This article is about a system of rules.
For the social science or theory of law, see Jurisprudence.
For a document passed by legislature, see statutory law.
For other uses, see Law (disambiguation).
"Legal" and "Legal concept" redirect here.
For other uses, see Legal (disambiguation).
It has been variously described as a science and the art of justice.
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.
Private individuals may create legally binding contracts, including arbitration agreements that adopt alternative ways of resolving disputes to standard court litigation.
Legal systems vary between countries, with their differences analysed in comparative law.
Historically, religious law influenced secular matters, and is still used in some religious communities.
Law's scope can be divided into two domains.
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 also raises important and complex issues concerning equality, fairness, and justice.
Philosophy of law
The philosophy of law is commonly known as jurisprudence.
Normative jurisprudence asks "what should law be?
", while analytic jurisprudence asks "what is law?"
Main article: Analytical jurisprudence
There have been several attempts to produce "a universally acceptable definition of law".
In 1972, Baron Hampstead suggested that no such definition could be produced.
McCoubrey and White said that the question "what is law?"
has no simple answer.
Glanville Williams said that the meaning of the word "law" depends on the context in which that word is used.
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.
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").
One definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour.
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.
Holmes said, "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."
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.
This definition has both positivist and naturalist elements.
Connection to morality and justice
Definitions of law often raise the question of the extent to which law incorporates morality.
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.
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.
Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".
Bentham and Austin argued for law's positivism; that real law is entirely separate from "morality".
Kelsen believed that although law is separate from morality, it is endowed with "normativity", meaning we ought to obey it.
While laws are positive "is" statements (e.g. the fine for reversing on a highway is €500); law tells us what we "should" do.
Thus, each legal system can be hypothesised to have a basic norm (Grundnorm) instructing us to obey.
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.
Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass all of the political experience.
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).
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).
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.
Joseph Raz, on the other hand, defended the positivist outlook and criticised Hart's "soft social thesis" approach in The Authority of Law.
Raz argues that law is authority, identifiable purely through social sources and without reference to moral reasoning.
In his view, any categorisation of rules beyond their role as authoritative instruments in mediation are best left to sociology, rather than jurisprudence.
Main article: Legal history
The history of law links closely to the development of civilization.
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.
The Old Testament dates back to 1280 BC and takes the form of moral imperatives as recommendations for a good society.
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).
Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists and were highly sophisticated.
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.
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.
The Law Merchant, a precursor to modern commercial law, emphasised the freedom to contract and alienability of property.
As nationalism grew in the 18th and 19th centuries, the Law Merchant was incorporated into countries' local law under new civil codes.
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.
However, today there are signs that civil and common law are converging.
EU law is codified in treaties, but develops through de facto precedent laid down by the European Court of Justice.
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.
Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.
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.
The eastern Asia legal tradition reflects a unique blend of secular and religious influences.
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.
This partly reflected Germany's status as a rising power in the late 19th century.
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.
Due to rapid industrialisation, today China is undergoing a process of reform, at least in terms of economic, if not social and political, rights.
A new contract code in 1999 represented a move away from administrative domination.
Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization.
In general, legal systems can be split between civil law and common law systems.
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.
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.
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.
The sources that jurisdictions adopt as authoritatively binding are the defining features of any legal system.
Yet classification is a matter of form rather than substance since similar rules often prevail.
Main article: Civil law (legal system)
Civil law is the legal system used in most countries around the world today.
Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class.
Instead a lay magistrate, iudex, was chosen to adjudicate.
Decisions were not published in any systematic way, so any case law that developed was disguised and almost unrecognised.
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.
This became known as the Corpus Juris Civilis.
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."
The Justinian Code remained in force in the East until the fall of the Byzantine Empire.
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.
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.
Main article: Anarchist law
Anarchism has been practiced in society in much of the world.
Anarchism encompasses a broad range of social political philosophies with different tendencies and implementation.
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.
Laws being based upon their need.
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.
Main article: Socialist law
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.
Common law and equity
Main article: Common law
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.
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.
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.
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).
In medieval England, the Norman conquest the law varied-shire-to-shire, based on disparate tribal customs.
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.
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.
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.
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.
In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five.
This powerful and tight-knit judiciary gave rise to a systematised process of developing common law.
