Law

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This article is about a system of rules. Law_sentence_0

For the social science or theory of law, see Jurisprudence. Law_sentence_1

For a document passed by legislature, see statutory law. Law_sentence_2

For other uses, see Law (disambiguation). Law_sentence_3

"Legal" and "Legal concept" redirect here. Law_sentence_4

For other uses, see Legal (disambiguation). Law_sentence_5

Law is a system of rules created and enforced through social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. Law_sentence_6

It has been variously described as a science and the art of justice. Law_sentence_7

State-enforced laws can be made by a group legislature or by a single legislator, resulting in statutes; by the executive through decrees and regulations; or established by judges through precedent, usually in common law jurisdictions. Law_sentence_8

Private individuals may create legally binding contracts, including arbitration agreements that adopt alternative ways of resolving disputes to standard court litigation. Law_sentence_9

The creation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. Law_sentence_10

The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people. Law_sentence_11

Legal systems vary between countries, with their differences analysed in comparative law. Law_sentence_12

In civil law jurisdictions, a legislature or other central body codifies and consolidates the law. Law_sentence_13

In common law systems, judges make binding case law through precedent, although on occasion this may be overturned by a higher court or the legislature. Law_sentence_14

Historically, religious law influenced secular matters, and is still used in some religious communities. Law_sentence_15

Sharia law based on Islamic principles is used as the primary legal system in several countries, including Iran and Saudi Arabia. Law_sentence_16

Law's scope can be divided into two domains. Law_sentence_17

Public law concerns government and society, including constitutional law, administrative law, and criminal law. Law_sentence_18

Private law deals with legal disputes between individuals and/or organisations in areas such as contracts, property, torts/delicts and commercial law. Law_sentence_19

This distinction is stronger in civil law countries, particularly those with a separate system of administrative courts; by contrast, the public-private law divide is less pronounced in common law jurisdictions. Law_sentence_20

Law provides a source of scholarly inquiry into legal history, philosophy, economic analysis and sociology. Law_sentence_21

Law also raises important and complex issues concerning equality, fairness, and justice. Law_sentence_22

Philosophy of law Law_section_0

Main articles: Jurisprudence and Philosophy of law Law_sentence_23

The philosophy of law is commonly known as jurisprudence. Law_sentence_24

Normative jurisprudence asks "what should law be? Law_sentence_25

", while analytic jurisprudence asks "what is law?" Law_sentence_26

Analytical jurisprudence Law_section_1

Main article: Analytical jurisprudence Law_sentence_27

There have been several attempts to produce "a universally acceptable definition of law". Law_sentence_28

In 1972, Baron Hampstead suggested that no such definition could be produced. Law_sentence_29

McCoubrey and White said that the question "what is law?" Law_sentence_30

has no simple answer. Law_sentence_31

Glanville Williams said that the meaning of the word "law" depends on the context in which that word is used. Law_sentence_32

He said that, for example, "early customary law" and "municipal law" were contexts where the word "law" had two different and irreconcilable meanings. Law_sentence_33

Thurman Arnold said that it is obvious that it is impossible to define the word "law" and that it is also equally obvious that the struggle to define that word should not ever be abandoned. Law_sentence_34

It is possible to take the view that there is no need to define the word "law" (e.g. "let's forget about generalities and get down to cases"). Law_sentence_35

One definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour. Law_sentence_36

In The Concept of Law Hart argued law is a "system of rules"; Austin said law was "the command of a sovereign, backed by the threat of a sanction"; Dworkin describes law as an "interpretive concept" to achieve justice in his text titled Law's Empire; and Raz argues law is an "authority" to mediate people's interests. Law_sentence_37

Holmes said, "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." Law_sentence_38

In his Treatise on Law Aquinas argues that law is a rational ordering of things which concern the common good that is promulgated by whoever is charged with the care of the community. Law_sentence_39

This definition has both positivist and naturalist elements. Law_sentence_40

Connection to morality and justice Law_section_2

Definitions of law often raise the question of the extent to which law incorporates morality. Law_sentence_41

John Austin's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". Law_sentence_42

Natural lawyers on the other side, such as Jean-Jacques Rousseau, argue that law reflects essentially moral and unchangeable laws of nature. Law_sentence_43

The concept of "natural law" emerged in ancient Greek philosophy concurrently and in connection with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas, notably his Treatise on Law. Law_sentence_44

Hugo Grotius, the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason. Law_sentence_45

Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature". Law_sentence_46

Jeremy Bentham and his student Austin, following David Hume, believed that this conflated the "is" and what "ought to be" problem. Law_sentence_47

Bentham and Austin argued for law's positivism; that real law is entirely separate from "morality". Law_sentence_48

Kant was also criticised by Friedrich Nietzsche, who rejected the principle of equality, and believed that law emanates from the will to power, and cannot be labeled as "moral" or "immoral". Law_sentence_49

In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law. Law_sentence_50

Kelsen believed that although law is separate from morality, it is endowed with "normativity", meaning we ought to obey it. Law_sentence_51

While laws are positive "is" statements (e.g. the fine for reversing on a highway is €500); law tells us what we "should" do. Law_sentence_52

Thus, each legal system can be hypothesised to have a basic norm (Grundnorm) instructing us to obey. Law_sentence_53

Kelsen's major opponent, Carl Schmitt, rejected both positivism and the idea of the rule of law because he did not accept the primacy of abstract normative principles over concrete political positions and decisions. Law_sentence_54

Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass all of the political experience. Law_sentence_55

Later in the 20th century, H. Law_sentence_56 L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law. Law_sentence_57

Hart argued law is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Law_sentence_58

Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Law_sentence_59

Two of Hart's students continued the debate: In his book Law's Empire, Ronald Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Law_sentence_60

Dworkin argues that law is an "interpretive concept", that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. Law_sentence_61

Joseph Raz, on the other hand, defended the positivist outlook and criticised Hart's "soft social thesis" approach in The Authority of Law. Law_sentence_62

Raz argues that law is authority, identifiable purely through social sources and without reference to moral reasoning. Law_sentence_63

In his view, any categorisation of rules beyond their role as authoritative instruments in mediation are best left to sociology, rather than jurisprudence. Law_sentence_64

History Law_section_3

Main article: Legal history Law_sentence_65

The history of law links closely to the development of civilization. Law_sentence_66

Ancient Egyptian law, dating as far back as 3000 BC, was based on the concept of Ma'at and characterised by tradition, rhetorical speech, social equality and impartiality. Law_sentence_67

By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements ("if … then ..."). Law_sentence_68

Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone. Law_sentence_69

Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae, for the entire public to see; this became known as the Codex Hammurabi. Law_sentence_70

The most intact copy of these stelae was discovered in the 19th century by British Assyriologists, and has since been fully transliterated and translated into various languages, including English, Italian, German, and French. Law_sentence_71

The Old Testament dates back to 1280 BC and takes the form of moral imperatives as recommendations for a good society. Law_sentence_72

The small Greek city-state, ancient Athens, from about the 8th century BC was the first society to be based on broad inclusion of its citizenry, excluding women and the slave class. Law_sentence_73

