custody over a child, or a right to the possession of a particular piece of land.
The idea of a legal right that violates a moral duty is puzzling and oxymoronic. This is because it is not clear what the duties are that give those rights effect.