TheImportanceofLaw(法律的重要性)

1、The Importa nee of LawChapter 1 of the seeond edition of Letters to a Law Student deals with the question of why anyone would want to study Law, and in the course of so doing defe nds the importa nee of law, and by extension the work that lawyers do. The object of this seetion is to provide a gatewa

2、y through which you can explore on the Internet in greater detail exactly why law is such an importance force in our civilisation.The fun ctio ns of lawLaw can be said to perform four differe nt fun cti ons, each of which is of huge importa nce to our welfare.(1) Defending us from evilThe first and

3、most basic function of law is to defe nd us from evil-that is, those who wouldseek to harm us for no good reason. This function of law underlies 20th century developme nts in Intern ati onal Law such as the Nuremberg Trials and the creati on of the Intern ati onal Criminal Court.(2) Promot ing the c

4、om mon goodLaw is not just concerned with bringing evil people to account for their actions. A community made up of people who bear no ill-will to anyone else and are simply concerned to pursue their own self-i nterest n eeds law because there are situatio ns where if every one pursues their own sel

5、f-i nterest, every one will be worse off tha n they would have been if they acted differently. (This is the reverse of theinvisible hand phenomenonwhere if every one pursues their own self- in terest, every one in the com munity is made better off, as if every ones acti ons were guided by an invisib

6、le hand to achieve that en d.)So a community of self-interested actors needs law: (i) to solve Prisoners dilemma situati ons; (ii) to distribute into private hands property that would otherwise be exploited by every one, thereby avoidi ng atragedy of the com mons situati on aris ing; (iii) to preve

7、ntpeople acting on their natural desire to extract an eye for an eye in revenge for actual or perceived wrongs that they have suffered at other people s han ds.(3) Resolv ing disputes over limited resourcesAs every family knows, in any community there will always be disputes over who should have wha

8、t of a limited nu mber of resources. Law is n eeded to resolve these disputes, as exemplified by the famous story of the Judgme nt of Solomon.(4) En couragi ng people to do the right thingIt was thought even from classical times that law performed a fourth function -that of en couragi ng and help in

9、g people to do the right thing. For example, Aristotle (384 BC-322 BC) argued that people n eeded the discipli ne of law to habituate them into doing the right thing, from which standpoint they could then appreciate why doing the right thing was the right thing to do. Up until the 20th century, this

10、 view of law was accepted by law makers, with the result that the UK legal system contained a large number of morals laws -that is, laws that were designed purely and simply to stop people acting immorally, according to the lights of Christian teaching on what counted as immoral behaviour. However,

11、in the 20th century, the harm principle propounded by John Stuart Mill in his book On Liberty , according to which the law should not sanction people for acting immorally uni ess their con duct in volved some harm to others, gained more and morepopularity, and resulted in the abolition of large numb

12、ers ofmorals laws .These trendstriggered what is now known as the Hart-Devlin debate over the extent to which it is legitimate for the law to en force morality. Lord Devli n -at the time, a judge in the House of Lords, the highest court in the land-argued that law should enforce morality soas topres

13、erve the cohesiveness of society. Professor H.L.A. Hart - at the time, the most famous legal philosopher in the world - based his position squarely on Mills harm prin ciple, though subject to the caveats that the law might legitimately preve nt some one acting immorally if doing so involved harm to

14、himself or would cause offence to others.Harts views are set out in his widely read book Law, Liberty and Morality .Hart is thought to have won the debate -but his con cessi ons that it might be legitimate to make it illegal for some one to en gage in immoral behaviour that will (i) harm himself or

15、(ii) offend others, seem to make little sense. The same point can be made about thosemorals laws thatsurvived the 20th century cull: if law does not have a role to play in encouraging us to do the right thing, why is it illegal to have sex in public, or to have sex with ani mals, or to dig up dead b

16、odies, or to take halluci nogenic drugs, or to help some one kill themselves?The rule of lawWhether or not law has a role to play in encouraging us to do the right thing, no one doubts the continuing importanee of law in performing the first three functions set out above. As a result, there is a wid

17、espread accepta nee that the health and wealth of n atio ns is crucially dependent on how far the rule of law is maintained and observed in those nations. See for example, this World Bank website, or this United Nations website, or this website maintained by the American Bar Association, or this ess

18、ay on the importance of observa nce of property rights and the rule of law to a countrys developme nt. As a result,a lot of attention is paid to indexes that attempt to chart how far countries around the world respect such things as the rule of law and private property rights. For examples of such i

19、n dexes, see World Justice Project and Intern ati onal Property Rights.Critics of the lawHaving said all that, it should be ack no wledged that nu merous criticisms are made of the ben efits that are supposed to flow from the existe nce of law, and the observa nce of the rule of law.For example, som

20、e point out that the fact that a society respects the importa nce of the rule of law and private property rights is no guarantee that that society will be particularly just (or eve n that wealthy). The rule of law, it is argued, is compatible with great oppressi on, in equality and poverty; a point

21、summed up by An atole Frances famous observati on thatThe law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to begin the streets, and to steal their bread. Others take this point further and argue that in the wrong han ds, law can become an in strume nt of evil, a me

22、ans by which a countrys rulers can rob people of their propertyand oppress minorities.It is also argued that even if law is not actually used as an instrument of evil, it can become its accomplice by doing such thi ngs as:(i) hamstri nging public officials (such as the ficti onal Jack Bauer of the A

23、merica n TV series24 from doing what is n ecessary to preve nt terrorist atrocities; and(ii) granting people rights and encouraging them to exercise them, thereby fostering a damagi ng culture of compla int and compe nsati on culture that alie nates people from each other, and discourages people from helping other people for fear that doing so might result in their being sued.Con clusi onAll legal systems do harm of one kind or ano ther. Som