Law and Justice, Law and Freedom, Criminal Law and Civil Law - Essay Example

Name Tutor Course Date Law and Justice Law is the systems of rules that serves as a primary social mediator of relations between people and are enforced by specific set institutions. The effects of law are manifested through society in numerous ways such as within politics, and economics. In Historyoflaw.info website says that within the (archeologically-proven) period of human habitation on this planet the different organization of human society has been controlled by some predictable form of law. Whether we accept the theory that would develop civilization from savagery or from a simian ancestry we come across man at all times, through archaeological and historical records, living in society regulated by some rules of law accepted by all as binding upon them. In most countries such law emanates mainly from three main sources: customs, legislation and case law. Customs or customary laws are expressions of certain rules and obligations that were practiced and regulated by a given community over a long time. They are still applicable in the present times though their significance is slight and decreasing especially in the Western world. In Africa, customary law is strong and is used alongside civil law. Legislation is law that has been enacted by a governing body. It consists of Acts of Parliament and a country’s constitution (Ross 76). Legislation is one of the three core functions of any country’s government, the other two functions being the executive and the judiciary. Case law comes about from a process known as stare decisis where the reported decisions of selected courts can be cited. Case law essentially is about selected courts making new interpretations of the law which can later be cited as precedents.  These interpretations of law - which differ from country to country - are distinguished from statutes and codes enacted by legislative bodies. According to Merriam Webster’s Collegiate Dictionary justice is the quality of being impartial or fair in your dealings with others. However, the concept of justice continues to elicit much debate from the past decades to our present day. Hans, Kelsen says justice is principally a possible, but not an obligatory, quality of a social order controlling the mutual relations of people. It secondly becomes a virtue of man (34). This is because a man is defined as just if his behavior conforms to the norms of a social order believed to be just. He goes further to define a just social order as that which regulates the behavior of people in a way that is satisfactory to everyone. The ancient Greek philosopher Plato identified justice with happiness. Plato stated that only a just man is happy, and an unjust man unhappy (p8). This ideal description of justice derives its definition from concepts based on law, ethics, religion, fairness and equity. Our own self-interests deny us the opportunity of having a just society. A society is only as just as the treatment accorded to its most vulnerable members.  Nevertheless, the basing of justice on law as one of its key ingredients intertwines these two concepts: law and justice. There are different variations of justice namely: utilitarianism, retributive, restorative and distributive. Utilitarianism looks at the greater good for the majority and also that the outcome should determine the moral worth of an action. Retributive justice targets the imposition of a fully deserved and morally correct punishment in proportion to crime proven by lawful evidence. Retributive justice in some sense could be called ‘retaliative’. Restorative justice aims at making an offender acknowledge the gravity of his/her crime and seek ways of re-integrating them back into society. Distributive justice looks at resource allocation between different people. It seeks to ensure that the distribution of goods within a society is socially acceptable and just. Law and freedom In the US, the word freedom holds deep reverence. Wikipedia defines freedom as that human situation where one can act according to one's will without being held up by the power of others. However, Mark Cooray in Atkinson writes that freedom cannot be defined without analyzing the restrictions of human action. He defines freedom as individual liberty combined with concern for others’ liberties (1). Andrew Galambos the founder of the Free Enterprise Institute defined freedom as that condition that exists when all have full control of their property, where property could mean your mind, body or physical good. From all the definitions we can observe that for freedom to exist we require laws and upon infringement we require justice. In fact, one cannot fully experience freedom without the protections of the law. In the US, the Bill of Rights and the constitution confer the rights and freedoms of all citizens while the courts’ interpretations and rulings define the scope of these rights. The First Amendment to the U.S. Constitution protects the following components of freedom: open public discussion, press freedom, freedom of assembly and free religious expression. The Fourteenth Amendment guarantees equality under law and access to an independent, non-discriminatory judiciary which are manifestations of freedom. However, by being enshrined within the constitution it means that people who belong to a political system wherein freedom is defended and conserved by that constitution, they are also constrained by it. The irony is that for everyone within a given political system they are only as free as the extent of their own interpretation of freedom and of constraint does not go against the interpretation prevailing in that political system (Leoni 3). Criminal law and Civil law Traditionally, lawyers have divided law into two types: procedural law and substantive law. Procedural law governs the practice to be followed by parties to legal cases and by courts of law. Substantive law is what most of us refer to as law. It is the actual substance of the law that governs legally enforceable rights and duties, and how to go about addressing violations to those rights and duties. Procedural law is sub-divided into civil and criminal procedure. Substantive law is sub-divided into civil, criminal and tort law. However, some authors view substantive law in only two sub-divisions: criminal and civil. It is from the latter classification that we follow with the discussion. Civil law is the branch of law that seeks to resolve non-criminal disputes between individuals or organizations including government departments. Cases in civil law deal with rights and duties between individuals/organizations and they seek to determine whether one party has caused harm to another party. If one party is found to have caused a significant loss to the other party the civil court awards damages – monetary or otherwise – to the injured party. The person who caused the wrong is instructed to compensate the victim as a form of legal substitute for revenge. The burden of proof in civil law is mostly on the plaintiff. On the other hand, criminal law governs crimes where crime refers to an offense against the state. The prosecutor in criminal law is the government (local, state or federal). In addition to that, the government is the sole enforcer in criminal law whereas in civil law private parties may in some instances be the enforcers. In criminal law courts seek to determine whether the accused has violated a statute. The remedy being sought in criminal law is usually either deterrence or punishment or incapacitation or rehabilitation. Probably the most distinguishing characteristic between criminal and civil law lies within the burden of proof. In civil law, if the jury believes that there is more than a 50% probability that the defendant was negligent in causing the plaintiff's injury, the plaintiff wins. However, in criminal law, the jury must believe that the person is guilty beyond a reasonable doubt for him/her to be punished (Honore 54). Legal authorities who assign a value to the probability of guilty verdict in criminal law put it at 98% or 99% certainty. Works Cited Cooray, Mark. The Western Democratic Tradition. Atkinson, Philip. A Theory of Civilization. Philip Atkinson, 2000. February 9, 2010. . “History of law.” HistoryofLaw.info. February 9, 2010. < http://www.historyoflaw.info/>. Honore, Tony. About Law: An Introduction. Oxford: OUP, 2000 Kelsen, Hans. What is Justice? Justice, Law and Politics in the Mirror of Science. New Jersey: The Lawbook Exchange Ltd, 2000. Leoni, Bruno. Freedom and the Law. 3rd ed. Indianapolis: Liberty Fund, 1991. Ross, Alf. On Law and Justice. New Jersey: The Lawbook Exchange Ltd, 2007. Read More