However, the system became overly systematised—overly rigid and inflexible.
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.
At first, equity was often criticised as erratic, that it varied according to the length of the Chancellor's foot.
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.
William Blackstone, from around 1760, was the first scholar to collect, describe, and teach the common law.
But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.
Main article: Religious law
Religious law is explicitly based on religious precepts.
Often the implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments.
However, a thorough and detailed legal system generally requires human elaboration.
This contains the basic code of Jewish law, which some Israeli communities choose to use.
The Halakha is a code of Jewish law that summarizes some of the Talmud's interpretations.
Main article: Canon law
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.
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.
Main article: Sharia
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.
Since the mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions.
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.
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.
Saudi Arabia recognises Quran as its constitution, and is governed on the basis of Islamic law.
Iran has also witnessed a reiteration of Islamic law into its legal system after 1979.
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.
There are distinguished methods of legal reasoning (applying the law) and methods of interpreting (construing) the law.
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.
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.
There are also many other arguments and cannons of interpretation which altogether make statutory interpretation possible.
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.
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".
The use of statistical methods in court cases and law review articles has grown massively in importance in the last few decades.
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.
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.
Max Weber and others reshaped thinking on the extension of state.
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.
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.
Main article: Judiciary
A judiciary is a number of judges mediating disputes to determine outcome.
Most countries have systems of appeal courts, with an apex court as the ultimate judicial authority.
For most European countries the European Court of Justice in Luxembourg can overrule national law, when EU law is relevant.
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.
Some countries allow their highest judicial authority to overrule legislation they determine to be unconstitutional.
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.
A judiciary is theoretically bound by the constitution, just as all other government bodies are.
In most countries judges may only interpret the constitution and all other laws.
But in common law countries, where matters are not constitutional, the judiciary may also create law under the doctrine of precedent.
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.
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.
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".
Main article: Legislature
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.
By the principle of representative government people vote for politicians to carry out their wishes.
In the 'lower house' politicians are elected to represent smaller constituencies.
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).
In the UK the upper house is appointed by the government as a house of review.
One criticism of bicameral systems with two elected chambers is that the upper and lower houses may simply mirror one another.
The traditional justification of bicameralism is that an upper chamber acts as a house of review.
This can minimise arbitrariness and injustice in governmental action.
Normally there will be several readings and amendments proposed by the different political factions.
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.
A government usually leads the process, which can be formed from Members of Parliament (e.g. the UK or Germany).
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).
Main article: Executive (government)
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.
Because popular elections appoint political parties to govern, the leader of a party can change in between elections.
The head of state is apart from the executive, and symbolically enacts laws and acts as representative of the nation.
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).
In presidential systems, the executive acts as both head of state and head of government, and has power to appoint an unelected cabinet.
Under a presidential system, the executive branch is separate from the legislature to which it is not accountable.
Although the role of the executive varies from country to country, usually it will propose the majority of legislation, and propose government agenda.
In presidential systems, the executive often has the power to veto legislation.
Most executives in both systems are responsible for foreign relations, the military and police, and the bureaucracy.
The election of a different executive is therefore capable of revolutionising an entire country's approach to government.
Military and police
While military organisations have existed as long as government itself, the idea of a standing police force is a relatively modern concept.
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.
The military and police carry out enforcement at the request of the government or the courts.
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.
Main article: Bureaucracy
The etymology of bureaucracy derives from the French word for office (bureau) and the Ancient Greek for word power (kratos).
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.
One of the earliest references to the concept was made by Baron de Grimm, a German author who lived in France.
In 1765, he wrote:
In fact private companies, especially large ones, also have bureaucracies.
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.
Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support.
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.
Main article: Legal profession
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.
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.
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.
Higher academic degrees may also be pursued.
), and are constituted in office by legal forms of appointment (being admitted to the bar).
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.
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.
In addition a lawyer may become a legal researcher who provides on-demand legal research through a library, a commercial service or freelance work.
Many people trained in law put their skills to use outside the legal field entirely.
Significant to the practice of law in the common law tradition is the legal research to determine the current state of the law.
Main article: Civil society
The Classical republican concept of "civil society" dates back to Hobbes and Locke.
Locke saw civil society as people who have "a common established law and judicature to appeal to, with authority to decide controversies between them."
