The Full Wiki

More info on Law

Law: Wikis

  
  
  
  
  

Note: Many of our articles have direct quotes from sources you can cite, within the Wikipedia article! This article doesn't yet, but we're working on it! See more info or our list of citable articles.

Did you know ...


More interesting facts on Law

Include this on your site/blog:

















Encyclopedia

From Wikipedia, the free encyclopedia

Lady Justice is the symbol of the judiciary.[1][2] Justice is depicted as a goddess equipped with three symbols of the rule of law: a sword symbolizing the court's coercive power; scales representing the weighing of competing claims; and a blindfold indicating impartiality.[3]

Law[4] is a system of rules, usually enforced through a set of institutions.[5] It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law defines rights and obligations related to the transfer and title of personal (often referred to as chattel) and real property. Trust law applies to assets held for investment and financial security, while tort law allows claims for compensation if a person's rights or property are harmed. If the harm is criminalised in a statute, criminal law offers means by which the state can prosecute the perpetrator. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies, while international law governs affairs between sovereign nation states in activities ranging from trade to environmental regulation or military action. Writing in 350 BC, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual."[6]

Legal systems elaborate rights and responsibilities in a variety of ways. A general distinction can be made between civil law jurisdictions, which codify their laws, and common law systems, where judge made law is not consolidated. In some countries, religion informs the law. Law provides a rich source of scholarly inquiry, into legal history, philosophy, economic analysis or sociology. Law also raises important and complex issues concerning equality, fairness and justice. "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."[7] In a typical democracy, the central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature, and an accountable executive. To implement and enforce the law and provide services to the public, a government's bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress.

Contents

Legal subjects

All legal systems deal with the same basic issues, but each country categorises and identifies its legal subjects in different ways. A common distinction is that between "public law" (a term related closely to the state, and including constitutional, administrative and criminal law), and "private law" (which covers contract, tort and property).[8] In civil law systems, contract and tort fall under a general law of obligations, while trusts law is dealt with under statutory regimes or international conventions. International, constitutional and administrative law, criminal law, contract, tort, property law and trusts are regarded as the "traditional core subjects",[9] although there are many further disciplines which may be of greater practical importance.

International law

Providing a constitution for public international law, the United Nations system was agreed during World War II

International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organisations.

  • Conflict of laws (or "private international law" in civil law countries) concerns which jurisdiction a legal dispute between private parties should be heard in and which jurisdiction's law should be applied. Today, businesses are increasingly capable of shifting capital and labour supply chains across borders, as well as trading with overseas businesses, making the question of which country has jurisdiction even more pressing. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.[13]
  • European Union law is the first and, so far, only example of a supranational legal framework. Given the trend of increasing global economic integration, many regional agreements—especially the Union of South American Nations—are on track to follow the same model. In the EU, sovereign nations have gathered their authority in a system of courts and political institutions. These institutions are allowed the ability to enforce legal norms both against or for member states and citizens in a manner which is not possible through public international law.[14] As the European Court of Justice said in the 1960s, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states.[15]

Constitutional and administrative law

The French Declaration of the Rights of Man and of the Citizen, whose principles still have constitutional value

Constitutional and administrative law govern the affairs of the state. Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state. Most jurisdictions, like the United States and France, have a single codified constitution, with a Bill of Rights. A few, like the United Kingdom, have no such document. A "constitution" is simply those laws which constitute the body politic, from statute, case law and convention. A case named Entick v Carrington[16] 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.[17]

The fundamental constitutional principle, inspired by John Locke, holds 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.[18][19] 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.[20]

Criminal law

Criminal law, also known as penal law, pertains to crimes and punishment.[21] It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact but, in itself, makes no moral judgement on an offender nor imposes restrictions on society that physically prevents people from committing a crime in the first place.[22] Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure.[23] The paradigm case of a crime lies in the proof, beyond reasonable doubt, that a person is guilty of two things. First, the accused must commit an act which is deemed by society to be criminal, or actus reus (guilty act).[24] Second, the accused must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind). However for so called "strict liability" crimes, an actus reus is enough.[25] Criminal systems of the civil law tradition distinguish between intention in the broad sense (dolus directus and dolus eventualis), and negligence. Negligence does not carry criminal responsibility unless a particular crime provides for its punishment.[26][27]

A depiction of a 1600s criminal trial, for witchcraft in Salem

Examples of crimes include murder, assault, fraud and theft. In exceptional circumstances defences can apply to specific acts, such as killing in self defence, or pleading insanity. Another example is in the 19th century English case of R v Dudley and Stephens, which tested a defence of "necessity". The Mignonette, sailing from Southampton to Sydney, sank. Three crew members and Richard Parker, a 17 year old cabin boy, were stranded on a raft. They were starving and the cabin boy was close to death. Driven to extreme hunger, the crew killed and ate the cabin boy. The crew survived and were rescued, but put on trial for murder. They argued it was necessary to kill the cabin boy to preserve their own lives. Lord Coleridge, expressing immense disapproval, ruled, "to preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it." The men were sentenced to hang, but public opinion was overwhelmingly supportive of the crew's right to preserve their own lives. In the end, the Crown commuted their sentences to six months in jail.[28]

Criminal law offences are viewed as offences against not just individual victims, but the community as well.[22] The state, usually with the help of police, takes the lead in prosecution, which is why in common law countries cases are cited as "The People v ..." or "R (for Rex or Regina) v ..." Also, lay juries are often used to determine the guilt of defendants on points of fact: juries cannot change legal rules. Some developed countries still condone capital punishment for criminal activity, but the normal punishment for a crime will be imprisonment, fines, state supervision (such as probation), or community service. Modern criminal law has been affected considerably by the social sciences, especially with respect to sentencing, legal research, legislation, and rehabilitation.[29] On the international field, 108 are members of the International Criminal Court, which was established to try people for crimes against humanity.[30]

Contract law

The famous Carbolic Smoke Ball advertisement to cure influenza was held to be a unilateral contract

Contract law concerns enforceable promises, and can be summed up in the Latin phrase pacta sunt servanda (agreements must be kept).[31] In common law jurisdictions, three key elements to the creation of a contract are necessary: offer and acceptance, consideration and the intention to create legal relations. In Carlill v Carbolic Smoke Ball Company a medical firm advertised that its new wonder drug, the smokeball, would cure people's flu, and if it did not, the buyers would get £100. Many people sued for their £100 when the drug did not work. Fearing bankruptcy, Carbolic argued the advert was not to be taken as a serious, legally binding offer. It was an invitation to treat, mere 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".[32]

"Consideration" indicates the fact that all parties to a contract have exchanged something of value. Some common law systems, including Australia, are moving away from the idea of consideration as a requirement. The idea of estoppel or culpa in contrahendo, can be used to create obligations during pre-contractual negotiations.[33] In civil law jurisdictions, consideration is not required for a contract to be binding.[34] 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)[35] 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.[36]

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.[37] Under the law of negligence, the most common form of tort, the injured party could potentially claim compensation for his injuries from the party responsible. The principles of negligence are illustrated by Donoghue v Stevenson.[38] A friend of Mrs Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Mrs Donoghue) in a café in Paisley. Having consumed half of it, Mrs Donoghue poured the remainder into a tumbler. The decomposing remains of a snail floated out. She claimed to have suffered from shock, fell ill with gastroenteritis and sued the manufacturer for carelessly allowing the drink to be contaminated. The House of Lords 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.[39]

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.[38] Another example of tort might be a neighbour making excessively loud noises with machinery on his property.[40] 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.[41] More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes,[42] when statute does not provide immunity.[43]

Property law

A painting of the South Sea Bubble, one of the world's first ever speculations and crashes, led to strict regulation on share trading.[44]

Property law governs valuable things that people call 'theirs'. Real property, sometimes called 'real estate' refers to ownership of land and things attached to it.[45] Personal property, refers to everything else; movable objects, such as computers, cars, jewelry, and sandwiches, or intangible rights, such as stocks and shares. A right in rem is a right to a specific piece of property, contrasting to a right in personam which allows compensation for a loss, but not a particular thing back. Land law forms the basis for most kinds of property law, and is the most complex. It concerns mortgages, rental agreements, licences, covenants, easements and the statutory systems for land registration. Regulations on the use of personal property fall under intellectual property, company law, trusts and commercial law. An example of a basic case of most property law is Armory v Delamirie.[46] A chimney sweep's boy found a jewel encrusted with precious stones. He took it to a goldsmith to have it valued. The goldsmith's apprentice looked at it, sneakily removed the stones, told the boy it was worth three halfpence and that he would buy it. The boy said he would prefer the jewel back, so the apprentice gave it to him, but without the stones. The boy sued the goldsmith for his apprentice's attempt to cheat him. Lord Chief Justice Pratt ruled that even though the boy could not be said to own the jewel, he should be considered the rightful keeper ("finders keeper") until the original owner is found. In fact the apprentice and the boy both had a right of possession in the jewel (a technical concept, meaning evidence that something could belong to someone), but the boy's possessory interest was considered better, because it could be shown to be first in time. Possession may be nine tenths of the law, but not all.