However, Athens had no legal science or single word for "law", relying instead on the three-way distinction between divine law (thémis), human decree (nomos) and custom (díkē). Law_sentence_74

Yet Ancient Greek law contained major constitutional innovations in the development of democracy. Law_sentence_75

Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists and were highly sophisticated. Law_sentence_76

Over the centuries between the rise and decline of the Roman Empire, law was adapted to cope with the changing social situations and underwent major codification under Theodosius II and Justinian I. Law_sentence_77

Although codes were replaced by custom and case law during the Early Middle Ages, Roman law was rediscovered around the 11th century when medieval legal scholars began to research Roman codes and adapt their concepts to the canon law, giving birth to the jus commune. Law_sentence_78

Latin legal maxims (called brocards) were compiled for guidance. Law_sentence_79

In medieval England, royal courts developed a body of precedent which later became the common law. Law_sentence_80

A Europe-wide Law Merchant was formed so that merchants could trade with common standards of practice rather than with the many splintered facets of local laws. Law_sentence_81

The Law Merchant, a precursor to modern commercial law, emphasised the freedom to contract and alienability of property. Law_sentence_82

As nationalism grew in the 18th and 19th centuries, the Law Merchant was incorporated into countries' local law under new civil codes. Law_sentence_83

The Napoleonic and German Codes became the most influential. Law_sentence_84

In contrast to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and easy for judges to apply. Law_sentence_85

However, today there are signs that civil and common law are converging. Law_sentence_86

EU law is codified in treaties, but develops through de facto precedent laid down by the European Court of Justice. Law_sentence_87

Ancient India and China represent distinct traditions of law, and have historically had independent schools of legal theory and practice. Law_sentence_88

The Arthashastra, probably compiled around 100 AD (although it contains older material), and the Manusmriti (c. 100–300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance. Law_sentence_89

Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia. Law_sentence_90

During the Muslim conquests in the Indian subcontinent, sharia was established by the Muslim sultanates and empires, most notably Mughal Empire's Fatawa-e-Alamgiri, compiled by emperor Aurangzeb and various scholars of Islam. Law_sentence_91

In India, the Hindu legal tradition, along with Islamic law, were both supplanted by common law when India became part of the British Empire. Law_sentence_92

Malaysia, Brunei, Singapore and Hong Kong also adopted the common law system. Law_sentence_93

The eastern Asia legal tradition reflects a unique blend of secular and religious influences. Law_sentence_94

Japan was the first country to begin modernising its legal system along western lines, by importing parts of the French, but mostly the German Civil Code. Law_sentence_95

This partly reflected Germany's status as a rising power in the late 19th century. Law_sentence_96

Similarly, traditional Chinese law gave way to westernisation towards the final years of the Qing Dynasty in the form of six private law codes based mainly on the Japanese model of German law. Law_sentence_97

Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chiang Kai-shek's nationalists, who fled there, and Mao Zedong's communists who won control of the mainland in 1949. Law_sentence_98

The current legal infrastructure in the People's Republic of China was heavily influenced by Soviet Socialist law, which essentially inflates administrative law at the expense of private law rights. Law_sentence_99

Due to rapid industrialisation, today China is undergoing a process of reform, at least in terms of economic, if not social and political, rights. Law_sentence_100

A new contract code in 1999 represented a move away from administrative domination. Law_sentence_101

Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization. Law_sentence_102

Legal systems Law_section_4

Main articles: Comparative law, List of national legal systems, and Comparative legal history Law_sentence_103

In general, legal systems can be split between civil law and common law systems. Law_sentence_104

Modern scholars argue that the significance of this distinction has progressively declined; the numerous legal transplants, typical of modern law, result in the sharing by modern legal systems of many features traditionally considered typical of either common law or civil law. Law_sentence_105

The term "civil law", referring to the civilian legal system originating in continental Europe, should not be confused with "civil law" in the sense of the common law topics distinct from criminal law and public law. Law_sentence_106

The third type of legal system—accepted by some countries without separation of church and state—is religious law, based on scriptures. Law_sentence_107

The specific system that a country is ruled by is often determined by its history, connections with other countries, or its adherence to international standards. Law_sentence_108

The sources that jurisdictions adopt as authoritatively binding are the defining features of any legal system. Law_sentence_109

Yet classification is a matter of form rather than substance since similar rules often prevail. Law_sentence_110

Civil law Law_section_5

Main article: Civil law (legal system) Law_sentence_111

Civil law is the legal system used in most countries around the world today. Law_sentence_112

In civil law the sources recognised as authoritative are, primarily, legislation—especially codifications in constitutions or statutes passed by government—and custom. Law_sentence_113

Codifications date back millennia, with one early example being the Babylonian Codex Hammurabi. Law_sentence_114

Modern civil law systems essentially derive from legal codes issued by Byzantine Emperor Justinian I in the 6th century, which were rediscovered by 11th century Italy. Law_sentence_115

Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class. Law_sentence_116

Instead a lay magistrate, iudex, was chosen to adjudicate. Law_sentence_117

Decisions were not published in any systematic way, so any case law that developed was disguised and almost unrecognised. Law_sentence_118

Each case was to be decided afresh from the laws of the State, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. Law_sentence_119

From 529–534 AD the Byzantine Emperor Justinian I codified and consolidated Roman law up until that point, so that what remained was one-twentieth of the mass of legal texts from before. Law_sentence_120

This became known as the Corpus Juris Civilis. Law_sentence_121

As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before." Law_sentence_122

The Justinian Code remained in force in the East until the fall of the Byzantine Empire. Law_sentence_123

Western Europe, meanwhile, relied on a mix of the Theodosian Code and Germanic customary law until the Justinian Code was rediscovered in the 11th century, and scholars at the University of Bologna used it to interpret their own laws. Law_sentence_124

Civil law codifications based closely on Roman law, alongside some influences from religious laws such as canon law, continued to spread throughout Europe until the Enlightenment; then, in the 19th century, both France, with the Code Civil, and Germany, with the Bürgerliches Gesetzbuch, modernised their legal codes. Law_sentence_125

Both these codes influenced heavily not only the law systems of the countries in continental Europe (e.g. Greece), but also the Japanese and Korean legal traditions. Law_sentence_126

Today, countries that have civil law systems range from Russia and Turkey to most of Central and Latin America. Law_sentence_127

Anarchist law Law_section_6

Main article: Anarchist law Law_sentence_128

Anarchism has been practiced in society in much of the world. Law_sentence_129

Mass anarchist communities, ranging from Syria to the United States, exist and vary from hundreds to millions. Law_sentence_130

Anarchism encompasses a broad range of social political philosophies with different tendencies and implementation. Law_sentence_131

Anarchist law primarily deals with how anarchism is implemented upon a society, the framework based on decentralized organizations and mutual aid, with representation through a form of direct democracy. Law_sentence_132

Laws being based upon their need. Law_sentence_133

A large portion of anarchist ideologies such as anarcho-syndicalism and anarcho-communism primarily focuses on decentralized worker unions, cooperatives and syndicates as the main instrument of society. Law_sentence_134

Socialist law Law_section_7

Main article: Socialist law Law_sentence_135

Socialist law is the legal systems in communist states such as the former Soviet Union and the People's Republic of China. Law_sentence_136

