Lady Justice or Justitia is a personification of the moral force that underlies the legal system (particularly in Western art). Her blindfold symbolizes
equality under the law through impartiality towards its subjects, the weighing scales represent the
balancing of people's interests under the law, and her sword denotes the law's force of
reason and the power of the sovereign to enforce the law.
'Law'
[1] is a system of rules usually enforced through a set of institutions.
[2] Law affects everyday life and society in a variety of ways.
Contract law regulates everything from buying a bus ticket to trading
swaptions on a
derivatives market.
Property law defines rights and obligations related to buying, selling, or renting
real property such as homes and buildings.
Trust law applies to assets held for investment, such as pension funds.
Tort law allows claims for compensation when someone or their
property is
harmed. But if the harm is criminalised in a penal code,
criminal law offers means to prosecute and punish the perpetrator.
Constitutional law provides a framework for creating laws, protecting people's
human rights, and
electing political representatives, while
administrative law allows ordinary citizens to challenge the way governments exercise power.
International law regulates affairs between sovereign
nation-states in everything from
trade to the
environment to
military action. "The
rule of law", wrote the
ancient Greek philosopher
Aristotle in 350 BCE, "is better than the rule of any individual."
[3]
Legal systems around the world elaborate legal
rights and responsibilities in different ways. A basic distinction is made between
civil law jurisdictions and systems using
common law. Some countries base their law on
religious texts, while in others traditional
customary law or
Socialist legal theory are strong influences. Scholars investigate the nature of law through many perspectives, including
legal history and
philosophy, or
social sciences such as
economics and
sociology. The study of law raises important questions about
equality,
fairness and
justice, which are not always simple. "In its majestic equality", said the author
Anatole France in 1894, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread."
[4] The most important institutions for law are the
judiciary, the
legislature, the
executive, its
bureaucracy, the
military and
police, the
legal profession and
civil society.
Legal subjects
Though all legal systems deal usually with the same or similar issues, different countries often categorise and name legal subjects in different ways. Quite common is the distinction between "
public law" subjects, which relate closely to the
state (including constitutional, administrative and criminal law), and "
private law" subjects (including contract, tort, property).
[5] In
civil law systems, contract and tort fall under a general
law of obligations and 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",
[6] although there are many
further disciplines which might be of greater practical importance.
International law
Providing a constitution for public international law, the United Nations was conceived during World War II.
In a global economy, law is
globalising too. 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. It has a special status as law because there is no international police force, and courts lack the capacity to penalise disobedience.
[7] The
sources for public international law to develop are
custom, practice and treaties between sovereign nations. The
United Nations, founded under the
UN Charter, is the most important international organisation, established after the
Treaty of Versailles's failure and
World War II. Other international agreements, like the
Geneva Conventions on the conduct of
war, and international bodies such as the
International Court of Justice,
International Labour Organisation, the
World Trade Organisation, or the
International Monetary Fund, also form a growing part of public international law.
★ '
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. This increases the number of disputes outside a unified legal framework and the enforceability of standard practices. Increasing numbers of businesses opt for commercial arbitration under the
New York Convention 1958.
★ '
European Union law' is the first and only example of a
supranational legal framework. However, given 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 pooled their authority through a system of
courts and
political institutions. They have the ability to enforce legal norms against and for member states and citizens, in a way that public international law does not.
[8] As the European Court of Justice said in 1962, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states.
[9]
Constitutional and administrative law
Constitutional and administrative law govern the affairs of the state.
Constitutional law concerns both the relationships between the
executive,
legislature and
judiciary and the
human rights or
civil liberties of individuals against the state. 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; in those jurisdictions the constitution is composed of
statute,
case law and
convention. A case named ''
Entick v. Carrington''
[10] 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,
[11] is that the individual can do anything but that which is forbidden by law, and the state may do nothing but that which is authorised by law.
Administrative law is the chief method for people to hold state bodies to account. People can apply for
judicial review of actions or decisions by local councils, public services or government ministries, to ensure that they comply with the law. The first specialist administrative court was the ''
Conseil d'État'' set up in 1799, as
Napoleon assumed power in
France.
[12]
Criminal law
Criminal law is the body of law that defines criminal offences and the penalties for convicted offenders.
