Human Rights

lecture no.
6
WHAT IS LAW?
SOME CHARACTERISTICS OF LAW
O A substantial part of law exists in the form of rules. These rules do not
only specify how people should behave (“do not steal,” “pay taxes”), but
they also contain definitions of terms, create competences, and much
more.
O An example of a rule that gives a definition can be found in Article 1 of
the International Convention on the Elimination of All Forms of Racial
Discrimination, which defines “racial discrimination” as “. . . any
distinction, exclusion, restriction or preference based on race, color,
descent, or national or ethnic origin which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise, on an
equal footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life.”
COLLECTIVE ENFORCEMENT
O One characteristic that distinguishes legal rules from other

rules is that the former are normally enforced by collective
means and in particular by organs of the state, while this is not
true for the latter.
O Moreover, legal sanctions have very specific sanctions, such as
incarceration, fines, compensation of damage, etc., while the
sanctions of non -legal rules are less specific.
O For instance, someone who has committed a crime is liable to
be punished, and this punishment is brought about by state
organs such as the police and the prosecution service.
POSITIVE LAW
O Another characteristic that distinguishes law from other

normative systems is that, by far, most legal rules are
created by state agencies, such as parliaments, courts,
and administrative bodies.
O The expression “positive law” has almost become synonymous
with “the law that is valid here and now”. despite, the legal rules
can be repealed, which is not possible in case of, for example,
moral rules.
LAW AND VALUES
O Laws generally reflect and promote a society’s values. Our legal system
is influenced by our society’s traditional ideas of right and wrong. For
example, laws against murder reflect the moral belief that killing
another person is wrong. However, not everything that is immoral is
also illegal. For example, lying to a friend may be immoral but is
usually not illegal.
O We expect our legal system to achieve many goals. These include:
 • protecting basic human rights,
 • promoting fairness,
 • helping resolve conflicts,
 • promoting order and stability,
 • promoting desirable social and economic behavior,
 • representing the will of the majority, and
 • protecting the rights of minorities.
O Laws must balance rights with responsibilities, the
will of the majority with the rights of the minority, and
the need for order with the need for basic human
rights. Reasonable people sometimes disagree over
how the law can protect the rights of some without
violating the rights of others.
O However, everyone must remember that laws are
intended to protect people and prevent and resolve
conflicts in everyday life
LAW AND MORALITY
O Legal rules are often compared to and contrasted with moral
rules. One reason why this happens is because we consider it
desirable that the law does not violate morality. Conformity of
the law with morality is, in the eyes of some (adherents of
“natural law”, a precondition for the existence of law: a rule that
clearly violates morality would not be a binding legal rule at all.
O Another reason is that governments see it as their task to

enforce the law but not to enforce morality. Therefore, it is
important that legal rules can clearly be identified as such and
distinguished from rules that are “merely” moral.
DIFFERENCES BETWEEN LAW AND
MORALITY
O The law has as one of its main functions to guide behavior, by

telling people what to do or not to do in the form of prohibiting
and prescribing acts. However, most of morality is not concerned
with guidelines for behavior: it does not directly tell us what we
should do or should not do.
O Morality primarily sets standards through which we can evaluate
behavior as “good,” “not so good,” or simply “bad.” Good and
bad come in degrees: better or worse. From the legal point of
view, a particular act is either permitted or not, without such grey
areas.
THE IMPORTANCE OF MORAL
STANDARDS
O A second difference is that moral norms and standards are normally
considered to be important for the well-functioning of society, while
this is not necessarily the case for all legal rules.
O For instance, typical moral rules forbid lies, and wounding or killing
other persons. Lying, wounding and killing are serious issues, and so
there are moral guidelines that deal with them.
O These moral rules have equivalents in legal rules, which therefore

also deal with important issues. However, there are many legal rules
that deal with issues that are not broadly experienced as “serious,”
such as the amount of salt allowed in food, the precise form in which
requests to government agencies must be made, or the way in which
bicycles must be equipped with lighting.
STATE ENFORCEMENT
O A third difference between law and morality is that being legal is

a precondition for rules that are to be enforced by state organs;
moral precepts as such are not enforced in that way. However,
many moral rules and standards have counterparts in the law so
that state enforcement of morality is possible in the form of state
enforcement of the law.
O Examples include:
O 1. the moral prohibition to kill people, enforced under criminal
law, which imposes a penalty for “murder” and “manslaughter”
(legal terms), and
O 2. the prohibition to destroy someone else’s property, enforced
through tort law rules, which attach an obligation to compensate
the damage caused by the destruction.

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lecture no.

O One characteristic that distinguishes legal rules from other

O Another characteristic that distinguishes law from other

O Another reason is that governments see it as their task to

O The law has as one of its main functions to guide behavior, by

O These moral rules have equivalents in legal rules, which therefore

O A third difference between law and morality is that being legal is

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