Academic opinion is divided on whether it is a separate system from civil law, given major deviations based on Marxist–Leninist ideology, such as subordinating the judiciary to the executive ruling party. Law_sentence_137

Common law and equity Law_section_8

Main article: Common law Law_sentence_138

In common law legal systems, decisions by courts are explicitly acknowledged as "law" on equal footing with statutes adopted through the legislative process and with regulations issued by the executive branch. Law_sentence_139

The "doctrine of precedent", or stare decisis (Latin for "to stand by decisions") means that decisions by higher courts bind lower courts, and future decisions of the same court, to assure that similar cases reach similar results. Law_sentence_140

In contrast, in "civil law" systems, legislative statutes are typically more detailed, and judicial decisions are shorter and less detailed, because the judge or barrister is only writing to decide the single case, rather than to set out reasoning that will guide future courts. Law_sentence_141

Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta, Scotland, the U.S. state of Louisiana, and the Canadian province of Quebec). Law_sentence_142

In medieval England, the Norman conquest the law varied-shire-to-shire, based on disparate tribal customs. Law_sentence_143

The concept of a "common law" developed during the reign of Henry II during the late 12th century, when Henry appointed judges that had authority to create an institutionalised and unified system of law "common" to the country. Law_sentence_144

The next major step in the evolution of the common law came when King John was forced by his barons to sign a document limiting his authority to pass laws. Law_sentence_145

This "great charter" or Magna Carta of 1215 also required that the King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country. Law_sentence_146

A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. Law_sentence_147

In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five. Law_sentence_148

This powerful and tight-knit judiciary gave rise to a systematised process of developing common law. Law_sentence_149

However, the system became overly systematised—overly rigid and inflexible. Law_sentence_150

As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the King's behalf the Lord Chancellor gave judgment to do what was equitable in a case. Law_sentence_151

From the time of Sir Thomas More, the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery. Law_sentence_152

At first, equity was often criticised as erratic, that it varied according to the length of the Chancellor's foot. Law_sentence_153

Over time, courts of equity developed solid principles, especially under Lord Eldon. Law_sentence_154

In the 19th century in England, and in 1937 in the U.S., the two systems were merged. Law_sentence_155

In developing the common law, academic writings have always played an important part, both to collect overarching principles from dispersed case law, and to argue for change. Law_sentence_156

William Blackstone, from around 1760, was the first scholar to collect, describe, and teach the common law. Law_sentence_157

But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked. Law_sentence_158

Religious law Law_section_9

Main article: Religious law Law_sentence_159

Religious law is explicitly based on religious precepts. Law_sentence_160

Examples include the Jewish Halakha and Islamic Sharia—both of which translate as the "path to follow"—while Christian canon law also survives in some church communities. Law_sentence_161

Often the implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments. Law_sentence_162

However, a thorough and detailed legal system generally requires human elaboration. Law_sentence_163

For instance, the Quran has some law, and it acts as a source of further law through interpretation, Qiyas (reasoning by analogy), Ijma (consensus) and precedent. Law_sentence_164

This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively. Law_sentence_165

Another example is the Torah or Old Testament, in the Pentateuch or Five Books of Moses. Law_sentence_166

This contains the basic code of Jewish law, which some Israeli communities choose to use. Law_sentence_167

The Halakha is a code of Jewish law that summarizes some of the Talmud's interpretations. Law_sentence_168

Nevertheless, Israeli law allows litigants to use religious laws only if they choose. Law_sentence_169

Canon law is only in use by members of the Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Law_sentence_170

Canon law Law_section_10

Main article: Canon law Law_sentence_171

Canon law (from Greek kanon, a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (Church leadership), for the government of a Christian organisation or church and its members. Law_sentence_172

It is the internal ecclesiastical law governing the Catholic Church (both the Latin Church and the Eastern Catholic Churches), the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion. Law_sentence_173

The way that such church law is legislated, interpreted and at times adjudicated varies widely among these three bodies of churches. Law_sentence_174

In all three traditions, a canon was originally a rule adopted by a church council; these canons formed the foundation of canon law. Law_sentence_175

The Catholic Church has the oldest continuously functioning legal system in the western world, predating the evolution of modern European civil law and common law systems. Law_sentence_176

The 1983 Code of Canon Law governs the Latin Church sui juris. Law_sentence_177

The Eastern Catholic Churches, which developed different disciplines and practices, are governed by the Code of Canons of the Eastern Churches. Law_sentence_178

The canon law of the Catholic Church influenced the common law during the medieval period through its preservation of Roman law doctrine such as the presumption of innocence. Law_sentence_179

Sharia law Law_section_11

Main article: Sharia Law_sentence_180

Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire's Mecelle code in the 19th century being a first attempt at codifying elements of Sharia law. Law_sentence_181

Since the mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions. Law_sentence_182

In modern times, the legal systems of many Muslim countries draw upon both civil and common law traditions as well as Islamic law and custom. Law_sentence_183

The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognise Islam as the religion of the state, obliging legislature to adhere to Sharia. Law_sentence_184

Saudi Arabia recognises Quran as its constitution, and is governed on the basis of Islamic law. Law_sentence_185

Iran has also witnessed a reiteration of Islamic law into its legal system after 1979. Law_sentence_186

During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics. Law_sentence_187

Legal methods Law_section_12

There are distinguished methods of legal reasoning (applying the law) and methods of interpreting (construing) the law. Law_sentence_188

The former are legal syllogism, which holds sway in civil law legal systems, analogy, which is present in common law legal systems, especially in the US, and argumentative theories that occur in both systems. Law_sentence_189

The latter are different rules (directives) of legal interpretation such as directives of linguistic interpretation, teleological interpretation or systemic interpretation as well as more specific rules, for instance, golden rule or mischief rule. Law_sentence_190

There are also many other arguments and cannons of interpretation which altogether make statutory interpretation possible. Law_sentence_191

Law professor and former United States Attorney General Edward H. Levi noted that the "basic pattern of legal reasoning is reasoning by example" - that is, reasoning by comparing outcomes in cases resolving similar legal questions. Law_sentence_192

In a U.S. Supreme Court case regarding procedural efforts taken by a debt collection company to avoid errors, Justice Sotomayor cautioned that "legal reasoning is not a mechanical or strictly linear process". Law_sentence_193

Jurimetrics is the formal application of quantitative methods, especially probability and statistics, to legal questions. Law_sentence_194

The use of statistical methods in court cases and law review articles has grown massively in importance in the last few decades. Law_sentence_195

Legal institutions Law_section_13

The main institutions of law in industrialised countries are independent courts, representative parliaments, an accountable executive, the military and police, bureaucratic organisation, the legal profession and civil society itself. Law_sentence_196

John Locke, in his Two Treatises of Government, and Baron de Montesquieu in The Spirit of the Laws, advocated for a separation of powers between the political, legislature and executive bodies. Law_sentence_197

Their principle was that no person should be able to usurp all powers of the state, in contrast to the absolutist theory of Thomas Hobbes' Leviathan. Law_sentence_198

Sun Yat-sen's Five Power Constitution for the Republic of China took the separation of powers further by having two additional branches of government - a Control Yuan for auditing oversight and an Examination Yuan to manage the employment of public officials. Law_sentence_199

