Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been variously described as a
science
Science is a systematic endeavor that builds and organizes knowledge in the form of testable explanations and predictions about the universe.
Science may be as old as the human species, and some of the earliest archeological evidence for ...
and as the art of justice. State-enforced laws can be made by a group
legislature
A legislature is an assembly with the authority to make law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its p ...
or by a single legislator, resulting in
statute
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
s; by the executive through
decree
A decree is a legal proclamation, usually issued by a head of state (such as the president of a republic or a monarch), according to certain procedures (usually established in a constitution). It has the force of law. The particular term used for ...
s and
regulation
Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. For ...
s; or established by judges through
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
, usually in
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
jurisdictions. Private individuals may create legally binding
contract
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
s, including arbitration agreements that adopt alternative ways of resolving disputes to standard court litigation. The creation of laws themselves may be influenced by a
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
, written or tacit, and the
rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical the ...
encoded therein. The law shapes
politics
Politics (from , ) is the set of activities that are associated with making decisions in groups, or other forms of power relations among individuals, such as the distribution of resources or status. The branch of social science that studies ...
,
economics
Economics () is the social science that studies the Production (economics), production, distribution (economics), distribution, and Consumption (economics), consumption of goods and services.
Economics focuses on the behaviour and intera ...
,
history
History (derived ) is the systematic study and the documentation of the human activity. The time period of event before the History of writing#Inventions of writing, invention of writing systems is considered prehistory. "History" is an umbr ...
and
society
A society is a group of individuals involved in persistent social interaction, or a large social group sharing the same spatial or social territory, typically subject to the same political authority and dominant cultural expectations. Socie ...
in various ways and serves as a mediator of relations between people.
Legal systems vary between
jurisdictions
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
, with their differences analysed in
comparative law
Comparative law is the study of differences and similarities between the law (legal systems) of different countries. More specifically, it involves the study of the different legal "systems" (or "families") in existence in the world, including the ...
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
, although on occasion this may be overturned by a higher court or the legislature. Historically,
religious law
Religious law includes ethical and moral codes taught by religious traditions. Different religious systems hold sacred law in a greater or lesser degree of importance to their belief systems, with some being explicitly antinomian whereas others ...
has influenced secular matters and is, as of the 21st century, still in use in some religious communities.
Sharia law
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the Five Pillars of Islam, religious precepts of Islam and is based on the Islamic holy books, sacred scriptures o ...
based on
Islam
Islam (; ar, ۘالِإسلَام, , ) is an Abrahamic religions, Abrahamic Monotheism#Islam, monotheistic religion centred primarily around the Quran, a religious text considered by Muslims to be the direct word of God in Islam, God (or ...
ic principles is used as the primary legal system in several countries, including
Iran
Iran, officially the Islamic Republic of Iran, and also called Persia, is a country located in Western Asia. It is bordered by Iraq and Turkey to the west, by Azerbaijan and Armenia to the northwest, by the Caspian Sea and Turkmeni ...
and
Saudi Arabia
Saudi Arabia, officially the Kingdom of Saudi Arabia (KSA), is a country in Western Asia. It covers the bulk of the Arabian Peninsula, and has a land area of about , making it the fifth-largest country in Asia, the second-largest in the A ...
.
The scope of law can be divided into two domains.
Public law
Public law is the part of law that governs relations between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that are of direct ...
concerns government and society, including
constitutional law
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a State (polity), state, namely, the executive (government), executive, the parliament or legislature, and the judiciary; as well as th ...
,
administrative law
Administrative law is the division of law that governs the activities of government agency, executive branch agencies of Forms of government, government. Administrative law concerns executive branch rule making (executive branch rules are gener ...
, and
criminal law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
.
Private law
Private law is that part of a civil law legal system which is part of the ''jus commune'' that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligations ( ...
deals with legal disputes between individuals and/or organisations in areas such as
contracts
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
,
property
Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
,
torts
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
/
delicts
Delict (from Latin ''dēlictum'', past participle of ''dēlinquere'' ‘to be at fault, offend’) is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of ...
and
commercial law
Commercial law, also known as mercantile law or trade law, is the body of law that applies to the rights, relations, and conduct of persons and business engaged in commerce, merchandising, trade, and sales. It is often considered to be a branc ...
. 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
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
jurisdictions.
Law provides a source of scholarly inquiry into legal history,
philosophy
Philosophy (from , ) is the systematized study of general and fundamental questions, such as those about existence, reason, knowledge, values, mind, and language. Such questions are often posed as problems to be studied or resolved. Some ...
sociology
Sociology is a social science that focuses on society, human social behavior, patterns of Interpersonal ties, social relationships, social interaction, and aspects of culture associated with everyday life. It uses various methods of Empirical ...
. Law also raises important and complex issues concerning equality, fairness, and
justice
Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
.
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.
Dennis Lloyd, Baron Lloyd of Hampstead
Dennis Lloyd, Baron Lloyd of Hampstead, QC (22 October 1915 – 31 December 1992) was a British jurist, and was created a life peer on 14 May 1965 as Baron Lloyd of Hampstead, ''of Hampstead in the London Borough of Camden''.
He was appointe ...
. ''Introduction to Jurisprudence''. Third Edition. Stevens & Sons. London. 1972. Second Impression. 1975. p. 39. McCoubrey and White said that the question "what is law?" has no simple answer.
Glanville Williams
Glanville Llewelyn Williams (15 February 1911 – 10 April 1997) was a Welsh legal scholar who was the Rouse Ball Professor of English Law at the University of Cambridge from 1968 to 1978 and the Quain Professor of Jurisprudence at University ...
said that the meaning of the word "law" depends on the context in which that word is used. He said that, for example, "
early customary law
A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".
Customary law (also, consuetudina ...
" and "
municipal law
Municipal law is the national, domestic, or internal law of a sovereign state and is defined in opposition to international law. Municipal law includes many levels of law: not only national law but also state, provincial, territorial, regional, ...
" were contexts where the word "law" had two different and irreconcilable meanings. 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,'' H.L.A Hart argued that law is a "system of rules";
John Austin John Austin may refer to:
Arts and entertainment
* John P. Austin (1906–1997), American set decorator
*Johnny Austin (1910–1983), American musician
* John Austin (author) (fl. 1940s), British novelist
Military
*John Austin (soldier) (1801 ...
said law was "the command of a sovereign, backed by the threat of a sanction";
Ronald Dworkin
Ronald Myles Dworkin (; December 11, 1931 – February 14, 2013) was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New Yo ...
describes law as an "interpretive concept" to achieve
justice
Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
in his text titled '' Law's Empire'';Law's Empire, 410">Dworkin, '' Law's Empire'', 410 and Joseph Raz argues law is an "authority" to mediate people's interests.Oliver Wendell 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
''Treatise on Law'' is Thomas Aquinas' major work of legal philosophy. It forms questions 90–108 of the ''Prima Secundæ'' ("First artof the Second art) of the ''Summa Theologiæ'', Aquinas' masterwork of Scholastic philosophical theology. ...
,''
Thomas Aquinas
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wi ...
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.
John Austin John Austin may refer to:
Arts and entertainment
* John P. Austin (1906–1997), American set decorator
*Johnny Austin (1910–1983), American musician
* John Austin (author) (fl. 1940s), British novelist
Military
*John Austin (soldier) (1801 ...
's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience".Bix John Austin
Natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
yers on the other side, such as
Jean-Jacques Rousseau
Jean-Jacques Rousseau (, ; 28 June 1712 – 2 July 1778) was a Genevan philosopher, writer, and composer. His political philosophy influenced the progress of the Age of Enlightenment throughout Europe, as well as aspects of the French Revolu ...
, argue that law reflects essentially moral and unchangeable laws of nature. The concept of "natural law" emerged in ancient
Greek philosophy
Ancient Greek philosophy arose in the 6th century BC, marking the end of the Greek Dark Ages. Greek philosophy continued throughout the Hellenistic period and the period in which Greece and most Greek-inhabited lands were part of the Roman Empir ...
concurrently and in connection with the notion of justice, and re-entered the mainstream of
Western culture
Leonardo da Vinci's ''Vitruvian Man''. Based on the correlations of ideal Body proportions">human proportions with geometry described by the ancient Roman architect Vitruvius in Book III of his treatise ''De architectura''.
image:Plato Pio-Cle ...
through the writings of
Thomas Aquinas
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wi ...
