Discipline Two: Law   no comments

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What is law?

Law seems to be a little harder to pin down than Anthropology (for me anyway).

According to Wikipedia (most of the information in this post will be from Wikipedia…), ‘law’ is a term that does not have a universally accepted definition but is generally a system of rules and guidelines enforced through social institutions. The law shapes politics, economics and society in various ways, and this varies from country to country. Law can raise important issues concerning equality, fairness and justice – The Universal Declaration of Human Rights proposes that ‘All are equal before the law and are entitled without any discrimination to equal protection of the law’.

The settlement of the law is divided into two main areas; Criminal law and Civil law.

Criminal law: Deals with crime (duh) and conduct that is considered harmful to social order. Guilty parties may be imprisoned and/or fined. Regulates social conduct and forbids threatening, harming or otherwise endangering the health, safety and moral welfare of people.

Civil law: Unlike criminal law, civil law focuses on dispute resolution and victim compensation rather than punishment. Deals with the resolution of lawsuits (disputes) between individuals or organisations.

Under civil law, the following specialties, among others, exist:

Contract law: A contract is an agreement having a lawful object entered into voluntarily by two or more parties, each of whom intends to create one or more legal obligations between them. Contract law varies greatly from one jurisdiction to another, including differences in common law compared to civil law.

Property law: Regulates the transfer and title of personal property and real property.

Trust law: Applies to assets held for investment and financial security.

Tort law: Deals with compensation if property is harmed.

Constitutional law: Provides a framework for the creation of law, the protection of human rights and the election of political representatives.

Administrative law: Used to review the decisions of government agencies.

International law: Governs affairs between sovereign states.

At this point I skipped straight to legal theory and the philosophy of law, which sounds more like what I should be interested in. The philosophy of law is known as ‘jurisprudence’. Those studying jurisprudence seek to obtain a deeper understanding of the nature of law, legal systems and legal institutions. According to Wikipedia, jurisprudence can be broken down into categories or schools of thought.

Contemporary philosophy of law addresses problems in two rough groups:

–       Problems internal to law and legal systems as such.

–       Problems of law as a particular social institution as it relates to the larger political and social situation in which it exists.

Answers to these questions come from four primary schools of thought:

Natural Law: Sees that there are rational objective limits to the power of legislative rulers. Foundations of law are accessible through human reason. It is from laws of nature that human-created laws gain their force.

Legal Positivism: Contrasts Natural Law. Believes there is no connection between law and morality. The force of law comes from social facts (but Legal Positivists differ in opinion on what these facts are).

Legal Realism: Argues that the real world practice of law is what determines what law is – the force of law comes from legislators, judges and executives.

Critical Legal Studies: Developed in 1970’s. Argues that the law is contradictory and is best analysed as an expression of the policy goals of the dominant social group.

Wikipedia tells me to look at the work of Ronald Dworkin, who advocates a constructivist theory of jurisprudence that produces a middle path between natural law theories and positive theories. I’ll investigate whether or not this is relevant with some reading.

Hopefully that is more or less a basic outline of law… I think Property Law will be the most relevant when investigating the rights people have in their digital afterlives. I should also look into work already done surrounding Internet Law.

Next steps:

Deeper investigation in Jurisprudence, Property Law and the law online/Internet Law.

Read about Dworkin.






Written by Amy Lynch on November 3rd, 2013

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