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.
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."
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.
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.
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.
There is no clear legal definition of the civil society, and of the institutions it includes.
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.
Areas of law
All legal systems deal with the same basic issues, but jurisdictions categorise and identify their legal topics in different ways.
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).
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.
International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organisations.
- 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.
- 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.
- 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.
Constitutional and administrative law
Constitutional and administrative law govern the affairs of the state.
Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state.
A few, like the United Kingdom, have no such document.
A case named Entick v Carrington illustrates a constitutional principle deriving from the common law.
Entick's house was searched and ransacked by Sheriff Carrington.
When Entick complained in court, Sheriff Carrington argued that a warrant from a Government minister, the Earl of Halifax, was valid authority.
However, there was no written statutory provision or court authority.
The leading judge, Lord Camden, stated:
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.
Administrative law is the chief method for people to hold state bodies to account.
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.
Main article: Criminal law
Criminal law, also known as penal law, pertains to crimes and punishment.
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.
Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure.
First, the accused must commit an act which is deemed by society to be criminal, or actus reus (guilty act).
However, for so called "strict liability" crimes, an actus reus is enough.
Criminal systems of the civil law tradition distinguish between intention in the broad sense (dolus directus and dolus eventualis), and negligence.
Negligence does not carry criminal responsibility unless a particular crime provides for its punishment.
Examples of crimes include murder, assault, fraud and theft.
The Mignonette, sailing from Southampton to Sydney, sank.
Three crew members and Richard Parker, a 17-year-old cabin boy, were stranded on a raft.
They were starving and the cabin boy was close to death.
Driven to extreme hunger, the crew killed and ate the cabin boy.
The crew survived and were rescued, but put on trial for murder.
They argued it was necessary to kill the cabin boy to preserve their own lives.
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."
The men were sentenced to hang, but public opinion was overwhelmingly supportive of the crew's right to preserve their own lives.
In the end, the Crown commuted their sentences to six months in jail.
Criminal law offences are viewed as offences against not just individual victims, but the community as well.
Also, lay juries are often used to determine the guilt of defendants on points of fact: juries cannot change legal rules.
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.
Main article: Contract
Contract law concerns enforceable promises, and can be summed up in the Latin phrase pacta sunt servanda (agreements must be kept).
Many people sued for their £100 when the drug did not work.
Fearing bankruptcy, Carbolic argued the advert was not to be taken as a serious, legally binding offer.
It was an invitation to treat, mere puffery, a gimmick.
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".
Equally, people had given good consideration for the offer by going to the "distinct inconvenience" of using a faulty product.
"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".
Consideration indicates the fact that all parties to a contract have exchanged something of value.
Some common law systems, including Australia, are moving away from the idea of consideration as a requirement.
The idea of estoppel or culpa in contrahendo, can be used to create obligations during pre-contractual negotiations.
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.
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.
They also do not require consideration for a contract to be binding.
In France, an ordinary contract is said to form simply on the basis of a "meeting of the minds" or a "concurrence of wills".
Germany has a special approach to contracts, which ties into property law.
Their 'abstraction principle' (Abstraktionsprinzip) means that the personal obligation of contract forms separately from the title of property being conferred.
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.
Unjust enrichment law, rather than contract law, is then used to restore title to the rightful owner.
Torts and delicts
To have acted tortiously, one must have breached a duty to another person, or infringed some pre-existing legal right.
A simple example might be accidentally hitting someone with a cricket ball.
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.
The principles of negligence are illustrated by Donoghue v Stevenson.
Having consumed half of it, Donoghue poured the remainder into a tumbler.
The decomposing remains of a snail floated out.
She claimed to have suffered from shock, fell ill with gastroenteritis and sued the manufacturer for carelessly allowing the drink to be contaminated.
The House of Lords decided that the manufacturer was liable for Mrs Donoghue's illness.
Lord Atkin took a distinctly moral approach and said:
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.
Another example of tort might be a neighbour making excessively loud noises with machinery on his property.
Under a nuisance claim the noise could be stopped.
A better known tort is defamation, which occurs, for example, when a newspaper makes unsupportable allegations that damage a politician's reputation.
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.
Main article: Property law
Property law governs ownership and possession.
