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Law aims to mediate relations between people. It is administered through courts, created by Parliaments and Governments. This political structure gains legitimacy through its accountability to people. Aristotle observed that the 'Rule of Law' is better than the 'Rule of Any Man', by which he meant that people should be responsible to one another. Responsibilities and rights are the language of law. We owe obligations when we use our property, which we may entrust to a commercial venture, and we may not intentionally harm others' interests without losing our liberty and becoming criminals. The word law derives from the late Old English lagu. Main areas Every law student learns a core set of subjects; for instance, in English law these would include contract, tort, property law trusts, criminal law, public law and European law. Contract law concerns trading property. Property law refers to regulations on the use of land and other valuable things. English-speaking legal systems have a special form of property known as a trust. Tort means civil wrongs, when somebody hurts you or your stuff. Criminal law is the mechanism to deprive people of their liberty for malicious conduct. Public law refers to the institutions of the nation state, and in Europe and other continents, as globally, international and supranational law governs people's relations across borders. Contract Contract is about promises, and keeping them. Pacta sund servanda is Latin for promises should be kept. That is the basis of a contract. The three elements of a contract in Anglo-Saxon legal systems are offer and acceptance, consideration and an intention to be legally bound. Offer and acceptance
Consideration Consideration simply means 'value'. Both sides to a contract must in principle 'bring something to the bargain'. If one side has nothing to offer the other, then he has been given a gift, not enforceable without a deed. In most jurisdictions, third parties, e.g. friends of a contracting party, can be benefitted through a contract by two others. They can piggy back claims of their contracting friends. Intention to be legally bound Intention to be legally bound is the final, simple, requirement, that for a contract, both sides must want it. They must will the acceptance of law's custodianship. An example of how one does not intend to be legally bound is a blind person duped into signing a document he does not understand. He can argue non est factum, which is Latin for 'it's not my deed'. Tort Tort is the subject that deals with civil wrongs. These are wrongs, like somebody injuring you, or breaking your stuff, that are not intentional, and therefore not criminal. A famous case is about a lady drinking a bottle of ginger beer that contained a decomposed snail and, expectedly, getting ill. She could sue the manufacturer for his negligence resulting in her harm. Property law Property law is the study of real and personal proprietary rights. Real property refers to land and personal property can be anything else that I can call 'mine'. In property law you learn about mortgages, landlord and tenant relations, covenants, easements and registration of land. Trust law The trust is an emanation of property law. It is the creation of the Lord Chancellor in England, and the courts of Chancery. When knights in the Middle Ages left their estates to fight the Crusades, their wives were left at home. But they could not own property, and so their property could easily get appropriated by some other Earl, Duke or Baron. So the crusaders gave their property to friends on condition that they would be able to come back to it. In a trust, ownership by beneficiaries is split from control by trustees. An example of a trust is the British Museum, controlled by a board of trustees, for the benefit of all 'studious and curious persons'. Trusts are used mostly to store large amounts of wealth, especially in funds 'offshore' from countries with taxes. Public law
International law In a global economy, law is globalising too. The European Union is the first example of a supra-national legal framework, where sovereign nations pool their authority for the social and economic benefit of their members. Public International Law is the familiar kind, which deals with relations between nation states. The United Nations, the Geneva Conventions and the International Labour Organistation, the World Trade Organisation, and the International Monetary fund are all part of Public International Law's framework. Criminal law Criminal law is the most familiar kind of law that we hear about in the papers, or news on TV, despite it relatively small part in the legal whole. A crime is committed, in Anglo-Saxon legal systems, when somebody has both the mens rea and actus reus requirements. These Latin words mean that someone must have a guilty mind, and do some guilty act. An actus reus might be hurting a person or burning their stuff. If somebody intends to do it, that is the mens rea. There can be many different kinds of crime, from murder, to assault, to fraud, to theft. Some industrialised countries still have capital punishment and torture for criminal activity, but the normal punishment for a crime will be imprisonment, fines, or community service. Further disciplines There are plenty more fields beyond the core of law. Comparative perspective We live in a globalising economy, and our legal systems are close behind in the race. There is a general Western distinction between civil law on the one hand and on the other, common law and equity systems. Civil Law implies a codification of laws by Parliaments or the State, as was done in the Roman Empire. English Law is the father of common law and equity, and is used in Commonwealth countries or former countries from