Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,[1] with its precise definition a matter of longstanding debate.[2][3][4] It has been variously described as a science[5][6] and as the art of justice.[7][8][9] State-enforced laws can be made by a group legislature or by a single legislator, resulting in statutes; by the executive through decrees and regulations; or established by judges through precedent, usually in common law jurisdictions. Private individuals may create legally binding contracts, including arbitration agreements that adopt alternative ways of resolving disputes to standard court litigation. The creation 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 also serves as a mediator of relations between people.
Legal systems vary between jurisdictions, with their differences analysed in comparative law. In civil law jurisdictions, a legislature or other central body codifies and consolidates the law. In common law systems, judges may make binding case law through precedent,[10] although on occasion this may be overturned by a higher court or the legislature.[11] Historically, religious law has influenced secular matters and is, as of the 21st century, still in use in some religious communities.[12][13][14]Sharia law based on Islamic principles is used as the primary legal system in several countries, including Iran and Saudi Arabia.[15][16]
The word law, attested in Old English as lagu, comes from the Old Norse word lǫg. The singular form lag meant 'something laid or fixed' while its plural meant 'law'.[28]
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.
The philosophy of law is commonly known as jurisprudence. Normative jurisprudence asks "what should law be?", while analytic jurisprudence asks "what is law?"
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.[30] McCoubrey and White said that the question "what is law?" has no simple answer.[31]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.[32]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.[33] 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").[34]
One definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour.[1] In The Concept of Law,H. L. A. Hart argued that law is a "system of rules";[35]John Austin said law was "the command of a sovereign, backed by the threat of a sanction";[36]Ronald Dworkin describes law as an "interpretive concept" to achieve justice in his text titled Law's Empire;[37] and Joseph Raz argues law is an "authority" to mediate people's interests.[38]Oliver Wendell Holmes defined law as "the prophecies of what the courts will do in fact, and nothing more pretentious."[39] In his Treatise on Law,Thomas 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.[40] This definition has both positivist and naturalist elements.[41]
Bentham's utilitarian theories remained dominant in law until the 20th century.
Definitions of law often raise the question of the extent to which law incorporates morality.[42]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".[36]Natural lawyers, on the other hand, 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 of Western culture through the writings of Thomas Aquinas, notably his Treatise on Law.
Hugo Grotius, the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason.[43]Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".[44]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".[45] Kant was also criticised by Friedrich Nietzsche, who rejected the principle of equality, and believed that law emanates from the will to power, and cannot be labeled as "moral" or "immoral".[46][47][48]
In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law.[49] 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' (German: 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.[50] Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass all of the political experience.[51]
Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fiction in The Concept of Law.[52] 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"[37] that requires judges to find the best fitting and most just solution to a legal dispute, given their Anglo-American 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.[38] 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 is best left to sociology, rather than jurisprudence.[53]
King 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, was based on the concept of Ma'at and characterised by tradition, rhetorical speech, social equality and impartiality.[54][55][56] By the 22nd centuryBC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements ("if … then ..."). Around 1760BC, 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, and French.[57]
The Old Testament dates back to 1280BC 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 enslaved people. However, Athens had no legal science or single word for "law",[58] relying instead on the three-way distinction between divine law (thémis), human decree (nomos) and custom (díkē).[59] Yet Ancient Greek law contained major constitutional innovations in the development of democracy.[60]
Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists and were highly sophisticated.[61][62] 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.[a] Although codes were replaced by custom and case law during the Early Middle Ages, Roman law was rediscovered around the 11th century when medieval legal scholars began to research Roman codes and adapt their concepts to the canon law, giving birth to the jus commune. 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.[63] As nationalism grew in the 18th and 19th centuries, the Law Merchant 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.[64] EU law is codified in treaties, but develops through de facto precedent laid down by the European Court of Justice.[65]
The 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 100AD (although it contains older material), and the Manusmriti (c.100–300AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance.[66] Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.[67] During the Muslim conquests in the Indian subcontinent, sharia was established by the Muslim sultanates and empires, most notably Mughal Empire's Fatawa-e-Alamgiri, compiled by emperor Aurangzeb and various scholars of Islam.[68][69] In India, the Hindu legal tradition, along with Islamic law, were both supplanted by common law when India became part of the British Empire.[70] Malaysia, Brunei, Singapore and Hong Kong also adopted the common law system. The Eastern Asia legal tradition reflects a unique blend of secular and religious influences.[71] Japan was the first country to begin modernising its legal system along Western lines, by importing parts of the French, but mostly the German Civil Code.[72] 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.[73] 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 SovietSocialist law, which essentially prioritises administrative law at the expense of private law rights.[74] 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.[75] Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization.[76]
In general, legal systems can be split between civil law and common law systems.[77] Modern scholars argue that the significance of this distinction has progressively declined. The numerous legal transplants, typical of modern law, result in the sharing of many features traditionally considered typical of either common law or civil law.[64][78] The third type of legal system 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.
Colour-coded map of the legal systems around the world, showing civil, common law, religious, customary and mixed legal systems. Common law systems are shaded pink, and civil law systems are shaded blue/turquoise.