This case is used to support the view of property in common law jurisdictions, that the person who can show the best claim to a piece of property, against any contesting party, is the owner.[47] By contrast, the classic civil law approach to property, propounded by Friedrich Carl von Savigny, is that it is a right good against the world. Obligations, like contracts and torts are conceptualised as rights good between individuals.[48] The idea of property raises many further philosophical and political issues. Locke argued that our "lives, liberties and estates" are our property because we own our bodies and mix our labour with our surroundings.[49]

Equity and trusts

The Court of Chancery, London, early 19th century

Equity is a body of rules that developed in England separately from the "common law". The common law was administered by judges. The Lord Chancellor on the other hand, as the King's keeper of conscience, could overrule the judge made law if he thought it equitable to do so.[50] This meant equity came to operate more through principles than rigid rules. For instance, whereas neither the common law nor civil law systems allow people to split the ownership from the control of one piece of property, equity allows this through an arrangement known as a 'trust'. 'Trustees' control property, whereas the 'beneficial' (or 'equitable') ownership of trust property is held by people known as 'beneficiaries'. Trustees owe duties to their beneficiaries to take good care of the entrusted property.[51] In the early case of Keech v Sandford[52] 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.[53] 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 overlap.

Law and society
A trade union protest by UNISON while on strike
Law and commerce
Law and regulation
The New York Stock Exchange trading floor after the Wall Street Crash of 1929, before tougher banking regulation was introduced

Legal systems

In general, legal systems can be split between civil law and common law systems.[57] The term "civil law" referring to a legal system should not be confused with "civil law" as a group of legal subjects distinct from criminal or public law. A third type of legal system— accepted by some countries without separation of church and state—is religious law, based on scriptures. The specific system that a country is ruled by is often determined by its history, connections with other countries, or its adherence to international standards. The sources that jurisdictions adopt as authoritatively binding are the defining features of any legal system. Yet classification is a matter of form rather than substance, since similar rules often prevail.

Civil law

First page of the 1804 edition of the Napoleonic Code

Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation—especially codifications in constitutions or statutes passed by government—and custom.[58] Codifications date back millennia, with one early example being the Babylonian Codex Hammurabi. Modern civil law systems essentially derive from the legal practice of the Roman Empire whose texts were rediscovered in medieval Europe. Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class.[59] Instead a lay person, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised.[60] 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 I 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.[61] 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."[62] 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.[63] Civil law codifications based closely on Roman law, alongside some influences from religious laws such as Canon law and Islamic law,[64][65] 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.[66][67] Today, countries that have civil law systems range from Russia and China to most of Central and Latin America.[68] The United States follows the common law system described below.

Common law and equity

King John of England signs Magna Carta

Common law and equity are legal systems where decisions by courts are explicitly acknowledged to be legal sources. The "doctrine of precedent", or stare decisis (Latin for "to stand by decisions") means that decisions by higher courts bind lower courts. Common law systems also rely on statutes, passed by the legislature, but may make less of a systematic attempt to codify their laws than in a "civil law" system. Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta, Scotland, the U.S. state of Louisiana, and the Canadian province of Quebec). In medieval England, the Norman conquest led to a unification of various tribal customs and hence a law "common" to the whole country. Perhaps influenced by Islamic legal practices around the time of the Crusades,[65] the common law developed 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.[69] 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.[70] This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law.[71] 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 varied according to the length of the Chancellor's foot.[72] But over time it developed solid principles, especially under Lord Eldon.[73] 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.[74] But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.[75]

Religious law

Religious law is explicitly based on religious precepts. Examples include the Jewish Halakha and Islamic Sharia—both of which translate as the "path to follow"—while Christian canon law also survives in some church communities. Often the implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments. However a thorough and detailed legal system generally requires human elaboration. For instance, the Quran has some law, and it acts as a source of further law through interpretation,[76] Qiyas (reasoning by analogy), Ijma (consensus) and precedent. This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively. Another example is the Torah or Old Testament, in the Pentateuch or Five Books of Moses. This contains the basic code of Jewish law, which some Israeli communities choose to use. The Halakha is a code of Jewish law which summarises some of the Talmud's interpretations. Nevertheless, Israeli law allows litigants to use religious laws only if they choose. Canon law is only in use by members of the clergy in the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion.

A trial in the Ottoman Empire, 1879, when religious law applied under the Mecelle

Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire's Mecelle code in the 19th century being first attempt at codifying elements of Sharia law. Since the mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions.[77][78] In modern times, the legal systems of many Muslim countries draw upon both civil and common law traditions as well as Islamic law and custom. The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognise Islam as the religion of the state, obliging legislature to adhere to Sharia.[79] Saudi Arabia recognises Quran as its constitution, and is governed on the basis of Islamic law.[80] Iran has also witnessed a reiteration of Islamic law into its legal system after 1979.[81] 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.[82]

Legal theory

History of law

King Hammurabi is revealed the code of laws by the Mesopotamian sun god Shamash, also revered as the god of justice

The history of law is closely connected to the development of civilization. Ancient Egyptian law, dating as far back as 3000 BC, contained a civil code that was probably broken into twelve books. It was based on the concept of Ma'at, characterised by tradition, rhetorical speech, social equality and impartiality.[83][84] By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements ("if ... then ..."). Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae, for the entire public to see; this became known as the Codex Hammurabi. The most intact copy of these stelae was discovered in the 19th century by British Assyriologists, and has since been fully transliterated and translated into various languages, including English, German, and French.[85]

The Old Testament dates back to 1280 BC, and takes the form of moral imperatives as recommendations for a good society. The small Greek city-state, Ancient Athens, and from about 8th century BC was the first society to be based on broad inclusion of its citizenry; excluding women and the slave class. However, Athens had no legal science, and no word for "law" as an abstract concept.[86] Yet Ancient Greek law contained major constitutional innovations in the development of democracy.[87]

Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists, and were highly sophisticated.[88][89] Over the centuries between the rise and decline of the Roman Empire, law was adapted to cope with the changing social situations, and underwent major codification during Justinian I.[90] Although it declined in significance during the Dark Ages, Roman law was rediscovered around the 11th century when mediæval legal scholars began to research Roman codes and adapt their concepts. In mediæval England, the King's judges developed a body of precedent, which later became the common law. A Europe-wide Lex Mercatoria was formed so that merchants could trade with common standards of practice; rather than with the many splintered facets of local laws. The Lex Mercatoria, a precursor to modern commercial law, emphasised the freedom of contract and alienability of property.[91] 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. In contrast to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and easy for judges to apply. However, today there are signs that civil and common law are converging.[92] EU 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

Islamic law and jurisprudence developed during the Middle Ages.[93] The methodology of legal precedent and reasoning by analogy (Qiyas) used in early Islamic law was similar to that of the later English common law system.[94] This was particularly the case for the Maliki school of Islamic law active in North Africa, Islamic Spain and the Emirate of Sicily. Between the 8th and 11th centuries, Maliki law developed several legal institutions that were parallel with later common law institutions.[95]

Ancient India and China represent distinct traditions of law, and have historically had independent schools of legal theory and practice. The Arthashastra, probably compiled around 100 AD (although it contains older material), and the Manusmriti (c. 100–300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance.[96] Manu's central philosophy was tolerance and Pluralism, and was cited across Southeast Asia.[97] This Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire.[98] 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.[99] 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.[100] 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.[101] 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.[102] Due to rapid industrialisation, today China undergoing a process of reform, at least in terms of economic, if not social and political, rights. A new contract code in 1999 represented a move away from administrative domination.[103] Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organisation.[104]

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.[105]

The philosophy of law is commonly known as jurisprudence. Normative jurisprudence is essentially political philosophy, and asks "what should law be?", while analytic jurisprudence asks "what is law?". John Austin's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience".[106] Natural lawyers on the other side, such as Jean-Jacques Rousseau, argue that law reflects essentially moral and unchangeable laws of nature. The concept of "natural law" emerged in ancient Greek philosophy concurrently and in entanglement with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas and the commentaries of Islamic philosopher and jurist Averroes.[107][108]

Hugo Grotius, the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason.[109] Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".[110] Jeremy Bentham and his student Austin, following David Hume, believed that this conflated the "is" and what "ought to be" problem. Bentham and Austin argued for law's positivism; that real law is entirely separate from "morality".[111] Kant was also criticised by Friedrich Nietzsche, who rejected the principle of equality, and believed that law emanates from the will to power, and cannot be labelled as "moral" or "immoral".[112][113][114]

In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law.[115] Kelsen believed that although law is separate from morality, it is endowed with "normativity"; meaning we ought to obey it. While laws are positive "is" statements (e.g. the fine for reversing on a highway is 500); law tells us what we "should" do. Thus, each legal system can be hypothesised to have a basic norm (Grundnorm) instructing us to obey. Kelsen's major opponent, Carl Schmitt, rejected both positivism and the idea of the rule of law because he did not accept the primacy of abstract normative principles over concrete political positions and decisions.[116] Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass of all political experience.[117]

