Foundations of Law

Dr. Fady Tawakol

What Is Law?
• In all groups of people acting together for any purpose some rules
must be established for the guidance of the conduct of members. It is
difficult to imagine the existence of a community without law.
• Social life would be in anarchy unless individuals were prepared to
follow certain rules in their relations with each other, Moreover;
obedience by people to social rut enables all members of the society
to cooperate to common ends.
• Law and Right: In regulating human behavior, law recognizes rights
and imposes duties or obligations. A right cannot be described as
legal unless it is recognized and protected by law.
 Why Laws are Important
• History provides us with reasons why laws are
important. Throughout history violence by
individuals and groups has been used as a way
to resolve disputes.
• Clearly, then, we must have laws to regulate
human behavior.
• The law provides a guarantee that justice will
be carried out according to rules established
by courts and the judiciary and not as the
result of individuals’ feelings .
• Those who obey the law will be protected and
those who do not will be punished.
Definition of Law:
• “Law is a body of rules which governs and regulates the social
conduct of people and which is enforced by a sanction”.
• We can also define law as the set of rules governing the behaviors
and relations of individuals in the society, which people should obey
otherwise they will face penalties to be imposed against them by a
competent authority
• So legal rule determines what may be done or not be done, what is
allowed and what is prohibited, the legal rule is supposed to cover
every aspect of the people’s life and the individual’s action whether it
affects the state, the interest of community and the other people’s
interests.
The Legitimate Functions of Law

• There are four:

- Settlement of disputes
- Protection of the individual and society
- Protection of property
- Promotion of worthwhile social objectives.
Purposes of a Legal System

Settlement of disputes

Protection of the individual and society

Protection of property

Promotion of worthwhile social objectives.

Some Characteristics of Law

characteristic
of legal rule

General Abstract Social Sanction

Legal Rules are general
• This mean that legal rule apply to every person no long as the
specified conditions exist and anytime these conditions are
completed.

Example

The criminal rule of law which provides the penalty of death in case of
assassination is applicable whenever a person kills another
premeditatedly.
• The generality of the legal rules , however, do not necessarily mean
that they should be enforced on all people and cases in the society.
• A legal rule can be decided for specific persons at specific time or
place because generalization is not contrary to such specification

Example

• The legal rules organizing the affairs of a certain community such as

lawyers, doctors, engineers, merchants or university students.
• These rules do not lack the characteristics of generality because
specification here, applies to the capacity of the members of these
communities and not to a particular person
 Example

• The president of Egypt must not be less than forty years old. This is a
general rule although it concerns one person the president, because
it does not concern one president by name, it is applicable to all
persons who would be candidates for the post of the president.

• So generality of the legal rule means that the rule is applicable to any
person in the society who may be found in the position described by
the rule of law and that such rule does not favors any person in
particular
Rules of law are abstract

• This means that the legal rule must not to design to apply only to
particular group of individuals or in restricted cases. Rather, they
must lay down the conditions and descriptions whose application in a
particular person would be transferable to and applicable in similar
scenarios in the future
Rules of Law are social
• We have seen that the purpose of the legal rule is to regulate the relations
and ties among the members of the society. Law exists with the group both
in its simple and complicated forms.
• Law controls and regulates the relations among people living in a society. It
is concerned only with the external conduct or behavior of individuals, and
has nothing to do with internal thoughts and beliefs. It is only when a
person comes to act upon such beliefs that law can interfere.
• But this does not mean that law ignores the intentions completely. Legal
rules may take into consideration the intentions and motives of people if
they are associated with physical manifestations that link them to outer
behavior of individuals.
Legal rules are enforced by a sanction:
• We have seen that the legal rule reflects asocial need for regulating
behavior of the individuals in the society. It follows then, that the
legal rule should be respected and this respect be imposed, if
necessary.
• To ensure compliance by all individuals, the legal rule is equipped
with the element of penalty. The public authority imposes this
penalty in the society by force against any person who violates the
provisions of the legal rule. If violators are unpunished, they will
continue to break the rule, and consequently, the purpose of the law.
Cont. Legal rules are enforced by a sanction:
• People are invited to obey law voluntarily, if not, they are compelled to do
so by means of sanctions applied by the state.
• It is unreasonable to imagine that there will be no breaking of rules of law.
Even in the most civilized societies, there are people who think of violating
the legal rule and are stopped only be imposing penalties.
• A sanction is a device to induce obedience of a rule of law. It may be
criminal if the violation consists in a criminal offence or a crime. A criminal
sanction is called punishment.
• Penalty should be physical - i.e. concrete, immediate and organized, being
physical, penalty affects the person in his body such as restricting his
liberty by imprisonment or deprives him of his life by execution.
Cont. Legal rules are enforced by a sanction:
• Penalty also should be immediate, which means that it should not be
postponed, penalty should be organized, which means that imposing
penalty should be controlled by the competent authority in the state.
• A sanction may be administrative. Thus, if a public employee or
officer does not perform his duties, he may be excluded from the
service of the government.
There are also civil sanctions. For example, the invalidity of a contract,
the payment of damages or compensations, the restitution of
payment
• This characteristic is probably the most decisive factor in
distinguishing the rule of law from other rules governing the society.
Cont. Legal rules are enforced by a sanction:
• Sanctions are usually enforced by the state through its courts and
administrative authorities. The state establishes courts which, by the
constitution, are open to all persons when a dispute arises between them.
• There are many types of Sanctions as following:
a- Criminal sanctions:
• A person committing a felony, a misdemeanor or a contravention may be
punished by a criminal penalty.
• Such penalties may be an imprisonment or a fine. In dangerous crimes,
such as murder where the penalty may be execution.
• (i.e. executing the murder(s) to death which means hanging them).
b- Administrative sanctions:
• If an employee of the government is in default (did not fulfill his
obligations towards his work or caused any harm to the funds of the
state or caused any injury to any of the citizens) he will be punished
by an administrative sanction

