Law is a system of rules that are created and enforced through social
or governmental institutions to regulate behavior.
Law is a system
that regulates and ensures that individuals or a community adhere to
the will of the state. State-enforced laws can be made by a collective
legislature or by a single legislator, resulting in statutes, by the
executive through decrees and regulations, or established by judges
through precedent, normally in common law jurisdictions. Private
individuals can create legally binding contracts, including
arbitration agreements that may elect to accept alternative
arbitration to the normal court process. The formation of laws
themselves may be influenced by a constitution, written or tacit, and
the rights encoded therein. The law shapes politics, economics,
history and society in various ways and serves as a mediator of
relations between people.
A general distinction can be made between (a) civil law jurisdictions,
in which a legislature or other central body codifies and consolidates
their laws, and (b) common law systems, where judge-made precedent is
accepted as binding law. Historically, religious laws played a
significant role even in settling of secular matters, and is still
used in some religious communities. Islamic
Sharia law is the world's
most widely used religious law, and is used as the primary legal
system in some countries, such as Iran and Saudi Arabia.
The adjudication of the law is generally divided into two main areas.
Criminal law deals with conduct that is considered harmful to social
order and in which the guilty party may be imprisoned or fined. Civil
law (not to be confused with civil law jurisdictions above) deals with
the resolution of lawsuits (disputes) between individuals or
Law provides a source of scholarly inquiry into legal history,
philosophy, economic analysis and sociology.
Law also raises important
and complex issues concerning equality, fairness, and justice.
1.1 Mainstream definitions
1.2 Whether it is possible or desirable to define law
3 Legal theory
3.2 Positive law and non-positive law discussions
3.3 Economic analysis
4 Legal systems
4.1 Civil law
Common law and equity
4.3 Religious law
5 Legal institutions
Military and police
5.6 Legal profession
5.7 Civil society
6 Legal subjects
6.1 International law
6.2 Constitutional and administrative law
6.3 Criminal law
6.7 Equity and trusts
6.8 Further disciplines
7 See also
10 External links
Definition of law and Analytical jurisprudence
Numerous definitions of law have been put forward over the centuries.
The Third New International Dictionary from Merriam-Webster defines
law as: "
Law is a binding custom or practice of a community; a rule or
mode of conduct or action that is prescribed or formally recognized as
binding by a supreme controlling authority or is made obligatory by a
sanction (as an edict, decree, rescript, order, ordinance, statute,
resolution, rule, judicial decision, or usage) made, recognized, or
enforced by the controlling authority."
The Dictionary of the
History of Ideas published by Scribner's in 1973
defined the concept of law accordingly as: "A legal system is the most
explicit, institutionalized, and complex mode of regulating human
conduct. At the same time, it plays only one part in the congeries of
rules which influence behavior, for social and moral rules of a less
institutionalized kind are also of great importance."
Whether it is possible or desirable to define law
There have been several attempts to produce "a universally acceptable
definition of law". In 1972, one source indicated that no such
definition could be produced. McCoubrey and White said that the
question "what is law?" has no simple answer. Glanville Williams
said that the meaning of the word "law" depends on the context in
which that word is used. He said that, for example, "early customary
law" and "municipal law" 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").
Main article: Legal history
Hammurabi is revealed the code of laws by the Mesopotamian sun
god Shamash, also revered as the god of justice.
The history of law links closely to the development of civilization.
Ancient Egyptian law, dating as far back as 3000 BC, contained a
civil code that was probably broken into twelve books. It was based on
the concept of Ma'at, characterised by tradition, rhetorical speech,
social equality and impartiality. By the 22nd century BC,
the ancient Sumerian ruler
Ur-Nammu had formulated the first law code,
which consisted of casuistic 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, and has since been fully transliterated and
translated into various languages, including English, Italian, German,
Old Testament 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, from about the 8th century BC was
the first society to be based on broad inclusion of its citizenry,
excluding women and the slave class. 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
Ancient Greek law contained major
constitutional innovations in the development of democracy.
Roman law 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, law was adapted to cope with the changing social
situations and underwent major codification under
Theodosius II and
Justinian I. Although codes were replaced by custom and case law
during the Dark Ages,
Roman law was rediscovered around the 11th
century when medieval legal scholars began to research Roman codes and
adapt their concepts. Latin legal maxims (called brocards) were
compiled for guidance. In medieval England, royal courts developed a
body of precedent which later became the common law. A Europe-wide Law
Merchant was formed so that merchants could trade with common
standards of practice rather than with the many splintered facets of
local laws. The
Law Merchant, a precursor to modern commercial law,
emphasised the freedom to contract and alienability of property.
As nationalism grew in the 18th and 19th centuries, the
was incorporated into countries' local law under new civil codes. The
Napoleonic and German 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
the precedent laid down by the European
Court of Justice.
Constitution of India is the longest written constitution for a
country, containing 444 articles, 12 schedules, numerous amendments
and 117,369 words.
Ancient India and China represent distinct traditions of law, and have
historically had independent schools of legal theory and practice. The
Arthashastra, probably compiled around 100 AD (although it
contains older material), and the Manusmriti
(c. 100–300 AD) were foundational treatises in India, and
comprise texts considered authoritative legal guidance. Manu's
central philosophy was tolerance and pluralism, and was cited across
Southeast Asia. This Hindu tradition, along with Islamic law, was
supplanted by the common law when India became part of the British
Empire. Malaysia, Brunei, Singapore and Hong Kong also adopted the
common law. 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 bits of the French, 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 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's nationalists, who fled there, and Mao Zedong'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 Socialist law, 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 Organisation.
Main article: Jurisprudence
Philosophy of law
"But what, after all, is a law? […] When I say that the object of
laws is always general, I mean that law considers subjects en masse
and actions in the abstract, and never a particular person or action.
[…] On this view, we at once see that it can no longer be asked
whose business it is to make laws, since they are acts of the general
will; nor whether the prince is above the law, since he is a member of
the State; nor whether the law can be unjust, since no one is unjust
to himself; nor how we can be both free and subject to the laws, since
they are but registers of our wills."
Jean-Jacques Rousseau, The Social Contract, II, 6.
The philosophy of law is commonly known as jurisprudence. Normative
jurisprudence asks "what should law be?", while analytic jurisprudence
asks "what is law?" John Austin's utilitarian answer was that law is
"commands, backed by threat of sanctions, from a sovereign, to whom
people have a habit of obedience". Natural lawyers on the other
side, such as Jean-Jacques Rousseau, argue that law reflects
essentially moral and unchangeable laws of nature. The concept of
"natural law" emerged in ancient
Greek philosophy concurrently and in
connection with the notion of justice, and re-entered the mainstream
Western culture through the writings of Thomas Aquinas, notably his
Treatise on Law.
Hugo Grotius, the founder of a purely rationalistic system of natural
law, argued that law arises from both a social impulse—as Aristotle
had indicated—and reason.
Immanuel Kant believed a moral
imperative requires laws "be chosen as though they should hold as
universal laws of nature".
Jeremy Bentham and his student Austin,
following David Hume, believed that this conflated the "is" and what
"ought to be" problem. Bentham and Austin argued for law's positivism;
that real law is entirely separate from "morality". Kant was also
criticised by Friedrich Nietzsche, who rejected the principle of
equality, and believed that law emanates from the will to power, and
cannot be labelled 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) instructing us to obey.
