#16997 - Form And Function~ Laws110 - Legal Foundations (LAWS110)

Laws101

4 March

Form and function

Morality- the Nazi Wife- Look at this on Thursday

Is Formalism the limit of the law

Idea law defined by law

• Does not include the customs

• Does not include the purpose

• Doesn’t take into account how it is enforced

• If have the formal structure, and if no one follows it

• Eternal system

• Only works in certain societies but it doesn’t fit all societies

Most of disputes are not resolved in the courts in NZ

The disputes tribunal

Its not really a conception of law, needs to be global

Hart in attempting to define a concept

He described a Western legal system of rules and he gave that the status of law. It is a Eurocentric idea.

The rule on the ground may not match the statue. Different villages

In many societies customs are just as important as the law, custom of the village, so Harts system would say they are not losing law they are using custom

Harts definition ignores a group of rules

No official law that states that English is the language of New Zealand

In practice English is the main language, laws are written in English etc.

Little mentioned in statue

Convention, tradition, custom and practice.

None of it is law.

Hart might be irrelevant

Alternative view- Harts definition focuses on form, it is too narrow,

Hart-formality and rules

• Functionalists- reality

• Realists- how the law plays out in practice

• Argue about how things work

• How do you know what makes it law

• Functionalists- the nature of law is about society, sociological approach not a formal approach

• “All law is public law”

• We own our legal system

• The reason that private law like contract law works is because the people accept them. Society’s law.

• For the law to exist requires a society to exist first.

• If you don’t have a society, you can’t have law.

• Law is about society

• Societies need to have law to exist. Law requires society

• Argument- society needs law to bind people together as a group. Neil Dirkan point

Societies need to have ways to fix disputes.

Without mechanisms= no society

Famous realist- Karl Llewellyn’s

• Law is about what happens on the ground

He focused on other places (avoid Eurocentic)

The Shayan people.

The Shayan way,

Similarities…

Karl Llewellyn’s conceptual view of law

The Law Jobs

• Resolving the Trouble case (methods of resolving disputes)

• Channelling Expectations (framework to reduce number of disputes like ACC) Contract Law- is the rules

• Direction- society to move in a direction

• Allocation of Authority-

It doesn’t matter how you do these things

• Compromise

• Violence- duelling (was accepted at the time), trial (decide winner, use to be duels but not it is organised in arguments) witch trials, singing...