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.[b] Codifications date back millennia, with one early example being the BabylonianCodex Hammurabi. Modern civil law systems essentially derive from legal codes issued by Byzantine Emperor Justinian I in the 6th century, which were rediscovered by 11th century Italy.[80] Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class.[81] 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.[82] 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 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.[83] 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."[84] 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, which scholars at the University of Bologna used to interpret their own laws.[85] 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 heavily influenced not only the law systems of the countries in continental Europe but also the Japanese and Korean legal traditions.[86][87] Today, countries that have civil law systems range from Russia and Turkey to most of Central and Latin America.[88]
In common law legal systems, decisions by courts are explicitly acknowledged as "law" on equal footing with legislative statutes and executive regulations. The "doctrine of precedent", or stare decisis (Latin for "to stand by decisions") means that decisions by higher courts bind lower courts 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 adjudicator 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 during 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 who had the authority to create an institutionalised and unified system of law common to the country. The next major step in the evolution of the common law came when King John was forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or Magna Carta of 1215 also required that the King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country.[89] A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five.[90] This powerful and tight-knit judiciary gave rise to a systematised process of developing common law.[91]
As time went on, many felt that the common law was overly systematised and inflexible, and increasing numbers of citizens petitioned the King to override the common law. On the King's behalf, the Lord Chancellor started giving judgments 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 Court of Chancery. At first, equity was often criticised as erratic.[92] Over time, courts of equity developed solid principles, especially under Lord Eldon.[93] 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.[94] But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.[95]
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". 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.[96] Nonetheless, most religious jurisdictions rely on further human elaboration to provide for thorough and detailed legal systems. For instance, the Quran has some law, and it acts as a source of further law through interpretation, Qiyas (reasoning by analogy), Ijma (consensus) and precedent.[97] This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively. Another example is the Torah or Old Testament, in the Pentateuch or 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 that summarizes some of the Talmud's interpretations.
Roman Catholic canon law is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code, principles of legal interpretation, and coercive penalties, though it lacks civilly-binding force in most secular jurisdictions.[105]
Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire's Mecelle code in the 19th century being a first attempt at codifying elements of Sharia law. Since the mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions.[106][107] 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.[108]Saudi Arabia recognises the Quran as its constitution, and is governed on the basis of Islamic law.[109] Iran has also witnessed a reiteration of Islamic law into its legal system after 1979.[110] During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics.[111]
There are distinguished methods of legal reasoning (applying the law) and methods of interpreting (construing) the law. The former are legal syllogism, which holds sway in civil law legal systems, analogy, which is present in common law legal systems, especially in the US, and argumentative theories that occur in both systems. The latter are different rules (directives) of legal interpretation such as directives of linguistic interpretation, teleological interpretation or systemic interpretation as well as more specific rules, for instance, golden rule or mischief rule. There are also many other arguments and cannons of interpretation which altogether make statutory interpretation possible.
Law professor and former United States Attorney GeneralEdward H. Levi noted that the "basic pattern of legal reasoning is reasoning by example"—that is, reasoning by comparing outcomes in cases resolving similar legal questions.[115] In a U.S. Supreme Court case regarding procedural efforts taken by a debt collection company to avoid errors, Justice Sotomayor cautioned that "legal reasoning is not a mechanical or strictly linear process".[116]
Jurimetrics is the formal application of quantitative methods, especially probability and statistics, to legal questions. The use of statistical methods in court cases and law review articles has grown massively in importance in the last few decades.[117][118]
Legal institutions
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.
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.
A judiciary is a number of judges mediating disputes to determine outcome. Most countries have systems of appeal courts, with an apex court as the ultimate judicial authority. In the United States, this authority is the Supreme Court;[122] in Australia, the High Court; in India, the Supreme Court of India; in the UK, the Supreme Court;[123] in Germany, the Bundesverfassungsgericht; and in France, the Cour de Cassation.[124][125] For most European countries the European Court of Justice in Luxembourg can overrule national law, when EU law is relevant. The European Court of Human Rights in Strasbourg allows citizens of the Council of Europe member states to bring cases relating to human rights issues before it.[126]
A judiciary is theoretically bound by the constitution, just as all other government bodies are. In most countries judges may only interpret the constitution and all other laws. But in common law countries, where matters are not constitutional, the judiciary may also create law under the doctrine of precedent. The UK, Finland and New Zealand assert the ideal of parliamentary sovereignty, whereby the unelected judiciary may not overturn law passed by a democratic legislature.[128]
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.[d] In Muslim countries, courts often examine whether state laws adhere to the Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws,[129] and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam".[129][130]
Prominent examples of legislatures are the Houses of Parliament in London, the Congress in Washington, D.C., the Bundestag in Berlin, the Duma in Moscow, the Parlamento Italiano in Rome and the Assemblée nationale in Paris. By the principle of representative government people vote for politicians to carry out their wishes. Although countries like Israel, Greece, Sweden and China are unicameral, most countries are bicameral, meaning they have two separately appointed legislative houses.[131]
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.[131]
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).[e]
The G20 meetings are composed of representatives of each country's executive branch.
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 between elections.[132]
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.