Kelsen's major opponent, Carl Schmitt, rejected both positivism and
the idea of the rule of law because he did not accept the primacy of
abstract normative principles over concrete political positions and
decisions. Therefore, Schmitt advocated a jurisprudence of the
exception (state of emergency), which denied that legal norms could
encompass all of political experience.
Bentham's utilitarian theories remained dominant in law until the 20th
Later in the 20th century,
H. L. A. Hart
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 attacked Hart and the
positivists for their refusal to treat law as a moral issue. Dworkin
argues that law is an "interpretive concept", that requires judges
to find the best fitting and most just solution to a legal dispute,
given their constitutional traditions. Joseph Raz, on the other hand,
defended the positivist outlook and criticised Hart's "soft social
thesis" approach in The
Authority of Law. Raz argues that law is
authority, identifiable purely through social sources and without
reference to moral reasoning. In his view, any categorisation of rules
beyond their role as authoritative instruments in mediation are best
left to sociology, rather than jurisprudence.
Positive law and non-positive law discussions
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
The Concept of Law Hart argued law is a "system of rules"; Austin
said law was "the command of a sovereign, backed by the threat of a
sanction"; Dworkin describes law as an "interpretive concept" to
achieve justice in his text titled Law's Empire; and Raz argues
law is an "authority" to mediate people's interests. Holmes said
"The prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law." In his Treatise on Law
Aquinas argues that law is a rational ordering of things which concern
the common good that is promulgated by whoever is charged with the
care of the community. This definition has both positivist and
Law and economics
In the 18th century
Adam Smith presented a philosophical foundation
for explaining the relationship between law and economics. The
discipline arose partly out of a critique of trade unions and U.S.
antitrust law. The most influential proponents, such as Richard Posner
and Oliver Williamson and the so-called Chicago School of economists
and lawyers including
Milton Friedman and Gary Becker, are generally
advocates of deregulation and privatisation, and are hostile to state
regulation or what they see as restrictions on the operation of free
Richard Posner, one of the Chicago School, runs a blog with Bank of
Sweden Prize winning economist Gary Becker.
The most prominent economic analyst of law is 1991 Nobel Prize winner
Ronald Coase, whose first major article, The Nature of the Firm
(1937), argued that the reason for the existence of firms (companies,
partnerships, etc.) is the existence of transaction costs.
Rational individuals trade through bilateral contracts on open markets
until the costs of transactions mean that using corporations to
produce things is more cost-effective. His second major article, The
Problem of Social Cost (1960), argued that if we lived in a world
without transaction costs, people would bargain with one another to
create the same allocation of resources, regardless of the way a court
might rule in property disputes. Coase 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 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 of law
Sociology of law
Sociology of law is a diverse field of study that examines the
interaction of law with society and overlaps with jurisprudence,
philosophy of law, social theory and more specialised subjects such as
criminology. The institutions of social construction, social
norms, dispute processing and legal culture are key areas for inquiry
in this knowledge field.
Sociology of law
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
Max Weber in 1917, Weber began his career as a lawyer, and is regarded
as one of the founders of sociology and sociology of law.
Max Weber defined his "scientific" approach to law,
identifying the "legal rational form" as a type of domination, not
attributable to personal authority but to the authority of abstract
norms. Formal legal rationality was his term for the key
characteristic of the kind of coherent and calculable law that was a
precondition for modern political developments and the modern
bureaucratic state. Weber saw this law as having developed in parallel
with the growth of capitalism. Another leading sociologist, Émile
Durkheim, wrote in his classic work The Division of Labour in Society
that as society becomes more complex, the body of civil law concerned
primarily with restitution and compensation grows at the expense of
criminal laws and penal sanctions. Other notable early legal
sociologists included Hugo Sinzheimer, Theodor Geiger, Georges
Leon Petrażycki in Europe, and
William Graham Sumner
William Graham Sumner in
Main article: List of national legal systems
In general, legal systems can be split between civil law and common
law systems. The term "civil law" referring to a legal system
should not be confused with "civil law" as a group of legal subjects
distinct from criminal or public law. A third type of legal
system—accepted by some countries without separation of church and
state—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.
Main article: Civil law (legal system)
First page of the 1804 edition of the Napoleonic Code.
Civil law is the legal system used in most countries around the world
today. In civil law the sources recognised as authoritative are,
primarily, legislation—especially codifications in constitutions or
statutes passed by government—and custom. Codifications date
back millennia, with one early example being the Babylonian Codex
Hammurabi. Modern civil law systems essentially derive from the legal
practice of the 6th-century Eastern
Roman Empire whose texts were
rediscovered by late medieval Western Europe.
Roman law in the days of
Roman Republic and Empire was heavily procedural, and lacked a
professional legal class. Instead a lay magistrate, iudex, was
chosen to adjudicate. Decisions were not published in any systematic
way, so any case law that developed was disguised and almost
unrecognised. Each case was to be decided afresh from the laws of
the State, which mirrors the (theoretical) unimportance of judges'
decisions for future cases in civil law systems today. From 529–534
AD the Byzantine Emperor
Justinian I codified and consolidated Roman
law up until that point, so that what remained was one-twentieth of
the mass of legal texts from before. This became known as the
Corpus Juris Civilis. As one legal historian wrote, "Justinian
consciously looked back to the golden age of
Roman law and aimed to
restore it to the peak it had reached three centuries before." The
Justinian Code remained in force in the East until the fall of the
Byzantine Empire. Western Europe, meanwhile, relied on a mix of the
Theodosian Code and Germanic customary law until the Justinian Code
was rediscovered in the 11th century, and scholars at the University
of Bologna used it to interpret their own laws. Civil law
codifications based closely on Roman law, alongside some influences
from religious laws such as canon law, continued to spread throughout
Europe until the Enlightenment; then, in the 19th century, both
France, with the Code Civil, and Germany, with the Bürgerliches
Gesetzbuch, modernised their legal codes. 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 China to most of Central and Latin America. With
the exception of Louisiana's Civil Code, the United States follows the
common law system described below.
Common law and equity
Main article: Common law
John of England
John of England signs Magna Carta
In common law legal systems, decisions by courts are explicitly
acknowledged as "law" on equal footing with statutes adopted through
the legislative process and with regulations issued by the executive
branch. The "doctrine of precedent", or stare decisis (Latin for "to
stand by decisions") means that decisions by higher courts bind lower
courts, and future decisions of the same court, to assure that similar
cases reach similar results. In contrast, in "civil law" systems,
legislative statutes are typically more detailed, and judicial
decisions are shorter and less detailed, because the judge or
barrister is only writing to decide the single case, rather than to
set out reasoning that will guide future courts.
Common law originated from England and has been inherited by almost
every country once tied to the
British Empire (except Malta, Scotland,
the U.S. state of Louisiana, and the Canadian province of Quebec). In
medieval England, the Norman conquest the law varied-shire-to-shire,
based on disparate tribal customs. The concept of a "common law"
developed during the reign of Henry II during the late 12th century,
when Henry appointed judges that had authority to create an
institutionalized and unified system of law "common" to the country.
