5. What is law?

• Origins of the word "LAW"


  Two possible origins

  • (1) The Old English word lagu, meaning "that which is laid down or prescribed"; and
  • (2) The French word loi, derived from the Latin word lex meaning "that which has been bound or tied".
• Definition of the word "LAW"

  • The Oxford Dictionary of Current English defines the word ‘law’ as: "A rule enacted or customary in a community and recognized as enjoining or prohibiting certain action; the body of such rules"
  • ‘Law’ is a command, which emanates or originates from the sovereign and is capable of being sanctioned.
  • Any rule which is not a command of a sovereign or is not capable of being enforced is not a rule of law but a rule of positive morality.
  • Example: customary law – not created by legislatures or courts of law and does not possess a well-defined enforcement mechanism.
• 5 Perspectives on LAW

  • POSITIVIST
  • REALIST
  • NATURAL LAW
  • SOCIOLOGICAL
  • CRITICAL LEGAL THEORIST
• POSITIVIST


  A positive command or a direction by a superior authority that is binding upon others and must be obeyed by them
• REALIST


  What the agencies of the state (such as the courts, the police, and other government officers) do, and what they cause other people to do.
• NATURAL LAW


  The expression of certain basic ideals or moral standards that form a universal or natural law.
• SOCIALOGICAL


  A social phenomenon.
• CRITICAL LEGAL THEORIST


  A tool currently used by dominant groups in society to uphold and enforce what is seen as an undesirable and oppressive social and economic system.
• A law story


  A ni-Vanuatu husband and wife were adopting a ni-Vanuatu baby. The mother of the baby agreed to the adoption as did her parents. The new parents had signed papers that they also agreed to the adoption. The husband had gone to collect the baby. Three uncles were refusing to allow the baby to be handed over unless they were paid 20,000 vatu (about NZ$300). Apparently some sort of custom right was being asserted as the basis for this demand.
• In Vanuatu, the Adoption Act 1958 (UK) applies. Under this Act either giving payments for a baby or demanding payments for a baby is illegal.

  This Act was not followed.

  Instead, a custom resolution was reached. The uncles paid the husband a pig and a mat and the husband had to break one wing of a live rooster. The baby is now with her new family.
• QUESTION - Is it legal to pay money to adopt a child in Vanuatu? Look at it from the 5 perspectives.

  Positivist Perspective:

  A positivist approach focuses on the strict application of written laws.

  
  

  Question: According to the Adoption Act 1958 (UK), which is applicable in Vanuatu, is it legal to pay money for the adoption of a child?

  
  

  Answer: No, under the Adoption Act 1958, giving or demanding payments for a baby is explicitly illegal.
• Realist Perspective:

  Legal realism emphasizes the actual practice of law and how it is applied in real-life situations.

  
  

  Question: In practice, how is the law regarding payments for child adoption enforced in Vanuatu, and what are the real-world outcomes?

  
  

  Answer: Despite the law, the actual practice in this case shows that custom resolutions are sometimes preferred, indicating a potential gap between the written law and its enforcement.
• Natural Law Perspective:

  Natural law theory focuses on moral principles and inherent human rights.

  
  

  Question: From a moral and ethical standpoint, should payments for child adoption be considered legal, even if they are not under the current law?

  
  

  Answer: Morally, paying for a child's adoption could be seen as commodifying human life, which contradicts the inherent dignity and rights of individuals, thus it should be illegal.
• Sociological Perspective:

  This perspective looks at the societal context and cultural practices influencing the law.

  
  

  Question: How do customary practices and societal norms in Vanuatu influence the legality and acceptance of payments for child adoption?

  
  

  Answer: In Vanuatu, customary practices hold significant influence, and societal norms might accept certain payments or exchanges as part of tradition, even though they conflict with formal laws.
• Critical Legal Theorist Perspective:

  Critical legal theory examines the power structures and biases within the law.

  
  

  Question: How do power dynamics and cultural biases within Vanuatu's legal and societal framework affect the enforcement of laws against payments for child adoption?

  
  

  Answer: Power dynamics and cultural biases may lead to selective enforcement or disregard of the law, as traditional customs and the influence of family elders can override formal legal provisions, perpetuating the practice despite its illegality.
• Law and practice


  There were clear gaps between law and practice, as often happens in the Pacific (& elsewhere)

  
  

  Reasons:

  • Lack of resources
  • Geographical constraints
  • Lack of awareness of introduced/adopted law, OR- aware of the law but law not followed because it does not fit the context well, Or- aware, but knew law could not be enforced so tried to get away with extortion?
  • Lack of awareness of how to use/apply legal system

  The reasons will vary according to the specifics of a situation
• If the law is not being followed in practice, is it still law?

  The answer depends on perspective:

  • Lawyer’s view/legal positivism/black letter law - YES
  • Legal realists view Sociological view/socio-legal theory view - NO
  • Natural law theorists - MAYBE (depends on if the law is a “good law”)
• Perspectives on what the law should be

  • Natural law theory: Law should be what aligns to "what is natural"
  • Critical legal theory: Law is an institution that maintains power structures/imbalances so law-makers should consciously think about the power structures they want to uphold
  • Socio-legal view: Law should be what society wants it to be
  • Realist view: Law should be what society can realistically afford to implement
• The naked boy (Papua New Guinea S 23(2) of the Summary Offences Act 1977)

  A court convicted Sally for allowing her 4-year-old boy to go swimming naked at a public beach. The mother undressed her boy before they went in the water so that he would not get his clothes wet. Many young children are allowed to swim naked, and Sally is the only person ever to have been prosecuted under this law.
• In Papua New Guinea s 23(2) of the Summary Offences Act 1977 says: (2) A person who intentionally exposes his private parts in a public place or within view of any person in a public place is guilty of an offence.

  The court's reasoning for holding Sally guilty was that:

  • a boy is a person.

  • as the boy is 4 years old the mother is responsible for her child’s actions.

  • his mother intended the boy to be naked.

  • by being naked the boy was exposing his private parts, and

  • the beach was a public place.
• Analysis (I & R of IRAC)

  • Issue: Should Sally have been convicted?
  • Rule 1. Legal positivist rule- Section 23(2) Summary Offences Act 1977: A person who intentionally exposes his private parts in a public place or within view of any person in a public place is guilty of an offense
• 2. Parliament's intended rule -Law should only apply to adults

  3. Rule as determined by social practice: Almost everyone allows their children to swim naked and this is the only prosecution ever to occur.

  4. Rule as determined by actions of State agencies (realist): This is the first conviction ever to occur
• 5. Natural law theorists' possible rule - Humans are born naked and are naked in the eyes of God. Nakedness is therefore never a crime.

  6. Critical legal theorist possible rule: Law should not be applied oppressively to maintain power relations – against women or weaker parties like children
• Analysis (A & C of IRAC)

  The answer depends on the perspective of law

  • Legal positivist: yes (although Parliament’s intention may affect how a statute is to be interpreted. You will learn more about this in LW 112)
  • Sociological view: No
  • Legal realist: Assuming consistency is important, no. If agencies of State are going to change long-standing practices it would be fair to be noticed.
• • Natural law theorist: assuming the natural law principle is correct, then no
  • Critical legal theorist: Would need more facts to determine power relationships being maintained through this conviction, to decide whether the law is being misused in an oppressive manner
• • A lawyer would provide a legal answer from the point of view of legal positivism and would hold that Sally should have been convicted.
  • A person who believes that fair rules derive from social practice or consistent action by State agencies would say that Sally should not have been convicted.
  • A natural law theorist who assumes that nakedness is natural would also say that Sally should not have been convicted.