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.[118] Hart argued law is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Two of Hart's students continued the debate: In his book Law's Empire, Ronald Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "interpretive concept",[119] that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. Joseph Raz, on the other hand, defended the positivist outlook and criticised Hart's "soft social thesis" approach in The Authority of Law.[120] Raz argues that law is authority, identifiable purely through social sources and without reference to moral reasoning. In his view, any categorisation of rules beyond their role as authoritative instruments in mediation are best left to sociology, rather than jurisprudence.[121]

Economic analysis of law

In the 18th century Adam Smith presented a philosophical foundation for explaining the relationship between law and economics.[122] 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.[123]

Richard Posner, one of the Chicago School, runs a blog with Bank of Sweden Prize winning economist Gary Becker.[124]

The most prominent economic analyst of law is 1991 Nobel Prize winner Ronald Coase, whose first major article, The Nature of the Firm (1937), argued that the reason for the existence of firms (companies, partnerships, etc.) is the existence of transaction costs.[125] 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.[126] 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.[40] 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.[127] 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.[128] 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.[129]

Sociology of law

Sociology of law is a diverse field of study that examines the interaction of law with society and overlaps with jurisprudence, economic analysis of law and more specialised subjects such as criminology.[130] The institutions of social construction and legal frameworks are the relevant areas for the discipline's inquiry. At first, legal theorists were suspicious of the discipline. Kelsen attacked one of its founders, Eugen Ehrlich, who sought to make distinct the differences 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.[131][132]

Max Weber in 1917, Weber began his career as a lawyer, and is regarded as one of the founders of sociology and sociology of law,

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.[133] 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.[130] 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.[134] 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.[135][136]

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

Law is less a body of static rules than a "dynamic process by which rules are constantly changed, created, and molded to fit particular situations."[137] Changes are continuously made by various institutions in a society. Law's main institutions in liberal democracies are the independent judiciaries, the justice systems, the representative legislatures or parliaments, an accountable executive, a competent and non-corrupt bureaucracy, a police force, a civilian control of the military and a robust legal profession ensuring people's access to justice and a pluralistic civil society—a term used to refer to the social institutions, communities and partnerships that form law's political basis.[138][139]

John Locke, in his Two Treatises of Government, and Baron de Montesquieu in The Spirit of the Laws, advocated for a separation of powers between the political, legislature and executive bodies.[140] 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.[141] Max Weber and others reshaped thinking on the extension of state. Modern military, policing and bureaucratic power over ordinary citizens' daily lives pose special problems for accountability that earlier writers such as Locke or Montesquieu could not have foreseen. Modern international organisations tend to focus on the importance of rule of law and good governance, while other authors explore the relation of rule of law and efficient governance in modern states.[142][143]

Judiciary

A judiciary is a number of judges mediating disputes to determine outcome. Most countries have systems of appeal courts, answering up to a supreme legal authority. In the United States, this is the Supreme Court;[144] in Australia, the High Court; in the UK, the House of Lords;[145] in Germany, the Bundesverfassungsgericht; in France, the Cour de Cassation.[146][147] For most European countries the European Court of Justice in Luxembourg can overrule national law, when EU law is relevant. The European Court of Human Rights in Strasbourg allows citizens of the Council of Europe member states to bring cases relating to human rights issues before it.[148]

Some countries allow their highest judicial authority to over-rule legislation they determined as unconstitutional. In Roe v Wade, the U.S. Supreme Court overturned a Texas law which forbade the granting of assistance to women seeking abortion.[149] The U.S.'s constitution's fourteenth amendment was interpreted to give Americans a right to privacy, and thus a woman's right to choose abortion.

A 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. The UK, Finland and New Zealand assert the ideal of parliamentary sovereignty, whereby the unelected judiciary may not overturn law passed by a democratic legislature.[150] In communist states, such as China, the courts are often regarded as parts of the executive, or subservient to the legislature; governmental institutions and actors exert thus various forms of influence on the judiciary.[151] In Muslim countries, courts often examine whether state laws adhere to the Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws,[152] and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam".[152][153]

Legislature

The debating chamber of the European Parliament

Prominent examples of legislatures are the Houses of Parliament in London, the Congress in Washington D.C., the Bundestag in Berlin, the Duma in Moscow, the Parlamento Italiano in Rome and the Assemblée nationale in Paris. By the principle of representative government people vote for politicians to carry out their wishes. Although countries like Israel, Greece, Sweden and China are unicameral, most countries are bicameral, meaning they have two separately appointed legislative houses. In the 'lower house' politicians are elected to represent smaller constituencies. The 'upper house' is usually elected to represent states in a federal system (as in Australia, Germany or the United States) or different voting configuration in a unitary system (as in France). In the UK the upper house is appointed by the government as a house of review. One criticism of bicameral systems with two elected chambers is that the upper and lower houses may simply mirror one another. The traditional justification of bicameralism is that an upper chamber acts as a house of review. This can minimise arbitrariness and injustice in governmental action.[154]

To pass legislation, a majority of Members of Parliament must vote for a bill (proposed law) in each house. Normally there will be several readings and amendments proposed by the different political factions. If a country has an entrenched constitution, a special majority for changes to the constitution 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 United States or Brazil), and the legislature's role is reduced to either ratification or veto.[155]

Executive

The G20 meetings are composed of representatives of each country's executive branch

The executive in a legal system serve as a government's centre of political authority. In a parliamentary system, as with Britain, Italy, Germany, India, and Japan, the executive is known as the cabinet, and composed of members of the legislature. The executive is chosen by the Prime Minister or Chancellor, whose office holds power under the confidence of the legislature. Because popular elections appoint political parties to govern, the leader of a party can change in between elections. The head of state is apart from the executive, and symbolically enacts laws and acts as representative of the nation. Examples include the German president (appointed by the Parliament); the Queen of the United Kingdom (a hereditary title), and the Austrian president (elected by popular vote). The other important model is the presidential system, found in France, the U.S. and Russia. In presidential systems, the executive acts as both head of state and head of government, and has power to appoint an unelected cabinet. Under a presidential system, the executive branch is separate from the legislature to which is not accountable.[156][157]

Although the role of the executive varies from country to country, usually it will propose the majority of legislation, and propose government agenda. In presidential systems, the executive often has the power to veto legislation. Most executives in both systems are responsible for foreign relations, the military and police, and the bureaucracy. Ministers or other officials head a country's public offices, such as a foreign ministry or interior ministry. The election of a different executive is therefore capable of revolutionising an entire country's approach to government.

Military and police

While military organizations have existed as long as government itself, the idea of a standing police force is relatively modern concept. Mediæval England's system of traveling criminal courts, or assizes, used show trials and public executions to instill communities with fear to maintain control.[158] The first modern police were probably those in 17th-century Paris, in the court of Louis XIV,[159] although the Paris Prefecture of Police claim they were the world's first uniformed policemen.[160]

Weber famously argued that the state is that which controls the legitimate monopoly of the means of violence.[161][162] The military and police carry out enforcement at the request of the government or the courts. The term failed state refers to states that cannot implement or enforce policies; their police and military no longer control security and order and society moves into anarchy, the absence of government.[163]

Bureaucracy

The United Nations' New York headquarters houses civil servants that serve its 192 member states.

The etymology of "bureaucracy" derives from the French word for "office" (bureau) and the Ancient Greek for word "power" (kratos).[164] Like the military and police, a legal system's government servants and bodies that make up its bureaucracy carry out the directives of the executive. One of the earliest references to the concept was made by Baron de Grimm, a German author who lived in France. In 1765 he wrote,

The real spirit of the laws in France is that bureaucracy of which the late Monsieur de Gournay used to complain so greatly; here the offices, clerks, secretaries, inspectors and intendants are not appointed to benefit the public interest, indeed the public interest appears to have been established so that offices might exist.[165]

Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to private enterprise motivated by profit.[166] In fact private companies, especially large ones, also have bureaucracies.[167] 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.[167] Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support.[168] 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.[169]

Legal profession

In civil law systems such as those of France, Germany, Italy, Spain and Greece, there is a distinct category of notary, a legally trained public official, compensated by the parties to a transaction.[170] This is a 16th-century painting of such a notary by Flemish painter Quentin Massys.