Max Weber and others reshaped thinking on the extension of state. Law_sentence_200

Modern military, policing and bureaucratic power over ordinary citizens' daily lives pose special problems for accountability that earlier writers such as Locke or Montesquieu could not have foreseen. Law_sentence_201

The custom and practice of the legal profession is an important part of people's access to justice, whilst civil society is a term used to refer to the social institutions, communities and partnerships that form law's political basis. Law_sentence_202

Judiciary Law_section_14

Main article: Judiciary Law_sentence_203

A judiciary is a number of judges mediating disputes to determine outcome. Law_sentence_204

Most countries have systems of appeal courts, with an apex court as the ultimate judicial authority. Law_sentence_205

In the United States, this authority is the Supreme Court; in Australia, the High Court; in the UK, the Supreme Court; in Germany, the Bundesverfassungsgericht; and in France, the Cour de Cassation. Law_sentence_206

For most European countries the European Court of Justice in Luxembourg can overrule national law, when EU law is relevant. Law_sentence_207

The European Court of Human Rights in Strasbourg allows citizens of the Council of Europe member states to bring cases relating to human rights issues before it. Law_sentence_208

Some countries allow their highest judicial authority to overrule legislation they determine to be unconstitutional. Law_sentence_209

For example, in Brown v. Board of Education, the United States Supreme Court nullified many state statutes that had established racially segregated schools, finding such statutes to be incompatible with the Fourteenth Amendment to the United States Constitution. Law_sentence_210

A judiciary is theoretically bound by the constitution, just as all other government bodies are. Law_sentence_211

In most countries judges may only interpret the constitution and all other laws. Law_sentence_212

But in common law countries, where matters are not constitutional, the judiciary may also create law under the doctrine of precedent. Law_sentence_213

The UK, Finland and New Zealand assert the ideal of parliamentary sovereignty, whereby the unelected judiciary may not overturn law passed by a democratic legislature. Law_sentence_214

In communist states, such as China, the courts are often regarded as parts of the executive, or subservient to the legislature; governmental institutions and actors exert thus various forms of influence on the judiciary. Law_sentence_215

In Muslim countries, courts often examine whether state laws adhere to the Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws, and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam". Law_sentence_216

Legislature Law_section_15

Main article: Legislature Law_sentence_217

Prominent examples of legislatures are the Houses of Parliament in London, the Congress in Washington D.C., the Bundestag in Berlin, the Duma in Moscow, the Parlamento Italiano in Rome and the Assemblée nationale in Paris. Law_sentence_218

By the principle of representative government people vote for politicians to carry out their wishes. Law_sentence_219

Although countries like Israel, Greece, Sweden and China are unicameral, most countries are bicameral, meaning they have two separately appointed legislative houses. Law_sentence_220

In the 'lower house' politicians are elected to represent smaller constituencies. Law_sentence_221

The 'upper house' is usually elected to represent states in a federal system (as in Australia, Germany or the United States) or different voting configuration in a unitary system (as in France). Law_sentence_222

In the UK the upper house is appointed by the government as a house of review. Law_sentence_223

One criticism of bicameral systems with two elected chambers is that the upper and lower houses may simply mirror one another. Law_sentence_224

The traditional justification of bicameralism is that an upper chamber acts as a house of review. Law_sentence_225

This can minimise arbitrariness and injustice in governmental action. Law_sentence_226

To pass legislation, a majority of the members of a legislature must vote for a bill (proposed law) in each house. Law_sentence_227

Normally there will be several readings and amendments proposed by the different political factions. Law_sentence_228

If a country has an entrenched constitution, a special majority for changes to the constitution may be required, making changes to the law more difficult. Law_sentence_229

A government usually leads the process, which can be formed from Members of Parliament (e.g. the UK or Germany). Law_sentence_230

However, in a presidential system, the government is usually formed by an executive and his or her appointed cabinet officials (e.g. the United States or Brazil). Law_sentence_231

Executive Law_section_16

Main article: Executive (government) Law_sentence_232

The executive in a legal system serves as the centre of political authority of the State. Law_sentence_233

In a parliamentary system, as with Britain, Italy, Germany, India, and Japan, the executive is known as the cabinet, and composed of members of the legislature. Law_sentence_234

The executive is led by the head of government, whose office holds power under the confidence of the legislature. Law_sentence_235

Because popular elections appoint political parties to govern, the leader of a party can change in between elections. Law_sentence_236

The head of state is apart from the executive, and symbolically enacts laws and acts as representative of the nation. Law_sentence_237

Examples include the President of Germany (appointed by members of federal and state legislatures), the Queen of the United Kingdom (an hereditary office), and the President of Austria (elected by popular vote). Law_sentence_238

The other important model is the presidential system, found in the United States and in Brazil. Law_sentence_239

In presidential systems, the executive acts as both head of state and head of government, and has power to appoint an unelected cabinet. Law_sentence_240

Under a presidential system, the executive branch is separate from the legislature to which it is not accountable. Law_sentence_241

Although the role of the executive varies from country to country, usually it will propose the majority of legislation, and propose government agenda. Law_sentence_242

In presidential systems, the executive often has the power to veto legislation. Law_sentence_243

Most executives in both systems are responsible for foreign relations, the military and police, and the bureaucracy. Law_sentence_244

Ministers or other officials head a country's public offices, such as a foreign ministry or defence ministry. Law_sentence_245

The election of a different executive is therefore capable of revolutionising an entire country's approach to government. Law_sentence_246

Military and police Law_section_17

Main articles: Police and Military Law_sentence_247

While military organisations have existed as long as government itself, the idea of a standing police force is a relatively modern concept. Law_sentence_248

For example, Medieval England's system of traveling criminal courts, or assizes, used show trials and public executions to instill communities with fear to maintain control. Law_sentence_249

The first modern police were probably those in 17th-century Paris, in the court of Louis XIV, although the Paris Prefecture of Police claim they were the world's first uniformed policemen. Law_sentence_250

Max Weber famously argued that the state is that which controls the monopoly on the legitimate use of force. Law_sentence_251

The military and police carry out enforcement at the request of the government or the courts. Law_sentence_252

The term failed state refers to states that cannot implement or enforce policies; their police and military no longer control security and order and society moves into anarchy, the absence of government. Law_sentence_253

Bureaucracy Law_section_18

Main article: Bureaucracy Law_sentence_254

The etymology of bureaucracy derives from the French word for office (bureau) and the Ancient Greek for word power (kratos). Law_sentence_255

Like the military and police, a legal system's government servants and bodies that make up its bureaucracy carry out the directives of the executive. Law_sentence_256

One of the earliest references to the concept was made by Baron de Grimm, a German author who lived in France. Law_sentence_257

In 1765, he wrote: Law_sentence_258

Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to private enterprise motivated by profit. Law_sentence_259

In fact private companies, especially large ones, also have bureaucracies. Law_sentence_260

Negative perceptions of "red tape" aside, public services such as schooling, health care, policing or public transport are considered a crucial state function making public bureaucratic action the locus of government power. Law_sentence_261

Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support. Law_sentence_262

Weber wrote that the typical characteristics of modern bureaucracy are that officials define its mission, the scope of work is bound by rules, and management is composed of career experts who manage top down, communicating through writing and binding public servants' discretion with rules. Law_sentence_263

Legal profession Law_section_19

Main article: Legal profession Law_sentence_264

A corollary of the rule of law is the existence of a legal profession sufficiently autonomous to invoke the authority of the independent judiciary; the right to assistance of a barrister in a court proceeding emanates from this corollary—in England the function of barrister or advocate is distinguished from legal counselor. Law_sentence_265

As the European Court of Human Rights has stated, the law should be adequately accessible to everyone and people should be able to foresee how the law affects them. Law_sentence_266

In order to maintain professionalism, the practice of law is typically overseen by either a government or independent regulating body such as a bar association, bar council or law society. Law_sentence_267

Modern lawyers achieve distinct professional identity through specified legal procedures (e.g. successfully passing a qualifying examination), are required by law to have a special qualification (a legal education earning the student a Bachelor of Laws, a Bachelor of Civil Law, or a Juris Doctor degree. Law_sentence_268

Higher academic degrees may also be pursued. Law_sentence_269

Examples include a Master of Laws, a Master of Legal Studies, a Bar Professional Training Course or a Doctor of Laws. Law_sentence_270

), and are constituted in office by legal forms of appointment (being admitted to the bar). Law_sentence_271

There are few titles of respect to signify famous lawyers, such as Esquire, to indicate barristers of greater dignity, and Doctor of law, to indicate a person who obtained a PhD in Law. Law_sentence_272

Many Muslim countries have developed similar rules about legal education and the legal profession, but some still allow lawyers with training in traditional Islamic law to practice law before personal status law courts. Law_sentence_273

In China and other developing countries there are not sufficient professionally trained people to staff the existing judicial systems, and, accordingly, formal standards are more relaxed. Law_sentence_274

Once accredited, a lawyer will often work in a law firm, in a chambers as a sole practitioner, in a government post or in a private corporation as an internal counsel. Law_sentence_275

In addition a lawyer may become a legal researcher who provides on-demand legal research through a library, a commercial service or freelance work. Law_sentence_276

Many people trained in law put their skills to use outside the legal field entirely. Law_sentence_277

Significant to the practice of law in the common law tradition is the legal research to determine the current state of the law. Law_sentence_278

This usually entails exploring case-law reports, legal periodicals and legislation. Law_sentence_279

Law practice also involves drafting documents such as court pleadings, persuasive briefs, contracts, or wills and trusts. Law_sentence_280

Negotiation and dispute resolution skills (including ADR techniques) are also important to legal practice, depending on the field. Law_sentence_281

Civil society Law_section_20

Main article: Civil society Law_sentence_282

The Classical republican concept of "civil society" dates back to Hobbes and Locke. Law_sentence_283

Locke saw civil society as people who have "a common established law and judicature to appeal to, with authority to decide controversies between them." Law_sentence_284

German philosopher Georg Wilhelm Friedrich Hegel distinguished the "state" from "civil society" (bürgerliche Gesellschaft) in Elements of the Philosophy of Right. Law_sentence_285

Hegel believed that civil society and the state were polar opposites, within the scheme of his dialectic theory of history. Law_sentence_286

The modern dipole state–civil society was reproduced in the theories of Alexis de Tocqueville and Karl Marx. Law_sentence_287

In post-modern theory, civil society is necessarily a source of law, by being the basis from which people form opinions and lobby for what they believe law should be. Law_sentence_288

As Australian barrister and author Geoffrey Robertson QC wrote of international law, "one of its primary modern sources is found in the responses of ordinary men and women, and of the non-governmental organizations which many of them support, to the human rights abuses they see on the television screen in their living rooms." Law_sentence_289

Freedom of speech, freedom of association and many other individual rights allow people to gather, discuss, criticise and hold to account their governments, from which the basis of a deliberative democracy is formed. Law_sentence_290

The more people are involved with, concerned by and capable of changing how political power is exercised over their lives, the more acceptable and legitimate the law becomes to the people. Law_sentence_291

The most familiar institutions of civil society include economic markets, profit-oriented firms, families, trade unions, hospitals, universities, schools, charities, debating clubs, non-governmental organisations, neighbourhoods, churches, and religious associations. Law_sentence_292

There is no clear legal definition of the civil society, and of the institutions it includes. Law_sentence_293

Most of the institutions and bodies who try to give a list of institutions (such as the European Economic and Social Committee) exclude the political parties. Law_sentence_294

Areas of law Law_section_21

All legal systems deal with the same basic issues, but jurisdictions categorise and identify their legal topics in different ways. Law_sentence_295

A common distinction is that between "public law" (a term related closely to the state, and including constitutional, administrative and criminal law), and "private law" (which covers contract, tort and property). Law_sentence_296

In civil law systems, contract and tort fall under a general law of obligations, while trusts law is dealt with under statutory regimes or international conventions. Law_sentence_297

International, constitutional and administrative law, criminal law, contract, tort, property law and trusts are regarded as the "traditional core subjects", although there are many further disciplines. Law_sentence_298

International law Law_section_22

Main articles: Conflict of laws, European Union law, and Public international law Law_sentence_299

International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organisations. Law_sentence_300

Law_unordered_list_0

  • Public international law concerns relationships between sovereign nations. The sources for public international law development are custom, practice and treaties between sovereign nations, such as the Geneva Conventions. Public international law can be formed by international organisations, such as the United Nations (which was established after the failure of the League of Nations to prevent World War II), the International Labour Organisation, the World Trade Organisation, or the International Monetary Fund. Public international law has a special status as law because there is no international police force, and courts (e.g. the International Court of Justice as the primary UN judicial organ) lack the capacity to penalise disobedience. The prevailing manner of enforcing international law is still essentially "self help"; that is the reaction by states to alleged breaches of international obligations by other states. However, a few bodies, such as the WTO, have effective systems of binding arbitration and dispute resolution backed up by trade sanctions.Law_item_0_0
  • Conflict of laws, or private international law in civil law countries, concerns which jurisdiction a legal dispute between private parties should be heard in and which jurisdiction's law should be applied. Today, businesses are increasingly capable of shifting capital and labour supply chains across borders, as well as trading with overseas businesses, making the question of which country has jurisdiction even more pressing. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.Law_item_0_1
  • European Union law is the first and so far the only example of a supranational law, i.e. an internationally accepted legal system, other than the United Nations and the World Trade Organization. Given the trend of increasing global economic integration, many regional agreements—especially the African Union—seek to follow a similar model. In the EU, sovereign nations have gathered their authority in a system of courts and the European Parliament. These institutions are allowed the ability to enforce legal norms both against or for member states and citizens in a manner which is not possible through public international law. As the European Court of Justice noted in its 1963 Van Gend en Loos decision, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states.Law_item_0_2

Constitutional and administrative law Law_section_23

Main articles: Administrative law and Constitutional law Law_sentence_301

Constitutional and administrative law govern the affairs of the state. Law_sentence_302

Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state. Law_sentence_303

Most jurisdictions, like the United States and France, have a single codified constitution with a bill of rights. Law_sentence_304

