Block 1. Law.

1. The Need for Law. Functions of Law. Kinds of Law

The question ‘What is law?’ has troubled people for many years. Scientists devote an entire field of study known as jurisprudence to answering this question. Many definitions of law exist, but for our purposes, we can define law as the set of rules and regulations by which a government regulates the conduct of people within a society. Even with this explanation, many questions arise. Where do laws come from? Do we need laws? Are all laws written? Can laws change? If so, how? What is the difference between laws and morals?

To understand the law, we must consider the relationship of law to morals. Traditional ideas of right and wrong influence our legal system. Thus, most people condemn murder, regardless of what the law says. However, everything that they consider immoral is not necessarily illegal. For example, lying to a friend may be immoral but not really illegal.

One thing is certain: every society that has ever existed has recognized the need for law. These laws may have been written, but even primitive people had rules to regulate the conduct of the group. For a very long time now, members of every community have made laws for themselves in self-protection. Without laws, there would be confusion, fear, and disorder. This does not mean that all laws are fair or even good, but imagine how people might take advantage of one another without some set of rules. We are far better off with the imperfect laws which we have, than if we had none at all.

Law serves a variety of functions. It helps to maintain a peaceful, orderly, relatively stable society, to contribute to social stability by resolving disputes in civilized fashion, to facilitate business activities and private planning, to provide some degree of freedom that would not otherwise be possible, to inhibit social discrimination and improve the quality of individual life in matters of health, education and welfare. The law is an enabler, something that permits us to enjoy rights within the framework of an ordered society. In many ways law is the cornerstone of our culture. The rule of law provides society with the rules by which all of us live. Citizens can know the law and live their lives accordingly.

Laws fall into two major groups: criminal and civil. Criminal laws regulate public conduct and set our duties owed to society. A criminal case is a legal action by the government against a person charged with committing a crime. Criminal laws have penalties requiring that offenders should be imprisoned, fined, placed under supervision, or punished in some other way.

Civil laws regulate relations between individuals or group of individuals. A person can bring a civil action (lawsuit) when this person feels wronged or injured by another person. Civil laws regulate many everyday situations such as marriage, divorce, contracts, real estate, insurance, consumer protection and negligence.

2. The Sources of English Law. Main Sources of Ukrainian Law

The Sources of English Law. Sources of English Law

Case Law

Common Law. - Based on strict legal rights . - Applies automatically.

Development

1. (a) Pre-Roman conquest: no unified legal system. Justice dispensed in local courts.

(b) Post-Norman conquest: the king’s judges sent on circuit to resolve civil and criminal disputes in local courts.

(c) The law applied an amalgam of indigenous, largely Anglo-Saxon and Norman, law.

(d) Development of principles that rules of law laid down by a judge should be followed by other judges sitting in like cases.

Defects

2. (a) The writ system.

(b) Inadequate remedies.

(c) Failure to recognize rights arising under trusts.

Features

3. (a) Judge-made, i.e. not created by parliament.

(b) Common to the nation, i.e. not of merely local application.

(c) A case law system which may distinguished from equity.

Equity - Based on fairness . Discretionary . - Equity is a supplement to the common law and prevails if there is a conflict .

Development

1. (a) Developed as a response to the defects in the common law.

(b) Dissatisfied litigants petitioned the king.

(c) In time, king delegated responsibility to the Lord Chancellor.

(d) Successive Chancellors developed a system of Chancery courts parallel to the common law court to dispense equity.

(e) Initially cases in equity decided on broad principles of fairness. By the 15^th century cases decided according to precedent.

Content

2. (a) Created new remedies, e.g. injunction and specific performance.

(b) No writ system.

(c) Recognised trusts.

Relationship to the common law

3. (a) A gloss or supplement to the law.

(b) Earl of Oxford’s case 1615 – if law and equity conflict, equity was to prevail.

(c) The Judicature Acts 1973-75:

(i) fused the administration of law and equity

(ii) abolished the old Court of Chancery

(iii) set up the High Court in its modern form

(iv) confirmed the Earle of Oxford case.

Maxims

4. (a) ‘He who comes to equity come with clean hands.’

(b) ‘Equity is equality.’

(c) ‘Equity does not suffer a wrong to be without a remedy.’

Statute. Primary - Acts of Parliament . Secondary - Delegated legislation: Statutory instruments

(e.g. regulations or orders in council) and bye-laws (Local Authorities).