A corollary of the rule of law is the existence of a legal profession sufficiently autonomous to be able to invoke the authority of the independent judiciary; the right to assistance of an advocate in a court proceeding emanates from this corollary—in England the function of barrister or advocate is distinguished from legal counselor (solicitor).[171] As the European Court of Human Rights has stated, the law should be adequately accessible to everyone and people should be able to foresee how the law affects them.[172] In order to maintain professionalism, the practice of law is typically overseen by either a government or independent regulating body such as a bar association, bar council or law society. Modern lawyers achieve distinct professional identity through specified legal procedures (e.g. successfully passing a qualifying examination), are required by law to have a special qualification (a legal education earning the student a Bachelor of Laws, a Bachelor of Civil Law or a Juris Doctor degree[173]), and are constituted in office by legal forms of appointment (being admitted to the bar). Most Muslim countries have developed similar rules about legal education and the legal profession, but some still allow lawyers with training in traditional Islamic law to practice law before personal status law courts.[174] In China and other developing countries there are not enough law-trained people to staff the existing judicial systems, and, accordingly, formal standards are more relaxed.[175]

Once accredited, a lawyer will often work in a law firm, in a chambers as a sole practitioner, in a government post or in a private corporation as an internal counsel. In addition a lawyer may become a legal researcher who provides on-demand legal research through a library, a commercial service or 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 (including ADR techniques) are also important to legal practice, depending on the field.[176]

Civil society

A march in Washington D.C. during the U.S. Civil Rights Movement in 1963

Classical republican concept of "civil society" dates back to Hobbes and Locke.[177] Locke saw civil society as people who have "a common established law and judicature to appeal to, with authority to decide controversies between them."[178] German philosopher Georg Wilhelm Friedrich Hegel distinguished the "state" from "civil society" (burgerliche Gesellschaft) in Elements of the Philosophy of Right.[179] Hegel believed that civil society and the state were polar opposites, within the scheme of his dialectic theory of history. The modern dipole state–civil society was reproduced in the theories of Alexis de Tocqueville and Karl Marx.[180][181] Nowadays in post-modern theory civil society is necessarily a source of law, by being the basis from which people form opinions and lobby for what they believe law should be. As Australian barrister and author Geoffrey Robertson QC 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.[182]

Freedom of speech, freedom of association and many other individual rights allow people to gather, discuss, criticise and hold to account their governments, from which the basis of a deliberative democracy is formed. The more people are involved with, concerned by and capable of changing how political power is exercised over their lives, the more acceptable and legitimate the law becomes to the people. The most familiar institutions of civil society include economic markets, profit-oriented firms, families, trade unions, hospitals, universities, schools, charities, debating clubs, non-governmental organisations, neighbourhoods, churches, and religious associations.[183]


