Law can be defined as a set of rules established by a society to govern behaviour

within that society. Law is referred to when we faced any conflict within the scope of
economic performance and social performance. The rules within the law represent the
collective judgments made by members of the society and these collective judgments should
be followed instead of trying to establish our own moral opinions. Some of the examples of
laws that reflect collective moral judgments is economic recovery, safety and security,
political recovery, and access to public services. Law can also be defined as a consistent
set of universal rules that are widely published, generally accepted, and usually enforced.
There are five characteristics of law that are included in its definition, which are consistent,
universal, published, accepted, and enforced. Firstly, is consistent. The requirement to act
or not to act have to be consistent to be considered as part of the law. As for example, if the
two requirements contradict each other, both cannot be termed as law because people
obviously cannot obey to both. Secondly, is universal. The requirement to act or not act
must be universal or applicable to everyone with similar characteristic and facing the same
set of circumstances. Thirdly, is published. The requirements to act or not act must be
published and put in print so that they can be access by everyone within the society as
ignorance of the law is not a valid excuse. Next, is accepted. The requirement to act or not
act in a given way must be obeyed. Lastly, is enforced. The requirement to act or not act in
a given way must be enforced and members of society have to understand that they will be
compelled to obey the la if they do not do so voluntarily and they have to recognise that if
there is any failure to do so, they will suffer loss of convenience, time, money, freedom or
life.

According to Bickenbach (1989), the relationship between morality and law is one of
the most enduring problematics of jurisprudence. He further stated that law and morality is
at best, extrinsically related and the law as it is, seems to be the product of social forces too
complex and haphazard to preserve, or create, an unambiguous moral foundation. This
being so, neither substantive law nor legal practices or institution can have an intrinsic claim
on our moral allegiance. The law is merely a social instrument ot be closely monitored and
assessed against extra legal standards of moral or political acceptability. In considering the
possible relationship between moral judgments and legal requirements, three conclusions
can be reach quickly which is the overlapping on the requirement of law to a considerable
extent, its tendency to be negative and its tendency to lag behind the apparent moral
standard of society. Firstly, is the requirement of the law overlap to a considerable extent.
The requirement of the law however, do not duplicate the probable moral standards of
society. A person who violates the federal law against bank robbery also violates the moral
standard against theft. It is easy to show that laws governing sexual conduct, narcotics
usage, product liability and contract adherence are similar to the moral beliefs that are
probably held by the majority of people in our society. We can agree that in democratic
society, legal requirement reflect many basic values of the citizen and thus, we can say that
legal requirements overlap with moral standard. However, the area of overlap is not
complete as there are some laws that are morally unresponsive and have no ethical content.
For example, the requirement that we drive on the left-hand side of the road is neither right
or wrong; it is just important that we all agree on which side to drive. Meanwhile, there are
some moral standards that have no legal standing at all. As for example, lying. We all
object to lying as it goes against our moral standards. However, truthfulness is not required
by law except in court and under oath, and in a few other specific instances, such as
employment contracts and property sales. The second conclusion in considering the
possible relationship between moral judgments and legal requirements is the requirement of
law tend to be negative, while the standards of morality are more often positive. According
to the law, we are forbidden to assault, rob or defame each other. However, we are not
required to help people, even in extreme situation. For example, there is no law insisting
that we must aid a drowning child. The third conclusion is the requirement of the law tend to
lag behind the apparent moral standards of society. The most unpleasant example for this
conclusion is slavery. However, sexual and racial discrimination, environmental pollution
and bribery in foreign countries can all be cited as moral problems that were then slowly
remedied by legislation. Advocates of the rule of law would say, however, that the evidence
of a delay between apparent moral consensus and enacted legal sanctions does not
necessarily indicate a lack of relationship between legal requirements and moral standards.
It only serves to confirm that relationship, they would claim for laws controlling
discrimination, pollution and bribery were eventually passed.

The law is formed through four processes, which are individual processes, group
processes, social processes, and political processes. Each individual has a set of norms,
beliefs and values which collectively forms his or her moral standards. Individual processes
can be seen in the changes that have occurred in the laws governing employment. Actions
that were considered legal 20 years ago such as racial and sexual discrimination in hiring
employees have now become illegal. The question is whether these changes in law can be
attributed to changes in the moral standards of the majority of our population through social
and political processes and consequently, whether the law represents the collective moral
standards or our society.

Next is group processes. Group processes means the general background or

surrounding environment of a situation plays a significant role in the norm, beliefs and values
of an individual. Each individual develops a set of norm, beliefs and values through
exposure to cultural or religious context, social or political context and economic or
technologic context which is called the six interrelated factors of context. The interwoven
nature of the context within which individual choices of norms, beliefs and values are made,
ensures that all the mentioned factors interact with one another. As for example
technological changes in communication bring political changes in governance and the
political changes cause economic changes in spending and taxation patterns, which
eventually result in cultural changes in personal lifestyle. The exact relationship between the
six interrelated factors of context are not known, nor can their combined influences upon an
individual’s norms, beliefs, and values be predicted with accuracy. Nevertheless, the
relationships and influences can be observed easily. As for example, the changing status of
women are resulted from economic shift from heavy manufacturing and mining to
knowledge-based and service industries, technological development of better birth-control
methods and social expansion of educational opportunities.