The next major step in the evolution of the common law came when King
John was forced by his barons to sign a document limiting his
authority to pass laws. This "great charter" or
Magna Carta of 1215
also required that the King's entourage of judges hold their courts
and judgments at "a certain place" rather than dispensing autocratic
justice in unpredictable places about the country. A concentrated
and elite group of judges acquired a dominant role in law-making under
this system, and compared to its European counterparts the English
judiciary became highly centralized. In 1297, for instance, while the
highest court in France had fifty-one judges, the English
Common Pleas had five. This powerful and tight-knit judiciary gave
rise to a systematized process of developing common law.
However, the system became overly systematized—overly rigid and
inflexible. As a result, as time went on, increasing numbers of
citizens petitioned the King to override the common law, and on the
King's behalf the
Lord Chancellor gave judgment to do what was
equitable in a case. From the time of Sir Thomas More, the first
lawyer to be appointed as Lord Chancellor, a systematic body of equity
grew up alongside the rigid common law, and developed its own
Chancery. At first, equity was often criticized 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. In the 19th century in England, and in 1937 in the
U.S., the two systems were merged.
In developing the common law, academic writings have always played an
important part, both to collect overarching principles from dispersed
case law, and to argue for change. William Blackstone, from around
1760, was the first scholar to collect, describe, and teach the common
law. But merely in describing, scholars who sought explanations
and underlying structures slowly changed the way the law actually
Main article: Religious law
Religious law is explicitly based on religious precepts. Examples
include the Jewish
Halakha and Islamic Sharia—both of which
translate as the "path to follow"—while Christian canon law also
survives in some church communities. 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 has some law, and it acts as a
source of further law through interpretation,
Qiyas (reasoning by
Ijma (consensus) and precedent. This is mainly contained in
a body of law and jurisprudence known as
Another example is the
Torah or Old Testament, in the
Five Books of Moses. This contains the basic code of Jewish law, which
some Israeli communities choose to use. The
Halakha is a code of
Jewish law which summarises some of the Talmud's interpretations.
Israeli law allows litigants to use religious laws only
if they choose.
Canon law is only in use by members of the Catholic
Eastern Orthodox Church
Eastern Orthodox Church and the Anglican Communion.
A trial in the Ottoman Empire, 1879, when religious law applied under
Main article: Sharia
Until the 18th century,
Sharia law was practiced throughout the Muslim
world in a non-codified form, with the Ottoman Empire's
in the 19th century being a first attempt at codifying elements of
Sharia law. Since the mid-1940s, efforts have been made, in country
after country, to bring
Sharia law more into line with modern
conditions and conceptions. In modern times, the legal systems
of many Muslim countries draw upon both civil and common law
traditions as well as Islamic law and custom. The constitutions of
certain Muslim states, such as Egypt and Afghanistan, recognise Islam
as the religion of the state, obliging legislature to adhere to
Sharia. Saudi Arabia recognises
Quran as its constitution, and is
governed on the basis of Islamic law. Iran has also witnessed a
reiteration of Islamic law into its legal system after 1979.
During the last few decades, one of the fundamental features of the
Islamic resurgence has been the call to restore the
Sharia, which has generated a vast amount of literature and affected
It is a real unity of them all in one and the same person, made by
covenant of every man with every man, in such manner as if every man
should say to every man: I authorise and give up my right of governing
myself to this man, or to this assembly of men, on this condition;
that thou givest up, thy right to him, and authorise all his actions
in like manner.
Thomas Hobbes, Leviathan, XVII
The main institutions of law in industrialised countries are
independent courts, representative parliaments, an accountable
executive, the military and police, bureaucratic organisation, the
legal profession and civil society itself. John Locke, in his Two
Treatises of Government, and Baron de
Montesquieu in The Spirit of the
Laws, advocated for a separation of powers between the political,
legislature and executive bodies. Their principle was that no
person should be able to usurp all powers of the state, in contrast to
the absolutist theory of Thomas Hobbes' Leviathan.
Max Weber and others reshaped thinking on the extension of state.
Modern military, policing and bureaucratic power over ordinary
citizens' daily lives pose special problems for accountability that
earlier writers such as Locke or
Montesquieu could not have foreseen.
The custom and practice of the legal profession is an important part
of people's access to justice, whilst civil society is a term used to
refer to the social institutions, communities and partnerships that
form law's political basis.
Main article: Judiciary
A judiciary is a number of judges mediating disputes to determine
outcome. Most countries have systems of appeal courts, answering up to
a supreme legal authority. In the United States, this authority is the
Supreme Court; in Australia, the High Court; in the UK, the
Supreme Court; in Germany, the Bundesverfassungsgericht; and in
France, the Cour de Cassation. For most European countries the
Justice in Luxembourg can overrule national law,
when EU law is relevant. The European
Court of Human
Strasbourg allows citizens of the
Council of Europe
Council of Europe member states to
bring cases relating to human rights issues before it.
The judges of the International
Justice in the Hague
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
many state statutes that had established racially segregated schools,
finding such statutes to be incompatible with the Fourteenth Amendment
to the United States Constitution.
A judiciary is theoretically bound by the constitution, just as all
other government bodies are. In most countries judges may only
interpret the constitution and all other laws. But in common law
countries, where matters are not constitutional, the judiciary may
also create law under the doctrine of precedent. The UK, Finland and
New Zealand assert the ideal of parliamentary sovereignty, whereby the
unelected judiciary may not overturn law passed by a democratic
In communist states, such as China, the courts are often regarded as
parts of the executive, or subservient to the legislature;
governmental institutions and actors exert thus various forms of
influence on the judiciary. In Muslim countries, courts often
examine whether state laws adhere to the Sharia: the Supreme
Court of Egypt may invalidate such laws, and in
Guardian Council ensures the compatibility of the legislation
with the "criteria of Islam".
Main article: Legislature
The debating chamber of the European Parliament
Prominent examples of legislatures are the
Houses of Parliament
Houses of Parliament in
London, the Congress in Washington D.C., the
Bundestag in Berlin, the
Duma in Moscow, the Parlamento Italiano in Rome and the Assemblée
nationale in Paris. By the principle of representative government
people vote for politicians to carry out their wishes. Although
countries like Israel, Greece, Sweden and China are unicameral, most
countries are bicameral, meaning they have two separately appointed
In the 'lower house' politicians are elected to represent smaller
constituencies. The 'upper house' is usually elected to represent
states in a federal system (as in Australia, Germany or the United
States) or different voting configuration in a unitary system (as in
France). In the UK the upper house is appointed by the government as a
house of review. One criticism of bicameral systems with two elected
chambers is that the upper and lower houses may simply mirror one
another. The traditional justification of bicameralism is that an
upper chamber acts as a house of review. This can minimise
arbitrariness and injustice in governmental action.
To pass legislation, a majority of the members of a legislature must
vote for a bill (proposed law) 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).
