National and International Law differentiate in many ways such as the process of the making of the law and the enforcements and the way in which they govern. International Law governs the rights and duties, behaviour and actions of the state in relation to bodies of government, states and countries. National Law on the other hand is the Law within the state. It governs the behaviour and actions of legal persons within the state.
Common Law and statutory Law are two classifications of sources of law in the common law system followed by most countries. A combination of both is essential for justice to be served. New laws are created by the decision made by judges in Common Law, based on decisions made in previous cases. In Statutory Law, the laws are created by parliament. Common Law is based on case law and Precedent, whereas Statute law is written law.
National law is divided into Public Law and Private Law, both being subdivided into different categories. Differences include the way in which they govern and the way they form. Public law forms Constitutional, Administrative and Criminal law which are laws that govern the relationship between the individual and the state. Private law includes laws such as Contract, Tort, Law of Succession and Family Law which governs relationships between individuals, contracts and the Law of Tort.
Civil Law and Criminal Law are two types of Law with separate Laws and punishments. Civil law handles disputes between the claimant and defendant where a settlement of compensation is usually made. It aims to redress a wrong to provide a remedy for the victim. Criminal Law is a type of Public Law that deals with crimes and punishments maintaining the state by punishing the wrong doer. The standard of proof in a civil claim is preponderance of evidence and in a criminal case, beyond reasonable doubt.
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Law plays a massive role in society and there are different theories about its purpose; for survival, to provide order and to provide social cohesion. Hart argues that law is essential for human survival as there are limits on behaviour before punishment. Hart also believed that the main function was to simply allow humans to survive in a community. French sociologist Emile Durkheim argued that law played an important role in social cohesion, developing and keeping society together. He suggests that law achieves social cohesion, or we would not have a technology advanced society. Then German sociologist Max Webber argued law was to maintain order in society, to accept adhere to the binding nature of law.
A radical view was portrayed by Karl Marx, who added exploitation arguing that society was made up of classes whose interests were fundamentally opposed to each other. To suppress the interest of the working classes he expressed that law was not made for the interest of the whole of society, but for the interest of small groups which dominate society.
The relationship between law and society was explored by Durkheim and Webber where they disagreed with the functions of law suggested, but agreed that law benefits to the society as a whole. With the different theories of law, they all have a role in law.
A moral is a standard of behaviour, concerned with the principles of right and wrong. They vary between societies and influential factors include culture and religion. Law is a system of rules, made by parliament that must be followed.
Law and morality conflict each other. They both set out acceptable behaviour in society. In any legal system, there will be clashes and similarities between their principles. Both law and morality are normative, they both state they ways they expect people to behave. Looking at differences, there are many ways in which they differ. Morality relies on voluntary codes of conduct whereas law is enforceable. Breaching the law will be dealt with through a legal system, or courts whereas breaching a moral will be regarded as immoral. Law states how one ‘must’ act, morals suggest how one ‘ought to’ act. Morality cannot be changed, it evolves slowly. Law is changed by the parliaments and the courts.
The debate over Law and morality was brought to light with the Hart/Devlin debate following the publication of the Wolfenden report 1957. Although it recommended that homosexuality and prostitution should be legalised with restrictions, it claimed that it is not the duty of law to concern itself with immorality. From the report, Lord Devlin stated that law and morality are ‘fundamentally interconnected’ and Hart reacted with the social cohesion debate, moral laws are to protect society without disintegrating and societies survive changes in basic moral views.
Every organisation, from a large state to a small club will have a constitution which is a set of rules defining the structure and power of government of a state which underpins the workings of a political system. It sets out the basis that the people agree to be ruled and the government agree to act within strictly defined rules limiting their power to do as they wish and within these rules provision is made to protect the civil liberties of the people and to set out the way in which the Constitution can be easily changed by parliament.
In the UK, the constitution is a product of historical development and has not been reduced to one written or codified constitution setting out the limits of presidential government. In the UK the constitution remains uncodified. However, it has some written parts, including parliamentary statutes, judicial decisions and constitutional characters, e.g Magna Carta (1215) Bills of rights (1689) and Parliamentary acts.
The UK constitution is flexible. This means that it can be amended by the parliament. There is no difference between the ordinary law and the constitutional law. The UK constitution is different from that of America’s. In America the constitution is considered to be a supreme document in which amendment is very rare. It is always under the process of growth.
The UK constitution is regarded as monarchical. The Monarch is the head of state. The Crown represents the monarchand the Government of the day that has responsibility for governing the country, can call upon ‘royal prerogative’ powers that have been established during the historical development of the common law. The Crownhas legal significance in two main respects, through exercise of the royal prerogative and through Crown immunity
Lastly, The England’s constitution is a unitary constitution. It is supreme meaning all the powers of the state are concentrated in the hands of a single government for the whole country. All the local governments are the servants of the central authority which has created them and can dissolve them.
There are three key principles that underpin the UK constitution:
Separation of Powers- There are three main powers in the constitution and that they should remain separate. They are: Executive, Legislature and Judiciary. Through separation, each acts as a check on the other. Therefore, power is not concentrated in one area limiting the power of Government and enabling the judiciary to have independence in reaching legal judgments on disputes.
Parliamentary Sovereignty- That of the three main powers in the constitution, Parliament is the supreme law making body and can make, or unmake, any law that it chooses.
The Rule of Law- The three main powers of the constitution must observe the rule of law placing an importance on law as a check on the arbitrary exercise of power by the Government in its decision making, and emphasises that no one individual is above the law. The rule of law, like separation of powers, emphasises the need for keeping the institutions and their processes within reasonable limits.
Writing In your own words is very important to avoid plagiarism. Taking notes, highlighting and diagrams like mind maps are good ways to prepare for assignments and exams ready to put notes into your own words. It is also important because you are saying something in your own way. That way is giving the reader a different angle to look at and will help them understand more.
During my studies for W101 I have found the categories of law interesting. I have enjoyed learning about the public and private law and how they acquire their own types of law, that public law applies to the relationship between the individual and the state and private law between the individual within a legal system. I have also enjoyed learning about the UK constitution as it is our nation and the development of law from the Magna Carta.
When preparing for my next TMA I need to condense my notes and tackle the ‘big’ question before others. My notes should be about a quarter of the manual, they are about half. I will do this by using mind maps and bullet points rather than copying important parts of manual. I will tackle the bigger questions first next time as I struggled staying within the word limit.
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The Open University (2014) W101 Unit 1: An introduction to law [Online].
Available at https://learn2.open.ac.uk/mod/oucontent/view.php?id=568711 (Accessed 1 November 2014).