[13] Apprehending, charging, and trying suspected offenders is regulated by the law of
criminal procedure.
[14] In every jurisdiction, a crime is committed where three elements are fulfilled. First, the accused must commit the criminal act, or ''
actus reus'' (guilty act).
[15] Second, there must exist a
victim, who suffered a legally recongnised harm. In the case of
victimless crimes, the legal system regards the accused, or society at large, as the victim of the criminal act. Third, there must exist
causation, which is a logical connection, supported by evidence, that establishes the link between the criminal act and the harm suffered. If it cannot be proven that the act caused the harm, a conviction cannot be sustained. For most, but not all crimes, the criminal must also have the requisite
malicious intent to do a criminal act, or ''
mens rea'' (guilty mind). A mens rea, however, is not a required element for
strict liability crimes,
[16] such as statutory rape, which require only that the accused engaged in a criminal act; the legal system does not take into account the mental state of the accused when determining culpability for the offense.
Examples of different kinds of crime include
murder,
assault,
fraud or
theft. In exceptional circumstances, defences can exist to some crimes, such as killing in
self defence, or pleading
insanity. Another example is in the 19th century English case of
''R v. Dudley and Stephens'',
[17] which tested a defence of "
necessity". The ''Mignotte'', sailing from
Southampton to
Sydney, sank. Three crew members and a cabin boy were stranded on a raft. They were starving and the cabin boy 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, especially among seafarers, was outraged and overwhelmingly supportive of the crew's right to preserve their own lives. In the end, the
Crown commuted their sentences to six months.
Criminal law offences are viewed as offences against not just individual victims, but the community as well.
13 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 have
capital punishment and
corporal 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.
13 On the international field, 104 countries have signed the enabling treaty for the
International Criminal Court, which was established to try people for
crimes against humanity.
[18]
Contracts
The Carbolic Smoke Ball offer, which
bankrupted the Co. because it could not fulfill the terms it advertised
The concept of a "contract" is based on the Latin phrase ''
pacta sunt servanda'' (agreements must be kept).
[19] Contracts can be simple everyday buying and selling or complex multi-party agreements. They can be made orally (e.g. buying a newspaper) or in writing (e.g. signing a contract of employment). Sometimes
formalities, such as writing the contract down or having it
witnessed, are required for the contract to take effect (e.g. when buying a house).
[20]
In common law jurisdictions, there are three key elements to the creation of a contract. These are
offer and acceptance,
consideration and an intention to create legal relations. For example, in ''
Carlill v. Carbolic Smoke Ball Company''
[21] a medical firm advertised that its new wonder drug, the smokeball, would cure people's
flu, and if it did not, buyers would get
£100.
[22] 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 puff, a gimmick. But the court of appeal held that to a
reasonable man Carbolic had made a serious offer. People had given good
consideration for it by going to the "distinct inconvenience" of using a faulty product. "Read the advertisement how you will, and twist it about as you will", said
Lord Justice Lindley, "here is a distinct promise expressed in language which is perfectly unmistakable".
22
"Consideration" means all parties to a contract must exchange something of value to be able to enforce it. Some common law systems, like
Australia, are moving away from consideration as a requirement for a contract. The concept of
estoppel or ''culpa in contrahendo'' can be used to create obligations during pre-contractual negotiations.
[23] In
civil law jurisdictions, consideration is not a requirement for a contract at all.
[24] 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)
[25] 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.
[26]
Tort law
The "
McLibel" two were involved in the longest running case in UK history for publishing a pamphlet criticising
McDonald's restaurants
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.
[27] Under
negligence law, the most common form of tort, the injured party can make a claim against the party responsible for the injury. The principles of negligence are illustrated by ''
Donoghue v. Stevenson''.
[28] Mrs Donoghue ordered an opaque bottle of
ginger beer in a café in
Paisley. Having consumed half of it, she poured the remainder into a tumbler. The decomposing remains of a dead
snail floated out. She fell ill 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."[29]
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, or not too
remote a consequence, of her harm.
28 Another example of tort might be a neighbour making excessively loud noises with machinery on his property.
[30] 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.