Main article: Executive (government)
The G20 meetings are composed of representatives of each country's
The executive in a legal system serves as the centre of political
authority of the State. In a parliamentary system, as with Britain,
Italy, Germany, India, and Japan, the executive is known as the
cabinet, and composed of members of the legislature. The executive is
led by the head of government, 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
The head of state is apart from the executive, and symbolically enacts
laws and acts as representative of the nation. Examples include the
President of Germany
President of Germany (appointed by members of federal and state
Queen of the United Kingdom
Queen of the United Kingdom (an hereditary office),
President of Austria
President of Austria (elected by popular vote). The other
important model is the presidential system, found in the United States
and in Brazil. 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
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 or other officials head a country's public
offices, such as a foreign ministry or defence ministry. The election
of a different executive is therefore capable of revolutionising an
entire country's approach to government.
Military and police
Military and Police
U.S. Customs and Border Protection
U.S. Customs and Border Protection officers
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 traveling criminal
courts, or assizes, used show trials 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, although the Paris Prefecture of
Police claim they
were the world's first uniformed policemen.
Max Weber famously argued that the state is that which controls the
monopoly on the legitimate use of force. 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
Main article: Bureaucracy
The United Nations' New York headquarters houses civil servants that
serve its 193 member states.
The etymology of "bureaucracy" derives from the French word for
"office" (bureau) and the
Ancient Greek for word "power"
(kratos). Like the military and police, a legal system's
government servants and bodies that make up its bureaucracy carry out
the directives of the executive. One of the earliest references to the
concept was made by Baron de Grimm, a German author who lived in
France. In 1765 he wrote,
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
motivated by profit. In fact private companies, especially large
ones, also have bureaucracies. Negative perceptions of "red tape"
aside, public services such as schooling, health care, policing or
public transport are considered a crucial state function making public
bureaucratic action the locus of government power.
Writing in the early 20th century,
Max Weber believed that a
definitive feature of a developed state had come to be its
bureaucratic support. Weber wrote that the typical
characteristics of modern bureaucracy are that officials define its
mission, the scope of work is bound by rules, and management is
composed of career experts who manage top down, communicating through
writing and binding public servants' discretion with rules.
Main article: Legal profession
In civil law systems such as those of Italy, France, Germany, Spain
and Greece, there is a distinct category of notary, a legally trained
public official, compensated by the parties to a transaction.
This is a 16th-century painting of such a notary by Flemish painter
A corollary of the rule of law is the existence of a legal profession
sufficiently autonomous to invoke the authority of the independent
judiciary; the right to assistance of a barrister in a court
proceeding emanates from this corollary—in England the function of
barrister or advocate is distinguished from legal counselor. As
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 is typically
overseen by either a government or independent regulating body such as
a bar association, bar council or law society. Modern lawyers achieve
distinct professional identity through specified legal procedures
(e.g. successfully passing a qualifying examination), are required by
law to have a special qualification (a legal education earning the
student a Bachelor of Laws, a Bachelor of Civil Law, or a Juris Doctor
degree. Higher academic degrees may also be pursued. Examples include
a Master of Laws, a Master of Legal Studies, a Bar Professional
Training Course or a Doctor of Laws.), 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, to
indicate barristers of greater dignity, and Doctor of law,
to indicate a person who obtained a
PhD 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
Once accredited, a lawyer will often work in a law firm, in a chambers
as a sole practitioner, in a government post or in a private
corporation as an internal counsel. In addition a lawyer may become a
legal researcher who provides on-demand legal research through a
library, a commercial service or freelance work. Many people trained
in law put their skills to use outside the legal field entirely.
Significant to the practice of law in the common law tradition is the
legal research to determine the current state of the law. 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 and trusts. Negotiation and
dispute resolution skills (including ADR techniques) are also
important to legal practice, depending on the field.
Main article: Civil society
A march in Washington D.C. during the Civil
Rights Movement in 1963
The Classical republican concept of "civil society" dates back to
Hobbes and Locke. Locke saw civil society as people who have "a
common established law and judicature to appeal to, with authority to
decide controversies between them." German philosopher Georg
Wilhelm Friedrich Hegel distinguished the "state" from "civil society"
(bürgerliche Gesellschaft) in Elements of the
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 and Karl Marx. Nowadays 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 Robertson QC wrote of
… one of its primary modern sources is found in the responses of
ordinary men and women, and of the non-governmental organizations
which many of them support, to the human rights abuses they see on the
television screen in their living rooms.
Freedom of speech, freedom of association and many other individual
rights allow people to gather, discuss, criticise and hold to account
their governments, from which the basis of a deliberative democracy is
formed. The more people are involved with, concerned by and capable of
changing how political power is exercised over their lives, the more
acceptable and legitimate the law becomes to the people. The most
familiar institutions of civil society include economic markets,
profit-oriented firms, families, trade unions, hospitals,
universities, schools, charities, debating clubs, non-governmental
organisations, neighbourhoods, churches, and religious
All legal systems deal with the same basic issues, but jurisdictions
categorise and identify its legal subjects in different ways. A common
distinction is that between "public law" (a term related closely to
the state, and including constitutional, administrative and criminal
law), and "private law" (which covers contract, tort and
property). In civil law systems, contract and tort fall under a
general law of obligations, while trusts law is dealt with under
statutory regimes or international conventions. International,
constitutional and administrative law, criminal law, contract, tort,
property law and trusts are regarded as the "traditional core
subjects", although there are many further disciplines.
Main articles: Public international law, Conflict of laws, and
European Union law
Providing a constitution for public international law, the United
Nations system was agreed during World War II.
The Italian lawyer Sir Alberico Gentili, the Father of international
International law can refer to three things: public international law,
private international law or conflict of laws and the law of
Public international law
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
Public international law
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
League of Nations to prevent
World War II), the International Labour Organisation, the World
Trade Organisation, or the International Monetary Fund. Public
international law has a special status as law because there is no
international police force, and courts (e.g. the International Court
Justice as the primary UN judicial organ) lack the capacity to
penalise disobedience. However, a few bodies, such as the WTO,
have effective systems of binding arbitration and dispute resolution
backed up by trade sanctions.
Conflict of laws (or "private international law" in civil law
countries) concerns which jurisdiction a legal dispute between private
parties should be heard in and which jurisdiction's law should be
applied. Today, businesses are increasingly capable of shifting
capital and labour supply chains across borders, as well as trading
with overseas businesses, making the question of which country has
jurisdiction even more pressing. Increasing numbers of businesses opt
for commercial arbitration under the New York Convention 1958.
European Union law
European Union law is the first and, so far, only example of an
internationally accepted legal system other than the UN and the World
Trade Organisation. Given the trend of increasing global economic
integration, many regional agreements—especially the Union of South
American Nations—are on track to follow the same model. In the EU,
sovereign nations have gathered their authority in a system of courts
and political institutions. 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
Justice said in the 1960s, 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 law and Administrative law
The French Declaration of the
Rights of Man and of the Citizen
Constitutional and administrative law govern the affairs of the state.
Constitutional law concerns both the relationships between the
executive, legislature and judiciary and the human rights or civil
liberties of individuals against the state. Most jurisdictions, like
the United States and France, have a single codified constitution with
a bill of rights. A few, like the United Kingdom, have no such
document. A "constitution" is simply those laws which constitute the
body politic, from statute, case law and convention. A case named
Entick v Carrington illustrates a constitutional principle
deriving from the common law. Mr Entick's house was searched and
ransacked by Sheriff Carrington. When Mr Entick complained in court,
Sheriff Carrington argued that a warrant from a Government minister,
the Earl of Halifax, was valid authority. However, there was no
written statutory provision or court authority. The leading judge,
Lord Camden, stated that,
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,
holds that the individual can do anything except that which is
forbidden by law, and the state may do nothing except that which is
authorised by law.