, notably his ''
Treatise on Law
''Treatise on Law'' is Thomas Aquinas' major work of legal philosophy. It forms questions 90–108 of the ''Prima Secundæ'' ("First artof the Second art) of the ''Summa Theologiæ'', Aquinas' masterwork of Scholastic philosophical theology. ...
Conciergerie
The Conciergerie () ( en, Lodge) is a former courthouse and prison in Paris, France, located on the west of the Île de la Cité, below the Palais de Justice. It was originally part of the former royal palace, the Palais de la Cité, which also ...
. Thereafter, he decided to add a third part, finally named ''Où mènent les mauvais chemins'' (''The Ends of Evil Ways''), entirely dedicated to describing the conditions in prison.. In this third part, he states:
Hugo Grotius
Hugo Grotius (; 10 April 1583 – 28 August 1645), also known as Huig de Groot () and Hugo de Groot (), was a Dutch humanist, diplomat, lawyer, theologian, jurist, poet and playwright.
A teenage intellectual prodigy, he was born in Delft ...
, 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
Immanuel Kant (, , ; 22 April 1724 – 12 February 1804) was a German philosopher and one of the central Enlightenment thinkers. Born in Königsberg, Kant's comprehensive and systematic works in epistemology, metaphysics, ethics, and ...
believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".
Jeremy Bentham
Jeremy Bentham (; 15 February 1748 Old_Style_and_New_Style_dates">O.S._4_February_1747.html" ;"title="Old_Style_and_New_Style_dates.html" ;"title="nowiki/>Old Style and New Style dates">O.S. 4 February 1747">Old_Style_and_New_Style_dates.htm ...
and his student Austin, following
David Hume
David Hume (; born David Home; 7 May 1711 NS (26 April 1711 OS) – 25 August 1776) Cranston, Maurice, and Thomas Edmund Jessop. 2020 999br>David Hume" ''Encyclopædia Britannica''. Retrieved 18 May 2020. was a Scottish Enlightenment philo ...
positivism
Positivism is an empiricist philosophical theory that holds that all genuine knowledge is either true by definition or positive—meaning ''a posteriori'' facts derived by reason and logic from sensory experience.John J. Macionis, Linda M. G ...
; that real law is entirely separate from "morality". Kant was also criticised by
Friedrich Nietzsche
Friedrich Wilhelm Nietzsche (; or ; 15 October 1844 – 25 August 1900) was a German philosopher, prose poet, cultural critic, philologist, and composer whose work has exerted a profound influence on contemporary philosophy. He began his ...
, who rejected the principle of equality, and believed that law emanates from the will to power, and cannot be labeled as "moral" or "immoral".
In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the '' Pure Theory of Law''. 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
Basic norm (german: Grundnorm) is a concept in the '' Pure Theory of Law'' created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. Th ...
'') instructing us to obey. Kelsen's major opponent, Carl Schmitt, rejected both positivism and the idea of the
rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
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
A state of emergency is a situation in which a government is empowered to be able to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens. A government can declare such a state du ...
), which denied that legal norms could encompass all of the political experience.Finn, ''Constitutions in Crisis'', 170–171
Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in '' The Concept of Law''. 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). Two of Hart's students continued the debate: In his book '' Law's Empire'',
Ronald Dworkin
Ronald Myles Dworkin (; December 11, 1931 – February 14, 2013) was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New Yo ...
attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "
interpretive __NOTOC__
An interpretive discussion is a discussion in which participants explore and/or resolve interpretations often pertaining to text (literary theory), texts of any medium containing significant ambiguity in meaning.
Education
Interpretiv ...
concept",Law's Empire, 410" /> 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, ''The Authority of Law'', 3–36 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
Sociology is a social science that focuses on society, human social behavior, patterns of Interpersonal ties, social relationships, social interaction, and aspects of culture associated with everyday life. It uses various methods of Empirical ...
, rather than jurisprudence.
History
The history of law links closely to the development of
civilization
A civilization (or civilisation) is any complex society characterized by the development of a state, social stratification, urbanization, and symbolic systems of communication beyond natural spoken language (namely, a writing system).
Ci ...
. Ancient Egyptian law, dating as far back as 3000 BC, was based on the concept of
Ma'at
Maat or Maʽat (Egyptian:
mꜣꜥt /ˈmuʀʕat/, Coptic: ⲙⲉⲓ) refers to the ancient Egyptian concepts of truth, balance, order, harmony, law, morality, and justice. Ma'at was also the goddess who personified these concepts, and regulate ...
and characterised by tradition,
rhetoric
Rhetoric () is the art of persuasion, which along with grammar and logic (or dialectic), is one of the three ancient arts of discourse. Rhetoric aims to study the techniques writers or speakers utilize to inform, persuade, or motivate parti ...
al speech, social equality and impartiality. By the 22nd century BC, the ancient
Sumer
Sumer () is the earliest known civilization in the historical region of southern Mesopotamia (south-central Iraq), emerging during the Chalcolithic and early Bronze Ages between the sixth and fifth millennium BC. It is one of the cradles of c ...
law code
A code of law, also called a law code or legal code, is a systematic collection of statutes. It is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the cod ...
, which consisted of
casuistic
In ethics, casuistry ( ) is a process of reasoning that seeks to resolve moral problems by extracting or extending theoretical rules from a particular case, and reapplying those rules to new instances. This method occurs in applied ethics and ju ...
statements ("if … then ..."). Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone. 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. The most intact copy of these stelae was discovered in the 19th century by British
Assyriologists
Assyriology (from Greek , ''Assyriā''; and , ''-logia'') is the archaeological, anthropological, and linguistic study of Assyria and the rest of ancient Mesopotamia (a region that encompassed what is now modern Iraq, northeastern Syria, southeas ...
, and has since been fully transliterated and translated into various languages, including English, Italian, German, and French.
The
Old Testament
The Old Testament (often abbreviated OT) is the first division of the Christian biblical canon, which is based primarily upon the 24 books of the Hebrew Bible or Tanakh, a collection of ancient religious Hebrew writings by the Israelites. The ...
dates back to 1280 BC and takes the form of moral imperatives as recommendations for a good society. The small Greek city-state, ancient
Athens
Athens ( ; el, Αθήνα, Athína ; grc, Ἀθῆναι, Athênai (pl.) ) is both the capital and largest city of Greece. With a population close to four million, it is also the seventh largest city in the European Union. Athens dominates ...
, from about the 8th century BC was the first society to be based on broad inclusion of its citizenry, excluding women and enslaved people. 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''). Yet Ancient Greek law contained major constitutional innovations in the development of
democracy
Democracy (From grc, δημοκρατία, dēmokratía, ''dēmos'' 'people' and ''kratos'' 'rule') is a form of government in which the people have the authority to deliberate and decide legislation (" direct democracy"), or to choose gov ...
.
Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists and were highly sophisticated. Over the centuries between the rise and decline of the
Roman Empire
The Roman Empire ( la, Imperium Romanum ; grc-gre, Βασιλεία τῶν Ῥωμαίων, Basileía tôn Rhōmaíōn) was the post-Republican period of ancient Rome. As a polity, it included large territorial holdings around the Mediterr ...
, law was adapted to cope with the changing social situations and underwent major codification under Theodosius II and
Justinian I
Justinian I (; la, Iustinianus, ; grc-gre, Ἰουστινιανός ; 48214 November 565), also known as Justinian the Great, was the Byzantine emperor from 527 to 565.
His reign is marked by the ambitious but only partly realized ''renovat ...
.As a legal system, Roman law has affected the development of law worldwide. It also forms the basis for the law codes of most countries of continental Europe and has played an important role in the creation of the idea of a common European culture (Stein, ''Roman Law in European History'', 2, 104–107). Although codes were replaced by custom and
case law
Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a l ...
during the
Early Middle Ages
The Early Middle Ages (or early medieval period), sometimes controversially referred to as the Dark Ages, is typically regarded by historians as lasting from the late 5th or early 6th century to the 10th century. They marked the start of the Mi ...
