The nature of law
Defining law
* There is a distinction between “a law” and “the law”: “A law”: refers to a particular legal rule; “The law” refers to the body of law generally.
* A simple and practical definition of law is “law is a set of rules made by the state and enforeceable by prosecution or litigation”; the corresponding definition of business law is “the set fo reules made by the state that regulate businesses and business activities and enforceable by prosecution and ligitgation”
* These definitions disregard questions of justice, ethics and politics and forcus upon what the law is, without considering whether it is right or fair and without considering the political origins and implications of law.
* A set of rules – a rule isa statement of behavioural expectation: it tells people how they should and how they should not behave. “Not all rules are laws”
* Made by the state – this is the first difference between a legal and a non-legal rule. Legal rule are made by state witihin a ferderation (e.g. New South Wales). In Australia, laws are made by either the parliament, in form of legislation, or the courts, in forms of case law. Rules made by persons or organisations other than the parlianment or the courts cannot be said to be laws
* Enforceable by prosecution or ligitation – This is the second difference between a legal and a non-legal rule. Legal rules are backed vt the threat of punishment or coercion 強制. If it is a rule of criminal law, the person may formatlly accused 被告by the state of having committed a criminal offence, a prcess known as prosecution. If it is a rule of civil law, he may be sued by the person he has harmed, a process known as litigation訴訟.
Criminal law: the set of legal rules nad legal procedures intended to enfroce the obligation of all members of the community to refrain抑制 from certain forms of conduct, conduct that is deemed to be so harmful that the state itself will commence legal...