Administrative law is the chief method
for people to hold state bodies to account. People can sue an agency,
local council, public service, or government ministry for judicial
review of actions or decisions, to ensure that they comply with the
law, and that the government entity observed required procedure. The
first specialist administrative court was the Conseil d'État set up
in 1799, as Napoleon assumed power in France.
Main article: Criminal law
Criminal law, also known as penal law, pertains to crimes and
punishment. It thus regulates the definition of and penalties for
offences found to have a sufficiently deleterious social impact but,
in itself, makes no moral judgment on an offender nor imposes
restrictions on society that physically prevent people from committing
a crime in the first place. Investigating, apprehending,
charging, and trying suspected offenders is regulated by the law of
criminal procedure. The paradigm 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 (guilty act). Second, the accused must
have the requisite malicious intent to do a criminal act, or mens rea
(guilty mind). However, for so called "strict liability" crimes, an
actus reus is enough. Criminal systems of the civil law tradition
distinguish between intention in the broad sense (dolus directus and
dolus eventualis), and negligence.
Negligence does not carry criminal
responsibility unless a particular crime provides for its
A depiction of a 17th-century criminal trial, for witchcraft in Salem
Examples of crimes include murder, assault, fraud and theft. In
exceptional circumstances defences can apply to specific acts, such as
killing in self defence, or pleading insanity. Another example is in
the 19th-century English case of R v Dudley and Stephens, which tested
a defence of "necessity". The Mignonette, sailing from
Sydney, sank. Three crew members and Richard Parker, a 17-year-old
cabin boy, were stranded on a raft. They were starving and the cabin
boy was close to death. Driven to extreme hunger, the crew killed and
ate the cabin boy. The crew survived and were rescued, but put on
trial for murder. They argued it was necessary to kill the cabin boy
to preserve their own lives. Lord Coleridge, expressing immense
disapproval, ruled, "to preserve one's life is generally speaking a
duty, but it may be the plainest and the highest duty to sacrifice
it." The men were sentenced to hang, but public opinion was
overwhelmingly supportive of the crew's right to preserve their own
lives. In the end, the Crown commuted their sentences to six months in
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 are often used to
determine the guilt of defendants on points of fact: juries cannot
change legal rules. Some developed countries still condone capital
punishment for criminal activity, but the normal punishment for a
crime will be imprisonment, fines, state supervision (such as
probation), or community service. Modern criminal law has been
affected considerably by the social sciences, especially with respect
to sentencing, legal research, legislation, and rehabilitation.
On the international field, 111 countries are members of the
International Criminal Court, which was established to try people for
crimes against humanity.
Main article: Contract
The famous Carbolic Smoke Ball advertisement to cure influenza was
held to be a unilateral contract
Contract law concerns enforceable promises, and can be summed up in
the Latin phrase pacta sunt servanda (agreements must be kept).
In common law jurisdictions, three key elements to the creation of a
contract are necessary: offer and acceptance, consideration and the
intention to create legal relations. In Carlill v Carbolic Smoke Ball
Company a medical firm advertised that its new wonder drug, the
smokeball, would cure people's flu, and if it did not, the buyers
would get £100. Many people sued for their £100 when the drug did
not work. Fearing bankruptcy, Carbolic argued the advert was not to be
taken as a serious, legally binding offer. It was an invitation to
treat, mere puffery, a gimmick. But the
Court of Appeal held that to a
reasonable man Carbolic had made a serious offer, accentuated by their
reassuring statement, "£1000 is deposited". Equally, people had given
good consideration for the offer by going to the "distinct
inconvenience" of using a faulty product. "Read the advertisement how
you will, and twist it about as you will", said Lord
"here is a distinct promise expressed in language which is perfectly
"Consideration" indicates the fact that all parties to a contract have
exchanged something of value. Some common law systems, including
Australia, are moving away from the idea of consideration as a
requirement. The idea of estoppel or culpa in contrahendo, can be used
to create obligations during pre-contractual negotiations. In
civil law jurisdictions, consideration is not required for a contract
to be binding. In France, an ordinary contract is said to form
simply on the basis of a "meeting of the minds" or a "concurrence of
wills". Germany has a special approach to contracts, which ties into
property law. Their 'abstraction principle' (Abstraktionsprinzip)
means that the personal obligation of contract forms separately from
the title of property being conferred. When contracts are invalidated
for some reason (e.g. a car buyer is so drunk that he lacks legal
capacity to contract) the contractual obligation to pay can be
invalidated separately from the proprietary title of the car. Unjust
enrichment law, rather than contract law, is then used to restore
title to the rightful owner.
Main article: Tort
The "McLibel case" two were involved in the longest-running case in UK
history for publishing a pamphlet criticising
Torts, sometimes called delicts, are civil wrongs. To have acted
tortiously, one must have breached a duty to another person, or
infringed some pre-existing legal right. A simple example might be
accidentally hitting someone with a cricket ball. Under the law
of negligence, the most common form of tort, the injured party could
potentially claim compensation for their injuries from the party
responsible. The principles of negligence are illustrated by Donoghue
v Stevenson. A friend of Mrs Donoghue ordered an opaque bottle of
ginger beer (intended for the consumption of Mrs Donoghue) in a café
in Paisley. Having consumed half of it, Mrs 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
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'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: (1) Mr
Stevenson owed Mrs Donoghue a duty of care to provide safe drinks (2)
he breached his duty of care (3) the harm would not have occurred but
for his breach and (4) his act was the proximate cause of her
harm. Another example of tort might be a neighbour making
excessively loud noises with machinery on his property. Under a
nuisance claim the noise could be stopped. Torts can also involve
intentional acts, such as assault, battery or trespass. A better known
tort is defamation, which occurs, for example, when a newspaper makes
unsupportable allegations that damage a politician's reputation.
More infamous are economic torts, which form the basis of labour law
in some countries by making trade unions liable for strikes, when
statute does not provide immunity.
A painting of the South Sea Bubble, one of the world's first ever
speculations and crashes, led to strict regulation on share
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 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 mortgages, rental agreements, licences,
covenants, easements and the statutory systems for land registration.
Regulations on the use of personal property fall under intellectual
property, company law, trusts and commercial law. An example of a
basic case of most property law is
Armory v Delamirie
Armory v Delamirie . A
chimney sweep's boy found a jewel encrusted with precious stones. He
took it to a goldsmith to have it valued. The goldsmith's apprentice
looked at it, sneakily removed the stones, told the boy it was worth
three halfpence and that he would buy it. The boy said he would prefer
the jewel back, so the apprentice gave it to him, but without the
stones. The boy sued the goldsmith for his apprentice's attempt to
cheat him. Lord Chief
Justice Pratt ruled that even though the boy
could not be said to own the jewel, he should be considered the
rightful keeper ("finders keepers") until the original owner is found.
In fact the apprentice and the boy both had a right of possession in
the jewel (a technical concept, meaning evidence that something could
belong to someone), but the boy's possessory interest was considered
better, because it could be shown to be first in time. Possession may
be nine tenths of the law, but not all.