, 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
Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
, giving birth to the '' jus commune''. Latin legal maxims (called brocards) were compiled for guidance. In medieval England, royal courts developed a body of
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
which later became the
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
. 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
Nationalism is an idea and movement that holds that the nation should be congruent with the State (polity), state. As a movement, nationalism tends to promote the interests of a particular nation (as in a in-group and out-group, group of peo ...
grew in the 18th and 19th centuries, the Law Merchant was incorporated into countries' local law under new civil codes. The
Napoleonic
Napoleon Bonaparte ; it, Napoleone Bonaparte, ; co, Napulione Buonaparte. (born Napoleone Buonaparte; 15 August 1769 – 5 May 1821), later known by his regnal name Napoleon I, was a French military commander and political leader who ...
and
German
German(s) may refer to:
* Germany (of or related to)
**Germania (historical use)
* Germans, citizens of Germany, people of German ancestry, or native speakers of the German language
** For citizens of Germany, see also German nationality law
**Ger ...
Codes became the most influential. 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 European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Un ...
.
Ancient
India
India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the so ...
and
China
China, officially the People's Republic of China (PRC), is a country in East Asia. It is the world's most populous country, with a population exceeding 1.4 billion, slightly ahead of India. China spans the equivalent of five time zones and ...
represent distinct traditions of law, and have historically had independent schools of legal theory and practice. The ''
Arthashastra
The ''Arthashastra'' ( sa, अर्थशास्त्रम्, ) is an Ancient Indian Sanskrit treatise on statecraft, political science, economic policy and military strategy. Kautilya, also identified as Vishnugupta and Chanakya, is ...
'', probably compiled around 100 AD (although it contains older material), and the ''
Manusmriti
The ''Manusmṛiti'' ( sa, मनुस्मृति), also known as the ''Mānava-Dharmaśāstra'' or Laws of Manu, is one of the many legal texts and constitution among the many ' of Hinduism. In ancient India, the sages often wrote their ...
'' (c. 100–300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance. Manu's central philosophy was tolerance and
pluralism
Pluralism denotes a diversity of views or stands rather than a single approach or method.
Pluralism or pluralist may refer to:
Politics and law
* Pluralism (political philosophy), the acknowledgement of a diversity of political systems
* Plur ...
sharia
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the H ...
was established by the Muslim sultanates and empires, most notably
Mughal Empire
The Mughal Empire was an early-modern empire that controlled much of South Asia between the 16th and 19th centuries. Quote: "Although the first two Timurid emperors and many of their noblemen were recent migrants to the subcontinent, the d ...
's
Fatawa-e-Alamgiri
Fatawa 'Alamgiri, also known as Al-Fatawa al-'Alamgiriyya ( ar, الفتاوى العالمگيرية) or Al-Fatawa al-Hindiyya ( ar, الفتاوى الهندية), is a 17th-century sharia based compilation on statecraft, general ethics, milita ...
, compiled by emperor
Aurangzeb
Muhi al-Din Muhammad (; – 3 March 1707), commonly known as ( fa, , lit=Ornament of the Throne) and by his regnal title Alamgir ( fa, , translit=ʿĀlamgīr, lit=Conqueror of the World), was the sixth emperor of the Mughal Empire, ruling ...
and various scholars of Islam. In India, the
Hindu
Hindus (; ) are people who religiously adhere to Hinduism.Jeffery D. Long (2007), A Vision for Hinduism, IB Tauris, , pages 35–37 Historically, the term has also been used as a geographical, cultural, and later religious identifier for ...
legal tradition, along with Islamic law, were both supplanted by common law when India became part of the
British Empire
The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts esta ...
. Malaysia, Brunei,
Singapore
Singapore (), officially the Republic of Singapore, is a sovereign island country and city-state in maritime Southeast Asia. It lies about one degree of latitude () north of the equator, off the southern tip of the Malay Peninsula, borde ...
and
Hong Kong
Hong Kong ( (US) or (UK); , ), officially the Hong Kong Special Administrative Region of the People's Republic of China ( abbr. Hong Kong SAR or HKSAR), is a city and special administrative region of China on the eastern Pearl River Delt ...
also adopted the common law system. 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
French (french: français(e), link=no) may refer to:
* Something of, from, or related to France
** French language, which originated in France, and its various dialects and accents
** French people, a nation and ethnic group identified with Franc ...
, but mostly the German Civil Code. This partly reflected Germany's status as a rising power in the late 19th century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the
Qing Dynasty
The Qing dynasty ( ), officially the Great Qing,, was a Manchu-led imperial dynasty of China and the last orthodox dynasty in Chinese history. It emerged from the Later Jin dynasty founded by the Jianzhou Jurchens, a Tungusic-speak ...
in the form of six private law codes based mainly on the Japanese model of German law. Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between
Chiang Kai-shek
Chiang Kai-shek (31 October 1887 – 5 April 1975), also known as Chiang Chung-cheng and Jiang Jieshi, was a Chinese Nationalist politician, revolutionary, and military leader who served as the leader of the Republic of China (ROC) from 1928 ...
's nationalists, who fled there, and
Mao Zedong
Mao Zedong pronounced ; also romanised traditionally as Mao Tse-tung. (26 December 1893 – 9 September 1976), also known as Chairman Mao, was a Chinese communist revolutionary who was the founder of the People's Republic of China (PRC) ...
's communists who won control of the mainland in 1949. The current legal infrastructure in the People's Republic of China was heavily influenced by
Soviet
The Soviet Union,. officially the Union of Soviet Socialist Republics. (USSR),. was a List of former transcontinental countries#Since 1700, transcontinental country that spanned much of Eurasia from 1922 to 1991. A flagship communist state, ...
Socialist law
Socialist law or Soviet law denotes a general type of legal system which has been (and continues to be) used in socialist and formerly socialist states. It is based on the civil law system, with major modifications and additions from Marxis ...
, which essentially inflates administrative law at the expense of private law rights. 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
The World Trade Organization (WTO) is an intergovernmental organization that regulates and facilitates international trade. With effective cooperation
in the United Nations System, governments use the organization to establish, revise, and e ...
.
Legal 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 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.Mattei, ''Comparative Law and Economics'', 71 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
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
and
public law
Public law is the part of law that governs relations between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that are of direct ...
.
The third type of legal system—accepted by some countries without
separation of church and state
The separation of church and state is a philosophical and jurisprudential concept for defining political distance in the relationship between religious organizations and the state. Conceptually, the term refers to the creation of a secular sta ...
—is religious law, based on scriptures. 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.
Civil 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
statute
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
s passed by government—and custom. Codifications date back millennia, with one early example being the Babylonian '' Codex Hammurabi''. Modern civil law systems essentially derive from legal codes issued by
Byzantine
The Byzantine Empire, also referred to as the Eastern Roman Empire or Byzantium, was the continuation of the Roman Empire primarily in its eastern provinces during Late Antiquity and the Middle Ages, when its capital city was Constantinopl ...
Emperor
Justinian I
Justinian I (; la, Iustinianus, ; grc-gre, Ἰουστινιανός ; 48214 November 565), also known as Justinian the Great, was the Byzantine emperor from 527 to 565.
His reign is marked by the ambitious but only partly realized ''renovat ...
in the 6th century, which were rediscovered by 11th century Italy. Roman law in the days of the
Roman Republic
The Roman Republic ( la, Res publica Romana ) was a form of government of Rome and the era of the classical Roman civilization when it was run through public representation of the Roman people. Beginning with the overthrow of the Roman Kin ...
and Empire was heavily procedural, and lacked a professional legal class. Instead a lay
magistrate
The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judici ...
, ''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. From 529 to 534 AD the
Byzantine
The Byzantine Empire, also referred to as the Eastern Roman Empire or Byzantium, was the continuation of the Roman Empire primarily in its eastern provinces during Late Antiquity and the Middle Ages, when its capital city was Constantinopl ...
Emperor
Justinian I
Justinian I (; la, Iustinianus, ; grc-gre, Ἰουστινιανός ; 48214 November 565), also known as Justinian the Great, was the Byzantine emperor from 527 to 565.
His reign is marked by the ambitious but only partly realized ''renovat ...
codified and consolidated Roman law up until that point, so that what remained was one-twentieth of the mass of legal texts from before. This became known as the ''
Corpus Juris Civilis
The ''Corpus Juris'' (or ''Iuris'') ''Civilis'' ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Byzantine Emperor. It is also sometimes referred ...
''. 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
The Byzantine Empire, also referred to as the Eastern Roman Empire or Byzantium, was the continuation of the Roman Empire primarily in its eastern provinces during Late Antiquity and the Middle Ages, when its capital city was Constantinopl ...