the British Empire. Its features are the doctrine of precedent in cases, which generate judge made law. Some parts of countries and even whole countries accept law as being based on Biblical transcripts. Civil law civil law implies a codified system of law, which is interpreted, not made, by judges. In theory only legislative enactments (rather than judicial precedent) are considered legally binding, but in reality courts do pay attention to previous decisions. Civil law stretches back to ancient history. Law in ancient civilizations Egyptian Law used a civil code, based on the concept of Maàt. Tradition, rhetorical speech, social equality and impartiality were key principles. Judges kept records, which was used as precedent, although the systems developed slowly. In Babylon, the King Hammurabi made the innovation of publishing his code of laws for the public to see in the market. The Hebrew Talmud developed in the centuries before the Birth of Christ. Most importantly, in Ancient Athens, the small Greek city-state developed the first government based on broad inclusive of the citizenry, excluding slaves and women. This was the a major step in the development of democracy. Roman law Roman law underwent major codification in the Corpus Juris Civilis of Emperor Justinian, as later developed through the Middle Ages by mediæval legal scholars. Originally civil law was one common legal system in much of Europe, but with the rise of nationalism in the 17th century Nordic countries and around the time of the French Revolution, it became fractured into separate national systems. This change was brought about by the development of separate national codes, of which the French Napoleonic Code and the German and Swiss codes were the most influential. Around this time civil law incorporated many ideas associated with the Enlightenment. The European Union's Law is based on a codified set of laws, laid down in the Treaties. Law in the EU is however mixed with precedent in case law of the European Court of Justice. Oriental law Because Germany was a rising power in the late 19th century when many Asian nations were introducing civil law, the German Civil Code has been the basis for the legal systems of Japan and South Korea. The Kaiser's Second Reich, with its throne in Bismarck's Prussia was also followed by the Japanese Emperor as a model constitution, for its ability to manage democracy. In China, the German Civil Code was introduced in the later years of the Qing Dynasty and formed the basis of the law of the Republic of China which remains in force in Taiwan. Common law and equity The common law and equity legal tradition is from England. The doctrine of stare decisis or precedent by courts is the major innovation. It spread throughout the former British Empire and Commonwealth over the last five centuries. The common law system is currently in practice in Ireland, United Kingdom, Australia, New Zealand, South Africa, Canada (excluding Quebec), and the United States. In addition to these countries, several others have adapted the common law system into a mixed system. For example, Pakistan, India and Nigeria operate largely on a common law system, but incorporate religious law. Religious law Many religions contain a body of law - for example, Halakha in Judaism, Sharia in Islam, and various forms of Canon law for different denominations of Christians. In some cases these are intended purely as individual moral guidance, whereas in other cases they are intended and may be used as the basis for a country's legal system. Amongst religious legal codes, Halakha, followed by Orthodox and Conservative Jews (in substantially different forms) deals with both ecclesiastical relations as well as civil law. However unlike Sharia which is sometimes used as a basis for a national legal code, there is currently no country that is fully governed by Halakha. On a smaller level there are still regions of the world that practice variations of Christian Canon law used by the Catholic Church, the Eastern Orthodox Church and the Anglican Communion. However, modern-day canon law copes almost solely with ecclesiastical relations, unlike Sharia, which relates also to civil law (like property rights, contracts, partnerships and covering damages) and administrative law. Separately from national law, individuals who practice a particular religion may agree with others to have their cases heard by religious courts to which they mutually agree to submit. These are voluntary and have no judicial enforcement power, none the less (for example) two religious Jews may decide to have their dispute heard by a Jewish court and be bound by its rulings, as a matter of personal belief. Similar arrangements may hold for Islam and other religions. In such cases there may be agreed recourse to the civic courts, or it may be agreed to be foregone. Jurisprudence and Political Philosophy Philosophy of law, or jurisprudence asks the question "What is law?". Another question is the relationship between law and morality, if there is one. The sociologist Max Weber identified the legal-rational form as a type of domination: In the legal-rational type of domination] every single bearer of powers of command is legitimated by that system of rational norms, and his power is legitimate in so far as it corresponds with the norms. Obedience is thus given to the norms rather than to the person. Weber holds that legal positions contain the basis of their own legitimacy, and related to that, the nation state is defined as that which has the legitimate monopoly on the use of force. Some commentators have gone a step further and argued that since the most influential groups control the political institutions of society, they will enjoy the most success in getting laws passed and judgements made in their