Thirdly, is social processes. All individual within a society do not have the same
exposure to economic, technological, social, cultural and religious factors. Such exposure
comes from individual positions, family units, peer groups and formal organizations. The
changing norms, beliefs and values of individuals within society have an apparent but
delayed impact upon the law. This impact would appear to be the result of both social and
political processes. Basically, the social process involves accumulation of power. People
with similar norms, beliefs and values tend to be associated in small groups. It is normal to
join others who have the same views. These small groups generally are part of much larger
organizations such as business firms, labour unions and political parties, charitable
agencies, religious institutions, and veteran associations. These larger organization will
either achieve an acceptable compromise on norms, beliefs and values or split into smaller
organizations that can achieve such a compromise over time. There are alternative theories
on the means by which this compromise is formed such as autocratic decision, bureaucratic
adjustment and coalition bargaining or collective choice.

Lastly, is political processes. The political processes by which the norms, beliefs and
values held by organizations, groups and individuals are institutionalised into law can be
seen as a means of resolving conflict. Organizations, groups and individual have different
opinions on what should be done now and what should be accomplished in the future.
These different views have to be accustomed to consistent and universal rules to be
effective. Presidential leadership, institutional compromise, congressional bargaining and
constituent pressure are alternatives theories on the ways how to accustom these different
views to be effective in its consistency and universal rules. Elected representatives are
formally assigned the responsibility of formulating laws in a representative system.
However, issues differ by sections of the country, segments of the population and sectors of
the economy. Moreover, as stated by Cerar, Dr. Miro (2009), The relation between politics
and law has both a progressive function and a safeguarding function. Law and politics,
separately or together, both encourage and suppress the development of societal relations,
while they both also function to bring about justice and order. Consequently, coalitions have
to be formed to pass most legislation. The public can express opinions on potential laws by
voting for some administrators and all legislators, and indirectly through public surveys,
letters and the media.

The type of law that I have selected to evaluate on the process of its formation is
common law. According to (Kiralfy et al., 2020), common law or also known as Anglo-
American law, the body of customary law was based upon judicial decisions and embodied
in reports of decided cases, that has been administered by the common-law courts of
England since the Middle Ages. It has evolved the type of legal system now found also in
the United States and in most of the member states of the Commonwealth. In this sense
common law stands in contrast to the legal system derived from civil law, now widespread in
continental Europe and elsewhere. It comprises of three major and other minor legal
systems, those of England and Wales, Scotland, and Northern Ireland. As stated in (The
Common Law and Civil Law Traditions, 2016), common law is generally uncodified. This
means that there is no comprehensive compilation of legal rules and statutes. While
common law does rely on some scattered statutes, which are legislative decisions, it is
largely based on precedent, meaning the judicial decisions that have already been made in
similar cases. These precedents are maintained over time through the records of the courts
as well as historically documented in collections of case law known as yearbooks and
reports. The precedents to be applied in the decision of each new case are determined by
the presiding judge. As a result, judges have an enormous role in shaping American and
British law.

Common law takes some law-making pressure off parliament and allows for laws to
respond to real-life situations. In my opinion, the process behind its formation is slow and
reactive rather than proactive as it is made by individuals who are not elected or
representative of the people. Unlike the parliament, the courts can only change common law
after the fact. They cannot change the law of their own accord. Courts can only deal with
cases which are brought before them. Laws and precedents may be obviously outdated and
in need of reform but until relevant criminal charges are laid or relevant civil action is
initiated, there is not an opportunity for these laws and precedents to be changed.
According to Carmineproofreading (2020), If a judge does make a bad ruling, it still becomes
precedent, even if other judges disagree with it. This is more of a problem the higher up the
court hierarchy the decision was made, as precedents can only be overruled by a higher
court. Even the same court that made the bad ruling is unlikely to want to break their own
precedent, although this is technically possible. This means that any bad decisions made
will likely stay in the court system of precedents for quite a while. This is complicated further
by precedents set many years before, that may well not have been a bad ruling at the time.
However, the community’s opinions and views on justice tend to change over the years, so
what was once an acceptable outcome to a case now seems unjust. Nevertheless, the
precedent will still stand until it is overruled, which can only happen if the case proceeds to a
higher court. Furthermore, due to its nature which relies on legislative decision and past
precedents, any changes to the law is reactive. Continuing with the thought of historical
precedents that no longer make sense or are not in line with current views, remember that
nothing can be done pre-emptively about this. Judges and the courts may well know that a
particular precedent is outdated and needs changing, but there is nothing that they can do
about this. Even the highest courts cannot change the precedent already set before they
hear a case that concerns it. This means that common law can only ever be reactive in
response to cases, rather than having any power to amend precedents. This can create
uncertainty in the law. A precedent may say one thing, but there is no guarantee that this will
not be overturned, especially if it seems to be outdated.