. Western Europe, meanwhile, relied on a mix of the
Theodosian Code
The ''Codex Theodosianus'' (Eng. Theodosian Code) was a compilation of the laws of the Roman Empire under the Christian emperors since 312. A commission was established by Emperor Theodosius II and his co-emperor Valentinian III on 26 March 429 a ...
and Germanic customary law until the Justinian Code was rediscovered in the 11th century, and scholars at the
University of Bologna
The University of Bologna ( it, Alma Mater Studiorum – Università di Bologna, UNIBO) is a public research university in Bologna, Italy. Founded in 1088 by an organised guild of students (''studiorum''), it is the oldest university in continuo ...
used it to interpret their own laws. Civil law codifications based closely on Roman law, alongside some influences from
religious law
Religious law includes ethical and moral codes taught by religious traditions. Different religious systems hold sacred law in a greater or lesser degree of importance to their belief systems, with some being explicitly antinomian whereas others ...
s such as
canon law
Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
, continued to spread throughout Europe until the
Enlightenment
Enlightenment or enlighten may refer to:
Age of Enlightenment
* Age of Enlightenment, period in Western intellectual history from the late 17th to late 18th century, centered in France but also encompassing (alphabetically by country or culture): ...
; then, in the 19th century, both France, with the '' Code Civil'', and Germany, with the ''
Bürgerliches Gesetzbuch
The ''Bürgerliches Gesetzbuch'' (, ), abbreviated BGB, is the civil code of Germany. In development since 1881, it became effective on 1 January 1900, and was considered a massive and groundbreaking project.
The BGB served as a template in sev ...
'', modernised their legal codes. 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. Today, countries that have civil law systems range from Russia and Turkey to most of
Central
Central is an adjective usually referring to being in the center of some place or (mathematical) object.
Central may also refer to:
Directions and generalised locations
* Central Africa, a region in the centre of Africa continent, also known as ...
and
Latin America
Latin America or
* french: Amérique Latine, link=no
* ht, Amerik Latin, link=no
* pt, América Latina, link=no, name=a, sometimes referred to as LatAm is a large cultural region in the Americas where Romance languages — languages derived f ...
.
Anarchist law
Anarchism has been practiced in society in much of the world. Mass
anarchist communities
This is a list of anarchist communities representing any society or portion thereof founded by anarchists that functions according to anarchist philosophy and principles. Anarchists have created and been involved in a plethora of community experi ...
, ranging from
Syria
Syria ( ar, سُورِيَا or سُورِيَة, translit=Sūriyā), officially the Syrian Arab Republic ( ar, الجمهورية العربية السورية, al-Jumhūrīyah al-ʻArabīyah as-Sūrīyah), is a Western Asian country loc ...
to the United States, exist and vary from hundreds to millions. Anarchism encompasses a broad range of
social
Social organisms, including human(s), live collectively in interacting populations. This interaction is considered social whether they are aware of it or not, and whether the exchange is voluntary or not.
Etymology
The word "social" derives from ...
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
Direct democracy or pure democracy is a form of democracy in which the Election#Electorate, electorate decides on policy initiatives without legislator, elected representatives as proxies. This differs from the majority of currently establishe ...
. Laws being based upon their need. A large portion of anarchist ideologies such as
anarcho-syndicalism
Anarcho-syndicalism is a political philosophy and anarchist school of thought that views revolutionary industrial unionism or syndicalism as a method for workers in capitalist society to gain control of an economy and thus control influence in b ...
and
anarcho-communism
Anarcho-communism, also known as anarchist communism, (or, colloquially, ''ancom'' or ''ancomm'') is a political philosophy and anarchist school of thought that advocates communism. It calls for the abolition of private property but retains resp ...
primarily focuses on
decentralized
Decentralization or decentralisation is the process by which the activities of an organization, particularly those regarding planning and decision making, are distributed or delegated away from a central, authoritative location or group.
Conce ...
worker unions,
cooperatives
A cooperative (also known as co-operative, co-op, or coop) is "an autonomous association of persons united voluntarily to meet their common economic, social and cultural needs and aspirations through a jointly owned and democratically-control ...
and syndicates as the main instrument of society.
Socialist law
Socialist law is the legal systems in
communist state
A communist state, also known as a Marxist–Leninist state, is a one-party state that is administered and governed by a communist party guided by Marxism–Leninism. Marxism–Leninism was the state ideology of the Soviet Union, the Comint ...
s such as the former
Soviet Union
The Soviet Union,. officially the Union of Soviet Socialist Republics. (USSR),. was a transcontinental country that spanned much of Eurasia from 1922 to 1991. A flagship communist state, it was nominally a federal union of fifteen national ...
and the
People's Republic of China
China, officially the People's Republic of China (PRC), is a country in East Asia. It is the world's most populous country, with a population exceeding 1.4 billion, slightly ahead of India. China spans the equivalent of five time zones and ...
. Academic opinion is divided on whether it is a separate system from civil law, given major deviations based on
Marxist–Leninist
Marxism is a left-wing to far-left method of socioeconomic analysis that uses a materialist interpretation of historical development, better known as historical materialism, to understand class relations and social conflict and a dialect ...
ideology, such as subordinating the judiciary to the executive ruling party.
Common law and equity
In
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
legal systems, decisions by courts are explicitly acknowledged as "law" on equal footing with
statutes
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
adopted through the legislative process and with
regulations
Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. For ...
issued by the
executive branch
The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a State (polity), state.
In poli ...
. The "doctrine of precedent", or ''
stare decisis
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
'' (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
The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts esta ...
(except Malta,
Scotland
Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to the ...
, the U.S. state of
Louisiana
Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is borde ...
, and the Canadian province of
Quebec
Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirtee ...
). In medieval England, the
Norman conquest
The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England by an army made up of thousands of Norman, Breton, Flemish, and French troops, all led by the Duke of Normandy, later styled William the Conque ...
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 King John may refer to:
Rulers
* John, King of England (1166–1216)
* John I of Jerusalem (c. 1170–1237)
* John Balliol, King of Scotland (c. 1249–1314)
* John I of France (15–20 November 1316)
* John II of France (1319–1364)
* John I o ...
was forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or ''
Magna Carta
(Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the ...
'' 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
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century afte ...
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
The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. The ...
gave judgment to do what was equitable in a case. From the time of
Sir Thomas More
Sir Thomas More (7 February 1478 – 6 July 1535), venerated in the Catholic Church as Saint Thomas More, was an English lawyer, judge, social philosopher, author, statesman, and noted Renaissance humanist. He also served Henry VIII as Lord ...
, the first
lawyer
A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solic ...
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. At first, equity was often criticised as erratic, that it varied according to the length of the Chancellor's foot. Over time, courts of equity developed solid principles, especially under
Lord Eldon
Earl of Eldon, in the County Palatine of Durham, is a title in the Peerage of the United Kingdom. It was created in 1821 for the lawyer and politician John Scott, 1st Baron Eldon, Lord Chancellor from 1801 to 1806 and again from 1807 to 1827. H ...
. In the 19th century in England, and in 1937 in the U.S., the two systems were
merged
Mergers and acquisitions (M&A) are business transactions in which the ownership of companies, other business organizations, or their operating units are transferred to or consolidated with another company or business organization. As an aspect ...
.
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
Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family i ...
, 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.
Religious law
Religious law is explicitly based on religious precepts. Examples include the Jewish
Halakha
''Halakha'' (; he, הֲלָכָה, ), also transliterated as ''halacha'', ''halakhah'', and ''halocho'' ( ), is the collective body of Jewish religious laws which is derived from the written and Oral Torah. Halakha is based on biblical commandm ...
and Islamic
Sharia
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the H ...
—both of which translate as the "path to follow"—while Christian
canon law
Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
also survives in some church communities. 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. For instance, the
Quran
The Quran (, ; Standard Arabic: , Classical Arabic, Quranic Arabic: , , 'the recitation'), also romanized Qur'an or Koran, is the central religious text of Islam, believed by Muslims to be a revelation in Islam, revelation from God in Islam, ...
has some law, and it acts as a source of further law through interpretation, ''
Qiyas
In Islamic jurisprudence, qiyas ( ar, قياس , "analogy") is the process of deductive analogy in which the teachings of the hadith are compared and contrasted with those of the Quran, in order to apply a known injunction ('' nass'') to a new ...
