2008/9 Schools Wikipedia Selection. Related subjects: Law
Law is a system of rules usually enforced through a set of institutions. 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, and the act is intentional, 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 BC, "is better than the rule of any individual."
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 scripts. 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." 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.
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). 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", although there are many further disciplines which might be of greater practical importance.
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. The sources for public international law to develop are custom, practice and treaties between sovereign nations. The United Nations, founded under the UN Charter and the Universal Declaration of Human Rights, 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 South American Community of 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. 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.
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 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, 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.
Criminal law is the body of law that defines criminal offences and the penalties for convicted offenders. Apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure. In every jurisdiction, a crime is committed where two elements are fulfilled. First, the criminal must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind). Second, he must commit the criminal act, or actus reus (guilty act). 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, 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. 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. 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.
Contract is based on the Latin phrase pacta sunt servanda (agreements must be kept). 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).
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 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. 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 merely an invitation to treat, or 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".
"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. In civil law jurisdictions, consideration is not a requirement for a contract at all. In France, an ordinary contract is said to form simply on the basis of a "meeting of the minds" or a "concurrence of wills". Germany has a special approach to contracts, which ties into property law. Their 'abstraction principle' (Abstraktionsprinzip) means that the personal obligation of contract forms separately from the title of property being conferred. When contracts are invalidated for some reason (e.g. a car buyer is so drunk that he lacks legal capacity to contract) the contractual obligation to pay can be invalidated separately from the proprietary title of the car. Unjust enrichment law, rather than contract law, is then used to restore title to the rightful owner.
Torts, sometimes called delicts, are civil wrongs. To have acted tortiously, one must have breached a duty to another person, or infringed some pre-existing legal right. A simple example might be accidentally hitting someone with a cricket ball. Under 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. 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."
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. Another example of tort might be a neighbour making excessively loud noises with machinery on his property. Under a nuisance claim the noise could be stopped. Torts can also involve intentional acts, such as assault, battery or trespass. A better known tort is defamation, which occurs, for example, when a newspaper makes unsupportable allegations that damage a politician's reputation. More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes, when statute does not provide immunity.
Property law governs everything that people call 'theirs'. Real property, sometimes called 'real estate' refers to ownership of land and things attached to it. Personal property, refers to everything else; movable objects, such as computers 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. 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. 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. The idea of privately owned property is still contentious. French philosopher Pierre Proudhon once famously wrote, "property is theft".
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. 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. In the early case of Keech v. Sandford a child had inherited the lease on a market in Romford, London. Mr Sandford was entrusted to look after this property until the child matured. But before then, the lease expired. The landlord had (apparently) told Mr Sandford that he did not want the child to have the renewed lease. Yet the landlord was happy (apparently) to give Mr Sandford the opportunity of the lease instead. Mr Sandford took it. When the child (now Mr Keech) grew up, he sued Mr Sandford for the profit that he had been making by getting the market's lease. Mr Sandford was meant to be trusted, but he put himself in a position of conflict of interest. The Lord Chancellor, Lord King, agreed and ordered Mr Sandford should disgorge his profits. He wrote,
"I very well see, if a trustee, on the refusal to renew, might have a lease to himself few trust-estates would be renewed… This may seem very hard, that the trustee is the only person of all mankind who might not have the lease; but it is very proper that the rule should be strictly pursued and not at all relaxed."
Of course, Lord King LC was worried that trustees might exploit opportunities to use trust property for themselves instead of looking after it. Business speculators using trusts had just recently caused a stock market crash. Strict duties for trustees made their way into company law and were applied to directors and chief executive officers. Another example of a trustee's duty might be to invest property wisely or sell it. This is especially the case for pension funds, the most important form of trust, where investors are trustees for people's savings until retirement. But trusts can also be set up for charitable purposes, famous examples being the British Museum or the Rockefeller Foundation.
Law spreads far beyond the core subjects into virtually every area of life. Three categories are presented for convenience, though the subjects intertwine and flow into one another.
- Law and society
- Labour law is the study of a tripartite industrial relationship between worker, employer and trade union. This involves collective bargaining regulation, and the right to strike. Individual employment law refers to workplace rights, such as 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. 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 is probably the most complicated and well-paid discipline, involving value added tax, corporate tax, income tax, and most importantly, lots of money.
- 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 anti- trust 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 contract terms and conditions to directives on airline baggage insurance.
- Environmental law is increasingly important, especially in light of the Kyoto Protocol and the imminent danger of climate change. Environmental protection also serves to penalise polluters within domestic 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 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. 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. Instead a lay person, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised. Each case was to be decided afresh from the laws of the state, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. 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. 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." 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. 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. Today countries that have civil law systems range from Russia and China to most of Central and Latin America.
Common law and equity
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 judgements at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country. A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five. This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law. 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 judgement 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. 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. But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.
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, religious texts usually do not provide for a thorough and detailed legal system. For instance, the Quran has some law but not much, and it acts merely as a source of further law through interpretation. This is mainly contained in a body of jurisprudence known as the fiqh. The first five books of the Old Testament are known as the Torah and include Genesis, Exodus, Leviticus, Numbers and Deuteronomy. The Halakha is the interpretation of teachings and is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. Nevertheless, Israel is not governed by Halakha, but under Israeli law, the litigants may decide, because of personal 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. Nowadays, 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.
