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?"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.Connection to morality and justice
Definitions of law often raise the question of the extent to which law incorporates morality.History
The history of law links closely to the development ofLegal systems
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 numerousCivil law
Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation—especially codifications in constitutions or statutes passed by government—andAnarchist law
Anarchism has been practiced in society in much of the world. MassSocialist law
Socialist law is the legal systems inCommon law and equity
InReligious law
Religious law is explicitly based on religious precepts. Examples include the JewishCanon law
Canon law (fromSharia law
Until the 18th century, Sharia law was practiced throughout theLegal methods
There are distinguished methods of legal reasoning (applying the law) and methods of interpreting (construing) the law. The former areLegal institutions
The main institutions of law in industrialised countries are independentJudiciary
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. In the United States, this authority is the Supreme Court; in Australia, the High Court; in the UK, the Supreme Court; in Germany, the ''Legislature
Prominent examples of legislatures are theExecutive
The executive in a legal system serves as the centre of political authority of theMilitary and police
While military organisations have existed as long as government itself, the idea of a standing police force is a relatively modern concept. For example,Bureaucracy
The etymology of ''bureaucracy'' derives from the French word for ''office'' (''bureau'') and theThe real spirit of the laws in France is that bureaucracy of which the late Monsieur de Gournay used to complain so greatly; here the offices, clerks, secretaries, inspectors and ''intendants'' are not appointed to benefit the public interest, indeed the public interest appears to have been established so that offices might exist.Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to private enterprise motivated by profit. In fact private companies, especially large ones, also have bureaucracies.Kettl, ''Public Bureaucracies'', 367 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, ''Economy and Society'', I, 393 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.
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. In order to maintain professionalism, theCivil society
The classical republicanism, 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." German philosopher Georg Wilhelm Friedrich Hegel distinguished the "state" from "civil society" (''bürgerliche Gesellschaft'') in ''Elements of the Philosophy of Right''. Hegel believed thatAreas 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 (law), state, and including constitutional, administrative and criminal law), and "private law" (which covers contract, tort and property). In civil law(legal system), civil law systems, contract and tort fall under a general law of obligations, while trusts law is dealt with under statutory regimes or Hague Convention on the Law Applicable to Trusts and on their Recognition, international conventions. International, constitutional and administrative law, criminal law, contract, tort, property law and trust law, trusts are regarded as the "traditional core subjects", although there are many #Further disciplines, further disciplines.International law
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 of international law, sources for public international law development are Custom (law), 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 Organization, International Labour Organisation, the World Trade Organization, World Trade Organisation (WTO), 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 (economics), capital and labour (economics), 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 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 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 theConstitutional 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. Most jurisdictions, like the Law of the United States, United States and Law of France, France, have a single codified constitution with a bill of rights. A few, like the Law of the United Kingdom, United Kingdom, have no such document. A "constitution" is simply those laws which constitute the body politic, from statute, case law and Constitutional convention (political custom), convention. 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 George Montague-Dunk, 2nd Earl of Halifax, Earl of Halifax, was valid authority. However, there was no written statutory provision or court authority. The leading judge, Charles Pratt, 1st Earl Camden, Lord Camden, stated:The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole ... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.The fundamental constitutional principle, inspired by Two Treatises of Government, John Locke, holds that Everything which is not forbidden is allowed, 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. The first specialist administrative court was the ''Council of State (France), Conseil d'État'' set up in 1799, as Napoleon I of France, Napoleon assumed power in France.Auby, ''Administrative Law in France'', 75 A subdiscipline of constitutional law is election law. It deals with rules governing elections. These rules enable the translation of the will of the people into functioning Democracy, democracies. Election law addresses issues who is entitled to Voting, vote, voter registration, ballot access, campaign finance and Political party funding, party funding, Redistribution (election), redistricting, Apportionment (politics), apportionment, electronic voting and Voting machine, voting machines, accessibility of elections, Electoral system, election systems and formulas, vote counting, election disputes, Referendum, referendums, and issues such as electoral fraud and Election silence, electoral silence.