'' (reasoning by analogy), ''
Ijma
''Ijmāʿ'' ( ar, إجماع , " consensus") is an Arabic term referring to the consensus or agreement of the Islamic community on a point of Islamic law. Sunni Muslims regard ''ijmā as one of the secondary sources of Sharia law, after the Qur ...
'' (consensus) and
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
. This is mainly contained in a body of law and jurisprudence known as
Sharia
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the H ...
and
Fiqh
''Fiqh'' (; ar, فقه ) is Islamic jurisprudence. Muhammad-> Companions-> Followers-> Fiqh.
The commands and prohibitions chosen by God were revealed through the agency of the Prophet in both the Quran and the Sunnah (words, deeds, and ...
respectively. Another example is the
Torah
The Torah (; hbo, ''Tōrā'', "Instruction", "Teaching" or "Law") is the compilation of the first five books of the Hebrew Bible, namely the books of Genesis, Exodus, Leviticus, Numbers and Deuteronomy. In that sense, Torah means the s ...
or
Old Testament
The Old Testament (often abbreviated OT) is the first division of the Christian biblical canon, which is based primarily upon the 24 books of the Hebrew Bible or Tanakh, a collection of ancient religious Hebrew writings by the Israelites. The ...
, in the
Pentateuch
The Torah (; hbo, ''Tōrā'', "Instruction", "Teaching" or "Law") is the compilation of the first five books of the Hebrew Bible, namely the books of Genesis, Exodus, Leviticus, Numbers and Deuteronomy. In that sense, Torah means the sa ...
or Five Books of Moses. This contains the basic code of Jewish law, which some Israeli communities choose to use. The
Halakha
''Halakha'' (; he, הֲלָכָה, ), also transliterated as ''halacha'', ''halakhah'', and ''halocho'' ( ), is the collective body of Jewish religious laws which is derived from the written and Oral Torah. Halakha is based on biblical commandm ...
is a code of Jewish law that summarizes some of the Talmud's interpretations. Nevertheless, Israeli law allows litigants to use religious laws only if they choose. Canon law is only in use by members of the
Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
, the
Eastern Orthodox Church
The Eastern Orthodox Church, also called the Orthodox Church, is the second-largest Christian church, with approximately 220 million baptized members. It operates as a communion of autocephalous churches, each governed by its bishops via ...
and the
Anglican Communion
The Anglican Communion is the third largest Christian communion after the Roman Catholic and Eastern Orthodox churches. Founded in 1867 in London, the communion has more than 85 million members within the Church of England and other ...
.
Canon law
Canon law (from Greek ''kanon'', a 'straight measuring rod, ruler') is a set of ordinances and regulations made by
ecclesiastical authority Ecclesiastical government, ecclesiastical hierarchy, or ecclesiocracy may refer to:
* Theocracy, a form of religious State government
* Hierocracy (medieval)
In the Middle Ages, hierocracy or papalism''Hierocracy'' is sometimes construed as a mor ...
(Church leadership), for the government of a Christian organisation or church and its members. It is the internal
ecclesiastical
{{Short pages monitor
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
Racial segregation is the systematic separation of people into racial or other ethnic groups in daily life. Racial segregation can amount to the international crime of apartheid and a crime against humanity under the Statute of the Internati ...
schools, finding such statutes to be incompatible with the Fourteenth Amendment to the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
.
A judiciary is theoretically bound by the constitution, just as all other government bodies are. In most countries judges may only
interpret
Interpreting is a translational activity in which one produces a first and final target-language output on the basis of a one-time exposure to an expression in a source language.
The most common two modes of interpreting are simultaneous interp ...
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
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
. The UK, Finland and New Zealand assert the ideal of
parliamentary sovereignty
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all ...
, whereby the unelected judiciary may not overturn law passed by a democratic legislature.
In
communist state
A communist state, also known as a Marxist–Leninist state, is a one-party state that is administered and governed by a communist party guided by Marxism–Leninism. Marxism–Leninism was the state ideology of the Soviet Union, the Comint ...
s, 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,Sherif, ''Constitutions of Arab Countries'', 158 and in Iran the
Guardian Council
The Guardian Council, (also called Council of Guardians or Constitutional Council, fa, شورای نگهبان, Shourā-ye Negahbān) is an appointed and constitutionally mandated 12-member council that wields considerable power and influence i ...
ensures the compatibility of the legislation with the "criteria of Islam".
Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
in Washington, D.C., the
Bundestag
The Bundestag (, "Federal Diet") is the German federal parliament. It is the only federal representative body that is directly elected by the German people. It is comparable to the United States House of Representatives or the House of Commons ...
in Berlin, the
Duma
A duma (russian: дума) is a Russian assembly with advisory or legislative functions.
The term ''boyar duma'' is used to refer to advisory councils in Russia from the 10th to 17th centuries. Starting in the 18th century, city dumas were for ...
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. Although countries like Israel, Greece, Sweden and China are
unicameral
Unicameralism (from ''uni''- "one" + Latin ''camera'' "chamber") is a type of legislature, which consists of one house or assembly, that legislates and votes as one.
Unicameral legislatures exist when there is no widely perceived need for multic ...
, most countries are
bicameral
Bicameralism is a type of legislature, one divided into two separate assemblies, chambers, or houses, known as a bicameral legislature. Bicameralism is distinguished from unicameralism, in which all members deliberate and vote as a single grou ...
, meaning they have two separately appointed legislative houses.Riker, ''The Justification of Bicameralism'', 101
In the 'lower house' politicians are elected to represent smaller constituencies. The 'upper house' is usually elected to represent states in a
federal
Federal or foederal (archaic) may refer to:
Politics
General
*Federal monarchy, a federation of monarchies
*Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...
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.
To pass legislation, a majority of the members of a legislature must
vote
Voting is a method by which a group, such as a meeting or an electorate, can engage for the purpose of making a collective decision or expressing an opinion usually following discussions, debates or election campaigns. Democracies elect holde ...
for a
bill (proposed law)
A bill is proposed legislation under consideration by a legislature. A bill does not become law until it is passed by the legislature as well as, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an '' ...
in each house. 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).
Executive
The executive in a legal system serves as the centre of political
authority
In the fields of sociology and political science, authority is the legitimate power of a person or group over other people. In a civil state, ''authority'' is practiced in ways such a judicial branch or an executive branch of government.''The N ...
parliamentary system
A parliamentary system, or parliamentarian democracy, is a system of democratic governance of a state (or subordinate entity) where the executive derives its democratic legitimacy from its ability to command the support ("confidence") of the ...
, as with Britain, Italy, Germany, India, and Japan, the executive is known as the cabinet, and composed of members of the legislature. The executive is led by the
head of government
The head of government is the highest or the second-highest official in the executive branch of a sovereign state, a federated state, or a self-governing colony, autonomous region, or other government who often presides over a cabinet, a gro ...
, whose office holds power under the confidence of the legislature. Because popular elections appoint political parties to govern, the leader of a party can change in between elections.Haggard, ''Presidents, Parliaments and Policy'', 71
The
head of state
A head of state (or chief of state) is the public persona who officially embodies a state Foakes, pp. 110–11 " he head of statebeing an embodiment of the State itself or representatitve of its international persona." in its unity and l ...
is apart from the executive, and symbolically enacts laws and acts as representative of the nation. Examples include the
President of Germany
The president of Germany, officially the Federal President of the Federal Republic of Germany (german: link=no, Bundespräsident der Bundesrepublik Deutschland),The official title within Germany is ', with ' being added in international corres ...
President of Austria
The president of Austria (german: Bundespräsident der Republik Österreich) is the head of state of the Republic of Austria. Though theoretically entrusted with great power by the Constitution, in practice the president is largely a ceremonial ...
(elected by popular vote). The other important model is the
presidential system
A presidential system, or single executive system, is a form of government in which a head of government, typically with the title of president, leads an executive branch that is separate from the legislative branch in systems that use separati ...
, found in the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
and in
Brazil
Brazil ( pt, Brasil; ), officially the Federative Republic of Brazil (Portuguese: ), is the largest country in both South America and Latin America. At and with over 217 million people, Brazil is the world's fifth-largest country by area ...
. 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.
Ministers
Minister may refer to:
* Minister (Christianity), a Christian cleric
** Minister (Catholic Church)
* Minister (government), a member of government who heads a ministry (government department)
** Minister without portfolio, a member of government w ...
or other officials head a country's public offices, such as a foreign ministry or
defence ministry
{{unsourced, date=February 2021
A ministry of defence or defense (see American and British English spelling differences#-ce.2C -se, spelling differences), also known as a department of defence or defense, is an often-used name for the part of a g ...