Nevertheless, not all aspects of common law is deemed to be bad and some of its
advantages according to Carmineproofreading (2020), are adaptability and specificity. One
of the benefits of common law is how flexible it is and able to adapt to new developments
and situations. Although common law is consistent, it is also possible to change it where
necessary. This can be done by distinguishing cases and even setting aside old precedents
when they become outdated. Common law can also respond a lot better than Parliament to
unique cases that raise a new dilemma. Making a new Act of Parliament to deal with this
would take a long time, whereas common law can be created when the case is heard.
Parliament cannot predict every situation that may arise, so common law can treat these on
a case-by-case basis, trying to create an outcome that is fair for everyone involved.
Moreover, Acts of Parliament take a broad approach to creating law, as they cannot possibly
predict every situation. While this is good for creating a strong foundation for the law, it is
not suitable for every case that will be heard, so common law is needed to narrow this down.
Judges can look at the specific facts in each case and make their decisions according to
these. This is seen most when they decide to distinguish a case based on a particular point
that differs from existing cases, allowing them to rule on cases in a way that is just. If only
the broad approach adopted by Parliament was used, there could be some very unfair
outcomes for cases that are distinct from the situations that Parliament had in mind.

In conclusion, law can be defined as a consistent set of universal rules that are
widely published, generally accepted, and usually enforced. There are five characteristics of
law that are included in its definition, which are consistent, universal, published, accepted,
and enforced. Besides that, law is merely a social instrument to be closely monitored and
assessed against extra legal standards of moral or political acceptability. In considering the
possible relationship between moral judgments and legal requirements, three conclusions
can be reach quickly which is the overlapping on the requirement of law to a considerable
extent, its tendency to be negative while the standards of morality are more often positive
and its tendency to lag behind the apparent moral standard of society. Furthermore, the law
is formed through four processes, which are individual processes, group processes, social
processes, and political processes. For individual process, each individual has a set of
norms, beliefs and values which collectively forms his or her moral standards. For group
processes, each individual develops a set of norm, beliefs and values through exposure to
cultural or religious context, social or political context and economic or technologic context
which is called the six interrelated factors of context. The six interrelated factors of context
are religious teaching, cultural traditions, economic traditions, technological developments,
social organizations and political processes. For social processes, all individual within a
society do not have the same exposure to economic, technological, social, cultural and
religious factors. Lastly, for political processes, the norms, beliefs and values held by
organizations, groups and individuals are institutionalised into law can be seen as a means
of resolving conflict. Next, the type of law that I have selected to evaluate on the process of
its formation is common law. Common law or also known as Anglo-American law, the body
of customary law was based upon judicial decisions and embodied in reports of decided
cases, that has been administered by the common-law courts of England since the Middle
Ages. It comprises of three major and other minor legal systems, those of England and
Wales, Scotland, and Northern Ireland. As stated in (The Common Law and Civil Law
Traditions, 2016), common law is generally uncodified. This means that there is no
comprehensive compilation of legal rules and statutes. While common law does rely on
some scattered statutes, which are legislative decisions, it is largely based on precedent,
meaning the judicial decisions that have already been made in similar cases. These
precedents are maintained over time through the records of the courts as well as historically
documented in collections of case law known as yearbooks and reports. The precedents to
be applied in the decision of each new case are determined by the presiding judge. There
are a few pros and cons in the formation process of common law. The pros are its
adaptability and specificity while its cons are the process behind its formation is slow and
reactive rather than proactive as it is made by individuals who are not elected or
representative of the people.
References

Bickenbach, J. (1989). Law and Morality. Law and Philosophy, 8(3), 291-300. Retrieved

March 8, 2021, from http://www.jstor.org/stable/3504589

Carmineproofreading. (2020, July 14). What are the disadvantages of common law?
Retrieved March 08, 2021, from https://carmineproofreading.wordpress.com/2020/07/
14/what- are-the-disadvantages-of-common-law/

Carmineproofreading. (2020, July 01). What are the advantages of common law? Retrieved
March 08, 2021, from https://carmineproofreading.wordpress.com/2020/07/01/what-
are-the-advantages-of-common-law/

Cerar, Dr. Miro (2009) "The Relationship Between Law and Politics," Annual Survey of
International & Comparative Law: Vol. 15: Iss. 1, Article 3.

Kiralfy, A. Roland, Lewis, Andrew D.E. and Glendon, Mary Ann (2020, October 30).
Common law. Encyclopedia Britannica. https://www.britannica.com/topic/common-
law

Law.berkeley.edu. 2016. The Common Law and Civil Law Tradition. Retrieved March 8,
2021, from https://www.law.berkeley.edu/wp-
content/uploads/2017/11/CommonLawCivilLawTraditions.pdf