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, used show trials and public executions to instill communities with fear to maintain control.[134] The first modern police were probably those in 17th-century Paris, in the court of Louis XIV,[135] although the Paris Prefecture of Police claim they were the world's first uniformed policemen.[136]
Max Weber famously argued that the state is that which controls the monopoly on the legitimate use of force.[137][138] 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.[f]
The etymology of bureaucracy derives from the French word for office (bureau) and the Ancient Greek for word power (kratos).[139][bettersourceneeded] 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.[140]
Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to private enterprise motivated by profit.[141] In fact private companies, especially large ones, also have bureaucracies.[142] 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.[142]
Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support.[143] 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.[144]
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.[145] 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.[146]
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.[149] 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.[150]
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.[151]
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.[151]
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.[156][157] In post-modern theory, civil society is necessarily a source of law, by being the basis from which people form opinions and lobby for what they believe law should be. As Australian barrister and author Geoffrey Robertson QC wrote of international law, "one of its primary modern sources is found in the responses of ordinary men and women, and of the non-governmental organizations which many of them support, to the human rights abuses they see on the television screen in their living rooms."[158]
Freedom of speech, freedom of association and many other individual rights allow people to gather, discuss, criticise and hold to account their governments, from which the basis of a deliberative democracy is formed. The more people are involved with, concerned by and capable of changing how political power is exercised over their lives, the more acceptable and legitimate the law becomes to the people. The most familiar institutions of civil society include economic markets, profit-oriented firms, families, trade unions, hospitals, universities, schools, charities, debating clubs, non-governmental organisations, neighbourhoods, churches, and religious associations. There is no clear legal definition of the civil society, and of the institutions it includes. Most of the institutions and bodies who try to give a list of institutions (such as the European Economic and Social Committee) exclude the political parties.[159][160][161]
All legal systems deal with the same basic issues, but jurisdictions categorise and identify their legal topics in different ways. A common distinction is that between "public law" (a term related closely to the state, and including constitutional, administrative and criminal law), and "private law" (which covers contract, tort and property).[g] 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",[h] although there are many further disciplines.
International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organisations.
Public international law concerns relationships between sovereign nations. The sources for public international law development are custom, practice and treaties between sovereign nations, such as the Geneva Conventions. Public international law can be formed by international organisations, such as the United Nations (which was established after the failure of the League of Nations to prevent World War II),[i] the International Labour Organisation, the World Trade Organisation (WTO), or the International Monetary Fund. Public international law has a special status as law because there is no international police force, and courts (e.g. the International Court of Justice as the primary UN judicial organ) lack the capacity to penalise disobedience. The prevailing manner of enforcing international law is still essentially "self help"; that is the reaction by states to alleged breaches of international obligations by other states.[163][1][164] However, a few bodies, such as the WTO, have effective systems of binding arbitration and dispute resolution backed up by trade sanctions.[165]
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.[166]
European Union law is the first and so far the only example of a supranational law, i.e. an internationally accepted legal system, other than the United Nations and the World Trade Organization. Given the trend of increasing global economic integration, many regional agreements—especially the African Union—seek to follow a similar model.[167][168] In the EU, sovereign nations have gathered their authority in a system of courts and the European Parliament. These institutions are allowed the ability to enforce legal norms both against or for member states and citizens in a manner which is not possible through public international law.[169] As the European Court of Justice noted in its 1963 Van Gend en Loos decision, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states.[170][171][172]
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.
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.[173][174] Administrative law is the chief method for people to hold state bodies to account. People (wheresoever allowed) may potentially have prerogative to legally challenge (or sue) an agency, local council, public service, or government ministry for judicial review of the offending edict (law, ordinance, policy order). Such challenge vets the ability of actionable authority under 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.[175]
Criminal law, also known as penal law, pertains to crimes and punishment.[176] 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.[177][178] Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure.[179] 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).[180] 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.[181] 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.[182][183]
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".[184]
Criminal law offences are viewed as offences against not just individual victims, but the community as well.[177][178] 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.[185] On the international field, 111 countries are members of the International Criminal Court, which was established to try people for crimes against humanity.[186]
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.[188]
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.[189] Compared to common law jurisdictions, civil law systems incorporate more mandatory terms into contracts, allow greater latitude for courts to interpret and revise contract terms and impose a stronger duty of good faith, but are also more likely to enforce penalty clauses and specific performance of contracts.[189] They also do not require consideration for a contract to be binding.[190] 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)[191] 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.[192]
Certain civil wrongs are grouped together as torts under common law systems and delicts under civil law systems.[193] 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 ball.[194] 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.[j] A friend of Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Donoghue) in a café in 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'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.[195]
This became the basis for the four principles of negligence, namely that:
Stevenson owed Donoghue a duty of care to provide safe drinks;
Another example of tort might be a neighbour making excessively loud noises with machinery on his property.[196] 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.[197] More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes,[198] when statute does not provide immunity.[k]
Property law governs ownership and possession. Real property, sometimes called 'real estate', refers to ownership of land and things attached to it.[200]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 [1722].[201] 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.[202] 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.[203] 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.[204]
Equity is a body of rules that developed in England separately from the "common law". The common law was administered by judges and barristers. The Lord Chancellor on the other hand, as the King's keeper of conscience, could overrule the judge-made law if he thought it equitable to do so.[205] 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.[206] Another example of a trustee's duty might be to invest property wisely or sell it.[207] 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.
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.
Admiralty law and the sea law lay a basic framework for free trade and commerce across the world's oceans and seas, where outside of a country's zone of control. Shipping companies operate through ordinary principles of commercial law, generalised for a global market. Admiralty law also encompasses specialised issues such as salvage, maritime liens, and injuries to passengers.
Intellectual property law aims at safeguarding creators and other producers of intellectual goods and services. These are legal rights (copyrights, trademarks, patents, and related rights) which result from intellectual activity in the industrial, literary and artistic fields.[210]
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.
Banking law and financial regulation set minimum standards on the amounts of capital banks must hold, and rules about best practice for investment. This is to insure against the risk of economic crises, such as the Wall Street Crash of 1929.