See also

Notes

  1. ^ Hamilton, Marci. God vs. the Gavel, page 296 (Cambridge University Press 2005): “The symbol of the judicial system, seen in courtrooms throughout the United States, is blindfolded Lady Justice.”
  2. ^ Fabri, Marco. The challenge of change for judicial systems, page 137 (IOS Press 2000): “the judicial system is intended to be apolitical, its symbol being that of a blindfolded Lady Justice holding balanced scales.”
  3. ^ Luban, Law's Blindfold, 23
  4. ^ From Old English lagu "Words of Mel"; legal comes from Latin legalis, from lex "law", "statute" (Law, Online Etymology Dictionary; Legal, Merriam-Webster's Online Dictionary)
  5. ^ Robertson, Crimes against humanity, 90; see "analytical jurisprudence" for extensive debate on what law is; in The Concept of Law Hart argued law is a "system of rules" (Campbell, The Contribution of Legal Studies, 184); Austin said law was "the command of a sovereign, backed by the threat of a sanction" (Bix, John Austin); Dworkin describes law as an "interpretive concept" to achieve justice (Dworkin, Law's Empire, 410); and Raz argues law is an "authority" to mediate people's interests (Raz, The Authority of Law, 3–36).
  6. ^ n.b. this translation reads, "it is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws." (Aristotle, Politics 3.16).
  7. ^ The original French is: "La loi, dans un grand souci d'égalité, interdit aux riches comme aux pauvres de coucher sous les ponts, de mendier dans les rues et de voler du pain" (France, The Red Lily, Chapter VII).
  8. ^ Although many scholars argue that "the boundaries between public and private law are becoming blurred", and that this distinction has become mere "folklore" (Bergkamp, Liability and Environment, 1–2).
  9. ^ E.g. in England these seven subjects, with EU law substituted for international law, make up a "qualifying law degree". For criticism, see Peter Birks' poignant comments attached to a previous version of the Notice to Law Schools.
  10. ^ History of the UN, United Nations. Winston Churchill (The Hinge of Fate, 719) comments on the League of Nations' failure: "It was wrong to say that the League failed. It was rather the member states who had failed the League."
  11. ^ The prevailing manner of enforcing international law is still essentially "self help"; that is the reaction by states to alleged breaches of international obligations by other states (Robertson, Crimes against Humanity, 90; Schermers-Blokker, International Institutional Law, 900–901).
  12. ^ Petersmann, The GATT/WTO Dispute Settlement System, 32
  13. ^ Redfem, International Commercial Arbitration, 68–69
  14. ^ Schermers–Blokker, International Institutional Law, 943
  15. ^ See the fundamental C-26/62 Van Gend en Loos v Nederlanse Administratie Der Belastingen, and Flaminio Costa v E.N.E.L. decisions of the European Court.
  16. ^ Entick v Carrington (1765) 19 Howell's State Trials 1030; [1765] 95 ER 807
  17. ^ "Entick v Carrington". 19 Howell’s State Trials 1029 (1765). USA: Constitution Society. http://www.constitution.org/trials/entick/entick_v_carrington.htm. Retrieved 2008-11-13. 
  18. ^ Locke, The Second Treatise, Chapter 9, section 124
  19. ^ Tamanaha, On the Rule of Law, 47
  20. ^ Auby, Administrative Law in France, 75
  21. ^ Cesare Beccaria's seminal treatise of 1763–1764 is titled On Crimes and Punishments (Dei delitti e delle pene).
  22. ^ a b Brody, Acker and Logan, Criminal Law, 2; Wilson, Criminal Law, 2
  23. ^ Brody, Acker and Logan, Criminal Law, 2
  24. ^ See e.g. Brody, Acker and Logan, Criminal Law, 205 about Robinson v California, 370 U.S. 660 (1962).
  25. ^ See e.g. Feinman, Law 111, 260–261 about Powell v Texas, 392 U.S. 514 (1968).
  26. ^ Dörmann, Doswald-Beck and Kolb, Elements of War Crimes, 491
  27. ^ Kaiser, Leistungsstörungen, 333
  28. ^ About R v Dudley and Stephens [1884] 14 QBD 273 DC, see Simpson, Cannibalism and the Common Law, 212–217, 229–237
  29. ^ Pelser, Criminal Legislation, 198
  30. ^ The States Parties to the Rome Statute, International Criminal Court
  31. ^ Wenberg, Pacta Sunt Servanda, 775
  32. ^ About Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256, and the element of consideration, see Beale and Tallon, Contract Law, 142–143
  33. ^ Austotel v Franklins (1989) 16 NSWLR 582
  34. ^ e.g. In Germany, § 311 Abs. II BGB
  35. ^ § 105 Abs. II BGB
  36. ^ Smith, The Structure of Unjust Enrichment Law, 1037
  37. ^ Bolton v Stone [1951] AC 850
  38. ^ a b Donoghue v Stevenson ([1932] A.C. 532, 1932 S.C. (H.L.) 31, [1932] All ER Rep 1). See the original text of the case in UK Law Online.
  39. ^ Donoghue v Stevenson [1932] AC 532, 580
  40. ^ a b Sturges v Bridgman (1879) 11 Ch D 852
  41. ^ e.g. concerning a British politician and the Iraq War, George Galloway v Telegraph Group Ltd [2004] EWHC 2786
  42. ^ Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] AC 426
  43. ^ In the UK, Trade Union and Labour Relations (Consolidation) Act 1992; c.f. in the U.S., National Labor Relations Act
  44. ^ Harris, The Bubble Act, 610-627
  45. ^ eg Hunter v Canary Wharf Ltd [1997] 2 All ER 426
  46. ^ Armory v Delamirie (1722) 93 ER 664, 1 Strange 505
  47. ^ Matthews, The Man of Property, 251–274
  48. ^ Savigny, Das Recht des Besitzes, 25
  49. ^ Locke, Second Treatise on Civil Government, Chap. IX. Of the Ends of Political Society and Government. Chapter 9, section 123.
  50. ^ McGhee, Snell's Equity, 7
  51. ^ c.f. Bristol and West Building Society v Mothew [1998] Ch 1
  52. ^ Keech v Sandford (1726) Sel Cas Ch 61
  53. ^ Nestle v National Westminster Bank plc [1993] 1 WLR 1260
  54. ^ A Guide to the Treaty of Lisbon, The Law Society
  55. ^ Berle, Modern Corporation and Private Property
  56. ^ WIPO, Intellectual Property, 3
  57. ^ Modern scholars argue that the significance of this distinction has progressively declined; the numerous legal transplants, typical of modern law, result in the sharing by modern legal systems of many features traditionally considered typical of either common law or civil law (Mattei, Comparative Law and Economics, 71)
  58. ^ Civil law jurisdictions recognise custom as "the other source of law"; hence, scholars tend to divide the civil law into the broad categories of "written law" (ius scriptum) or legislation, and "unwritten law" (ius non scriptum) or custom. Yet they tend to dismiss custom as being of slight importance compared to legislation (Georgiadis, General Principles of Civil Law, 19; Washofsky, Taking Precedent Seriously, 7).
  59. ^ Gordley-von Mehren, Comparative Study of Private Law, 18
  60. ^ Gordley-von Mehren, Comparative Study of Private Law, 21
  61. ^ Stein, Roman Law in European History, 32
  62. ^ Stein, Roman Law in European History, 35
  63. ^ Stein, Roman Law in European History, 43
  64. ^ Badr, Islamic Law, 187–198 [196–8]
  65. ^ a b Makdisi, The Islamic Origins, 1635–1739
  66. ^ Hatzis, The Short-Lived Influence of the Napoleonic Civil Code in Greece, 253–263
  67. ^ Demirgüç-Kunt -Levine, Financial Structures and Economic Growth, 204
  68. ^ The World Factbook — Field Listing – Legal system, CIA
  69. ^ Magna Carta, Fordham University
  70. ^ Gordley-von Mehren, Comparative Study of Private Law, 4
  71. ^ Gordley-von Mehren, Comparative Study of Private Law, 3
  72. ^ Pollock (ed) Table Talk of John Selden (1927) 43; "Equity is a roguish thing. For law we have a measure... equity is according to the conscience of him that is Chancellor, and as that is longer or narrower, so is equity. 'Tis all one as if they should make the stadard for the measure a Chancellor's foot."
  73. ^ Gee v Pritchard (1818) 2 Swans. 402, 414
  74. ^ Blackstone, Commentaries on the Laws of England, Book the First – Chapter the First
  75. ^ Gordley-von Mehren, Comparative Study of Private Law, 17
  76. ^ Glenn, Legal Traditions of the World, 159
  77. ^ Anderson, Law Reform in the Middle East, 43
  78. ^ Giannoulatos, Islam, 274–275
  79. ^ Sherif, Constitutions of Arab Countries, 157–158
  80. ^ Saudi Arabia, Jurist
  81. ^ Akhlagi, Iranian Commercial Law, 127
  82. ^ Hallaq, The Origins and Evolution of Islamic Law, 1
  83. ^ Théodoridés. "law". Encyclopedia of the Archaeology of Ancient Egypt. 
  84. ^ VerSteeg, Law in ancient Egypt
  85. ^ Richardson, Hammurabi's Laws, 11
  86. ^ Kelly, A Short History of Western Legal Theory, 5–6
  87. ^ Ober, The Nature of Athenian Democracy, 121
  88. ^ Kelly, A Short History of Western Legal Theory, 39
  89. ^ Stein, Roman Law in European History, 1
  90. ^ As a legal system, Roman law has affected the development of law worldwide. It also forms the basis for the law codes of most countries of continental Europe, and has played an important role in the creation of the idea of a common European culture (Stein, Roman Law in European History, 2, 104–107).
  91. ^ Sealey-Hooley, Commercial Law, 14
  92. ^ Mattei, Comparative Law and Economics, 71
  93. ^ Badr, Islamic Law, 187–198
  94. ^ Justice Gamal Moursi Badr argues that Islamic law may "be called a lawyer's law if common law is a judge's law"(Badr, Islamic Law, 187–198, El-Gamal, Islamic Finance, 16).
  95. ^ The "royal English contract protected by the action of debt is identified with the Islamic Aqd, the English assize of novel disseisin is identified with the Islamic Istihqaq, and the English jury is identified with the Islamic Lafif". Other parallels include "the scholastic method, the license to teach" (Ijazah), the "law schools known as Inns of Court in England and Madrasas in Islam", and the agency (Hawala) and trust law (Waqf) (Gaudiosi, The Influence of the Islamic Law , 1231–1261; Makdisi, The Islamic Origins, 1635–1739).
  96. ^ For discussion of the composition and dating of these sources, see Olivelle, Manu's Code of Law, 18-25.
  97. ^ Glenn, Legal Traditions of the World, 276
  98. ^ Glenn, Legal Traditions of the World, 273
  99. ^ Glenn, Legal Traditions of the World, 287
  100. ^ Glenn, Legal Traditions of the World, 304
  101. ^ Glenn, Legal Traditions of the World, 305
  102. ^ Glenn, Legal Traditions of the World, 307
  103. ^ Glenn, Legal Traditions of the World, 309
  104. ^ Farah, Five Years of China WTO Membership, 263–304
  105. ^ Rousseau, The Social Contract, Book II: Chapter 6 (Law)
  106. ^ Bix, John Austin
  107. ^ Roeber, What the Law Requires, 887
  108. ^ Stone, Human Law and Human Justice, 14, 51
  109. ^ Fritz Berolzheimer, The World's Legal Philosophies, 115–116
  110. ^ Kant, Immanuel, Groundwork of the Metaphysics of Morals, 42 (par. 434)
  111. ^ Green, Legal Positivism
  112. ^ Nietzsche, Zur Genealogie der Moral, Second Essay, 11
  113. ^ Kazantzakis, Friedrich Nietzsche and the Philosophy of Law, 97–98
  114. ^ Linarelli, Nietzsche in Law's Cathedral, 23–26
  115. ^ Marmor, The Pure Theory of Law
  116. ^ Bielefeldt, Carl Schmitt's Critique of Liberalism, 25–26
  117. ^ Finn, Constitutions in Crisis, 170–171
  118. ^ Bayles, Hart's Legal Philosophy, 21
  119. ^ Dworkin, Law's Empire, 410
  120. ^ Raz, The Authority of Law, 3–36
  121. ^ Raz, The Authority of Law, 37 etc.
  122. ^ According to Malloy (Law and Economics, 114), Smith established "a classical liberal philosophy that made individuals the key referential sign while acknowledging that we live not alone but in community with others".
  123. ^ Jakoby, Economic Ideas and the Labour Market, 53
  124. ^ "The Becker-Posner Blog". http://www.becker-posner-blog.com/. Retrieved 2007-02-03. 
  125. ^ Coase, The Nature of the Firm, 386–405
  126. ^ Coase, The Problem of Social Cost, 1–44
  127. ^ Coase, The Problem of Social Cost, IV, 7
  128. ^ Coase, The Problem of Social Cost, V, 9
  129. ^ Coase, The Problem of Social Cost, VIII, 23
  130. ^ a b Jary, Collins Dictionary of Sociology, 636
  131. ^ Rottleuthner, La Sociologie du Droit en Allemagne, 109
  132. ^ Rottleuthner, Rechtstheoritische Probleme der Sociologie des Rechts, 521
  133. ^ Rheinstein, Max Weber on Law and Economy in Society, 336
  134. ^ Johnson, The Blackwell Dictionary of Sociology, 156
  135. ^ Gurvitch, Sociology of Law, 142
  136. ^ Papachristou, Sociology of Law, 81–82
  137. ^ Hamilton and Spiro, The Dynamics of Law, 3
  138. ^ Jakobs, Pursuing Equal Opportunities, 5–6
  139. ^ Karkatsoulis, The State in Transition, 275 etc.
  140. ^ Montesquieu, The Spirit of Laws, Book XI: Of the Laws Which Establish Political Liberty, with Regard to the Constitution, Chapters 6–7
  141. ^ Thomas Hobbes, Leviathan, XVII
  142. ^ Curtin–Wessel, Good Governance, 73
  143. ^ Fukuyama, State-Building, 132
  144. ^ A Brief Overview of the Supreme Court, Supreme Court of the United States
  145. ^ House of Lords Judgements, House of Lords
  146. ^ Entscheidungen des Bundesverfassungsgerichts, Bundesverfassungsgericht
  147. ^ Jurisprudence, publications, documentation, Cour de cassation
  148. ^ Goldhaber, European Court of Human Rights, 1–2
  149. ^ Roe v Wade (1973) 410 U.S. 113 Retrieved 2007-01-26
  150. ^ Dicey, Law of the Constitution, 37–82
  151. ^ E.g., the court president is a political appointee (Jensen–Heller, Introduction, 11–12). About the notion of "judicial independence" in China, see Findlay, Judiciary in the PRC, 282–284
  152. ^ a b Sherif, Constitutions of Arab Countries, 158
  153. ^ Rasekh, Islamism and Republicanism, 115–116
  154. ^ Riker, The Justification of Bicameralism, 101
  155. ^ About "cabinet accountability" in both presidential and parliamentary systems, see Shugart–Haggard, Presidential Systems, 67 etc.
  156. ^ Haggard, Presidents, Parliaments and Policy, 71
  157. ^ Olson, The New Parliaments of Central and Eastern Europe, 7
  158. ^ See, eg Tuberville v Savage (1669), 1 Mod. Rep. 3, 86 Eng. Rep. 684, where a knight said in a threatening tone to a layman, "If it were not assize time, I would not take such language from you."
  159. ^ History of Police Forces, History.com Encyclopedia
  160. ^ Des Sergents de Ville et Gardiens de la Paix à la Police de Proximité, La Préfecture de Police
  161. ^ Weber, Politics as a Vocation
  162. ^ Weber, The Theory of Social and Economic Organisation, 154
  163. ^ In these cases sovereignty is eroded, and often warlords acquire excessive powers (Fukuyama, State-Building, 166–167).
  164. ^ Bureaucracy, Online Etymology Dictionary
  165. ^ Albrow, Bureaucracy, 16
  166. ^ Mises, Bureaucracy, II, Bureaucratic Management
  167. ^ a b Kettl, Public Bureaucracies, 367
  168. ^ Weber, Economy and Society, I, 393
  169. ^ Kettl, Public Bureaucracies, 371
  170. ^ Hazard–Dondi, Legal Ethics, 22
  171. ^ Hazard–Dondi, Legal Ethics, 1
  172. ^ The Sunday Times v The United Kingdom [1979] ECHR 1 at 49 Case no. 6538/74
  173. ^ Higher academic degrees may also be pursued. Examples include a Master of Laws, a Master of Legal Studies or a Doctor of Laws.
  174. ^ Ahamd, Lawyers: Islamic Law
  175. ^ Hazard–Dondi, Legal Ethics, 22–23
  176. ^ Fine, The Globalisation of Legal Education, 364
  177. ^ Warren, Civil Society, 3–4
  178. ^ Locke, Second Treatise, Chap. VII, Of Political or Civil_Society. Chapter 7, section 87
  179. ^ Hegel, Elements of the Philosophy of Right, 3, II, 182; Karkatsoulis, The State in Transition, 277–278
  180. ^ (Pelczynski, The State and Civil Society, 1–13; Warren, Civil Society, 5–9)
  181. ^ Zaleski, Pawel (2008). "Tocqueville on Civilian Society. A Romantic Vision of the Dichotomic Structure of Social Reality". Archiv für Begriffsgeschichte (Felix Meiner Verlag) 50. 
  182. ^ Robertson, Crimes Against Humanity, 98–99
  183. ^ There is no clear legal definition of the civil society, and of the institutions it includes. Most of the institutions and bodies who try to give a list of institutions (such as the European Economic and Social Committee) exclude the political parties. For further information, see Jakobs, Pursuing Equal Opportunities, 5–6; Kaldor–Anheier–Glasius, Global Civil Society, passim (PDF); Karkatsoulis, The State in Transition, 282–283.