. 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. For example, Medieval England's system of travelling criminal courts, or
assizes
The courts of assize, or assizes (), were periodic courts held around England and Wales until 1972, when together with the quarter sessions they were abolished by the Courts Act 1971 and replaced by a single permanent Crown Court. The assizes e ...
, used
show trial
A show trial is a public trial in which the judicial authorities have already determined the guilt or innocence of the defendant. The actual trial has as its only goal the presentation of both the accusation and the verdict to the public so th ...
s and public executions to instill communities with fear to maintain control. The first modern police were probably those in 17th-century Paris, in the court of
Louis XIV
, house = Bourbon
, father = Louis XIII
, mother = Anne of Austria
, birth_date =
, birth_place = Château de Saint-Germain-en-Laye, Saint-Germain-en-Laye, France
, death_date =
, death_place = Palace of Vers ...
, although the Paris Prefecture of Police claim they were the world's first uniformed policemen.
Max Weber
Maximilian Karl Emil Weber (; ; 21 April 186414 June 1920) was a German sociologist, historian, jurist and political economist, who is regarded as among the most important theorists of the development of modern Western society. His ideas profo ...
famously argued that the state is that which controls the
monopoly on the legitimate use of force
In political philosophy, a monopoly on violence or monopoly on the legal use of force is the property of a polity that is the only entity in its jurisdiction to legitimately use force, and thus the supreme authority of that area.
While the mon ...
.Weber,
Politics as a Vocation
"Politics as a Vocation" (german: Politik als Beruf) is an essay by German economist and sociologist Max Weber (1864–1920). It originated in the second lecture of a series (the first was ''Science as a Vocation'') he gave in Munich to the "Free ...
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.
Bureaucracy
The etymology of ''bureaucracy'' derives from the French word for ''office'' (''bureau'') and the
Ancient Greek
Ancient Greek includes the forms of the Greek language used in ancient Greece and the ancient world from around 1500 BC to 300 BC. It is often roughly divided into the following periods: Mycenaean Greek (), Dark Ages (), the Archaic peri ...
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:
The 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
A privately held company (or simply a private company) is a company whose shares and related rights or obligations are not offered for public subscription or publicly negotiated in the respective listed markets, but rather the company's stock is ...
motivated by
profit
Profit may refer to:
Business and law
* Profit (accounting), the difference between the purchase price and the costs of bringing to market
* Profit (economics), normal profit and economic profit
* Profit (real property), a nonpossessory intere ...
. In fact private companies, especially large ones, also have bureaucracies.Kettl, ''Public Bureaucracies'', 367 Negative perceptions of "
red tape
Red tape is an idiom referring to regulations or conformity to formal rules or standards which are claimed to be excessive, rigid or redundant, or to bureaucracy claimed to hinder or prevent action or decision-making. It is usually applied to g ...
" 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
A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...
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, the
practice of law
In its most general sense, the practice of law involves giving legal advice to clients, drafting legal documents for clients, and representing clients in legal negotiations and court proceedings such as lawsuits, and is applied to the professi ...
is typically overseen by either a government or independent regulating body such as a
bar association
A bar association is a professional association of lawyers as generally organized in countries following the Anglo-American types of jurisprudence. The word bar is derived from the old English/European custom of using a physical railing to separ ...
law society
A law society is an association of lawyers with a regulatory role that includes the right to supervise the training, qualifications, and conduct of lawyers. Where there is a distinction between barristers and solicitors, solicitors are regulated ...
. 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
Bachelor of Laws ( la, Legum Baccalaureus; LL.B.) is an undergraduate law degree in the United Kingdom and most common law jurisdictions. Bachelor of Laws is also the name of the law degree awarded by universities in the People's Republic of Chi ...
Juris Doctor
The Juris Doctor (J.D. or JD), also known as Doctor of Jurisprudence (J.D., JD, D.Jur., or DJur), is a graduate-entry professional degree in law
and one of several Doctor of Law degrees. The J.D. is the standard degree obtained to practice law ...
degree. Higher academic degrees may also be pursued. Examples include a
Master of Laws
A Master of Laws (M.L. or LL.M.; Latin: ' or ') is an advanced postgraduate academic degree, pursued by those either holding an undergraduate academic law degree, a professional law degree, or an undergraduate degree in a related subject. In mos ...
, a
Master of Legal Studies
A Master of Studies in Law (M.S.L.), also Master of Science of Law or Master of Legal Studies (M.L.S.) or Juris Master (J.M.) or Masters of Jurisprudence (M.J.) or Master in Law (M.L.), is a master's degree offered by some law schools to students ...
Doctor of Laws
A Doctor of Law is a degree in law. The application of the term varies from country to country and includes degrees such as the Doctor of Juridical Science (J.S.D. or S.J.D), Juris Doctor (J.D.), Doctor of Philosophy (Ph.D.), and Legum Doctor (LL. ...
.), and are constituted in office by legal forms of appointment ( being admitted to the bar). There are few titles of respect to signify famous lawyers, such as
Esquire
Esquire (, ; abbreviated Esq.) is usually a courtesy title.
In the United Kingdom, ''esquire'' historically was a title of respect accorded to men of higher social rank, particularly members of the landed gentry above the rank of gentlema ...
, to indicate barristers of greater dignity, and Doctor of law, to indicate a person who obtained a
PhD PHD or PhD may refer to:
* Doctor of Philosophy (PhD), an academic qualification
Entertainment
* '' PhD: Phantasy Degree'', a Korean comic series
* ''Piled Higher and Deeper'', a web comic
* Ph.D. (band), a 1980s British group
** Ph.D. (Ph.D. albu ...
in Law.
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.
Once accredited, a lawyer will often work in a
law firm
A law firm is a business entity formed by one or more lawyers to engage in the practice of law. The primary service rendered by a law firm is to advise clients (individuals or corporations) about their legal rights and responsibilities, and to r ...
, in a
chambers
Chambers may refer to:
Places
Canada:
* Chambers Township, Ontario
United States:
* Chambers County, Alabama
*Chambers, Arizona, an unincorporated community in Apache County
*Chambers, Nebraska
* Chambers, West Virginia
*Chambers Township, Holt ...
as a sole practitioner, in a government post or in a private corporation as an internal
counsel
A counsel or a counsellor at law is a person who gives advice and deals with various issues, particularly in legal matters. It is a title often used interchangeably with the title of ''lawyer''.
The word ''counsel'' can also mean advice given ...
. In addition a lawyer may become a
legal research Legal research is "the process of identifying and retrieving information necessary to support legal decision-making. In its broadest sense, legal research includes each step of a course of action that begins with an analysis of the facts of a probl ...
er 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.Fine, ''The Globalisation of Legal Education'', 364
Significant to the practice of law in the common law tradition is the legal research to determine the current state of the law. This usually entails exploring case-law reports, legal periodicals and legislation. Law practice also involves drafting documents such as court pleadings, persuasive briefs, contracts, or
wills Wills may refer to:
* Will (law)
A will or testament is a legal document that expresses a person's (testator) wishes as to how their property ( estate) is to be distributed after their death and as to which person (executor) is to manage the pr ...
and trusts. Negotiation and dispute resolution skills (including ADR techniques) are also important to legal practice, depending on the field.
Civil society
The
Classical republican
Classical republicanism, also known as civic republicanism or civic humanism, is a form of republicanism developed in the Renaissance inspired by the governmental forms and writings of classical antiquity, especially such classical writers as Ar ...
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
Georg Wilhelm Friedrich Hegel (; ; 27 August 1770 – 14 November 1831) was a German philosopher. He is one of the most important figures in German idealism and one of the founding figures of modern Western philosophy. His influence extends ...
distinguished the "state" from "civil society" (''bürgerliche Gesellschaft'') in '' Elements of the Philosophy of Right''.
Hegel believed that civil society and the state were polar opposites, within the scheme of his dialectic theory of history. The modern dipole state–civil society was reproduced in the theories of
Alexis de Tocqueville
Alexis Charles Henri Clérel, comte de Tocqueville (; 29 July 180516 April 1859), colloquially known as Tocqueville (), was a French aristocrat, diplomat, political scientist, political philosopher and historian. He is best known for his works ...
and
Karl Marx
Karl Heinrich Marx (; 5 May 1818 – 14 March 1883) was a German philosopher, economist, historian, sociologist, political theorist, journalist, critic of political economy, and socialist revolutionary. His best-known titles are the 1848 ...