A few, like the United Kingdom, have no such document. Law_sentence_305

A "constitution" is simply those laws which constitute the body politic, from statute, case law and convention. Law_sentence_306

A case named Entick v Carrington illustrates a constitutional principle deriving from the common law. Law_sentence_307

Entick's house was searched and ransacked by Sheriff Carrington. Law_sentence_308

When Entick complained in court, Sheriff Carrington argued that a warrant from a Government minister, the Earl of Halifax, was valid authority. Law_sentence_309

However, there was no written statutory provision or court authority. Law_sentence_310

The leading judge, Lord Camden, stated: Law_sentence_311

The fundamental constitutional principle, inspired by John Locke, holds that the individual can do anything except that which is forbidden by law, and the state may do nothing except that which is authorised by law. Law_sentence_312

Administrative law is the chief method for people to hold state bodies to account. Law_sentence_313

People can sue an agency, local council, public service, or government ministry for judicial review of actions or decisions, to ensure that they comply with the law, and that the government entity observed required procedure. Law_sentence_314

The first specialist administrative court was the Conseil d'État set up in 1799, as Napoleon assumed power in France. Law_sentence_315

Criminal law Law_section_24

Main article: Criminal law Law_sentence_316

Criminal law, also known as penal law, pertains to crimes and punishment. Law_sentence_317

It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact but, in itself, makes no moral judgment on an offender nor imposes restrictions on society that physically prevent people from committing a crime in the first place. Law_sentence_318

Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure. Law_sentence_319

The paradigm case of a crime lies in the proof, beyond reasonable doubt, that a person is guilty of two things. Law_sentence_320

First, the accused must commit an act which is deemed by society to be criminal, or actus reus (guilty act). Law_sentence_321

Second, the accused must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind). Law_sentence_322

However, for so called "strict liability" crimes, an actus reus is enough. Law_sentence_323

Criminal systems of the civil law tradition distinguish between intention in the broad sense (dolus directus and dolus eventualis), and negligence. Law_sentence_324

Negligence does not carry criminal responsibility unless a particular crime provides for its punishment. Law_sentence_325

Examples of crimes include murder, assault, fraud and theft. Law_sentence_326

In exceptional circumstances defences can apply to specific acts, such as killing in self defence, or pleading insanity. Law_sentence_327

Another example is in the 19th-century English case of R v Dudley and Stephens, which tested a defence of "necessity". Law_sentence_328

The Mignonette, sailing from Southampton to Sydney, sank. Law_sentence_329

Three crew members and Richard Parker, a 17-year-old cabin boy, were stranded on a raft. Law_sentence_330

They were starving and the cabin boy was close to death. Law_sentence_331

Driven to extreme hunger, the crew killed and ate the cabin boy. Law_sentence_332

The crew survived and were rescued, but put on trial for murder. Law_sentence_333

They argued it was necessary to kill the cabin boy to preserve their own lives. Law_sentence_334

Lord Coleridge, expressing immense disapproval, ruled, "to preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it." Law_sentence_335

The men were sentenced to hang, but public opinion was overwhelmingly supportive of the crew's right to preserve their own lives. Law_sentence_336

In the end, the Crown commuted their sentences to six months in jail. Law_sentence_337

Criminal law offences are viewed as offences against not just individual victims, but the community as well. Law_sentence_338

The state, usually with the help of police, takes the lead in prosecution, which is why in common law countries cases are cited as "The People v ..." or "R (for Rex or Regina) v ...". Law_sentence_339

Also, lay juries are often used to determine the guilt of defendants on points of fact: juries cannot change legal rules. Law_sentence_340

Some developed countries still condone capital punishment for criminal activity, but the normal punishment for a crime will be imprisonment, fines, state supervision (such as probation), or community service. Law_sentence_341

Modern criminal law has been affected considerably by the social sciences, especially with respect to sentencing, legal research, legislation, and rehabilitation. Law_sentence_342

On the international field, 111 countries are members of the International Criminal Court, which was established to try people for crimes against humanity. Law_sentence_343

Contract law Law_section_25

Main article: Contract Law_sentence_344

Contract law concerns enforceable promises, and can be summed up in the Latin phrase pacta sunt servanda (agreements must be kept). Law_sentence_345

In common law jurisdictions, three key elements to the creation of a contract are necessary: offer and acceptance, consideration and the intention to create legal relations. Law_sentence_346

In Carlill v Carbolic Smoke Ball Company a medical firm advertised that its new wonder drug, the smokeball, would cure people's flu, and if it did not, the buyers would get £100. Law_sentence_347

Many people sued for their £100 when the drug did not work. Law_sentence_348

Fearing bankruptcy, Carbolic argued the advert was not to be taken as a serious, legally binding offer. Law_sentence_349

It was an invitation to treat, mere puffery, a gimmick. Law_sentence_350

But the Court of Appeal held that to a reasonable man Carbolic had made a serious offer, accentuated by their reassuring statement, "£1000 is deposited". Law_sentence_351

Equally, people had given good consideration for the offer by going to the "distinct inconvenience" of using a faulty product. Law_sentence_352

"Read the advertisement how you will, and twist it about as you will", said Lord Justice Lindley, "here is a distinct promise expressed in language which is perfectly unmistakable". Law_sentence_353

Consideration indicates the fact that all parties to a contract have exchanged something of value. Law_sentence_354

Some common law systems, including Australia, are moving away from the idea of consideration as a requirement. Law_sentence_355

The idea of estoppel or culpa in contrahendo, can be used to create obligations during pre-contractual negotiations. Law_sentence_356

Civil law jurisdictions treat contracts differently in a number of respects, with a more interventionist role for the state in both the formation and enforcement of contracts. Law_sentence_357

Compared to common law jurisdictions, civil law systems incorporate more mandatory terms into contracts, allow greater latitude for courts to interpret and revise contract terms and impose a stronger duty of good faith, but are also more likely to enforce penalty clauses and specific performance of contracts. Law_sentence_358

They also do not require consideration for a contract to be binding. Law_sentence_359

In France, an ordinary contract is said to form simply on the basis of a "meeting of the minds" or a "concurrence of wills". Law_sentence_360

Germany has a special approach to contracts, which ties into property law. Law_sentence_361

Their 'abstraction principle' (Abstraktionsprinzip) means that the personal obligation of contract forms separately from the title of property being conferred. Law_sentence_362

When contracts are invalidated for some reason (e.g. a car buyer is so drunk that he lacks legal capacity to contract) the contractual obligation to pay can be invalidated separately from the proprietary title of the car. Law_sentence_363

Unjust enrichment law, rather than contract law, is then used to restore title to the rightful owner. Law_sentence_364

Torts and delicts Law_section_26

Main articles: Delict and Tort Law_sentence_365

Certain civil wrongs are grouped together as torts under common law systems and delicts under civil law systems. Law_sentence_366

To have acted tortiously, one must have breached a duty to another person, or infringed some pre-existing legal right. Law_sentence_367

A simple example might be accidentally hitting someone with a cricket ball. Law_sentence_368

Under the law of negligence, the most common form of tort, the injured party could potentially claim compensation for their injuries from the party responsible. Law_sentence_369