References

Printed sources
Online sources

External links


Quotes

Up to date as of January 14, 2010

From Wikiquote

Law is an umbrella term for the written or understood rules that concern behaviors within and between societies and the appropriate consequences thereof.

Contents

Sourced

  • The one great principle of the English law is, to make business for itself.
  • The rule of law can be wiped out in one misguided, however will-intentioned generation. And if that should happen, it could take a century of striving and ordeal to restore it, and then only at the cost of the lives of many good men and women.
  • The law is a sort of hocus-pocus science, that smiles in yer face while it picks yer pocket; and the glorious uncertainty of it is of mair use to the professors than the justice of it.
  • Laws, in their most general signification, are the necessary relations derived from the nature of things.
    • Montesquieu, reported in Josiah Hotchkiss Gilbert, Dictionary of Burning Words of Brilliant Writers (1895), p. 375.
  • If one were to pass a law limiting holistic physicians to a single holistic method, I would stick with my dentist.
    • Thomas Rau, Biological Medicin (German: Biologische Medizin, Fona-Verlag (2007) - ISBN 978-3-03780-803-0) - p. 144
  • Necessity creates the law,—it supersedes rules; and whatever is reasonable and just in such cases is likewise legal.
    • William Scott, 1st Baron Stowell, The Gratitude (1801), 3 Rob. Adm. Rep. 240. Note that "The Gratitude" is the name of a legal case in admiralty, such cases being styled by the name of the vessel at issue.
  • Quædam iura non scripta, sed omnibus scriptis certiora sunt.
    • Some laws are not written, but are more decisive than any written law.
    • Seneca the Elder, Controversiae , Bk. 1, ch. 1, sect. 14; translation from Norman T. Pratt Seneca's Drama (Chapel Hill: University of North Carolina Press, 1983) p. 140.
  • We must not make a scarecrow of the law,
    Setting it up to fear the birds of prey,
    And let it keep one shape, till custom make it
    Their perch and not their terror.
  • Law is the rule, principle, obligation or requirement of natural justice.
  • First Law of Law: You can't invent the wheel without bending the rules.
  • No man e'er felt the halter draw,
    With good opinion of the law.
  • Because the laws of this country do not prevent the strong from crushing the weak.
    • Woodrow Wilson, The New Freedom: A Call For the Emancipation of the Generous Energies of a People.
  • The law isn't perfect. Neither are the people who've created it. But it's been made with the endless effort to do good.
    • Takeshi Kaga as Soichiro Yagami, "Death Note: The Last Name" (2006). (author?)

Unsourced

  • The law is a trade secret and the public process a business owned and operated by the legal profession.
    • Patrick Eberhart
  • Technology is a sprinter, the law is a marathon runner.
    • A.K.T. Rex
  • There is no jewel in the world comparable to learning; no learning so excellent as knowledge of laws.
  • The law is what it is - a majestic edifice, sheltering all of us, each stone of which rests on another.
  • Fragile as reason is and limited as law is as the institutionalized medium of reason, that's all we have standing between us and the tyranny of mere will and the cruelty of unbridled, undisciplined feeling.
    • Justice Felix Frankfurter.
  • If you like laws and sausages, you should never watch either one being made.
  • Instead of the law serving the people, it is the people that serve the law.
    • Amir Afsai
  • Legislate in haste, repent at leisure.
    • proverb
  • No great idea in its beginning can ever be within the law. How can it be within the law? The law is stationary. The law is fixed. The law is a chariot wheel which binds us all regardless of conditions or place or time.
  • So you think the police foresees and knows everything. The police invents more than it discovers.
  • A jury consists of twelve persons chosen to decide who has the better lawyer.
  • Executing a murderer is the only way to adequately express our horror at the taking of an innocent life. Nothing else suffices. To equate the lives of killers with those of victims is the worst kind of moral equivalency. If capital punishment is state murder, then imprisonment is state kidnapping and restitution is state theft.
    • Don Feder
  • It is not the responsibility of the government or the legal system to protect a citizen from himself.
    • Justice Casey Percell
  • More laws can't make us safe from the tragedies that are the inevitable result of freedom, and of living around other people. Life is real, life is uncertain, life is inevitably unsafe. Measures to make it safe at all costs come with dangers of their own.
    • Brian Doherty
  • There are no good laws except simple laws.
    • Chrétien de Malesherbes (1775)
  • No brilliance is required in law, just common sense and relatively clean fingernails.
  • Morality cannot be legislated but behavior can be regulated. Judicial decrees may not change the heart but they can restrain the heartless.
  • One has not only a legal, but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.
  • Land is built by law.
    • Old Swedish Law book
  • We live in and by the law. It makes us what we are: citizens and employees and doctors and spouses and people who own things. It is sword, shield, and menace: we insist on our wage, or refuse to pay our rent, or are forced to forfeit penalties, or are closed up in jail, all in the name of what our abstract and ethereal sovereign, the law, has decreed. And we argue about what it has decreed, even when the books that are supposed to record its commands and directions are silent; we act then as if law had muttered its doom, too low to be heard distinctly. We are subjects of law's empire, liegemen to its methods and ideals, bound in spirit while we debate what we must therefore do.
  • Once you attempt legislation upon religious grounds, you open the way for every kind of intolerance and religious persecution.
  • If a law is unjust, we owe it to our children to disobey.
    • Sudo
  • Let all the laws be clear, uniform and precise. To interpret laws is almost always to corrupt them.
  • Tis much more prudence to acquit two persons, though actually guilty, than to pass sentence of condemnation on one that is virtuous and innocent.
  • Prisoner: I want to ask whether it is likely —
    Arabin: We have nothing to do with what is likely or unlikely: so many unlikely things happen in courts of justice that public time must not be wasted on such enquiries.
    • Commissioner Serjeant William Arabin, quoted by Stephen Tumim in Great Legal Fiascos, page 115.
    • Arabin's surreal absurdities from the bench at the Old Bailey in the early 1800s made him a cult figure among young barristers.
  • Laws are only observed with the consent of the individuals concerned and a moral change still depends on the individual and not on the passage of any law.
  • Laws: We know what they are, and what they are worth! They are spider webs for the rich and mighty, steel chains for the poor and weak, fishing nets in the hands of government.
    • Pierre Proudhon
  • The Law is the true embodiment,
    Of everything that's excellent,
    It has no kind of fault or flaw,
    And I, my Lords, embody the Law.
  • Who ever knew an honest brute/ at law his neighbor prosecute?

See also

External links

Wikipedia
Wikipedia has an article about:
Wiktionary-logo-en.png
Look up law in Wiktionary, the free dictionary

Study guide

Up to date as of January 14, 2010
(Redirected to School:Law article)

From Wikiversity

WELCOME TO THE SCHOOL OF
LAW,
Scales of Justice

The Institution of the Law

Languages
Law is the set of rules or norms of conduct which forbid, permit or mandate specified actions, govern official resolution of conflict, and define relationships among people and organizations. The authority upon which legal rules rest and the extent to which they are formally codified varies between jurisdictions but all modern legal systems are united in their attempt to assure impartial treatment of those suspected of breaking the rules and to bring about justice.

School news and current events

News
  • Looking for contributors.
  • Discussion tab is considering various issues of this school's structure. Please add to discussion.