. 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
Geoffrey Ronald Robertson (born 30 September 1946) is a human rights barrister, academic, author and broadcaster. He holds dual Australian and British citizenship.
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 speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
,
freedom of association
Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline membe ...
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
Deliberative democracy or discursive democracy is a form of democracy in which deliberation is central to decision-making. It adopts elements of both consensus decision-making and majority rule. Deliberative democracy differs from traditional ...
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
Public law is the part of law that governs relations between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that are of direct ...
" (a term related closely to the state, and including constitutional, administrative and criminal law), and "
private law
Private law is that part of a civil law legal system which is part of the ''jus commune'' that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligations ( ...
" (which covers contract,
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
and property). In civil law systems, contract and tort fall under a general
law of obligations
The law of obligations is one branch of private law under the civil law legal system and so-called "mixed" legal systems. It is the body of rules that organizes and regulates the rights and duties arising between individuals. The specific rights a ...
, while trusts law is dealt with under statutory regimes or international conventions. International, constitutional and administrative law, criminal law, contract, tort, property law and
trusts
A trust is a legal relationship in which the holder of a right gives it to another person or entity who must keep and use it solely for another's benefit. In the Anglo-American common law, the party who entrusts the right is known as the "settl ...
are regarded as the "traditional core subjects", although there are many further disciplines.
International law
International law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
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
upright=1.15, Original document in single pages, 1864
The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conven ...
. 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
The League of Nations (french: link=no, Société des Nations ) was the first worldwide intergovernmental organisation whose principal mission was to maintain world peace. It was founded on 10 January 1920 by the Paris Peace Conference that ...
World Trade Organisation
The World Trade Organization (WTO) is an intergovernmental organization that regulates and facilitates international trade. With effective cooperation
in the United Nations System, governments use the organization to establish, revise, and e ...
(WTO), or the
International Monetary Fund
The International Monetary Fund (IMF) is a major financial agency of the United Nations, and an international financial institution, headquartered in Washington, D.C., consisting of 190 countries. Its stated mission is "working to foster globa ...
. 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
The International Court of Justice (ICJ; french: Cour internationale de justice, links=no; ), sometimes known as the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordanc ...
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
Conflict of laws (also called private international law) is the set of rules or laws a jurisdiction applies to a case, transaction, or other occurrence that has connections to more than one jurisdiction. This body of law deals with three broad t ...
, or private international law in civil law countries, concerns which
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
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
Capital may refer to:
Common uses
* Capital city, a municipality of primary status
** List of national capital cities
* Capital letter, an upper-case letter Economics and social sciences
* Capital (economics), the durable produced goods used f ...
and
labour
Labour or labor may refer to:
* Childbirth, the delivery of a baby
* Labour (human activity), or work
** Manual labour, physical work
** Wage labour, a socioeconomic relationship between a worker and an employer
** Organized labour and the 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
European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...
is the first and so far the only example of a
supranational law Supranational law is a form of international law, based on the limitation of the rights of sovereign nations between one another. It is distinguished from public international law, because in supranational law, nations explicitly submit their right ...
, i.e. an internationally accepted legal system, other than the
United Nations
The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...
and the
World Trade Organization
The World Trade Organization (WTO) is an intergovernmental organization that regulates and facilitates international trade. With effective cooperation
in the United Nations System, governments use the organization to establish, revise, and e ...
. Given the trend of increasing global economic integration, many regional agreements—especially the
African Union
The African Union (AU) is a continental union consisting of 55 member states located on the continent of Africa. The AU was announced in the Sirte Declaration in Sirte, Libya, on 9 September 1999, calling for the establishment of the Africa ...
—seek to follow a similar model. In the EU, sovereign nations have gathered their authority in a system of courts and the
European Parliament
The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...
. 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
The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Un ...
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
Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may ...
of individuals against the state. Most jurisdictions, like the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
and
France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
, have a single codified constitution with a bill of rights. A few, like the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
, have no such document. A "constitution" is simply those laws which constitute the
body politic
The body politic is a polity—such as a city, realm, or state—considered metaphorically as a physical body. Historically, the sovereign is typically portrayed as the body's head, and the analogy may also be extended to other anatomical par ...
, from
statute
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
,
case law
Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a l ...
and
convention
Convention may refer to:
* Convention (norm), a custom or tradition, a standard of presentation or conduct
** Treaty, an agreement in international law
* Convention (meeting), meeting of a (usually large) group of individuals and/or companies in a ...
. 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
Marquess Camden is a title in the Peerage of the United Kingdom. It was created in 1812 for the politician John Pratt, 2nd Earl Camden. The Pratt family descends from Sir John Pratt, Lord Chief Justice from 1718 to 1725. His third son from his ...
, 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
John Locke
John Locke (; 29 August 1632 – 28 October 1704) was an English philosopher and physician, widely regarded as one of the most influential of Age of Enlightenment, Enlightenment thinkers and commonly known as the "father of liberalism ...
, 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
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
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 '' Conseil d'État'' set up in 1799, as
Napoleon
Napoleon Bonaparte ; it, Napoleone Bonaparte, ; co, Napulione Buonaparte. (born Napoleone Buonaparte; 15 August 1769 – 5 May 1821), later known by his regnal name Napoleon I, was a French military commander and political leader who ...
assumed power in France.Auby, ''Administrative Law in France'', 75
A subdiscipline of constitutional law is
election law
Election law is a branch of public law that relates to the democratic processes, election of representatives and office holders, and referendums, through the regulation of the electoral system, voting rights, ballot access, election management b ...
. It deals with rules governing elections. These rules enable the translation of the will of the people into functioning democracies. Election law addresses issues who is entitled to
vote
Voting is a method by which a group, such as a meeting or an electorate, can engage for the purpose of making a collective decision or expressing an opinion usually following discussions, debates or election campaigns. Democracies elect holde ...
,
voter registration
In electoral systems, voter registration (or enrollment) is the requirement that a person otherwise eligible to vote must register (or enroll) on an electoral roll, which is usually a prerequisite for being entitled or permitted to vote.
The ru ...
campaign finance
Campaign finance, also known as election finance or political donations, refers to the funds raised to promote candidates, political parties, or policy initiatives and referendums. Political parties, charitable organizations, and political ac ...
and
party funding
Political Party Funding (PPF) is a method used by a political party to raise money for Campaign advertising, campaigns and routine activities. The funding of political parties is an aspect of campaign finance.
Political parties are funded by cont ...
,
redistricting
Redistribution (re-districting in the United States and in the Philippines) is the process by which electoral districts are added, removed, or otherwise changed. Redistribution is a form of boundary delimitation that changes electoral dist ...
,
apportionment
The legal term apportionment (french: apportionement; Mediaeval Latin: , derived from la, portio, share), also called delimitation, is in general the distribution or allotment of proper shares, though may have different meanings in different c ...
,
electronic voting
Electronic voting (also known as e-voting) is voting that uses electronic means to either aid or take care of casting and counting ballots.
Depending on the particular implementation, e-voting may use standalone ''electronic voting machines'' ( ...
and
voting machines
A voting machine is a machine used to record votes in an election without paper. The first voting machines were mechanical but it is increasingly more common to use ''electronic voting machines''. Traditionally, a voting machine has been defin ...
,
accessibility
Accessibility is the design of products, devices, services, vehicles, or environments so as to be usable by people with disabilities. The concept of accessible design and practice of accessible development ensures both "direct access" (i. ...
of elections,
election systems
An electoral system or voting system is a set of rules that determine how elections and referendums are conducted and how their results are determined. Electoral systems are used in politics to elect governments, while non-political elections ma ...
referendums
A referendum (plural: referendums or less commonly referenda) is a direct vote by the electorate on a proposal, law, or political issue. This is in contrast to an issue being voted on by a representative. This may result in the adoption of a ...
, and issues such as
electoral fraud
Electoral fraud, sometimes referred to as election manipulation, voter fraud or vote rigging, involves illegal interference with the process of an election, either by increasing the vote share of a favored candidate, depressing the vote share of ...
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
Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or ...