Regulation deals with the provision of public services and utilities. Water law is one example. Especially since privatisation became popular and took management of services away from public law, private companies doing the jobs previously controlled by government have been bound by varying degrees of social responsibility. Energy, gas, telecomms and water are regulated industries in most OECD countries.
Competition law, known in the United States as antitrust law, is an evolving field that traces as far back as Roman decrees against price fixing and the English restraint of trade doctrine. Modern competition law derives from the U.S. anti-cartel and anti-monopoly statutes (the Sherman Act and Clayton Act) of the turn of the 20th century. It is used to control businesses who attempt to use their economic influence to distort market prices at the expense of consumer welfare.
Consumer law could include anything from regulations on unfair contractual terms and clauses to directives on airline baggage insurance.
Environmental law is increasingly important, especially in light of the Kyoto Protocol and the potential danger of climate change. Environmental protection also serves to penalise polluters within domestic legal systems.
Aviation law deals with all regulations and technical standards applicable to the safe operation of aircraft, and is an essential part both of pilots' training and pilot's operations. It is framed by national civil aviation acts (or laws), themselves mostly aligned with the recommendations or mandatory standards of the International Civil Aviation Organisation or ICAO.
In the 18th century, Adam Smith presented a philosophical foundation for explaining the relationship between law and economics.[l] The discipline arose partly out of a critique of trade unions and U.S. antitrust law. The most influential proponents, such as Richard Posner and Oliver Williamson and the so-called Chicago School of economists and lawyers including Milton Friedman and Gary Becker, are generally advocates of deregulation and privatisation, and are hostile to state regulation or what they see as restrictions on the operation of free markets.[212]
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.[213]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.[214] 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.[196] 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.[215] 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.[216] 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.[217]
The sociology of law examines the interaction of law with society and overlaps with jurisprudence, philosophy of law, social theory and more specialised subjects such as criminology.[218][219] It is a transdisciplinary and multidisciplinary study focused on the theorisation and empirical study of legal practices and experiences as social phenomena. The institutions of social construction, social norms, dispute processing and legal culture are key areas for inquiry in this knowledge field. 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 lawyers and courts.[220] Contemporary research in the sociology of law is concerned with the way that law develops outside discrete state jurisdictions, being produced through social interaction in social arenas, and acquiring a diversity of sources of authority in national and transnational communal networks.[221]
Max Weber, who began his career as a lawyer, and is regarded as one of the founders of sociology and sociology of law
Around 1900, Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to personal authority but to the authority of abstract norms.[222] 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.[218][219] Another 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.[223][224] 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.[225][226]
↑ 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).
↑ 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).
↑ «In one of his elaborate orations in the United States Senate Mr. Charles Sumner spoke of "the generous presumption of the common law in favor of the innocence of an accused person;" yet it must be admitted that such a presumption cannot be found in Anglo-Saxon law, where sometimes the presumption seems to have been the other way. And in a very recent case in the Supreme Court of the United States, the case of Coffin, 156 U. S. 432, it is pointed out that this presumption was fully established in the Roman law, and was preserved in the canon law.»[104]
↑ 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
↑ About "cabinet accountability" in both presidential and parliamentary systems, see Shugart–Haggard, Presidential Systems, 67 etc.
↑ In these cases sovereignty is eroded, and often warlords acquire excessive powers (Fukuyama, State-Building, 166–167).
↑ 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 Law SchoolsArchived 20 June 2009 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."[162]
↑ According to Malloy, Smith established "a classical liberal philosophy that made individuals the key referential sign while acknowledging that we live not alone but in community with others".(Law and Economics, 114)
Related Research Articles
Common law is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. The defining characteristic of common law is that it arises as precedent. Common law courts look to the past decisions of courts to synthesize the legal principles of past cases. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems. If a court finds that a similar dispute to the present one has been resolved in the past, the court is generally bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The opinion from a common law judge agglomerates with past decisions as precedent to bind future judges and litigants, unless overturned by subsequent developments in the statutory law by Legislature or in the case law by Appeal Courts.
Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves the study of the different legal "systems" in existence in the world, including the common law, the civil law, socialist law, Canon law, Jewish Law, Islamic law, Hindu law, and Chinese law. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of internationalism, economic globalization, and democratization.
Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.
Socialist law or Soviet law are terms used in comparative legal studies for the general type of legal system which has been used in socialist and formerly socialist states. It is based on the civil law system, with major modifications and additions from Marxist–Leninist ideology. There is controversy as to whether socialist law ever constituted a separate legal system or not. If so, prior to the end of the Cold War, socialist law would be ranked among the major legal systems of the world.
A tort is a civil wrong, other than breach of contract, 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 by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.
Chinese law is one of the oldest legal traditions in the world. The core of modern Chinese law is based on Germanic-style civil law, socialist law, and traditional Chinese approaches. For most of the history of China, its legal system has been based on the Confucian philosophy of social control through moral education, as well as the Legalist emphasis on codified law and criminal sanction. Following the Xinhai Revolution, the Republic of China adopted a largely Western-style legal code in the civil law tradition. The establishment of the People's Republic of China in 1949 brought with it a more Soviet-influenced system of socialist law. However, earlier traditions from Chinese history have retained their influence.
The Napoleonic Code, officially the Civil Code of the French, is the French civil code established during the French Consulate in 1804 and still in force in France, although heavily and frequently amended since its inception. Although Napoleon himself was not directly involved in the drafting of the Code, as it was drafted by a commission of four eminent jurists, he chaired many of the commission's plenary sessions, and his support was crucial to its passage into law.