Major Events in School history

History

Active Participants

  • Hoopydink
  • Deon555
  • Djfc
  • Jpeob
  • *Raphael* Write to the Angel
  • Claudia700
  • Ricmat
  • Ramjaw
  • AdamG
  • Andrew massyn
  • mmizzi
  • beejmeister
  • C.I.F.
  • Dionysios (talk) 2007-08-02 (August 2, 2007) Time: 0902 UTC
  • Wikicollege creator DS07
  • User:Checkoutmyhugeguns Write to me here->User talk:Checkoutmyhugeguns
  • User:Koala
  • Dark Obsidian 19:19, 11 December 2008 (UTC)
  • User:Lawprofwannabe

Quotes

Quotation
  • "There is no jewel in the world comparable to learning; no learning so excellent as knowledge of laws."

- Edward Coke

  • "The law...should surely be accessible at all times and to everyone."

- Franz Kafka

  • "Let all the laws be clear, uniform and precise. To interpret laws is almost always to corrupt them."

- Voltaire

  • "[The most important provision of the] Magna Charta, extorted from King John in 1215, as a restriction upon what was then an almost unlimited kingly power, [was that] "No freeman shall be taken or imprisoned or disseized or outlawed or banished or anyways destroyed, nor will the King pass upon him or commit him to prison, unless by the judgment of his peers of the law of the land."

- Thomas McIntyre Cooley, Rise of the American Union, in The General Principles of Constitutional Law in the United States of America, published in 1891.

  • "The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread."

- Anatole France

Divisions and subdivisions

Writing

Divisions and Departments of the School exist on pages in "topic" namespace. Start the name of departments with the "Topic:" prefix; departments reside in the Topic: namespace. Departments and divisions link to learning materials and learning projects. Divisions can link subdivisions or to departments. For more information on schools, divisions and departments look at the Naming Conventions.

  • Science research and the Law - This department provides learning resources that help Wikiversity participants explore how various governments regulate scientific research.
  • Public International Law - This department provides learning resources that will allow Wikiversity participants to consider the issues surrounding laws applicable between states (and governments), regulating areas such as human rights, international conflicts, international criminal law, etc. (It should also be a Department of the School of Politics (International Relations)
  • Private International Law - This department provides learning resources for Wikiversity participants to consider the laws governing trade between companies, or between copmpanies and foreign states, that take place across international borders, i.e. do not occur within a single legal jurisdiction.
  • EU Law - This department will provide learning resources for Wikiversity particiapnts to consider the structure, content and scope of the laws within the European Union.
  • International Medical Law - This department will provide learning resources for Wikiversity participants to consider the structure, content and scope of the medical law within the various world nations .
  • Religious Law - This department will provide learning resources for Wikiversity participants to consider the structure, content and scope of the laws within the various world faiths and their relation to other law sectors .
  • Rules and Procedure - This department will provide learning resources for Wikiversity participants to consider the structure, content, and scope of the Law by exploring procedural rule based aspects of the different areas of law around the world.
  • Intellectual Property Law - This department will provide learning resourses for Wikiveristy participants to learn about Intellecual Property laws, rulings, and treaties.
  • South African Law This department will provide learning resources for Wikiversity participants to consider various substantive aspects of South African Law.
  • Civil Law This department will create learning projects for participants interested in Civil Law concepts
  • Indian Legal System This department will provide the readers with an insight of the Indian Legal System and how it works.
  • Jurisprudence This department will provide background information for Legal Theory and Legal Philosophy.
  • Business Law This department of the School of Law will provide information and resources on the world of Business Law, including Commercial Law, Company Law, Corporate Law, Insolvency Law and Banking and Finance Law.
  • New Zealand Law This department will provide learning resources for Wikiveristy participants on aspects of New Zealand law, including resources for the New Zealand Law and Practice Examination (NZLPE) for overseas lawyers.
  • Topic:Law of Taxation This department will provide learning resources for Wikiveristy participants on Law of Taxation for overseas students of law.
  • American J.D. Program This program offers 3 year Juris Doctor program in the American and Canadian law schools.

Useful textbooks from Wikibooks

  • Books about the Law
  • Humanities bookshelf
  • Social sciences bookshelf
Reading

Associated Wikimedia for literature and language

Law on Wikipedia     Law on Wikinews     Law on Wikiquote     Law on Wikibooks     Law on Wikisource     Law on Wiktionary

Lessons

Get to work writing lessons! Simply make a link to the name of the lesson (lessons are independent pages in the main namespace) and start writing! Remember, Wikiversity has adopted the "learning by doing" model for education. Lessons should center on learning activities for Wikiversity participants. We learn by doing.

Research projects

This feature of Wikiversity will be implemented later pending further discussion.

Resources

See also

External links

Related news


Source material

Up to date as of January 22, 2010
(Redirected to The Law article)

From Wikisource

The Law
disambiguation
This is a disambiguation page, which lists works which share the same title. If an article link referred you here, please consider editing it to point directly to the intended page.


The Law may refer to:


1911 encyclopedia

Up to date as of January 14, 2010

From LoveToKnow 1911

LAW (0. Eng. lagu, M. Eng. lawe; from an old Teutonic root lag, " lie," what lies fixed or evenly; cf. Lat. lex, Fr. loi), a word used in English in two main senses - (1) as a rule prescribed by authority for human action, and (2) in scientific and philosophic phraseology, as a uniform order of sequence (e.g. "laws" of motion). In the first sense the word is used either in the abstract, for jurisprudence generally or for a state of things in which the laws of a country are duly observed ("law and order"), or in the concrete for some particular rule or body of rules. It is usual to distinguish further between "law" and "equity" (q.v.). The scientific and philosophic usage has grown out of an early conception of jurisprudence, and is really metaphorical, derived from the phrase "natural law" or "law of nature," which presumed that commands were laid on matter by God (see T. E. Holland, Elements of Jurisprudence, ch. ii.). The adjective "legal" is only used in the first sense, never in the second. In the case of the "moral law" (see Ethics) the term is employed somewhat ambiguously because of its connexion with both meanings. There is also an Old English use of the word "law" in a more or less sporting sense ("to give law" or "allow so much law"), meaning a start or fair allowance in time or distance. Presumably this originated simply in the liberty-loving Briton's respect for proper legal procedure; instead of the brute exercise of tyrannous force he demanded "law," or a fair opportunity and trial. But it may simply be an extension of the meaning of "right," or of the sense of "leave" which is found in early uses of the French loi. In this work the laws or uniformities of the physical universe are dealt with in the articles on the various sciences. The general principles of law in the legal sense are discussed under Jurisprudence. What may be described as "national systems" of law are dealt with historically and generally under English Law, American Law, Roman Law, Greek Law, Mahommedan Law, Indian Law, &c. Certain broad divisions of law are treated under Constitution And Constitutional Law, Canon Law, Civil Law, Common Law, Criminal Law, Ecclesiastical Law, Equity, International Law, Military Law, &C. And the particular laws of different countries on special subjects are stated under the headings for those subjects (Bankruptcy, &c.). For courts (q.v.) of law, and procedure, see Jurisprudence, APPEAL, TRIAL, KING'S BENCH, &C.

Authorities

The various legal articles have bibliographies attached, but it may be convenient here to mention such general works on law, apart from the science of jurisprudence, as (for English law) Lord Halsbury's Laws of England (vol. i., 1907), The Encyclopaedia of the Laws of England, ed. Wood Renton (1907), Stephen's Commentaries on the Laws of England (1908), Brett's Commentaries on the present Laws of England (1896), Broom's Commentaries on the Common Law (1896) and Brodie-Innes's Comparative Principles of the Laws of England and Scotland (vol. i., 1903); and, for America, Bouvier's Law Dictionary, and Kent's Commentaries on American Law.


<< William Law

Henry Lawes >>


Wiktionary

Up to date as of January 15, 2010

Definition from Wiktionary, a free dictionary

See also law

Contents

English

Etymology 1

From the given name Lawrence.

Proper noun

Singular
Law

Plural
-

Law

  1. A patronymic surname.
  2. A diminutive of Lawrence.

Etymology 2

From Old English hlaw, a hill or burial mound.

Proper noun

Law

  1. A topographic surname, perhaps originally meaning someone who lives near a burial mound.
  2. (Scottish) a conical hill

Etymology 3

Capitalized form of law.

Proper noun

Law

  1. (Judaism) the Torah
  2. (Christianity) a generic term which can refer to the Divine commandments (primarily the Decalogue), the Old Testament in general or, most specifically, the Torah.

