The law has many interpretations and purposes. For many decades, philosophers have been looking at justice and law questions, and various approaches and law-related schools have arisen. This chapter examines those different definitions and approaches and examines how social and political dynamics interfere with the ideas which animate different schools of law. We would also look at traditional “positive law” outlets in the US and how some of these resources take precedence over others and identify some fundamental gaps between US law and other legislation.
What is law and What does law mean?
Law is a term that at various times means various things. The Black Law Dictionary states that the law “is a body of laws of action or practise prescribed by the authority that exercises jurisdiction and is legally binding. What people subject to punishments or legal consequences must be followed by and obeyed is a rule.” Dictionary of Black’s Justice, ed 6th, s.v. “law.”
In a country, the law may serve (1) peacekeeping, (2) the status quo being upheld, (3) individual rights preserved, (4) minorities protected from majorities, (5) social justice promoted and (6) socially orderly reform preserved. Some judicial frameworks do better than others for these reasons. While a country dominated by an authoritarian regime can preserve stability and maintain the situation, minorities or political enemies can still be oppressed (e.g., Burma, Zimbabwe, or Iraq under Saddam Hussein).
Under colonisation, in countries whose borders were rather unfairly established by these same European nations, European nations also enforced peace. Empires were formed by Spain, Portugal, the United Kingdom, the Netherlands, France, Germany, Belgium and Italy for many centuries prior to the twentieth century. Regarding rule, the empire may have maintained peace—mainly with force—but it modified the status quo and hardly supported the rights of indigenous populations or social justice.
Legislation and politics
In the United States, lawmakers, courts, regulatory bodies, governors and presidents make a large contribution from companies, lobbyists, and a variety of NGOs (the US Oil Institute, the Sierra Club, and the National Rifle Association). In the fifty countries, judges are often selected or nominated by governors. In the last fifteen years, the mechanism of the election of national judges has been increasingly politicised, with increasing submissions from those seeking a similarly political approach to sitting judges.
Judges are selected in the federal system by an elected (president) officer and approved by other elected officers (the Senate). If one party retains the president while the other party holds a majority of Senate positions, political tensions may arise during the confirmation procedures of the judges. In the last fifty years, such a separation has become very common.
Knowing who has the power to make and enact laws is a matter of knowing who has political power in most national states (as nations are named in Foreign treaties), and in certain places, certain individuals or entities with military influence can still have legislative control over law making and enforcement.