[31] More infamous are economic torts, which form the basis of
labour law in some countries by making trade unions liable for strikes,
[32] when statute does not provide immunity.
[33]
Property law
Property law governs everything that people call 'theirs'.
Real property, sometimes called 'real estate' refers to ownership of land and things attached to it.
[34] Personal property, refers to everything else; movable objects, such as computers and sandwiches, or intangible rights, such as
stocks and shares. A right 'in rem' is a right to a specific piece of property. If an individual loses his computer and another finds it and it changes hands, a right in rem gives the individual the ability to take the computer from whoever has it. A right 'in personam' however is a right against one specific individual for something equivalent to the property in question. If an individual loses his computer and it passes hands, the right in personam allows the individual to claim the price of the computer from the thief (but not the actual computer, as this might now belong to someone else.) The classic civil law approach to property, propounded by
Friedrich Carl von Savigny, is that it is a right good against the world. This contrasts to an obligation, like a contract or tort, which is a right good between individuals.
[35] Preferred in common law jurisdictions is an idea closer to an obligation; that the person who can show the best claim to a piece of property, against any contesting party, is the owner.
[36] The idea of
property raises important philosophical and political issues.
John Locke famously argued that our "lives, liberties and estates" are our property because we own our bodies and
mix our labour with our surroundings.
[37] The idea of privately owned property is still contentious. French philosopher
Pierre Proudhon once famously wrote, "property is theft".
[38]
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 registration of land. Regulations on the use of personal property fall under
intellectual property,
company law,
trusts and
commercial law.
Trusts and equity
Equity is a body of rules that developed in England separately from the "common law". The common law was administered by judges, whilst the
Lord Chancellor, as the King's keeper of conscience, could overrule the judge made law if he thought it equitable to do so.
[39] 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 trust.
[40] In the early case of ''Keech v. Sandford''
[41] 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."[41]
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.
[43] 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.
Further disciplines
Law spreads far beyond the core subjects into virtually every area of life. Three categories are presented for convenience, though the subjects intertwine and flow into one another.
;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
health and safety or a
minimum wage.
★ '
Human 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 and the
U.S. Bill of Rights.
★ '
Civil procedure' and '
criminal procedure' concern the rules that courts must follow as a
trial and appeals proceed. Both concern everybody'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 of course the rights to property and money in the event of separation.
;Law and commerce
★ '
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 mediæval ''
Lex Mercatoria''. The UK Sale of Goods Acts and the U.S.
Uniform Commercial Code are examples of codified common law commercial principles.
★ '
Company law' sprung from the law of trusts, on the principle of separating ownership of property and control.
[44] The law of the modern
company began with the ''Joint Stock Companies Act'', passed in the
United Kingdom in 1865, which protected investors with
limited liability and conferred
separate legal personality.
★ '
Intellectual property' deals with
patents,
trademarks and
copyrights. These are intangible assets: the right to protect your invention from imitation, your brand name from appropriation, or a song you wrote from performance and plagiarism.
★ '
Restitution' deals with the recovery of someone else's gain, rather than
compensation for one's own loss.
★ '
Unjust enrichment' is law covering a right to retrieve property from someone that has profited unjustly at another's expense.
;Law and regulation
★ '
Tax law' involves regulations that concern
value added tax,
corporate tax,
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.
★ '
Regulated industries' are attached to an important body of law, for instance '
water law', for the provision of
public services. Especially since
privatisation became popular, private companies doing the jobs previously controlled by government have been bound by social responsibilities.
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 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.
Legal systems
In general, legal systems around the world can be split between civil law jurisdictions, on the one hand, and systems using common law and equity, on the other. The term civil law, referring to a legal system, should not be confused with
civil law as a group of legal subjects, as distinguished from criminal law or
public law. A third type of legal system — still accepted by some countries in part, or even in whole — is religious law, based on
scriptures and interpretations thereof. The specific system that a country follows is often determined by its history, its connection with countries abroad, and its adherence to international standards. The
sources that jurisdictions recognise as authoritatively binding are the defining features of legal systems. Yet classification of different systems is a matter of
form rather than substance, since similar rules often prevail.
Civil law
Main articles: Civil law (legal system)
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, secondarily, custom.