1. Proposals for legislation are put forward in draft form as Bills, and may be introduced into either the House of Commons or the House of Lords. When the Bill has passed through one House it must then go through the same stages in the other House. When it has passed through both Houses, it is submitted for the Royal Assent which in practice is given on the Queen’s behalf by a committee of the Lord Chancellor and two other peers. It then becomes an Act of Parliament (or statute) but does not (if the Act itself so provides) come into operation until a commencement date is notified by statutory instrument.

2. If the House of Commons and the House of Lords disagree over the same Bill, the House of Lords may delay the passing of the Bill for a maximum of one year.

3. in each House, the successive stages of dealing with the Bill are as follows:

(a) First reading – publication and introduction into the agenda: no debate.

(b) Second reading – debate on the general merits of the Bill: no amendments at this stage.

(c) Committee stage – the Bill is examined by a Standing Committee of about 20 members, representing the main parties and including some members at least who specialize in the relevant subject. The Bill is examined section by section and may be amended. If the Bill is very important, all or part of the Committee Stage may be taken by the House as a whole sitting as a committee.

(d) Report stage – the Bill as amended in committee is reported to the full House for approval. If the government has undertaken in committee to reconsider various points, it often puts forward its final amendments at this stage.

(e) Third reading – this is the final approval stage at which only verbal amendments may be made.

European Union Law . Primary - The Treaties. Secondary – Regulations, Directives , Decisions

Council of Ministers Made up of ministers from member states responsive for the adoption of legislation . Treaties: Treaty of Rome Regulations: Directly applicable. Binding and enforceable from time of their creation

The Commission Made up of Commissioners from member states. They prepare legislation. Directives: Not directly applicable. Set out aims for member states to achieve by national law within a specified period.

The European Parliament Made up of elected members from member states. Primarily a debating and advisory body. Decisions: On operation of European law and policies. Binding only on the recipients

European Court of Justice The final authority on European law Judgments: Rulings and interpretation on points of EU law. Final appeal court where European issues are resolved.

Main Sources of Ukrainian Law. The Ukrainian legislative system is based on the systematically organized and concerted legal rules (norms), which are combined to constitute different legal fields.

The principal source of Ukrainian law is the Constitution of Ukraine which has the highest legal force. The norms of the Constitution of Ukraine are norms of a direct effect. Appeals to the court in defense of the constitutional rights and freedoms of the individuals and citizens are guaranteed directly on the grounds of the Constitution. The principle of the rule of law was recognized by the Constitution and became effective. Laws and other normative legal acts should be adopted on its basis and conform to it.

Normative legal acts embrace not only laws proper (zakon) but also various normative acts of competent state bodies issued on the basis of laws, in accordance with laws and for their execution. Normative legal acts in Ukraine have different legal validity depending on the law-making subject.

In accordance with the Decree of the Verkhovna Rada On the order of temporary validity of some legal acts of the former USSR on the territory of Ukraine, such documents are in force in some branches till adoption of the new legislation.

In Ukraine the right to adopt laws belongs exclusively to the competencies of the Verkhovna Rada. The right of legislative initiative in the Verkhovna Rada belongs to the President, National Deputies and the Cabinet of Ministers.

The Verkhovna Rada and other state authority bodies are entitled to issue normative acts of the under-law-level in questions assigned to its jurisdiction. The President of Ukraine, on the basis and for the execution of the Constitution and the laws of Ukraine, issues decrees (ukazy) and directives (rozporiadzhennia). The Cabinet of Ministers of Ukraine, within the limits of its competence, issues resolutions (postanovy) and orders (nakazy). All the documents produced by the highest power bodies are mandatory for execution on the territory of Ukraine.

Individual ministries, state agencies and committees, in pursuance of laws of Ukraine, issue resolutions, directives and orders within the specific sphere of their competence. All these normative legal acts, normative acts of the National Bank of Ukraine and international treaties of Ukraine are registered at the Ministry of Justice of Ukraine.

Another type of law source is a normative legislation (law-making) which is a mutual agreement and contains the legal rules established by law-making subjects as a result of their multilateral agreement and supported by the state. Such agreements are very important in the spheres of civil, commercial and assets relations.

Acts which govern the observance, execution and application of legal norms (law-implementation acts) are issued by competent bodies or officials within the limits of their authority, e.g. the Office of Public Prosecutor, courts or administrative commissions.

Legal customs, ecclesiastical rules, judicial practice and the doctrine [΄doktrin] consisting of commentaries, articles, books, encyclopedias are not recognized as sources of law in Ukraine.