• Such sanction may rank from cutting some of his daily wage, to
degrading him to a lower position or to dismiss him with or without
right to pension. In simple cases the administrative penalty may be to
give the employee a warning to the effect that in case the
contravention is repeated a severe penalty will be inflicted upon him.
The administrative sanction may not exclude a penal sanction if the
action of the defaulting employee amount to a crime.
c- Civil sanctions:
• If there is no crime and we are faced with a civil or commercial matter, a
party may apply either for the reparation of damage or for pecuniary
damages from the other party. This is a civil sanction.
• For instance, where a party suffers from non-performance of an obligation
in a contract, he may file a lawsuit with the competent court; he is called
"the claimant" or the plaintiff. The other party is called the defendant or
respondent. The court examines the case and decides either the "specific
reparation" of the obligation or the amount (in cash) as damages to be
given to the claimant party, if he is right.
• If the respondent has something to claim from the plaintiff, he must file a
counter claim stating his allegations and the court rules on both claims in
one or more judgments. The court is empowered to make a set off
between the owing of each party against the other party, if any.
d- International law sanctions:
• In the international arena, there are some doubts about the rules of the
public international law, as it is sometimes thought that they do not have
the characteristics of the legal rule particularly in regard to the material
sanction.
• We have to note that there is no authority over the sovereignty of states
that can inflict sanctions upon a state violating an international rule. The
sovereignty of each state is absolute and precludes any submission to any
other authority. That is why it is said that the rules of the public
international law are not legal rules in the proper sense of the word.
• But it must be noted, also, that a lot of the rules of public international law
are respected by all states willingly without interference with their
sovereignty. In cases of violation, negotiations are held through diplomatic
channels to dissipate clouds of dispute. Where such negotiations fail to
clarify the situation, sanctions of diplomatic or economic nature may be
inflicted upon the violating state either through the United Nations
Organization or directly by the concerned state or states
• So, the statement that public international law rules do not have
material sanction is not always true.
• One of the most important obstacles to the enforcement of rules and
principles of public international law is what is known as "Double-
standard Treatment",
• It means the presence of one or more powerful countries on the
international arena that feel free to impose sanctions on some states
or exempt others from any sanctions for the very same issue.
• An example is the USA which inflicted some economical and
political sanctions upon Iran for the manufacturing of nuclear
weapons and is now threatening North Korea for the same issue,
while at the same time is setting Israel aside any kind of sanctions
related or not, to nuclear weapons
DIFFERENTIATING LEGAL RULES FROM OTHER
RULES
• The need for rules to regulate the behavior of the individuals has
stemmed from the need to organize the society and stabilize the
relations between its members stable , legal rules are not alone on
this track , but run rules with each other. Therefore, the need to
differentiate between legal rules and other social rules has emerged.
• Rules which control human conduct are not confined law. There are
also religion and moral rules.
• Religion rules are principles which people believe have been ordained
by God, and sanctioned by rewards at punishment in the present life
or in the life to come.
• These rules are to be found in the sacred books of various religions.
• Moral rules are principles" which" arise from the general opinion of the
society as to what is right and what is wrong to what is good and to what is
evil. Disobedience of moral rules is not sanctioned by the state through its
agencies or courts. Its sanctions consist of social forces such censure,
ridicule, contempt and social exclusion.

• The rules of law, of religion and of morality differ their forms and functions,
in the types of human conduct which they are directed, and in the
sanctions intended compel compliance to them.

• Law controls external actions of people, religion moral rules control

external actions and internal thoughts
• Law is sanctioned by a determinate authority: the state. Moral rules are
sanctioned by and indeterminate authority: all the members of the society.
• Religions rules are sanctioned by God and generally in the life to come. .
• The field of law does not always coincide with that of morality or religion.
• There are acts regulated by law which do not fall within the field of moral
or religious rules
• On the other hand, there are many rules of behavior imposed by religion
and by morality which have not been found fit to be controlled by law, and
so remain outside its sphere. Thus, charity and mercy are moral virtues but
not enforced by the law.
• But this does not mean that rules of law and moral or religious rules are
always contradictory.
• Many legal rules are based upon those of morality or religion, and there
are basically derived from the public sentiment. The principle which
provides that a contractor bound to perform his obligations is a legal and a
moral and religious principle at same time.
• The legal rule which punishes any person who commie a theft is also a
religious and a moral rule.
 Good Luck
Best regards

Dr. Fady Tawakol