This case is used to support the view of property in common law
jurisdictions, that the person who can show the best claim to a piece
of property, against any contesting party, is the owner. By
contrast, the classic civil law approach to property, propounded by
Friedrich Carl von Savigny, is that it is a right good against the
world. Obligations, like contracts and torts, are conceptualised as
rights good between individuals. The idea of property raises many
further philosophical and political issues. Locke argued that our
"lives, liberties and estates" are our property because we own our
bodies and mix our labour with our surroundings.
Equity and trusts
Equity (law) and Trust law
Court of Chancery, London, early 19th century
Equity is a body of rules that developed in England separately from
the "common law". The common law was administered by judges and
Lord Chancellor on the other hand, as the King's
keeper of conscience, could overrule the judge-made law if he thought
it equitable to do so. This meant equity came to operate more
through principles than rigid rules. For instance, 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
Keech v Sandford  a child had
inherited the lease on a 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, 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.
Of course, Lord King LC was worried that trustees might exploit
opportunities to use trust property for themselves instead of looking
after it. Business speculators using trusts had just recently caused a
stock market crash. Strict duties for trustees made their way into
company law and were applied to directors and chief executive
officers. Another example of a trustee's duty might be to invest
property wisely or sell it. This is especially the case for
pension funds, the most important form of trust, where investors are
trustees for people's savings until retirement. But trusts can also be
set up for charitable purposes, famous examples being the British
Museum or the Rockefeller Foundation.
Law spreads far beyond the core subjects into virtually every area of
life. Three categories are presented for convenience, though the
subjects intertwine and overlap.
Law and society
A trade union protest by
UNISON while on strike
Labour law is the study of a tripartite industrial relationship
between worker, employer and trade union. This involves collective
bargaining regulation, and the right to strike. Individual employment
law refers to workplace rights, such as job security, health and
safety or a minimum wage.
Human rights, civil rights and human rights law are important fields
to guarantee everyone basic freedoms and entitlements. These are laid
down in codes such as the Universal Declaration of Human Rights, the
European Convention on Human
Rights (which founded the European Court
of Human Rights) and the U.S. Bill of Rights. The
Treaty of Lisbon
Charter of Fundamental
Rights of the European Union legally
binding in all member states except Poland and the United
Civil procedure and criminal procedure concern the rules that courts
must follow as a trial and appeals proceed. Both concern a citizen's
right to a fair trial or hearing.
Evidence law involves which materials are admissible in courts for a
case to be built.
Immigration law and nationality law concern the rights of foreigners
to live and work in a nation-state that is not their own and to
acquire or lose citizenship. Both also involve the right of asylum and
the problem of stateless individuals.
Social security law refers to the rights people have to social
insurance, such as jobseekers' allowances or housing benefits.
Family law covers marriage and divorce proceedings, the rights of
children and rights to property and money in the event of separation.
Transactional law refers to the practice of law concerning business
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 began with the Joint Stock Companies Act 1856, passed
in the United Kingdom, which provided investors with a simple
registration procedure to gain limited liability under the separate
legal personality of the corporation.
Commercial law covers complex contract and property law. The law of
agency, insurance law, bills of exchange, insolvency and bankruptcy
law and sales law are all important, and trace back to the medieval
Lex Mercatoria. The UK
Sale of Goods Act 1979
Sale of Goods Act 1979 and the US Uniform
Commercial Code are examples of codified common law commercial
Admiralty law and the
Law of the Sea 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
Admiralty law also encompasses specialised issues such as
salvage, maritime liens, and injuries to passengers.
Intellectual property law
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
Restitution deals with the recovery of someone else's gain, rather
than compensation for one's own loss.
Unjust enrichment When someone has been unjustly enriched (or there is
an "absence of basis" for a transaction) at another's expense, this
event generates the right to restitution to reverse that gain.
Space law is a relatively new field dealing with aspects of
international law regarding human activities in Earth orbit and outer
space. While at first addressing space relations of countries via
treaties, increasingly it is addressing areas such as space
commercialisation, property, liability, and other issues.
Law and regulation
New York Stock Exchange
New York Stock Exchange trading floor after the Wall Street Crash
of 1929, before tougher banking regulation was introduced
Tax law involves regulations that concern value added tax, corporate
tax, and income tax.
Banking law and financial regulation set minimum standards on the
amounts of capital banks must hold, and rules about best practice for
investment. This is to insure against the risk of economic crises,
such as the Wall Street Crash of 1929.
Regulation deals with the provision of public services and utilities.
Water law is one example. Especially since privatisation became
popular and took management of services away from public law, private
companies doing the jobs previously controlled by government have been
bound by varying degrees of social responsibility. Energy, gas,
telecomms and water are regulated industries in most OECD countries.
Competition law, known in the U.S. as antitrust law, is an evolving
field that traces as far back as Roman decrees against price fixing
and the English restraint of trade doctrine. Modern competition law
derives from the U.S. anti-cartel and anti-monopoly statutes (the
Sherman Act and Clayton Act) of the turn of the 20th century. It is
used to control businesses who attempt to use their economic influence
to distort market prices at the expense of consumer welfare.
Consumer law could include anything from regulations on unfair
contractual terms and clauses to directives on airline baggage
Environmental law is increasingly important, especially in light of
Kyoto Protocol and the potential danger of climate change.
Environmental protection also serves to penalise polluters within
domestic legal systems.
Library resources about
Resources in your library
Resources in other libraries
Legal research in the United States
Public interest law
Rule according to higher law
Translating "law" to other European languages
Law – book
^ Luban, Law's Blindfold, 23.
^ a b Robertson, Crimes against humanity, 90.
^ "What is sharia law?". brightknowledge.org. Archived from the
original on 19 October 2013.
^ "Criminal and Civil Law". www.cscja-acjcs.ca. Retrieved
^ Third New International Dictionary, Merriam-Webster, Inc.,
^ Dictionary of the
History of Ideas, Charles Scribner's Sons, Editor
Philip P. Weiner, 1973.
^ Lord Lloyd of Hampstead. Introduction to Jurisprudence. Third
Edition. Stevens & Sons. London. 1972. Second Impression. 1975. p.
^ Mc Coubrey, Hilaire and White, Nigel D. Textbook on Jurisprudence.
Second Edition. Blackstone Press Limited. 1996.
ISBN 1-85431-582-X. p. 2.
^ Williams, Glanville. International
Law and the Controversy
Concerning the Meaning of the Word "Law". Revised version published in
Laslett (Editor), Philosophy,
Society (1956) p. 134 et
seq. The original was published in (1945) 22 BYBIL 146.
^ Arnold, Thurman. The Symbols of Government. 1935. p. 36.
^ Lord Lloyd of Hampstead. Introduction to Jurisprudence. Third
Edition. Stevens & Sons. London. 1972. Second Impression. 1975.
^ Théodoridés. "law". Encyclopedia of the
Archaeology of Ancient
Law in ancient Egypt
^ Richardson, Hammurabi's Laws, 11
^ Kelly, A Short
History of Western Legal Theory, 5–6
^ J.P. Mallory, "Law", in Encyclopedia of Indo-European Culture, 346
^ Ober, The Nature of Athenian Democracy, 121
^ Kelly, A Short
History of Western Legal Theory, 39
^ Stein, Roman
Law in European History, 1
^ 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).