Philosophy of law
|"But what, after all, is a law? […] When I say that the object of laws is always general, I mean that law considers subjects en masse and actions in the abstract, and never a particular person or action. […] On this view, we at once see that it can no longer be asked whose business it is to make laws, since they are acts of the general will; nor whether the prince is above the law, since he is a member of the State; nor whether the law can be unjust, since no one is unjust to himself; nor how we can be both free and subject to the laws, since they are but registers of our wills."|
|Jean-Jacques Rousseau, The Social Contract, II, 6.|
The philosophy of law is known 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". 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". 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". 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". Thus, Nietzsche criticised the principle of equality, and believed that law should be committed to freedom to engage in will to power.
In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law. 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. Therefore, Schmitt advocated a jurisprudence of the exception ( state of emergency), which denied that legal norms could encompass of all political experience.
Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law. 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", 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. 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.
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.
The most decorated 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. Rational individuals trade through bilateral contracts on open markets until the costs of transactions mean that using corporations to produce things is more cost-effective. His second major article, The Problem of Social Cost (1960), argued that if we lived in a world without transaction costs, people would bargain with one another to create the same allocation of resources, regardless of the way a court might rule in property disputes. Coase used the example of a nuisance case named Sturges v. Bridgman, where a noisy sweetmaker and a quiet doctor were neighbours and went to court to see who should have to move. Coase said that regardless of whether the judge ruled that the sweetmaker had to stop using his machinery, or that the doctor had to put up with it, they could strike a mutually beneficial bargain about who moves house that reaches the same outcome of resource distribution. Only, the existence of transaction costs may prevent this. So the law ought to pre-empt what would happen, and be guided by the most efficient solution. The idea is that law and regulation are not as important or effective at helping people as lawyers and government planners believe. Coase and others like him wanted a change of approach, to put the burden of proof for positive effects on a government that was intervening in the market, by analysing the costs of action.
Sociology of law
Sociology of law 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. 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. 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. 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. 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. 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.
|"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 give 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 profession of lawyers 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. 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. 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 itself 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 are the political base of the law.
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., this is the Supreme Court; in Australia, the High Court; in the U.K., the House of Lords; in Germany, the Bundesverfassungsgericht; in France, the Cour de Cassation. However, for most European countries the European Court of Justice 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. 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 United Kingdom, Finland and New Zealand still assert the ideal of parliamentary sovereignty, whereby the unelected judiciary may not overturn law passed by a democratic 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 political decision-makers in order to make them carry out their wishes. Although some countries — for instance, Israel, Greece, Sweden and China — are unicameral, most legislatures are bicameral. In the 'lower house' politicians are elected to represent smaller constituencies. The 'upper house' is usually elected to represent a larger state in a federal system (as in Australia or Germany), a 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. On the other hand, the traditional justification of bicameralism is that it minimises arbitrariness and injustice in governmental action.
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 UK 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. or Brazil), and the legislature's role is reduced to either ratification or veto.
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. and Russia, under whose presidential systems the executive branch exists and presides separately from the legislature, to which it is not accountable, and the legislature cannot in normal circumstances dismiss it.
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; for instance 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". 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, although the Paris Prefecture of Police claim they were the world's first uniformed policemen. 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. 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.
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."
Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to private enterprise motivated by profit. In fact private companies, especially large ones, also have bureaucracies. Negative perceptions of " red tape" aside, public services such as schooling, health care, policing or public transport are a crucial state function making public bureaucratic action the locus of government power. Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support. Weber wrote that the typical characteristics of modern bureaucracy are that officials define its mission, the scope of work is bound by rules, management is composed of career experts, who manage top down, communicating through writing and binding public servants' discretion with rules.
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. 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 Juris Doctor degree. This course of study is followed by an entrance examination (e.g. admission to the bar). Some countries require a further vocational qualification before a person is permitted to practice law. For those wishing to become a barrister, this would lead to a Barrister-at-law degree, followed by a year's pupillage under the oversight of an experienced barrister. Beyond the requirements for legal practice higher academic degrees may be pursued. Examples include a Master of Laws, a Master of Legal Studies or a Doctor of Laws.
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 commercial service or through freelance work. Many people trained in law put their skills to use outside the legal field entirely. Significant to the practice of law in the common law tradition is the legal research to determine the current state of the law. This usually entails exploring case-law reports, legal periodicals and legislation. Law practice also involves drafting documents such as court pleadings, persuasive briefs, contracts, or wills and trusts. Negotiation and dispute resolution skills are also important to legal practice, depending on the field.
The term "civil society" dates back to John Locke, who saw civil society as being of people who have "a common established law and judicature to appeal to, with authority to decide controversies between them." German philosopher Georg Wilhelm Friedrich Hegel also distinguished the "state" from "civil society" (Zivilgesellschaft) in Elements of the Philosophy of Right. Hegel believed that civil society and the state were polar opposites, within the scheme of his dialectic theory of history. 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."
Freedom of speech, freedom of association and many other individual rights allow people to meet together, 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. Developed political parties, debating clubs, trade unions, impartial media, business and charities are all part of a healthy civil society.