The principles of negligence are illustrated by Donoghue v Stevenson. Law_sentence_370

A friend of Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Donoghue) in a café in Paisley. Law_sentence_371

Having consumed half of it, Donoghue poured the remainder into a tumbler. Law_sentence_372

The decomposing remains of a snail floated out. Law_sentence_373

She claimed to have suffered from shock, fell ill with gastroenteritis and sued the manufacturer for carelessly allowing the drink to be contaminated. Law_sentence_374

The House of Lords decided that the manufacturer was liable for Mrs Donoghue's illness. Law_sentence_375

Lord Atkin took a distinctly moral approach and said: Law_sentence_376

This became the basis for the four principles of negligence, namely that (1) Stevenson owed Donoghue a duty of care to provide safe drinks; (2) he breached his duty of care; (3) the harm would not have occurred but for his breach; and (4) his act was the proximate cause of her harm. Law_sentence_377

Another example of tort might be a neighbour making excessively loud noises with machinery on his property. Law_sentence_378

Under a nuisance claim the noise could be stopped. Law_sentence_379

Torts can also involve intentional acts such as assault, battery or trespass. Law_sentence_380

A better known tort is defamation, which occurs, for example, when a newspaper makes unsupportable allegations that damage a politician's reputation. Law_sentence_381

More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes, when statute does not provide immunity. Law_sentence_382

Property law Law_section_27

Main article: Property law Law_sentence_383

Property law governs ownership and possession. Law_sentence_384

Real property, sometimes called 'real estate', refers to ownership of land and things attached to it. Law_sentence_385

Personal property, refers to everything else; movable objects, such as computers, cars, jewelry or intangible rights, such as stocks and shares. Law_sentence_386

A right in rem is a right to a specific piece of property, contrasting to a right in personam which allows compensation for a loss, but not a particular thing back. Law_sentence_387

Land law forms the basis for most kinds of property law, and is the most complex. Law_sentence_388

It concerns mortgages, rental agreements, licences, covenants, easements and the statutory systems for land registration. Law_sentence_389

Regulations on the use of personal property fall under intellectual property, company law, trusts and commercial law. Law_sentence_390

An example of a basic case of most property law is Armory v Delamirie . Law_sentence_391

A chimney sweep's boy found a jewel encrusted with precious stones. Law_sentence_392

He took it to a goldsmith to have it valued. Law_sentence_393

The goldsmith's apprentice looked at it, sneakily removed the stones, told the boy it was worth three halfpence and that he would buy it. Law_sentence_394

The boy said he would prefer the jewel back, so the apprentice gave it to him, but without the stones. Law_sentence_395

The boy sued the goldsmith for his apprentice's attempt to cheat him. Law_sentence_396

Lord Chief Justice Pratt ruled that even though the boy could not be said to own the jewel, he should be considered the rightful keeper ("finders keepers") until the original owner is found. Law_sentence_397

In fact the apprentice and the boy both had a right of possession in the jewel (a technical concept, meaning evidence that something could belong to someone), but the boy's possessory interest was considered better, because it could be shown to be first in time. Law_sentence_398

Possession may be nine-tenths of the law, but not all. Law_sentence_399

This case is used to support the view of property in common law jurisdictions, that the person who can show the best claim to a piece of property, against any contesting party, is the owner. Law_sentence_400

By contrast, the classic civil law approach to property, propounded by Friedrich Carl von Savigny, is that it is a right good against the world. Law_sentence_401

Obligations, like contracts and torts, are conceptualised as rights good between individuals. Law_sentence_402

The idea of property raises many further philosophical and political issues. Law_sentence_403

Locke argued that our "lives, liberties and estates" are our property because we own our bodies and mix our labour with our surroundings. Law_sentence_404

Equity and trusts Law_section_28

Main articles: Equity (law) and Trust law Law_sentence_405

Equity is a body of rules that developed in England separately from the "common law". Law_sentence_406

The common law was administered by judges and barristers. Law_sentence_407

The Lord Chancellor on the other hand, as the King's keeper of conscience, could overrule the judge-made law if he thought it equitable to do so. Law_sentence_408

This meant equity came to operate more through principles than rigid rules. Law_sentence_409

Whereas neither the common law nor civil law systems allow people to split the ownership from the control of one piece of property, equity allows this through an arrangement known as a trust. Law_sentence_410

Trustees control property whereas the beneficial, or equitable, ownership of trust property is held by people known as beneficiaries. Law_sentence_411

Trustees owe duties to their beneficiaries to take good care of the entrusted property. Law_sentence_412

In the early case of Keech v Sandford , a child had inherited the lease on a market in Romford, London. Law_sentence_413

Mr Sandford was entrusted to look after this property until the child matured. Law_sentence_414

But before then, the lease expired. Law_sentence_415

The landlord had (apparently) told Mr Sandford that he did not want the child to have the renewed lease. Law_sentence_416

Yet the landlord was happy (apparently) to give Mr Sandford the opportunity of the lease instead. Law_sentence_417

Mr Sandford took it. Law_sentence_418

When the child (now Mr Keech) grew up, he sued Mr Sandford for the profit that he had been making by getting the market's lease. Law_sentence_419

Mr Sandford was meant to be trusted, but he put himself in a position of conflict of interest. Law_sentence_420

The Lord Chancellor, Lord King, agreed and ordered Mr Sandford should disgorge his profits. Law_sentence_421

He wrote: "I very well see, if a trustee, on the refusal to renew, might have a lease to himself few trust-estates would be renewed. Law_sentence_422

[...] This may seem very hard, that the trustee is the only person of all mankind who might not have the lease; but it is very proper that the rule should be strictly pursued and not at all relaxed." Law_sentence_423

Lord King LC was worried that trustees might exploit opportunities to use trust property for themselves instead of looking after it. Law_sentence_424

Business speculators using trusts had just recently caused a stock market crash. Law_sentence_425

Strict duties for trustees made their way into company law and were applied to directors and chief executive officers. Law_sentence_426

Another example of a trustee's duty might be to invest property wisely or sell it. Law_sentence_427

This is especially the case for pension funds, the most important form of trust, where investors are trustees for people's savings until retirement. Law_sentence_428

But trusts can also be set up for charitable purposes, famous examples being the British Museum or the Rockefeller Foundation. Law_sentence_429

Further disciplines Law_section_29

Law spreads far beyond the core subjects into virtually every area of life. Law_sentence_430

Three categories are presented for convenience, although the subjects intertwine and overlap. Law_sentence_431