^ Sealey-Hooley, Commercial Law, 14
^ Mattei, Comparative
Law and Economics, 71
^ For discussion of the composition and dating of these sources, see
Olivelle, Manu's Code of Law, 18–25.
^ Glenn, Legal Traditions of the World, 276
^ Glenn, Legal Traditions of the World, 273
^ Glenn, Legal Traditions of the World, 287
^ Glenn, Legal Traditions of the World, 304
^ Glenn, Legal Traditions of the World, 305
^ Glenn, Legal Traditions of the World, 307
^ Glenn, Legal Traditions of the World, 309
^ Farah, Five Years of China WTO Membership, 263–304
^ Rousseau, The Social Contract,
Book II: Chapter 6 (Law)
^ a b Bix, John Austin
^ Fritz Berolzheimer, The World's Legal Philosophies, 115–116
^ Kant, Immanuel, Groundwork of the Metaphysics of Morals, 42 (par.
^ Green, Legal Positivism
^ Nietzsche, Zur Genealogie der Moral, Second Essay, 11
Friedrich Nietzsche and the
Philosophy of Law, 97–98
^ Linarelli, Nietzsche in Law's Cathedral, 23–26
^ Marmor, The Pure Theory of Law
^ Bielefeldt, Carl Schmitt's Critique of Liberalism, 25–26
^ Finn, Constitutions in Crisis, 170–171
^ Bayles, Hart's Legal Philosophy, 21
^ Dworkin, Law's Empire, 410.
^ a b Raz, The
Authority of Law, 3–36
^ Raz, The
Authority of Law, 37 etc.
^ Campbell, The Contribution of Legal Studies, 184
^ Dworkin, Law's Empire, 410
^ Holmes, Oliver Wendell. "The Path of
Law (1897) 10 Harvard Law
Review 457 at 461.
^ Aquinas, St Thomas. Summa Theologica. 1a2ae, 90.4. Translated by J G
Dawson. Ed d'Entreves. (Basil Blackwell). Latin: "nihil est aliud qau
edam rationis ordinatio ad bonum commune, ab eo qi curam communitatis
^ McCoubrey, Hilaire and White, Nigel D. Textbook on Jurisprudence.
Second Edition. Blackstone Press Limited. 1996.
ISBN 1-85431-582-X. p. 73.
^ According to Malloy (
Law and Economics, 114), Smith established "a
classical liberal philosophy that made individuals the key referential
sign while acknowledging that we live not alone but in community with
^ Jakoby, Economic Ideas and the Labour Market, 53
^ "The Becker-Posner Blog". Retrieved 20 May 2010.
^ Coase, The Nature of the Firm, 386–405
^ Coase, The Problem of Social Cost, 1–44
^ a b
Sturges v Bridgman
Sturges v Bridgman (1879) 11 Ch D 852
^ Coase, The Problem of Social Cost, IV, 7
^ Coase, The Problem of Social Cost, V, 9
^ Coase, The Problem of Social Cost, VIII, 23
^ a b Cotterrell,
Sociology of Law, Jary, Collins Dictionary of
^ Ehrlich, Fundamental Principles, Hertogh, Living Law, Rottleuthner,
La Sociologie du Droit en Allemagne, 109, Rottleuthner,
Rechtstheoritische Probleme der Sociologie des Rechts, 521
^ Cotterrell, Law, Culture and Society
Max Weber on
Law and Economy in Society, 336
^ Cotterrell, Emile Durkheim:
Law in a Moral Domain, Johnson, The
Blackwell Dictionary of Sociology, 156
Sociology of Law, 142
Sociology of Law, 81–82
^ 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)
^ Civil law jurisdictions recognise custom as "the other source of
law"; hence, scholars tend to divide the civil law into the broad
categories of "written law" (ius scriptum) or legislation, and
"unwritten law" (ius non scriptum) or custom. Yet they tend to dismiss
custom as being of slight importance compared to legislation
(Georgiadis, General Principles of Civil Law, 19; Washofsky, Taking
Precedent Seriously, 7).
^ Gordley-von Mehren, Comparative Study of Private Law, 18
^ Gordley-von Mehren, Comparative Study of Private Law, 21
^ Stein, Roman
Law in European History, 32
^ Stein, Roman
Law in European History, 35
^ Stein, Roman
Law in European History, 43
^ Hatzis, The Short-Lived Influence of the Napoleonic Civil Code in
^ Demirgüç-Kunt -Levine, Financial Structures and Economic Growth,
^ The World Factbook – Field Listing – Legal system, CIA
^ Magna Carta, Fordham University
^ Gordley-von Mehren, Comparative Study of Private Law, 4
^ Gordley-von Mehren, Comparative Study of Private Law, 3
^ Pollock (ed) Table
John Selden (1927) 43; "Equity is a
roguish thing. For law we have a measure... equity is according to the
conscience of him that is Chancellor, and as that is longer or
narrower, so is equity. 'Tis all one as if they should make the
standard for the measure a Chancellor's foot."
Gee v Pritchard (1818) 2 Swans. 402, 414
^ Blackstone, Commentaries on the Laws of England,
First – Chapter the First
^ Gordley-von Mehren, Comparative Study of Private Law, 17
^ Glenn, Legal Traditions of the World, 159
Law Reform in the Middle East, 43
^ Giannoulatos, Islam, 274–275
^ Sherif, Constitutions of Arab Countries, 157–158
^ Saudi Arabia Archived 30 August 2006 at the Wayback Machine., Jurist
^ Akhlagi, Iranian Commercial Law, 127
^ Hallaq, The Origins and Evolution of Islamic Law, 1
^ Montesquieu, The Spirit of Laws,
Book XI: Of the Laws Which
Establish Political Liberty, with Regard to the Constitution, Chapters
^ Thomas Hobbes, Leviathan, XVII
^ A Brief Overview of the Supreme Court, Supreme
Court of the United
House of Lords
House of Lords Judgments, House of Lords
^ Entscheidungen des Bundesverfassungsgerichts Archived 21 November
2006 at the Wayback Machine., Bundesverfassungsgericht
^ Jurisprudence, publications, documentation, Cour de cassation
^ Goldhaber, European
Court of Human Rights, 1–2
^ Patterson, Brown v. Board of Education
Law of the Constitution, 37–82
^ E.g., the court president is a political appointee (Jensen–Heller,
Introduction, 11–12). About the notion of "judicial independence" in
China, see Findlay,
Judiciary in the PRC, 282–284
^ a b Sherif, Constitutions of Arab Countries, 158
^ Rasekh, Islamism and Republicanism, 115–116
^ a b Riker, The Justification of Bicameralism, 101
^ About "cabinet accountability" in both presidential and
parliamentary systems, see Shugart–Haggard, Presidential Systems, 67
^ a b Haggard, Presidents, Parliaments and Policy, 71
^ Olson, The New Parliaments of Central and Eastern Europe, 7
^ See, e.g. Tuberville v Savage (1669), 1 Mod. Rep. 3, 86 Eng. Rep.
684, where a knight said in a threatening tone to a layman, "If it
were not assize time, I would not take such language from you."
