What is law?
Welcome to all who reads this, to the first of many articles that encompasses the field of law and connected with real life experiences. However, simply for legal purposes, I do not intend for these to be used as legal documents, nor to be used in any other way than merely educational.
The law is a social construct of which society relies on to function. Functionality in society is simply a subjective understanding of right and wrong, and therefore a beautiful, yet cyclical nature is produced. Cyclical? It is the interesting nature that a criminal act is wrong, and a wrong is a criminal act. Therefore, society deems what is right and wrong and enjoys to awfully claim that the law is objective. In other words, I am beginning to explain how the law is solely produced around what society deems is right at the current time it is made.
Firstly, lets take a look at how history has significantly taken an, incredibly positive, toll for the rights of women. Sir Matthew Hale exclaimed in 1736 that a man may not rape is wife under the implied matrimonial consent. Similarly, Mr John Frederick Archbold claimed, “a man can not be guilty of rape against his wife”, in a crucial case of the early 19th century. It was only until a crucial court judgement in 1991, whereby the House of Lords decided that it was not fair to assume a wife consented irrevocably simply due to being in a marriage. Of which legislation became enacted in 2003 under the Sexual Offences Act 2003. Other than this being a, not so light, historical journey, you can see how society at these times have adapted and regulated themselves to believe they are in a better situation now. In 1736, it was deemed wholly acceptable to simply have sexual intercourse with your wife, without requiring her to explicitly consent. This was a whole understanding, almost comparable to us being required to pay taxes. However, in 1991, clearly society had a drastic change of heart, and unwound all this previous law and generated a, in my opinion, safer country for women. Of course, there are many explanations as to why certain ideologies were accepted at certain times, but the point I am expressing is that law changes based on what is right and wrong at any given time, is this objective thinking? Or simply subjective reasoning?
Secondly, a question asked by many legal academics or even the general public; is the law outdated? This is a question of heavy debate and there are perfect arguments to go both ways. We have key, up to date law, for example The Companies Act 2006, this highlights all the rights and obligations a registered company is bestowed upon. Currently, this is very effective law and appears to include all elements within a company. Therefore, this coherency is perfect and objectively clear enough for it to be relevant. However, the law does not appreciate this sort of upkeep in all areas, a large aspect in criminal law is governed by the Offence Against a Persons Act 1861. This law governs the criminal liability surrounding assault, battery, assault occasioning actual bodily harm, and grievous bodily harm. The substance to this, is unnecessary for the purposes of this article, but will be explained in a future article; the main point of view is to understand a law that is still being referenced today, quite often I may add, and is 160 years old. Therefore, there is no reference of the wild technological advancements made since the mid-late 1800’s. This act has been kept broad enough that it can be
linked with future developments, however this requires interpretation, and interpretation is a powerful tool to be manipulated and therefore the coherency that should be deemed necessary is not successfully met. For example, assault is the apprehension of imminent and unlawful violence, this can also include unlawful touching as well. Therefore, a simple prod at someone can be deemed assault (although very extreme and rare), and secondly the most important section is that there does not need to be any touching for assault to occur, meaning if I shout at you “I am going to kill you” your apprehension of my phrase is sufficient to claim I assaulted you. The main issue we have here however, is the 1861 act will not describe what happens with the use of social media. It can be frightening receiving a threatening message, but the law presumes that you must have a sufficient relationship to apprehend the imminent violence with the justification being that you cannot apprehend “imminent violence” if you know that this person does not exist near you. However, fraud is commonly used in social media, so why can the law not interferer and mitigate for these circumstances with respect to criminal liability. I understand that the rules can be interpreted to apply in these situations. However, does it not make sense for the legislative bodies to include this in a reformed version of the legislation to avoid basic confusion?
Finally, the purpose of this article was to explain what the law is. It appears I have simply ranted on the rights of women and the lack of coherency in specific laws. However, what I have been trying to explain is the law is a messy construct, it is not embedded, nor is it objective. The law exists to create a safe environment for the public, but again, it is all a matter of opinion and debate, hence why every law is debated in parliament. Therefore, the purpose of these coming articles is to clarify misinterpreted law, formulise the confusing law, and interpret any new judicial cases, interpretations, or commentaries. Thank you for listening.