favour. Economic analysis Economic analysis of law (or economics and law) is the term usually employed to describe an approach to legal theory that incorporates and applies the methods and ideas of economics to the concepts of law. Notable theorits include Ronald Coase, and the Chicago School of economists come lawyers. History of Law Law has a rich history, as it describes the evolution of power struggles, class division and battles for equality, fairness and justice for all. In the history of law is tales of the Abolitionist movements, the rise of collective labour bargaining, the triumph of capitalist enterprise and the vastly uncertain world we live in now. The History of Law is a set of examples about how to go forward. Two major threads of the History of Law are important for today's legal landscape, the history of romanesque Codified Law, and the English Common Law and Equity. Roman law, as Egyptian, Babylonian and Hebrew law before it, concentrated on private law remedies, rather than focussed on the state. In England the first ever Constitution which limited the power of the state was written, the Magna Carta. see: History of Law Institutions The main institutions of law in industrialised countries are independent courts, representative parliaments, the military and police, bureaucratic organisation, the profession of lawyers and civil society itself. John Locke in Two Treatises On Civil Government and Charles de Secondat, Baron de Montesquieu after him in Spirit of Laws advocated a separation of powers, on the principle that no person should be able to claim, as Thomas Hobbes wanted, a Leviathan of power. Karl Marx and Max Weber have been pivotal in shaping thinking in the twentieth century about the extensions of the state. Judiciary Most countries have a system of appeals courts, up to a supreme authority. In the U.S. this would be the Supreme Court, in Australia the High Court. In the U.K. the highest court is the House of Lords, but on questions of European Community Law or Human Rights Law, the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg are the authorities. The Bundesverfassungsgericht is the counterpart in Germany, for example. Some courts are bound by constitutions and may interpret them, whilst the U.K. continues to assert the ideal of Parliamentary Sovereignty. Legislature
Executive In most democratic countries, like the U.K., Germany, India and Japan, the executive is elected into and drawn from the legislature. There will sometimes be an heriditary, or usually an appointed head of state, such as the Queen of England, or the Bundespraesident. In other important exceptions, such as France, the U.S. and Russia, the President is directly elected, and may appoint a cabinet that is not directly elected. Military and police If the state is that which controls the means of violence, as Max Weber thought, then the long arms of the law mean military and police personnel. These people uphold directions by state governments to carry out orders. Failed states are those where security order by military and police can no longer be upheld. Bureaucratic organisation Max Weber also believed that in the early twentieth century a definitive feature of a developed state was its bureaucratic support. Armies of white collared workers control and produce information, and distribute resources at the wish of the people, or the direction of leaders. Civil society Perhaps the most crucial institution in the law is simply the civil partnerships and associations by people holding no official positions. Freedom of Speech, and Freedom of Association are human rights, or civil liberties, upheld in most developed and developing countries that form the basis of an active participatory democracy. The more people are involved and concerned about how political power is exercised over their lives, the more acceptable and legitimate the law becomes to the people. Developed political parties or debating clubs are signs of health civil society. Legal profession Practice of law is typically overseen by either a government organization or independent regulating body such as a bar association, bar council, barrister society, or law society. To practice law, the regulating body must certify the practitioner. This usually entails a two or three-year program at a university faculty of law or a law school, which earns the student a Bachelor of Laws, a Bachelor of Civil Law or a Juris Doctor degree. This course of study is followed by an entrance examination (e.g. bar admission). Some countries require a further vocational qualification before a person is permitted to practise law. In the case of those wishing to become a barrister], this would lead to a Barrister-at-law degree, followed by a year's apprenticeship (sometimes known as pupillage or devilling) under the oversight of an experienced barrister (or master). Advanced law degrees are also often pursued, though they are academic degrees and are not required for the practice of law. These include a Master of Laws, a Master of Legal Studies, and a Doctor of Laws. Once accredited, a lawyer will often work in a law firm, in a chambers, as a sole practitioner, for a government or as internal counsel at a private corporation. Another option is to become a legal researcher who provides on-demand legal research through a commercial service or on a freelance basis. Many people trained in law put their skills to use outside the legal field entirely. A significant component to the practice of law in the common law tradition involves legal research in order 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 are also important parts of legal practice, depending on the field. See also Lists Further reading Clarendon Press, 1758) ISBN 1-57588-413-5 | |||||||||||||
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