[45] Codifications date back millennia, with one early example being the ancient
Babylonian Codex Hammurabi, but modern civil law systems essentially derive from the legal practice of the
Roman Empire, whose texts were rediscovered in
medieval Europe. Roman law in the days of the
Roman Republic and Empire was heavily procedural, and there was no professional legal class.
[46] Instead a lay person, ''iudex'', was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised.
[47] 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. During the 6th century AD in the
Eastern Roman Empire, the Emperor
Justinian codified and consolidated the laws that had existed in Rome, so that what remained was one-twentieth of the mass of legal texts from before.
[48] 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."
[49] Western Europe, meanwhile, slowly slipped into the
Dark Ages, and it was not until the 11th century that scholars in the
University of Bologna rediscovered the texts and used them to interpret their own laws.
[50] Civil law codifications based closely on Roman 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.
[51] Today countries that have civil law systems range from
Russia and
China to most of
Central and
Latin America.
[52]
Common law and equity
Main articles: Common law
King John of England signs Magna Carta
Common law and equity are systems of law whose special distinction is the doctrine of precedent, or ''
stare decisis'' (Latin for "to stand by decisions"). Alongside this "judge-made law", common law systems always have governments who pass new laws and statutes. But these are not put into a codified form. Common law comes from England and was inherited by almost every country that once belonged to the
British Empire, with the exceptions of
Malta,
Scotland, the U.S. state of
Louisiana and the Canadian province of
Quebec. Common law had its beginnings in the
Middle Ages, when the English monarchy had been weakened by the enormous cost of fighting for control over large parts of France.
King John had been 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.
[53] 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.
[54] This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law.
[55] 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
Court of Chancery. At first, equity was often criticised as erratic, that it "varies like the Chancellor's foot". But over time it developed solid
principles, especially under
Lord Eldon.
[56] In the 19th century the two systems were fused into one another. In developing the common law and equity, academic authors have always played an important part.
William Blackstone, from around 1760, was the first scholar to describe and teach it.
[57] But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.
[58]
Religious law
Main articles: Religious law
Religious law refers to the notion that the
word of God is law. Examples include the
Jewish Halakha and
Islamic
Sharia, both of which mean the "path to follow".
Christian Canon law also survives in some Church communities. The implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments. However, non Jewish religious basic texts (the Gospels and the Quran) usually do not provide for a thorough and detailed legal system. For instance, the
Quran has some law , and it acts merely as a source of further law through interpretation.
[59] This is mainly contained in a body of jurisprudence known as the
fiqh. On the other hand, the Torah, in the Pentateuch or Five Books of Moses:
Genesis,
Exodus,
Leviticus,
Numbers and
Deuteronomy, which are the core of the written
Torah, what Christians call the
Old Testament, contain the Seven Universal Laws of mankind, also called the Seven Laws of Noah or Noahide Laws, which are further subdivided in 66 basic laws, as well as the famous Ten Commandmends, as well as all the 613 Commandments binding all Jews for all generations which form the basic code of Jewish law. The Halakha is the detailed code of Jewish law which is the summary of all the interpretations and discussions among the sages of the Talmud, or oral Torah which elucidates the written Torah, and dealing with every aspect of Jewish life. The Halakha is strictly followed by
orthodox and leniently by
conservative Jews in both
ecclesiastical and civil relations. Nevertheless, the state of
Israel not being governed by Halakha but under the
Israeli law, the
litigants may freely decide, because of religious belief, to have a dispute heard by a Rabbinic court and be bound by its rulings. Canon law is only in use by members of the clergy in the
Roman Catholic Church, the
Eastern Orthodox Church and the
Anglican Communion. Until the
18th century Sharia law reigned supreme, nominally at least, throughout the
Muslim world; but since the mid-1940s efforts have been made, in country after country, to bring the law more into line with modern conditions and conceptions.
[60] In modern times, Sharia is merely an optional supplement to the civil or common law of most countries, though
Saudi Arabia and
Iran's whole legal systems source their law in Sharia. 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.
[61]
Jurisdictions
Though the legal traditions described have resulted in a number of common traits across jurisdictions, each sovereign entity can have unique aspects. The lists below link to articles on individual jurisdictions, organised by
geography.