Real property, sometimes called 'real estate', refers to ownership of land and things attached to it.
Land law forms the basis for most kinds of property law, and is the most complex.
An example of a basic case of most property law is Armory v Delamirie .
A chimney sweep's boy found a jewel encrusted with precious stones.
He took it to a goldsmith to have it valued.
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.
The boy said he would prefer the jewel back, so the apprentice gave it to him, but without the stones.
The boy sued the goldsmith for his apprentice's attempt to cheat him.
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.
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.
Possession may be nine-tenths of the law, but not all.
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.
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.
Obligations, like contracts and torts, are conceptualised as rights good between individuals.
The idea of property raises many further philosophical and political issues.
Locke argued that our "lives, liberties and estates" are our property because we own our bodies and mix our labour with our surroundings.
Equity and trusts
Equity is a body of rules that developed in England separately from the "common law".
The common law was administered by judges and barristers.
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.
This meant equity came to operate more through principles than rigid rules.
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.
Trustees control property whereas the beneficial, or equitable, ownership of trust property is held by people known as beneficiaries.
Trustees owe duties to their beneficiaries to take good care of the entrusted property.
Mr Sandford was entrusted to look after this property until the child matured.
But before then, the lease expired.
The landlord had (apparently) told Mr Sandford that he did not want the child to have the renewed lease.
Yet the landlord was happy (apparently) to give Mr Sandford the opportunity of the lease instead.
Mr Sandford took it.
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.
Mr Sandford was meant to be trusted, but he put himself in a position of conflict of interest.
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.
[...] 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."
Lord King LC was worried that trustees might exploit opportunities to use trust property for themselves instead of looking after it.
Business speculators using trusts had just recently caused a stock market crash.
Strict duties for trustees made their way into company law and were applied to directors and chief executive officers.
Another example of a trustee's duty might be to invest property wisely or sell it.
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 spreads far beyond the core subjects into virtually every area of life.
Three categories are presented for convenience, although the subjects intertwine and overlap.
- Labour law is the study of a tripartite industrial relationship between worker, employer and trade union. This involves collective bargaining regulation, and the right to strike. Individual employment law refers to workplace rights, such as job security, health and safety or a minimum wage.
- Human rights, civil rights and human rights law are important fields to guarantee everyone basic freedoms and entitlements. These are laid down in codes such as the Universal Declaration of Human Rights, the European Convention on Human Rights (which founded the European Court of Human Rights) and the U.S. Bill of Rights. The Treaty of Lisbon makes the Charter of Fundamental Rights of the European Union legally binding in all member states except Poland and the United Kingdom.
- Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Both concern a citizen's right to a fair trial or hearing.
- Evidence law involves which materials are admissible in courts for a case to be built.
- Immigration law and nationality law concern the rights of foreigners to live and work in a nation-state that is not their own and to acquire or lose citizenship. Both also involve the right of asylum and the problem of stateless individuals.
- Social security law refers to the rights people have to social insurance, such as jobseekers' allowances or housing benefits.
- Family law covers marriage and divorce proceedings, the rights of children and rights to property and money in the event of separation.
- Transactional law is the practice of law concerning business and money.
- 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.
- 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.
- 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.
- 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.
- Restitution deals with the recovery of someone else's gain, rather than compensation for one's own loss.
- 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.
- 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.
- Tax law involves regulations that concern value added tax, corporate tax, and income tax.
- 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.
- 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.
- 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.
- Consumer law could include anything from regulations on unfair contractual terms and clauses to directives on airline baggage insurance.
- 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.
- 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).
Intersection with other fields
Main article: Law and economics
In the 18th century, Adam Smith presented a philosophical foundation for explaining the relationship between law and economics.
The discipline arose partly out of a critique of trade unions and U.S. antitrust law.
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.
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.
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.
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.
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.
Only the existence of transaction costs may prevent this.
So the law ought to pre-empt what would happen, and be guided by the most efficient solution.
The idea is that law and regulation are not as important or effective at helping people as lawyers and government planners believe.
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.
Main article: Sociology of law
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.
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.
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.
At first, jurists and legal philosophers were suspicious of sociology of law.
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.
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.
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.
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.
Weber saw this law as having developed in parallel with the growth of capitalism.
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.
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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.