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Legal history or the history of law is the study of how law has evolved and why it has changed. Legal history is closely connected to the development of civilisations and operates in the wider context of social history. Certain jurists and historians of legal process have seen legal history as the recording of the evolution of laws and the technical explanation of how these laws have evolved with the view of better understanding the origins of various legal concepts; some consider legal history a branch of intellectual history. Twentieth-century historians viewed legal history in a more contextualised manner – more in line with the thinking of social historians. They have looked at legal institutions as complex systems of rules, players and symbols and have seen these elements interact with society to change, adapt, resist or promote certain aspects of civil society. Such legal historians have tended to analyse case histories from the parameters of social-science inquiry, using statistical methods, analysing class distinctions among litigants, petitioners and other players in various legal processes. By analyzing case outcomes, transaction costs, and numbers of settled cases, they have begun an analysis of legal institutions, practices, procedures and briefs that gives a more complex picture of law and society than the study of jurisprudence, case law and civil codes can achieve.
The legal system of Canada is pluralist: its foundations lie in the English common law system, the French civil law system, and Indigenous law systems developed by the various Indigenous Nations.
The law of Japan refers to the legal system in Japan, which is primarily based on legal codes and statutes, with precedents also playing an important role. Japan has a civil law legal system with six legal codes, which were greatly influenced by Germany, to a lesser extent by France, and also adapted to Japanese circumstances. The Japanese Constitution enacted after World War II is the supreme law in Japan. An independent judiciary has the power to review laws and government acts for constitutionality.
The Law of the Soviet Union was the law as it developed in the Soviet Union (USSR) following the October Revolution of 1917. Modified versions of the Soviet legal system operated in many Communist states following the Second World War—including Mongolia, the People's Republic of China, the Warsaw Pact countries of eastern Europe, Cuba and Vietnam.
The legal system of India consists of civil law, common law, customary law, religious law and corporate law within the legal framework inherited from the colonial era and various legislation first introduced by the British are still in effect in modified forms today. Since the drafting of the Indian Constitution, Indian laws also adhere to the United Nations guidelines on human rights law and the environmental law. Personal law is fairly complex, with each religion adhering to its own specific laws. In most states, registering of marriages and divorces is not compulsory. Separate laws govern Hindus including Sikhs, Jains and Buddhist, Muslims, Christians, and followers of other religions. The exception to this rule is in the state of Goa, where a uniform civil code is in place, in which all religions have a common law regarding marriages, divorces, and adoption. On February 7, 2024, the Indian state of Uttarakhand also incorporated a uniform civil code. In the first major reformist judgment for the 2010s, the Supreme Court of India banned the Islamic practice of "Triple Talaq". The landmark Supreme Court of India judgment was welcomed by women's rights activists across India.
Civil law is a legal system originating in Italy and France that has been adopted in large parts of the world. Modern civil law stems mainly from the Napoleonic Code of the early 19th century, and it is a continuation of ancient Roman law. Its core principles are codified into a referable system, which serves as the primary source of law.
The Law of the People's Republic of China, officially referred to as the "socialist rule of law with Chinese characteristics," is the legal regime of China, with the separate legal traditions and systems of mainland China, Hong Kong, and Macau.
French law has a dual jurisdictional system comprising private law, also known as judicial law, and public law.
The law of Germany, that being the modern German legal system, is a system of civil law which is founded on the principles laid out by the Basic Law for the Federal Republic of Germany, though many of the most important laws, for example most regulations of the civil code were developed prior to the 1949 constitution. It is composed of public law, which regulates the relations between a citizen/person and the state or two bodies of the state, and the private law, (Privatrecht) which regulates the relations between two people or companies. It has been subject to a wide array of influences from Roman law, such as the Justinian Code the Corpus Juris Civilis, and to a lesser extent the Napoleonic Code.
The law of Libya has historically been influenced by Ottoman, French, Italian, and Egyptian sources. Under the Great Socialist People's Libyan Arab Jamahiriya, Libya has moved towards a legal system based on sharia, but with various deviations from it.
Sharia means Islamic law based on Islamic concepts based from Quran and Hadith. Since the early Islamic states of the eighth and ninth centuries, Sharia always existed alongside other normative systems.
Civil law is a major "branch of the law", for example in common law legal systems such as those in England and Wales and in the United States, where it stands in contrast to criminal law. The law relating to civil wrongs and quasi-contracts is part of the civil law, as is law of property. Civil law may, like criminal law, be divided into substantive law and procedural law. The rights and duties of persons amongst themselves is the primary concern of civil law. The common law is today as fertile a source for theoretical inquiry as it has ever been. Around the English-speaking world, many scholars of law, philosophy, politics, and history study the theoretical foundations and applications of the common law.
↑ Núñez Vaquero, Álvaro (10 June 2013). "Five Models of Legal Science". Revus. Journal for Constitutional Theory and Philosophy of Law / Revija za ustavno teorijo in filozofijo prava (19): 53–81. doi:10.4000/revus.2449. ISSN1581-7652. Archived from the original on 31 December 2019. Retrieved 31 December 2019.
↑ Mason, Anthony (1996). "The Judge as Law-maker"(PDF). James Cook University Mayo Lecture. Archived(PDF) from the original on 31 December 2019. Retrieved 31 December 2019.