Legal theory
History of law
The
history of law is closely connected to the development of
civilizations.
Ancient Egyptian law, dating as far back as 3000 BCE, had 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.
[62] Around 1760 BCE under
King Hammurabi, ancient
Babylonian law was codified and put in stone for the public to see in the marketplace; this became known as the
Codex Hammurabi. However like Egyptian law, which is pieced together by historians from records of litigation, few sources remain and much has been lost over time. The influence of these earlier laws on later civilisations was small.
[63]
The
Torah (Old Testament in Christian use) is probably the oldest body of law still relevant for modern legal systems, dating back to 1280 BCE. It takes the form of both a legal system based on the
Noahide Laws and
613 Commandments and moral imperatives, as recommendations for a good society. The interpretation of the Commandments was later to take form of the
Mishna] and the
Talmud one sixth of which included Nezikin ("Damages"), dealing with civil and criminal law.
Ancient Athens, the small
Greek city-state, was the first society based on broad inclusion of the citizenry, excluding women and the slave class from about 8th century BCE. Athens had no legal science, and Ancient Greek has no word for "law" as an abstract concept.
[64] Yet
Ancient Greek law contained major
constitutional innovations in the development of
democracy.
[65]
Roman law was heavily influenced by Greek teachings.
[66] It forms the bridge to the modern legal world, over the centuries between the rise and decline of the Roman Empire.
[67] Roman law underwent major codification in the ''
Corpus Juris Civilis'' of Emperor
Justinian I. It was lost through the Dark Ages, but rediscovered around the 11th century. Mediæval legal scholars began researching the Roman codes and using their concepts. In mediæval England, the King's powerful judges began to develop a body of precedent, which became the common law. But also, a Europe-wide ''
Lex Mercatoria'' was formed, so that merchants could trade using familiar standards, rather than the many splintered types of local law. The ''Lex Mercatoria'', a precursor to modern commercial law, emphasised the freedom of contract and alienability of property.
[68] As
nationalism grew in the 18th and 19th centuries, ''Lex Mercatoria'' was incorporated into countries' local law under new civil codes. The French
Napoleonic Code and the
German became the most influential. As opposed to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and for judges to apply. However, today there are signs that civil and common law are converging.
European Union law is codified in treaties, but develops through the precedent laid down by the
European Court of Justice.
The
Constitution of India is the longest written constitution for a country, containing 444 articles, 12 schedules, numerous amendments and 117,369 words.
and
China represent distinct traditions of law, and had historically independent schools of legal theory and practice. The ''
Arthashastra'', probably compiled around 100 AD (though containing some older material), and the ''
Manusmriti''(c. 100-300 AD) were foundational treatises in India, texts that were considered authoritative legal guidance.
[69] Manu's central philosophy was tolerance and
Pluralism, and was cited across
Southeast Asia.
[70] This
Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the
British Empire.
[71] 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.
[72] 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.
[73] 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
Ch'ing dynasty in the form of six private law codes based mainly on the Japanese model of German law.
[74] 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.
[75] Today, however, because of rapid industrialisation China has been reforming, at least in terms of economic (if not social and political) rights. A new contract code in 1999 represented a turn away from administrative domination.
[76] Furthermore, after negotiations lasting fifteen years, in 2001 China joined the
World Trade Organisation.
[77]
Philosophy of law
Main articles: Jurisprudence
| "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.[78] |
The
philosophy of law is also known as jurisprudence. It is taught in university departments of philosophy under the title "Philosophy of Law" and in faculties of law as "Jurisprudence". Normative jurisprudence is essentially
political philosophy and asks "what should law be?". Analytic jurisprudence, on the other hand, is a distinctive field which asks "what is law?". An early famous philosopher of law was
John Austin, a student of
Jeremy Bentham and first chair of law at the new
University of London from 1829. 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".
[79] This approach was long accepted, especially as an alternative to
natural law theory. Natural lawyers, such as
Jean-Jacques Rousseau, argue that human law reflects essentially
moral and unchangeable laws of nature.
Immanuel Kant, for instance, believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".
[80] Austin and Bentham, following
David Hume, thought this conflated what
"is" and what "ought to be" the case. They believed in law's
positivism, that real law is entirely separate from "morality".