Police Forces Archived 29 December 2006 at the Wayback
Machine., History.com Encyclopedia
^ Des Sergents de Ville et Gardiens de la Paix à la
Proximité, La Préfecture de Police
Politics as a Vocation
^ Weber, The Theory of Social and Economic Organisation, 154
^ In these cases sovereignty is eroded, and often warlords acquire
excessive powers (Fukuyama, State-Building, 166–167).
^ Bureaucracy, Online Etymology Dictionary
^ Albrow, Bureaucracy, 16
^ Mises, Bureaucracy, II, Bureaucratic Management
^ a b Kettl, Public Bureaucracies, 367
^ Weber, Economy and Society, I, 393
^ Kettl, Public Bureaucracies, 371
^ Hazard–Dondi, Legal Ethics, 22
^ Hazard–Dondi, Legal Ethics, 1
^ The Sunday Times v The United Kingdom  ECHR 1 at 49 Case no.
^ "British English: Esquire". Collins Dictionary. n.d. Retrieved 23
^ "American English: Esquire". Collins Dictionary. n.d. Retrieved 23
^ Ahamd, Lawyers: Islamic
Law Archived 1 October 2008 at the Wayback
^ Hazard–Dondi, Legal Ethics, 22–23
^ a b Fine, The Globalisation of Legal Education, 364
^ Warren, Civil Society, 3–4
^ Locke, Second Treatise, Chap. VII, Of Political or Civil_Society.
Chapter 7, section 87
^ Hegel, Elements of the
Philosophy of Right, 3, II, 182;
Karkatsoulis, The State in Transition, 277–278
^ (Pelczynski, The State and Civil Society, 1–13; Warren, Civil
^ Zaleski, Pawel (2008). "Tocqueville on Civilian Society. A Romantic
Vision of the Dichotomic Structure of Social Reality". Archiv für
Begriffsgeschichte. Felix Meiner Verlag. 50.
^ Robertson, Crimes Against Humanity, 98–99
^ 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. For further
information, see Jakobs, Pursuing Equal Opportunities, 5–6;
Kaldor–Anheier–Glasius, Global Civil Society, passim (PDF);
Karkatsoulis, The State in Transition, 282–283. Archived 17 August
2007 at the Wayback Machine.
^ Although many scholars argue that "the boundaries between public and
private law are becoming blurred", and that this distinction has
become mere "folklore" (Bergkamp, Liability and Environment, 1–2).
^ E.g. in England these seven subjects, with EU law substituted for
international law, make up a "qualifying law degree". For criticism,
see Peter Birks' poignant comments attached to a previous version of
the Notice to
^ Pagden, Anthony (1991). Vitoria: Political Writings (Cambridge Texts
History of Political Thought). UK: Cambridge University Press.
p. xvi. ISBN 0-521-36714-X.
History of the UN Archived 18 February 2010 at the Wayback Machine.,
Winston Churchill (The Hinge of Fate, 719) comments on
the League of Nations' failure: "It was wrong to say that the League
failed. It was rather the member states who had failed the League."
^ 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 (Robertson,
Crimes against Humanity, 90; Schermers-Blokker, International
Institutional Law, 900–901).
^ Petersmann, The GATT/WTO Dispute Settlement
Court Archived 23 July 2011 at the Wayback Machine., 32
^ Redfem, International Commercial Arbitration, 68–69
^ Schermers–Blokker, International Institutional Law, 943
^ See the fundamental C-26/62 Van Gend en Loos v Nederlandse
Administratie der Belastingen, and Flaminio Costa v E.N.E.L. decisions
of the European Court.
Entick v Carrington
Entick v Carrington (1765) 19 Howell's State Trials 1030;  95
^ "Entick v Carrington". 19 Howell’s State Trials 1029 (1765). US:
Constitution Society. Retrieved 13 November 2008.
^ Locke, The Second Treatise, Chapter 9, section 124
^ Tamanaha, On the Rule of Law, 47
^ Auby, Administrative
Law in France, 75
^ Cesare Beccaria's seminal treatise of 1763–1764 is titled On
Crimes and Punishments (Dei delitti e delle pene).
^ a b Brody, Acker and Logan, Criminal Law, 2; Wilson, Criminal Law, 2
^ Dennis J. Baker,
Glanville Williams Textbook of Criminal Law
(London: 2012), 2
^ See e.g. Brody, Acker and Logan, Criminal Law, 205 about Robinson v.
California, 370 U.S. 660 (1962).
^ See e.g. Feinman,
Law 111, 260–261 about Powell v. Texas, 392 U.S.
^ Dörmann, Doswald-Beck and Kolb, Elements of War Crimes, 491
^ Kaiser, Leistungsstörungen, 333
R v Dudley and Stephens
R v Dudley and Stephens  14 QBD 273 DC Archived 28
February 2005 at the Wayback Machine., see Simpson, Cannibalism and
the Common Law, 212–217, 229–237
^ Pelser, Criminal Legislation, 198
^ The States Parties to the Rome
Statute Archived 23 June 2011 at the
Wayback Machine., International Criminal Court
^ Wehberg, Pacta Sunt Servanda, 775
Carlill v Carbolic Smoke Ball Company
Carlill v Carbolic Smoke Ball Company Archived 5 December 2004
at the Wayback Machine.  1 QB 256, and the element of
consideration, see Beale and Tallon,
Contract Law, 142–143
^ Austotel v Franklins (1989) 16 NSWLR 582
^ e.g. in Germany, § 311 Abs. II BGB
^ "§ 105 BGB Nichtigkeit der Willenserklärung".
^ Smith, The Structure of Unjust Enrichment Law, 1037
^ Bolton v Stone  AC 850
^ a b
Donoghue v Stevenson
Donoghue v Stevenson ( A.C. 532, 1932 S.C. (H.L.) 31,
 All ER Rep 1). See the original text of the case in UK Law
Donoghue v Stevenson
Donoghue v Stevenson  AC 532, 580
^ e.g. concerning a British politician and the Iraq War, George
Galloway v Telegraph Group Ltd  EWHC 2786
^ Taff Vale Railway Co v Amalgamated
Society of Railway Servants
 AC 426
^ In the UK, Trade Union and Labour Relations (Consolidation) Act
1992; c.f. in the U.S., National Labor Relations Act
^ Harris, The Bubble Act, 610–627
Hunter v Canary Wharf Ltd
Hunter v Canary Wharf Ltd  2 All ER 426
Armory v Delamirie
Armory v Delamirie (1722) 93 ER 664, 1 Strange 505
^ Matthews, The Man of Property, 251–274
^ Savigny, Das Recht des Besitzes, 25
^ Locke, Second Treatise on Civil Government, Chap. IX. Of the Ends of
Society and Government. Chapter 9, section 123.
^ McGhee, Snell's Equity, 7
^ c.f. Bristol and West Building
Society v Mothew  Ch 1
Keech v Sandford
Keech v Sandford (1726) Sel Cas Ch 61
Nestlé v National Westminster Bank plc
Nestlé v National Westminster Bank plc  1 WLR 1260
^ A Guide to the
Treaty of Lisbon
Treaty of Lisbon Archived 10 September 2008 at the
Wayback Machine., The
^ Berle, Modern Corporation and Private Property
^ WIPO, Intellectual Property, 3
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