↑ Berman, Harold J. (1983). "Religious Foundations of Law in the West: An Historical Perspective". Journal of Law and Religion. 1 (1). Cambridge University Press: 3–43. doi:10.2307/1051071. JSTOR1051071. S2CID146933872.
↑ Fox, Jonathan; Sandler, Shmuel (1 April 2005). "Separation of Religion and State in the Twenty-First Century: Comparing the Middle East and Western Democracies". Comparative Politics. 37 (3): 317. doi:10.2307/20072892. JSTOR20072892.
↑ Otto, Jan Michiel, ed. (2010). Sharia incorporated: a comparative overview of the legal systems of twelve Muslim countries in past and present. Leiden University Press. ISBN9789087280574.
↑ Bor, Fredric L. (1974). "The nexus between philosophy and law". Journal of Legal Education. 26 (4): 539–543. ISSN0022-2208. JSTOR42896964.
↑ Rubin, Paul H. "Law and Economics". The Library of Economics and Liberty. Liberty Fund, Inc. Archived from the original on 2 July 2019. Retrieved 31 December 2019.
↑ Banakar, Reza (2003). Merging law and sociology: beyond the dichotomies in socio-legal research. Berlin/Wisconsin: Galda and Wilch Publishing. ISBN1-931255-13-X.
↑ Williams, Glanville. International Law and the Controversy Concerning the Meaning of the Word "Law". Revised version published in Laslett (Editor), Philosophy, Politics and Society (1956) p. 134 et seq. The original was published in (1945) 22 BYBIL 146.
↑ 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 habet, promulgata".
↑ McCoubrey, Hilaire and White, Nigel D. Textbook on Jurisprudence. Second Edition. Blackstone Press Limited. 1996. ISBN1-85431-582-X. p. 73.
↑ Taylor, T. W. (January 1896). "The Conception of Morality in Jurisprudence". The Philosophical Review. 5 (1): 36–50. doi:10.2307/2176104. JSTOR2176104.
↑ Marmor, Andrei (1934). "The Pure Theory of Law". Stanford Encyclopedia of Philosophy. Archived from the original on 9 June 2007. Retrieved 9 February 2007.
↑ Bielefeldt, Carl Schmitt's Critique of Liberalism, 25–26
↑ Clarke, M. A.; Hooley, R. J. A.; Munday, R. J. C.; Sealy, L. S.; Tettenborn, A. M.; Turner, P. G. (2017). Commercial Law. Oxford University Press. p.14. ISBN9780199692088. Archived from the original on 15 April 2021. Retrieved 10 December 2020.
↑ McAuliffe, Karen (21 February 2013). "Precedent at the Court of Justice of the European Union: The Linguistic Aspect". In Michael Freeman; Fiona Smith (eds.). Law and Language: Current Legal Issues, Volume 15. Oxford University Press. ISBN9780199673667. Archived from the original on 1 January 2020. Retrieved 1 January 2020.
↑ For discussion of the composition and dating of these sources, see Olivelle, Manu's Code of Law, 18–25.
↑ Pollock (ed) Table Talk of 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."
↑ Ferrari, Silvio (2012). "Chapter 4: Canon Law as a Religious Legal System". In Huxley, Andrew (ed.). Religion, Law and Tradition: Comparative Studies in Religious Law. Routledge. p.51. ISBN978-1-136-13250-6. Divine law... is eternal and cannot be changed by any human authority.
↑ Boudinhon, Auguste (1910). "Canon Law". The Catholic Encyclopedia. Vol.9. New York: Robert Appleton Company. Archived from the original on 31 March 2019. Retrieved 9 August 2013.
↑ Wiesner-Hanks, Merry (2011). Gender in History: Global Perspectives. Wiley Blackwell. p.37.
↑ Raymond Wacks, Law: A Very Short Introduction, 2nd Ed. (Oxford University Press, 2015) pg. 13.
↑ Peters, Edward. "Home Page". CanonLaw.info. Archived from the original on 28 September 2011. Retrieved 24 September 2019.
↑ Friedman, Lawrence M., American Law: An Introduction (New York: W.W. Norton & Company, 1984), pg. 70.
↑ William Wirt Howe, Studies in the Civil Law, and its Relation to the Law of England and America (Boston: Little, Brown, and Company, 1896), pg. 51.
↑ A. Brundag, James (2010). he Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts. University of Chicago Press. p.116. ISBN978-0226077598.
↑ Quigley, J. (1989). "Socialist Law and the Civil Law Tradition". The American Journal of Comparative Law. 37 (4): 781–808. doi:10.2307/840224. JSTOR840224.
↑ 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 layperson, "If it were not assize time, I would not take such language from you."
↑ (Pelczynski, The State and Civil Society, 1–13; Warren, Civil Society, 5–9)
↑ Zaleski, Pawel (2008). "Tocqueville on Civilian Society. A Romantic Vision of the Dichotomic Structure of Social Reality". Archiv für Begriffsgeschichte. 50.
↑ "History of the UN". About the United Nations/History. Archived from the original on 18 February 2010. Retrieved 1 September 2008.
↑ D'Amato, Anthony (11 November 2010). "Is International Law Really 'Law'?". Northwestern University Law Review. 79. Archived from the original on 3 August 2020. Retrieved 3 January 2020.