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.Brody, Acker and Logan, ''Criminal Law'', 2; Wilson, ''Criminal Law'', 2 Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure.Dennis J. Baker, Glanville Williams ''Textbook of Criminal Law'' (London: 2012), 2 The paradigm case of a crime lies in the proof, Legal burden of proof, beyond reasonable doubt, that a person is guilty of two things. First, the accused must commit an act which is deemed by society to be criminal, or ''actus reus'' (guilty act). Second, the accused must have the requisite intention (criminal law), malicious intent to do a criminal act, or ''mens rea'' (guilty mind). However, for so called "Strict liability (criminal), 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. In exceptional circumstances defences can apply to specific acts, such as killing in self-defense (theory), self defence, or pleading insanity defense, insanity. Another example is in the 19th-century English case of ''R v Dudley and Stephens'', which tested a defence of "necessity (criminal law), necessity". 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. John Coleridge, 1st Baron Coleridge, 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 hanging, hang, but public opinion was overwhelmingly supportive of the crew's right to preserve their own lives. In the end, the Royal prerogative, 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. 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 Monarchy, Rex or Queen regnant, Regina) v ...". Also, lay jury, 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 prison, imprisonment, fine (penalty), fines, state supervision (such as probation), or community service. Modern criminal law has been affected considerably by the social sciences, especially with respect to sentence (law), sentencing, legal research, legislation, and rehabilitation (penology), rehabilitation. On the international field, 111 countries are States Parties to the Rome Statute of the International Criminal Court, members of the International Criminal Court, which was established to try people for crimes against humanity.Contract law
Contract law concerns enforceable promises, and can be summed up in the Latin phrase ''pacta sunt servanda'' (agreements must be kept). 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. 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 pound sterling, £100. 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 Nathaniel Lindley, Baron Lindley, Lord Justice Lindley, "here is a distinct promise expressed in language which is perfectly unmistakable".AboutTorts and delicts
Certain civil wrongs are grouped together as torts under common law systems and delicts under civil law systems. 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 unintentionally 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''.''Donoghue v Stevenson'' (Case citation#England and Wales, [1932] A.C. 532, 1932 S.C. (H.L.) 31, [1932] All ER Rep 1). See the original text of the case iThe liability for negligence [...] is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. [...] The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.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 Breach of duty in English law, breached his duty of care; (3) the harm would not have occurred Causation (law), 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.''Sturges v Bridgman'' (1879) 11 Ch D 852 Under a nuisance claim the noise could be stopped. Torts can also involve intentional acts such as Assault (tort), assault, Battery (tort), battery or trespass. A better known tort is slander and libel, 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.
Property law
Property law governs ownership and possession. Real property, sometimes called 'real estate', refers to ownership of land and things attached to it. Personal property, refers to everything else; movable objects, such as computers, cars, jewelry or intangible rights, such as Share (finance), stocks and shares. 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. Land law forms the basis for most kinds of property law, and is the most complex. It concerns Mortgage law, mortgages, Leasehold estate, rental agreements, license, licences, Covenant (law), covenants, easements and the statutory systems for land registration. Regulations on the use of personal property fall under intellectual property, company (law), company law, Trust law, trusts and commercial law. An example of a basic case of most property law is ''Armory v Delamirie'' [1722]. 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 Halfpenny (British coin), 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 (law), 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 Labour theory of property, 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. TheFurther disciplines
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. ; Law and society * 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, Occupational safety and health, health and safety or a minimum wage. * Human rights, Civil and political 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 United States Bill of Rights, 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 Opt-outs in the European Union#Charter of Fundamental Rights of the European Union – Poland, 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), 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 statelessness, 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. ; Law and commerce * Company law sprang from the law of trusts, on the principle of separating ownership of property and control. The law of the modern company (law), 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 Juristic person, separate legal personality of the corporation. * Commercial law covers complex contract and property law. The law of Sgency (law), agency, insurance law, Negotiable instrument, bills of exchange, insolvency and bankruptcy law and sales law are all important, and trace back to the medieval ''Law Merchant, 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 United Nations Convention on the Law of the Sea, 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 marine salvage, salvage, Lien#Maritime liens, 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 Damages, 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 commercialization of space, space commercialisation, property, liability, and other issues. ; Law and regulation * Tax law involves regulations that concern value added tax, corporate tax, and income tax. * Bank regulation, 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 policy, Energy, Ofgem, gas, telecommunication policy, telecomms and water law, water are regulated industries in most Organisation for Economic Co-operation and Development, OECD countries. * Competition law, known in the United States as antitrust law, is an evolving field that traces as far back as Ancient Rome, 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 protection, 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 pollution, 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 Organization, 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
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 E. Williamson, Oliver Williamson and the so-called Chicago school (economics), 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 in Economics, 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. Homo economicus, 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 bargaining, bargain with one another to create the same allocation of resources, regardless of the way a court might rule in property disputes. 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. 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 efficiency (economics), 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.Sociology
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.Cotterrell, ''Sociology of Law'', Jary, ''Collins Dictionary of Sociology'', 636 The institutions of social construction, social norms, dispute processing and legal culture are key areas for inquiry in this knowledge field. 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. 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.Papachristou, ''Sociology of Law'', 81–82See also
* By-law * Law dictionary * Legal research in the United States * Legal treatise * Legislation *References
Citations
Sources
; Printed sources * * * * * See original text iExternal links