[81] Kant was also criticised by
Friedrich Nietzsche, who believed that law emanates from
The Will to Power and cannot be labelled as "moral" or "immoral".
[82] Thus, Nietzsche criticised the principle of
equality, and believed that law should be committed to freedom to engage in will to power.
[83]
In 1934, the Austrian philosopher
Hans Kelsen continued the positivist tradition in his book the ''
Pure Theory of Law''.
[84] Kelsen believed that though law is separate from morality, it is endowed with "normativity", meaning we ought to obey it. Whilst laws are positive "is" statements (e.g. the fine for reversing on a highway ''is''
€500), law tells us what we "should" do (i.e. not drive backwards). So every legal system can be hypothesised to have a basic norm (''
Grundnorm'') telling us we should obey the law.
Carl Schmitt, Kelsen's major intellectual opponent, rejected 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.
[state of emergency), which denied that legal norms could encompass of all political experience.[85]]
Bentham's utilitarian theories remained dominant in law until the 20th century.
Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in ''The Concept of Law''.[86] As the chair of jurisprudence at Oxford University, Hart argued law is a "system of rules". Rules, said Hart, are divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials to administer primary rules). Secondary rules are 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 have continued the debate since. Ronald Dworkin was his successor in the Chair of Jurisprudence at Oxford and his greatest critic. In his book ''Law's Empire'', Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "interpretive concept",[87] 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, has defended the positivist outlook and even criticised Hart's 'soft social thesis' approach in ''The Authority of Law''.[88] Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorisation of rules beyond their role as authoritative dispute mediation is best left to sociology, rather than jurisprudence.[89]
Economic analysis of law
Economic analysis of law is an approach to legal theory that incorporates and applies the methods and ideas of economics to law. 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.[91]
The most prominent economic analyst of law is 1991 Nobel Prize winner Ronald Coase. His 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.[92] 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.[93] 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.[30] 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 house that reaches the same outcome of resource distribution. Only the existence of transaction costs may prevent this.[95] 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.[96] 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.[97]
Sociology of law
Max Weber in 1917 - Weber who began as a lawyer is regarded as one of the founders of sociology and sociology of law
Sociology of law is a diverse field of study that examines the interaction of law with society. Sociology of law overlaps with jurisprudence, economic analysis of law and more specialised subjects such as criminology.[98] The institutions of law and the social construction of legal issues and systems are relevant areas of inquiry. Initially, legal theorists were suspicious of the discipline. Kelsen attacked one of its founders, Eugen Ehrlich, who wanted to emphasise the difference 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.[99] Around 1900 Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to people but to abstract norms.[100] Legal rationalism was his term for a body of coherent and calculable law which formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism.[98] Another sociologist, Émile Durkheim, wrote in ''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.[102] 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.[103]
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. |
| '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 ''Two Treatises On Civil Government'', and Baron de Montesquieu after him in ''The Spirit of the Laws'', advocated a separation of powers between the institutions that wield political influence, namely the judiciary, legislature and executive.[104] 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''.[105] More recently, Max Weber and many others reshaped thinking about the extensions of the state that come under the control of the executive. Modern military, policing and bureaucratic power over ordinary citizens' daily lives pose special problems for accountability that earlier writers like Locke and 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.
Judiciary
A judiciary is a group of judges who mediate people's disputes and determine the outcome. Most countries have a system of appeals courts, up to a supreme authority. In the U.S.A., this is the Supreme Court;[106] in Australia, the High Court; in the U.K., the House of Lords;[107] in Germany, the ''Bundesverfassungsgericht''; in France, the ''Cour de Cassation''.[108]
However, for most European countries the European Court of Justice[109] in Luxembourg may overrule national law, where EU law is relevant. The European Court of Human Rights in Strasbourg allows citizens of the Council of Europe member states to bring cases to it concerning human rights issues.
Almost every country allows its highest judicial authority to strike down legislation determined to be unconstitutional. For instance, the United States Supreme Court struck down a Texan law forbidding assistance to women in abortion, in ''Roe v. Wade''.[110] The constitution's fourteenth amendment was interpreted to give Americans a right to privacy, hence a woman's right to choose abortion. The judiciary is theoretically bound by the constitution, much as legislative 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. On the other hand, the U.K., Finland and New Zealand still assert the ideal of parliamentary sovereignty, whereby the unelected judiciary may not overturn law passed by a democratic legislature.