↑ Schermers-Blokker, International Institutional Law, 900–901
↑ About R v Dudley and Stephens [1884] 14 QBD 273 DCArchived 28 February 2005 at the Wayback Machine , see Simpson, Cannibalism and the Common Law, 212–217, 229–237
↑ Ehrlich, Fundamental Principles, Hertogh, Living Law, Rottleuthner, La Sociologie du Droit en Allemagne, 109, Rottleuthner, Rechtstheoritische Probleme der Sociologie des Rechts, 521
Ahmad, Ahmad Atif (2009). "Lawyers: Islamic Law"(PDF). Oxford Encyclopedia of Legal History. Oxford University Press. Archived from the original(PDF) on 26 March 2009.
Akhlaghi, Behrooz (2005). "Iranian Commercial Law and the New Investment Law FIPPA". In Yassari, Nadjma (ed.). The Sharīʻa in the Constitutions of Afghanistan, Iran, and Egypt. Mohr Siebeck. ISBN978-3-16-148787-3.
Albrow, Martin (1970). Bureaucracy (Key Concepts in Political Science). London: Palgrave Macmillan. ISBN978-0-333-11262-5.
Anderson, J.N.D. (January 1956). "Law Reform in the Middle East". International Affairs. 32 (1): 43–51. doi:10.2307/2607811. JSTOR2607811.
Arnold, Thurman W. (1935). "The Symbols of Government". American Political Science Review. New Haven: Yale University Press: 379.
Auby, Jean-Bernard (2002). "Administrative Law in France". In Stroink, F.A.M.; Seerden, René (eds.). Administrative Law of the European Union, its Member States and the United States. Intersentia. ISBN978-90-5095-251-4.
Barzilai, Gad (2003). Communities and Law: Politics and Cultures of Legal Identities. The University of Michigan Press. ISBN978-0-472-11315-6.
Bayles, Michael D. (1992). "A Critique of Austin". Hart's Legal Philosophy. Springer. ISBN978-0-7923-1981-8.
Brody, David C.; Acker, James R.; Logan, Wayne A. (2001). "Introduction to the Study of Criminal Law". Criminal Law. Jones & Bartlett Publishers. ISBN978-0-8342-1083-7.
Campbell, Tom D. (1993). "The Contribution of Legal Studies". In Robert E. Goodin; Philip Pettit (eds.). A Companion to Contemporary Political Philosophy. Malden, Mass.: Blackwell Publishing. ISBN978-0-631-19951-9.
Churchill, Winston (1986). "Problems of War and Peace". The Hinge of Fate. Houghton Mifflin Books. ISBN978-0-395-41058-5.
Clarke, Paul A. B.; Linzey, Andrew (1996). Dictionary of Ethics, Theology and Society. London: Routledge. ISBN978-0-415-06212-1.
Curtin, Deirdre; Wessel, Ramses A. (2005). "A Survey of the Content of Good Governance for some International Organisations". Good Governance and the European Union: Reflections on Concepts, Institutions and Substance. Intersentia nv. ISBN978-90-5095-381-8.
Demirgüç-Kunt, Asli; Levine, Ross (2001). Financial Structures and Economic Growth. MIT Press. ISBN978-0-262-54179-4.
Dicey, Albert Venn (2005). "Parliamentary Sovereignty and Federalism". Introduction to the Study of the Law of the Constitution. Adamant Media Corporation. ISBN978-1-4021-8555-7.
Dörmann, Knut; Doswald-Beck, Louise; Kolb, Robert (2003). "Appendix". Elements of War Crimes. Cambridge University Press. ISBN978-0-521-81852-0.
Ehrlich, Eugen (2002) [1936]. Fundamental Principles of the Sociology of Law. Transaction Books reprint.
Farah, Paolo (August 2006). "Five Years of China WTO Membership. EU and US Perspectives about China's Compliance with Transparency Commitments and the Transitional Review Mechanism". Legal Issues of Economic Integration. 33 (3): 263–304. doi:10.54648/LEIE2006016. S2CID153128973. SSRN916768.
Fine, Tony F. (2001). "The Globalization of Legal Education in the United States". In Drolshammer, Jens I.; Pfeifer, Michael (eds.). The Internationalization of the Practice of Law. Martinus Nijhoff Publishers. ISBN978-90-411-1620-8.
Goldhaber, Michael D. (2007). "Europe's Supreme Court". A People's History of the European Court of Human Rights. Rutgers University Press. ISBN978-0-8135-3983-6.
Gordley, James R.; von Mehren, Arthur Taylor (2006). An Introduction to the Comparative Study of Private Law. Cambridge: Cambridge University Press. ISBN978-0-521-68185-8.
Haggard, Stephan; Shugart, Matthew Soberg (2001). "Institutions and Public Policy in Presidential Systems". In Haggard, Stephan; McCubbins, Mathew Daniel (eds.). Presidents, Parliaments and Policy. Cambridge University Press. ISBN978-0-521-77485-7.
Hallaq, Wael Bahjat (2005). "Introduction". The Origins and Evolution of Islamic Law. Cambridge University Press. ISBN978-0-521-00580-7.
Hamilton, Michael S., and George W. Spiro (2008). The Dynamics of Law, 4th ed. Armonk, NY: M.E. Sharpe, Inc. ISBN978-0-7656-2086-6.
Hatzis, Aristides N. (November 2002). "The Nature of the Firm". European Journal of Law and Economics. 14 (3): 253–263. doi:10.1023/A:1020749518104. S2CID142679220.
Jensen, Eric G.; Heller, Thomas C. (2003). "Introduction". In Jensen, Eric G.; Heller, Thomas C. (eds.). Beyond Common Knowledge. Stanford University Press. ISBN978-0-8047-4803-2.