Law_description_list_1

Law_unordered_list_2

Law_description_list_3

Law_unordered_list_4

  • Company law sprang from the law of trusts, on the principle of separating ownership of property and control. The law of the modern company began with the Joint Stock Companies Act 1856, passed in the United Kingdom, which provided investors with a simple registration procedure to gain limited liability under the separate legal personality of the corporation.Law_item_4_11
  • Commercial law covers complex contract and property law. The law of agency, insurance law, bills of exchange, insolvency and bankruptcy law and sales law are all important, and trace back to the medieval Lex Mercatoria. The UK Sale of Goods Act 1979 and the US Uniform Commercial Code are examples of codified common law commercial principles.Law_item_4_12
  • Admiralty law and the sea law lay a basic framework for free trade and commerce across the world's oceans and seas, where outside of a country's zone of control. Shipping companies operate through ordinary principles of commercial law, generalised for a global market. Admiralty law also encompasses specialised issues such as salvage, maritime liens, and injuries to passengers.Law_item_4_13
  • Intellectual property law aims at safeguarding creators and other producers of intellectual goods and services. These are legal rights (copyrights, trademarks, patents, and related rights) which result from intellectual activity in the industrial, literary and artistic fields.Law_item_4_14
  • Restitution deals with the recovery of someone else's gain, rather than compensation for one's own loss.Law_item_4_15
  • Unjust enrichment When someone has been unjustly enriched (or there is an "absence of basis" for a transaction) at another's expense, this event generates the right to restitution to reverse that gain.Law_item_4_16
  • Space law is a relatively new field dealing with aspects of international law regarding human activities in Earth orbit and outer space. While at first addressing space relations of countries via treaties, increasingly it is addressing areas such as space commercialisation, property, liability, and other issues.Law_item_4_17

Law_description_list_5

Law_unordered_list_6

  • Tax law involves regulations that concern value added tax, corporate tax, and income tax.Law_item_6_18
  • Banking law and financial regulation set minimum standards on the amounts of capital banks must hold, and rules about best practice for investment. This is to insure against the risk of economic crises, such as the Wall Street Crash of 1929.Law_item_6_19
  • Regulation deals with the provision of public services and utilities. Water law is one example. Especially since privatisation became popular and took management of services away from public law, private companies doing the jobs previously controlled by government have been bound by varying degrees of social responsibility. Energy, gas, telecomms and water are regulated industries in most OECD countries.Law_item_6_20
  • Competition law, known in the United States as antitrust law, is an evolving field that traces as far back as Roman decrees against price fixing and the English restraint of trade doctrine. Modern competition law derives from the U.S. anti-cartel and anti-monopoly statutes (the Sherman Act and Clayton Act) of the turn of the 20th century. It is used to control businesses who attempt to use their economic influence to distort market prices at the expense of consumer welfare.Law_item_6_21
  • Consumer law could include anything from regulations on unfair contractual terms and clauses to directives on airline baggage insurance.Law_item_6_22
  • Environmental law is increasingly important, especially in light of the Kyoto Protocol and the potential danger of climate change. Environmental protection also serves to penalise polluters within domestic legal systems.Law_item_6_23
  • Aviation law deals with all regulations and technical standards applicable to the safe operation of aircraft, and is an essential part both of pilots' training and pilot's operations. Non adherence to Air Law regulations and standards renders a flight operation illegal. It is framed by national civil aviation acts (or laws), themselves mostly aligned with the recommendations or mandatory standards of the International Civil Aviation Organisation or ICAO. Regulations are often abbreviated as CARS and standards as CATS. They constantly evolve in order to adapt to new technologies or science (for example in medical protocols which pilots have to adhere to in order to be fit to fly or hold a license).Law_item_6_24

Intersection with other fields Law_section_30

Economics Law_section_31

Main article: Law and economics Law_sentence_432

In the 18th century, Adam Smith presented a philosophical foundation for explaining the relationship between law and economics. Law_sentence_433

The discipline arose partly out of a critique of trade unions and U.S. antitrust law. Law_sentence_434

The most influential proponents, such as Richard Posner and Oliver Williamson and the so-called Chicago School of economists and lawyers including Milton Friedman and Gary Becker, are generally advocates of deregulation and privatisation, and are hostile to state regulation or what they see as restrictions on the operation of free markets. Law_sentence_435

The most prominent economic analyst of law is 1991 Nobel Prize winner Ronald Coase, whose first major article, The Nature of the Firm (1937), argued that the reason for the existence of firms (companies, partnerships, etc.) is the existence of transaction costs. Law_sentence_436

Rational individuals trade through bilateral contracts on open markets until the costs of transactions mean that using corporations to produce things is more cost-effective. Law_sentence_437

His second major article, The Problem of Social Cost (1960), argued that if we lived in a world without transaction costs, people would bargain with one another to create the same allocation of resources, regardless of the way a court might rule in property disputes. Law_sentence_438

Coase used the example of a nuisance case named Sturges v Bridgman, where a noisy sweetmaker and a quiet doctor were neighbours and went to court to see who should have to move. Law_sentence_439

Coase said that regardless of whether the judge ruled that the sweetmaker had to stop using his machinery, or that the doctor had to put up with it, they could strike a mutually beneficial bargain about who moves that reaches the same outcome of resource distribution. Law_sentence_440

Only the existence of transaction costs may prevent this. Law_sentence_441

So the law ought to pre-empt what would happen, and be guided by the most efficient solution. Law_sentence_442

The idea is that law and regulation are not as important or effective at helping people as lawyers and government planners believe. Law_sentence_443

Coase and others like him wanted a change of approach, to put the burden of proof for positive effects on a government that was intervening in the market, by analysing the costs of action. Law_sentence_444

Sociology Law_section_32

Main article: Sociology of law Law_sentence_445

Sociology of law is a diverse field of study that examines the interaction of law with society and overlaps with jurisprudence, philosophy of law, social theory and more specialised subjects such as criminology. Law_sentence_446

The institutions of social construction, social norms, dispute processing and legal culture are key areas for inquiry in this knowledge field. Law_sentence_447

Sociology of law is sometimes seen as a sub-discipline of sociology, but its ties to the academic discipline of law are equally strong, and it is best seen as a transdisciplinary and multidisciplinary study focused on the theorisation and empirical study of legal practices and experiences as social phenomena. Law_sentence_448

In the United States the field is usually called law and society studies; in Europe it is more often referred to as socio-legal studies. Law_sentence_449

At first, jurists and legal philosophers were suspicious of sociology of law. Law_sentence_450

Kelsen attacked one of its founders, Eugen Ehrlich, who sought to make clear the differences and connections between positive law, which lawyers learn and apply, and other forms of 'law' or social norms that regulate everyday life, generally preventing conflicts from reaching barristers and courts. Law_sentence_451

Contemporary research in sociology of law is much concerned with the way that law is developing outside discrete state jurisdictions, being produced through social interaction in many different kinds of social arenas, and acquiring a diversity of sources of (often competing or conflicting) authority in communal networks existing sometimes within nation states but increasingly also transnationally. Law_sentence_452

Around 1900 Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to personal authority but to the authority of abstract norms. Law_sentence_453

Formal legal rationality was his term for the key characteristic of the kind of coherent and calculable law that was a precondition for modern political developments and the modern bureaucratic state. Law_sentence_454

Weber saw this law as having developed in parallel with the growth of capitalism. Law_sentence_455

Another leading sociologist, Émile Durkheim, wrote in his classic work The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions. Law_sentence_456

Other notable early legal sociologists included Hugo Sinzheimer, Theodor Geiger, Georges Gurvitch and Leon Petrażycki in Europe, and William Graham Sumner in the U.S. Law_sentence_457

See also Law_section_33

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Credits to the contents of this page go to the authors of the corresponding Wikipedia page: en.wikipedia.org/wiki/Law.