.Dennis J. Baker, Glanville Williams ''Textbook of Criminal Law'' (London: 2012), 2 The
paradigm
In science and philosophy, a paradigm () is a distinct set of concepts or thought patterns, including theories, research methods, postulates, and standards for what constitute legitimate contributions to a field.
Etymology
''Paradigm'' comes f ...
case of a crime lies in the 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
(), sometimes called the external element or the objective element of a crime, is the Law Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the ("guilty mind"), produces criminal liability in th ...
'' (guilty act). Second, the accused must have the requisite malicious intent to do a criminal act, or ''
mens rea
In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
'' (guilty mind). However, for so called "
strict liability
In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.
...
" 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 defence
Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force in ...
, or pleading
insanity
Insanity, madness, lunacy, and craziness are behaviors performed by certain abnormal mental or behavioral patterns. Insanity can be manifest as violations of societal norms, including a person or persons becoming a danger to themselves or to ...
. Another example is in the 19th-century English case of '' R v Dudley and Stephens'', which tested a defence of "
necessity
Necessary or necessity may refer to:
* Need
** An action somebody may feel they must do
** An important task or essential thing to do at a particular time or by a particular moment
* Necessary and sufficient condition, in logic, something that is ...
". The ''Mignonette'', sailing from
Southampton
Southampton () is a port city in the ceremonial county of Hampshire in southern England. It is located approximately south-west of London and west of Portsmouth. The city forms part of the South Hampshire built-up area, which also covers Po ...
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
Baron Coleridge, of Ottery St Mary in the County of Devon, is a title in the Peerage of the United Kingdom. It was created in 1874 for the prominent lawyer, judge and Liberal politician Sir John Coleridge. He served as Lord Chief Justice of En ...
, 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. 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 ...". Also, lay
juries
A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment.
Juries developed in England durin ...
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
Imprisonment is the restraint of a person's liberty, for any cause whatsoever, whether by authority of the government, or by a person acting without such authority. In the latter case it is "false imprisonment". Imprisonment does not necessari ...
,
fines Fines may refer to:
*Fines, Andalusia, Spanish municipality
*Fine (penalty)
* Fine, a dated term for a premium on a lease of land, a large sum the tenant pays to commute (lessen) the rent throughout the term
*Fines, ore or other products with a sma ...
, state supervision (such as probation), or community service. Modern criminal law has been affected considerably by the social sciences, especially with respect to
sentencing
In law, a sentence is the punishment for a crime ordered by a trial court after conviction in a criminal procedure, normally at the conclusion of a trial. A sentence may consist of imprisonment, a fine, or other sanctions. Sentences for mult ...
, legal research, legislation, and
rehabilitation
Rehabilitation or Rehab may refer to:
Health
* Rehabilitation (neuropsychology), therapy to regain or improve neurocognitive function that has been lost or diminished
* Rehabilitation (wildlife), treatment of injured wildlife so they can be retur ...
. On the international field, 111 countries are members of the
International Criminal Court
The International Criminal Court (ICC or ICCt) is an intergovernmental organization and international tribunal seated in The Hague, Netherlands. It is the first and only permanent international court with jurisdiction to prosecute individuals ...
, which was established to try people for
crimes against humanity
Crimes against humanity are widespread or systemic acts committed by or on behalf of a ''de facto'' authority, usually a state, that grossly violate human rights. Unlike war crimes, crimes against humanity do not have to take place within the ...
.
Contract law
Contract law concerns enforceable promises, and can be summed up in the Latin phrase ''
pacta sunt servanda
''Pacta sunt servanda'', Latin for "agreements must be kept", is a brocard and a fundamental principle of law. According to Hans Wehberg, a professor of international law, "few rules for the ordering of Society have such a deep moral and religi ...
'' (agreements must be kept). In common law jurisdictions, three key elements to the creation of a contract are necessary: offer and acceptance,
consideration
Consideration is a concept of English common law and is a necessity for simple contracts but not for special contracts (contracts by deed). The concept has been adopted by other common law jurisdictions.
The court in ''Currie v Misa'' declared ...
and the
intention to create legal relations
Intention to create legal relations, otherwise an "intention to be legally bound", is a doctrine used in contract law, particularly English contract law and related common law jurisdictions.
The doctrine establishes whether a court should presume ...
. 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. 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
An invitation to treat (or invitation to bargain in the United States) is a concept within contract law which comes from the Latin phrase ''invitatio ad offerendum'', meaning "inviting an offer". According to Professor Andrew Burrows, an invitat ...
, 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".About Carlill v Carbolic Smoke Ball Company '' 1 QB 256">8931 QB 256, and the element of consideration, see Beale and Tallon, ''Contract Law'', 142–143
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
Estoppel is a judicial device in common law legal systems whereby a court may prevent or "estop" a person from making assertions or from going back on his or her word; the person being sanctioned is "estopped". Estoppel may prevent someone from ...
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
A duty (from "due" meaning "that which is owing"; fro, deu, did, past participle of ''devoir''; la, debere, debitum, whence "debt") is a commitment or expectation to perform some action in general or if certain circumstances arise. A duty may ...
, but are also more likely to enforce
penalty clause
Penal damages are liquidated damages which exceed reasonable compensatory damages, making them invalid under common law. While liquidated damage clauses set a pre-agreed value on the expected loss to one party if the other party were to breach th ...
s and
specific performance
Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such as to complete performance of the contract. It is typically available in the sale of land law, ...
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
Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwe ...
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
In laws of equity, unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law sees as unjust. Where an individual is unjustly enriched, the law imposes an obligation upon the recipient to make res ...
law, rather than contract law, is then used to restore title to the rightful owner.
Torts and delicts
Certain
civil wrong
Civil may refer to:
*Civic virtue, or civility
*Civil action, or lawsuit
* Civil affairs
*Civil and political rights
* Civil disobedience
*Civil engineering
* Civil (journalism), a platform for independent journalism
*Civilian, someone not a mem ...
s are grouped together as
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
s 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
Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
, 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'' ( A.C. 532, 1932 S.C. (H.L.) 31, [1932">932A.C. 532, 1932 S.C. (H.L.) 31, [1932All ER Rep 1">932.html" ;"title="932A.C. 532, 1932 S.C. (H.L.) 31, [1932">932A.C. 532, 1932 S.C. (H.L.) 31, [1932All ER Rep 1). See the original text of the case i UK Law Online . A friend of Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Donoghue) in a café in Paisley, Renfrewshire, Paisley. 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:
The 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
A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solic ...
'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
Commercial law, also known as mercantile law or trade law, is the body of law that applies to the rights, relations, and conduct of persons and business engaged in commerce, merchandising, trade, and sales. It is often considered to be a branc ...
. 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. The
Lord Chancellor
The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. The ...
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. In the early case of ''Keech v Sandford'' [1722], a child had inherited the lease on a Romford Market, market in Romford, London. 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. The
Lord Chancellor
The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. The ...
, Peter King, 1st Baron King, Lord King, agreed and ordered Mr Sandford should disgorge his profits. 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 South Sea Bubble, 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. But trusts can also be set up for Charitable trust, charitable purposes, famous examples being the British Museum or the Rockefeller Foundation.
Further 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
Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or ...
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
In laws of equity, unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law sees as unjust. Where an individual is unjustly enriched, the law imposes an obligation upon the recipient to make res ...
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
Maximilian Karl Emil Weber (; ; 21 April 186414 June 1920) was a German sociologist, historian, jurist and political economist, who is regarded as among the most important theorists of the development of modern Western society. His ideas profo ...
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'', 81–82
See also
* By-law
* Law dictionary
* Legal research in the United States
* Legal treatise
* Legislation
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Natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
* Political science
* Pseudolaw
* Public interest law
* Social law
* Translating "law" to other European languages
References
Citations
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* Barzilai, Gad (2003), ''Communities and Law: Politics and Cultures of Legal Identities''. The University of Michigan Press, 2003. Second print 2005
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* Hamilton, Michael S., and George W. Spiro (2008). ''The Dynamics of Law'', 4th ed. Armonk, NY: M.E. Sharpe, Inc. .
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Silvestri, Paolo, "The ideal of good government in Luigi Einaudi’s Thought and Life: Between Law and Freedom" , in Paolo Heritier, Paolo Silvestri (Eds.), Good government, Governance, Human complexity. Luigi Einaudi's legacy and contemporary societies, Leo Olschki, Firenze, 2012, pp. 55–95.
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