Kaiser, Dagmar (2005). "Leistungsstōrungen". In Staudinger, Julius von; Martinek, Michael; Beckmann, Roland Michael (eds.). Eckpfeiler Des Zivilrechts. Walter de Gruyter. ISBN978-3-8059-1019-4.
Kaldor, Mary; Anheier, Helmut; Glasius, Marlies (2003). "Global Civil Society in an Era of Regressive Globalisation". In Kaldor, Mary; Anheier, Helmut; Glasius, Marlies (eds.). Global Civil Society Yearbook 2003. Oxford University Press. ISBN978-0-19-926655-5.
Karkatsoulis, Panagioti (2004). "Civil Society and New Public Management". The State in Transitions(PDF) (in Greek). Athens: I. Sideris. ISBN978-960-08-0333-4. Archived from the original(PDF) on 17 August 2007. Retrieved 2 September 2008.
Kazantzakis, Nikos (1998) [1909]. "Law". Friedrich Nietzsche and the Philosophy of Law and Polity (in Greek). Athens: Editions Kazantzakis.
Kelly, J.M. (1992). A Short History of Western Legal Theory. Oxford University Press. ISBN978-0-19-876244-7.
Mattei, Ugo (1997). "The Distinction between Common Law and Civil Law". Comparative Law and Economics. University of Michigan Press. ISBN978-0-472-06649-0.
Nietzsche, Friedrich (1887). "Zweite Abhandlung: "Schuld", "schlechtes Gewissen" und Verwandtes". Zur Genealogie der Moral– Eine Streitschrift (in German).
Ober, Josiah (1996). "The Nature of Athenian Democracy". The Athenian Revolution: Essays on Ancient Greek Democracy and Political Theory. Princeton University Press. ISBN978-0-691-00190-6.
Olivelle, Patrick (2005). Manu's Code of Law: A Critical Edition and Translation of the Manava-Dharmasastra. New York: Oxford University Press. ISBN978-0-19-517146-4.
Pelczynski, A.Z. (1984). The State and Civil Society. Cambridge University Press.
Petersmann, Ernst-Ulrich (1997). "Rule of Law and Constitutionalism". The GATT/WTO Dispute Settlement System. Martinus Nijhoff Publishers. ISBN978-90-411-0933-0.
Rasekh, Mohammad (2005). "Are Islamism and Republicanism Compatible?". In Yassari, Nadjma (ed.). The Sharīʻa in the Constitutions of Afghanistan, Iran, and Egypt. Mohr Siebeck. ISBN978-3-16-148787-3.
Redfem, Alan (2004). "Regulation of International Arbitration". Law and Practice of International Commercial Arbitration. Sweet & Maxwell. ISBN978-0-421-86240-1.
Rheinstein, M. (1954). Max Weber on Law and Economy in Society. Harvard University Press.
Roeber, A. G. (October 2001). "What the Law Requires Is Written on Their Hearts: Noachic and Natural Law among German-Speakers in Early Modern North America". William and Mary Quarterly. Third Series. 58 (4): 883–912. doi:10.2307/2674504. JSTOR2674504.
Rottleuthner, Hubert (1984). "Rechtstheoritische Probleme der Sociologie des Rechts. Die Kontroverse zwischen Hans Kelsen und Eugen Ehrlich (1915/17)". Rechtstheorie (in German). 5: 521–551.
Schermers, Henry G.; Blokker, Niels M. (1995). "Supervision and Sanctions". International Institutional Law. The Hague/London/Boston: Martinus Nijhoff Publisher.
Sherif, Adel Omar (2005). "Constitutions of Arab Countries and the Position of Sharia". In Yassari, Nadjma (ed.). The Sharīʻa in the Constitutions of Afghanistan, Iran, and Egypt. Mohr Siebeck. ISBN978-3-16-148787-3.
Simpson, A.W.B. (1984). Cannibalism and the Common Law. Chicago: University of Chicago Press. ISBN978-0-226-75942-5.
Tamanaha, Brian Z. (2004). "Locke, Montesquieu the Federalist Papers". On the Rule of Law. Cambridge University Press. ISBN978-0-521-60465-9.
Théodoridés, Aristide (1999). "law". Encyclopedia of the Archaeology of Ancient Egypt. Routledge (UK). 0-415-18589-0.
VerSteeg, Russ (2002). Law in Ancient Egypt. Durham, N.C.: Carolina Academic Press. ISBN978-0-89089-978-6.
Warren, Mark E. (1999). Civil Society and Good Governance(PDF). Washington DC: Center for the Study of Voluntary Organisations and Services, Georgetown University. Archived from the original(PDF) on 29 October 2008.
Washofsky, Mark (2002). "Taking Precedent Seriously". Re-Examining Progressive Halakhah edited by Walter Jacob, Moshe Zemer. Berghahn Books. ISBN978-1-57181-404-3.
Weber, Max (1978). "Bureaucracy and Political Leadership". Economy and Society, Volume I (Translated and edited by Claus Wittich, Ephraim Fischoff, and Guenther Roth). University of California Press. ISBN978-0-520-03500-3.
Weber, Max (1964). The Theory of Social and Economic Organization (Edited with Introduction by Talcott Parsons– Translated in English by A. M. Henderson). The Free Press of Glencoe. ASIN B-000-LRHAX-2.
This page is based on this Wikipedia article Text is available under the CC BY-SA 4.0 license; additional terms may apply. Images, videos and audio are available under their respective licenses.
