The-Importance-of-Law-(法律的重要性)

精品文档 1欢迎下载 The Importance of Law Chapter 1 of the second edition of Letters to a Law Student deals with the question of why anyone would want to study Law and in the course of so doing defends the importance of law and by extension the work that lawyers do The object of this section is to provide a gateway through which you can explore on the Internet in greater detail exactly why law is such an importance force in our civilisation The functions of law Law can be said to perform four different functions each of which is of huge importance to our welfare 1 Defending us from evil The first and most basic function of law is to defend us from evil that is those who would seek to harm us for no good reason This function of law underlies 20th century developments in International Law such as the Nuremberg Trials and the creation of the International Criminal Court 2 Promoting the common good Law is not just concerned with bringing evil people to account for their actions A community made up of people who bear no ill will to anyone else and are simply concerned to pursue their own self interest needs law because there are situations where if everyone pursues their own self interest everyone will be worse off than they would have been if they acted differently This is the reverse of the invisible hand phenomenon where if everyone pursues their own self interest everyone in the community is made better off as if everyone s actions were guided by an invisible hand to achieve that end So a community of self interested actors needs law i to solve Prisoner s dilemma situations ii to distribute into private hands property that would otherwise be exploited by everyone thereby avoiding a tragedy of the commons situation arising iii to prevent people acting on their natural desire to extract an eye for an eye in revenge for actual or perceived wrongs that they have suffered at other people s hands 3 Resolving disputes over limited resources As every family knows in any community there will always be disputes over who should have what of a limited number of resources Law is needed to resolve these disputes as exemplified by the famous story of the Judgment of Solomon 4 Encouraging people to do the right thing It was thought even from classical times that law performed a fourth function that of encouraging and helping people to do the right thing For example Aristotle 384 BC 322 BC argued that people needed the discipline of law to habituate them into doing the right thing from which standpoint they could then appreciate why doing the right thing was the right thing to do Up until the 20th century this view of law was accepted by law makers with the result that the UK legal system contained a large number of morals laws that is laws that were designed purely and simply to stop people acting immorally 精品文档 2欢迎下载 according to the lights of Christian teaching on what counted as immoral behaviour However in the 20th century the harm principle propounded by John Stuart Mill in his book On Liberty according to which the law should not sanction people for acting immorally unless their conduct involved some harm to others gained more and more popularity and resulted in the abolition of large numbers of morals laws These trends triggered what is now known as the Hart Devlin debate over the extent to which it is legitimate for the law to enforce morality Lord Devlin at the time a judge in the House of Lords the highest court in the land argued that law should enforce morality so as to preserve the cohesiveness of society Professor H L A Hart at the time the most famous legal philosopher in the world based his position squarely on Mill s harm principle though subject to the caveats that the law might legitimately prevent someone acting immorally if doing so involved harm to himself or would cause offence to others Hart s views are set out in his widely read book Law Liberty and Morality Hart is thought to have won the debate but his concessions that it might be legitimate to make it illegal for someone to engage in immoral behaviour that will i harm himself or ii offend others seem to make little sense The same point can be made about those morals laws that survived the 20th century cull if law does not have a role to play in encouraging us to do the right thing why is it illegal to have sex in public or to have sex with animals or to dig up dead bodies or to take hallucinogenic drugs or to help someone kill themselves The rule of law Whether or not law has a role to play in encouraging us to do the right thing no one doubts the continuing importance of law in performing the first three functions set out above As a result there is a widespread acceptance that the health and wealth of nations is crucially dependent on how far the rule of law is maintained and observed in those nations See for example this World Bank website or this United Nations website or this website maintained by the American Bar Association or this essay on the importance of observance of property rights and the rule of law to a country s development As a result a lot of attention is paid to indexes that attempt to chart how far countries around the world respect such things as the rule of law and private property rights For examples of such indexes see World Justice Project and International Property Rights Critics of the law Having said all that it should be acknowledged that numerous criticisms are made of the benefits that are supposed to flow from the existence of law and the observance of the rule of law For example some point out that the fact that a society respects the importance of the rule of law and private property rights is no guarantee that that society will be particularly just or even that wealthy The rule of law 精品文档 3欢迎下载 it is argued is compatible with great oppression inequality and poverty a point summed up by Anatole France s famous observation that The law in its majestic equality forbids rich and poor alike to sleep under bridges to beg in the streets and to steal their bread Others take this point further and argue that in the wrong hands law can become an instrument of evil a means by which a country s rulers can rob people of their property and oppress minorities It is also argued that even if law is not actually used as an instrument of evil it can become its accomplice by doing such things as i hamstringing public officials such as the fictional Jack Bauer of the American TV series 24 from doing what is necessary to prevent terrorist atrocities and ii granting people rights and encouraging them to exercise them thereby fostering a damaging culture of complaint and compensation culture that alienates people from each other and discourages people from helping other people for fear that doing so might result in their being sued Conclusion All legal systems do harm of one kind or another Some of that harm is intended in order to achieve its goals a legal sy