Legislature
Prominent examples of legislatures are the Houses of Parliament in London, the Congress in Washington D.C., the ''Bundestag'' in Berlin, the ''Duma'' in Moscow and the ''Assemblée nationale'' in Paris. By the principle of representative government people vote for politicians to carry out ''their'' wishes. Most countries are bicameral, meaning they have two separately appointed legislative houses, although countries like Israel, Greece, Sweden and China are unicameral. 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 U.S.A.) or different voting configuration in a unitary system (as in France). In the United Kingdom 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 it minimises arbitrariness and injustice in governmental action.[111]
To pass legislation, a majority of Members of Parliament must vote for a bill 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 will 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 U.K. or Germany). But in a presidential system, an executive appoints a cabinet to govern from his or her political allies whether or not they are elected (e.g. the U.S.A. or Brazil), and the legislature's role is reduced to either ratification or veto.
Executive
The "executive" in a legal system refers to the government's centre of political authority. In most democratic countries, like the UK, Germany, India and Japan, it is elected into and drawn from the legislature and is often called the cabinet. Alongside this is usually the head of state, who lacks formal political power but symbolically enacts laws. The head of state is sometimes appointed (the Bundespräsident in Germany), sometimes hereditary (British monarch) and sometimes elected by popular vote (the President of Austria). The other important model is found in countries like France, the U.S. or Russia. Under these presidential systems, the executive branch is separate from the legislature, and is not accountable to it.[112]
The executive's role may vary from country to country. Usually it will initiate or propose the majority of legislation and handle a country's foreign relations. The military and police often fall under executive control, as well as the bureaucracy. Ministers, or secretaries of state of the government head a country's public offices, such as the health department or the department of justice. The election of a different executive is therefore capable of revolutionising an entire country's approach to government.
Military and police
The military and police are sometimes referred to as "the long and strong arm of the law".[113] While military organisation have existed as long as governments themselves, a standing police force is relatively modern. Mediæval England used a system of travelling criminal courts, or assizes, which used show trials and public executions to instill communities with fear and keep them under control. The first modern police were probably those in 17th-century Paris, in the court of Louis XIV,[114] although the Paris Prefecture of Police claim they were the world's first uniformed policemen.[115] In 1829, after the French Revolution and Napoleon's dictatorship, a government decree created the first uniformed policemen in Paris and all other French cities, known as ''sergents de ville'' ("city sergeants"). In Britain, the Metropolitan Police Act 1829 was passed by Parliament under Home Secretary Sir Robert Peel, founding the London Metropolitan Police.
Sociologist Max Weber famously argued that the state is that which controls the legitimate monopoly of the means of violence.[116] The military and police carry out enforcement at the request of the government or the courts. The term failed state is used where the police and military no longer control security and order and society moves into anarchy, the absence of government.
Bureaucracy
The
United Nations' New York headquarters houses civil servants that serve its 192 member states.
The word "bureaucracy" derives from the French for "office" (''bureau'') and Ancient Greek for "power" (''kratos''). Like the military and police, all of a legal system's government servants and bodies that make up the bureaucracy carry out the wishes 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."[117]
Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to private enterprise motivated by profit.[118] In fact private companies, especially large ones, also have bureaucracies.[119] Negative perceptions of "red tape" aside, public services such as schooling, health care, policing or public transport are a crucial state function making public bureaucratic action the locus of government power.119 Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support.[120] Weber wrote that the typical characteristics of modern bureaucracy are that officials define its mission, the scope of work is bound by rules, management is composed of career experts, who manage top down, communicating through writing and binding public servants' discretion with rules.[121]
Legal profession
An English barrister
Lawyers give their clients advice about their legal rights and duties, and represent them in court. As 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.[122] 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. An aspiring practitioner must be certified by the regulating body before undertaking his practice. This usually entails a two or three year programme at a university faculty of law or a law school, earning the student a Bachelor of Laws, a Bachelor of Civil Law or a 
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