Anagrams

  • Anagrams of alw
  • awl

Wikibooks

Up to date as of January 23, 2010
(Redirected to Wikibooks:Law bookshelf article)

From Wikibooks, the open-content textbooks collection

Bookshelves

Biology | Computer Science | Computer Software | Education | Health science | History | Humanities | Language and Literature | Languages | Law | Mathematics | Natural Sciences | Physics | Programming Languages | Social Sciences | Study Guides | Misc. | Wikibooks Help

Law

GENERAL TOPICSAUSTRALIAN LAWProperty Law Development stage: 00% (as of August 1, 2005)CANADIAN LAWEvidence Development stage: 50% (as of Dec 18, 2005)Constitutional law Development stage: 25% (as of Dec 18, 2005)Copyright law Development stage: 25% (as of Dec 18, 2005)Trade-mark law Development stage: 25% (as of Dec 18, 2005)ENGLISH LAWCriminal Law Development stage: 25% (as of April 22, 2006)Contracts Law Development stage: 25% (as of May 8, 2006)Database Law Development stage: 75% (as of July 05, 2005)Taxation Development stage: 00% (as of Feb 04, 2006)JAPANESE LAWLaw and Government Development stage: 25% (as of July 21, 2006)US LAWCivil Procedure Development stage: 25% (as of April 22, 2006)Criminal Law Development stage: 25% (as of April 22, 2006)Copyright Law Development stage: 100% (as of Dec 16, 2005)Corporate Law Development stage: 25% (as of Dec 12, 2005)Income Tax Development stage: 50% (as of Dec 17, 2005)Patent Law Development stage: 100% (as of Dec 16, 2005)Torts CasebookDevelopment stage: 25% (as of May 8, 2006)Trademark Law Development stage: 100% (as of Dec 16, 2005)EUROPEAN LAWINTERNATIONAL LAW

(edit template)
All Law books...
Wikibook Development Stages
Sparse text 00%.svg Developing text 25%.svg Maturing text 50%.svg Developed text 75%.svg Comprehensive text: 100%.svg

Contents

 [>> suggest a book] [start a book]

General topics

  • Civil Union Contract - CUC for New Marriage
 [>> suggest a book] [start a book]

Australian law

 [>> suggest a book] [start a book]

Canadian law

This is a collection of texts on core topics in Canadian law. They are most useful as companions in the study of law, and as such are organized based on a typical curriculum at a law school in Canada.

 [>> suggest a book] [start a book]

Basics

 [>> suggest a book] [start a book]

Core areas of law

 [>> suggest a book] [start a book]

Procedural law

 [>> suggest a book] [start a book]

Business and Finances

 [>> suggest a book] [start a book]

Intellectual Property

 [>> suggest a book] [start a book]

Annotated Laws

 [>> suggest a book] [start a book]

European Law

 [>> suggest a book] [start a book]

Member States Laws

 [>> suggest a book] [start a book]

German Law

 [>> suggest a book] [start a book]

United Kingdom Law

 [>> suggest a book] [start a book]

Japanese Law

 [>> suggest a book] [start a book]

US Law

 [>> suggest a book] [start a book]

Comprehensive texts

 [>> suggest a book] [start a book]

Exam Study Guides

  • Uniform Combined State Law Exam
  • Uniform Investment Adviser Law Exam
  • Uniform Securities Agent State Law Exam
 [>> suggest a book] [start a book]

Developing texts

 [>> suggest a book] [start a book]

International law

Associated Wikimedia for Law
commons:Lawyer
Commons
Article
Category
Images
n:Category:Law
Wikinews
Category
News
w:Law
Wikipedia
Article
Portal
Encyclopedia
q:Law
Wikiquote
Article
Quotes
s:
Wikisource
Category
Texts
v:Portal:
Schools
wikt:law
Wiktionary
Definition
Category
Dictionary

Bible wiki

Up to date as of January 23, 2010

From BibleWiki

a rule of action. (1.) The Law of Nature is the will of God as to human conduct, founded on the moral difference of things, and discoverable by natural light (Rom. 1:20; 2:14, 15). This law binds all men at all times. It is generally designated by the term conscience, or the capacity of being influenced by the moral relations of things.


The Law as stated in Matthew 5:17,18 and 19 is the Law spoken by Father God and written by Moses in the first five books of the Bible. This becomes clear when we understand that Jesus was a Jew speaking to Jews. When a Jew speaks of the Old Testement, it is called the Law (of Moses), the Prophets and the Writtings (biblical history); by acronym, the combined three parts are known as the Tanakh in Hebrew. In this case, Jesus was only talking about the Law spoken by Father God and written by Moses in the first five books of the Bible and the written record of the Prophets of God. If one reads the verses after the TEN COMMANDMENTS, one will see that Father God continues the commandments, there are 613 commandments in the Law.

Exodus Chapter 20 17: Thou shalt not covet thy neighbour's house, thou shalt not covet thy neighbour's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbour's. 18: And all the people saw the thunderings, and the lightnings, and the noise of the trumpet, and the mountain smoking: and when the people saw it, they removed, and stood afar off. 19: And they said unto Moses, Speak thou with us, and we will hear: but let not God speak with us, lest we die. 20: And Moses said unto the people, Fear not: for God is come to prove you, and that His frightfullness may be before your faces, that ye sin not. 21: And the people stood afar off, and Moses drew near unto the thick darkness where God was. 22: And the LORD said unto Moses, Thus thou shalt say unto the children of Israel, Ye have seen that I have talked with you from heaven. 23: Ye shall not make with me gods of silver, neither shall ye make unto you gods of gold. 24: An altar of earth thou shalt make unto me, and shalt sacrifice thereon thy burnt offerings, and thy peace offerings, thy sheep, and thine oxen: in all places where I record my name I will come unto thee, and I will bless thee.

What we call the TEN COMMANDMENTS are the first ten of 613 commandments. The reson we forget the rest of the commandments is why Moses said unto the people, Fear not: for God is come to prove you, and that His frightfullness may be before your faces, that ye sin not. That God spoke in such a thunderous voice that He caused all men to be in absolute dread.

There are 365 negative commandments which are things one must not do and 248 positive commandments which are things one must do, 613 commandments in all. Many of the commandments cannot be observed following the destruction of the Second Temple, though they still retain religious significance. According to one standard reckoning, there are 77 negative and 194 positive commandments that should be observed today. There are 26 commands that apply only within the Land of Israel. see 613 Mitzvot From Wikipedia

Matthew Chapter 5 17: Think not that I am come to destroy the Law, or the Prophets: I am not come to destroy them, but to fulfil G4137. fil them to the fullest. 18: For verily I say unto you, Till heaven and earth pass, one jot or one tittle shall in no wise pass from the Law, till all things be fulfilled G1096 done (come to pass). 19: Whosoever therefore shall break one of these least commandments, and shall teach men so, he shall be called the least in the kingdom of heaven: but whosoever shall do and teach them, the same shall be called great in the kingdom of heaven.

The English translation has an interesting word play between fulfil G4137 at the end of 5:17 and fulfilled G1096 at the end of 5:18. Notice the two different Strong’s concordance numbers proving that these are two different words in the Greek original of the New Testement as well as what the two words mean. The word fulfill has two meanings, to make complete, fill to the fullest or to be done, to have come to pass. By using the same dual meaning word in both places next to each other makes this translation less concreate even plyable and therefore victim to doctrine. Notice also in verse 18 that Jesus says that heaven and earth must pass before any of the commandments are nullified. Jesus also says in verse 18, till all things be fulfilled G1096 done (come to pass) before any of the commandments are nullified. Jesus’ second comming has not yet occured nor the wedding festival nor the thousand years of peace. We must read the text in ITS context, not read into the text. Which is the difference between exegesis and eisegesis.

(2.) The Ceremonial Law prescribes under the Old Testament the rites and ceremonies of worship. This law was obligatory only till Christ, of whom these rites were typical, had finished his work (Heb. 7:9, 11; 10:1; Eph. 2:16). It was fulfilled rather than abrogated by the gospel.

Jesus says in Matthew 5:17: Think not that I am come to destroy the Law, or the Prophets: I am not come to destroy them, but to fulfil G4137. fil them to the fullest. In Matthew 5:18 Jesus says that heaven and earth must pass before any of the commandments are nullified. Jesus also says in verse 18, till all things be fulfilled G1096 done (come to pass) before any of the commandments are nullified. Jesus’ second comming has not yet occured nor the wedding festival nor the thousand years of peace. We must read the text in ITS context, not read into the text.

(3.) The Judicial Law, the law which directed the civil policy of the Hebrew nation.

(4.) The Moral Law is the revealed will of God as to human conduct, binding on all men to the end of time. It was promulgated at Sinai. It is perfect (Ps. 19:7), perpetual (Matt. 5:17, 18), holy (Rom. 7:12), good, spiritual (14), and exceeding broad (Ps. 119:96). Although binding on all, we are not under it as a covenant of works (Gal. 3:17). (See COMMANDMENTS.)

(5.) Positive Laws are precepts founded only on the will of God. They are right because God commands them.

(6.) Moral positive laws are commanded by God because they are right.

This entry includes text from Easton's Bible Dictionary, 1897.

what mentions this? (please help by turning references to this page into wiki links)


Simple English

The law is a set of rules that people are supposed to follow in a society or a country. The courts and police enforce this system of rules and punish people who break the laws, such as by making them pay a fine or other penalty or sending them to jail. In ancient societies, laws were written by leaders, to set out rules on how people can live, work and do business with each other. Today in most countries, laws are written and voted on by groups of elected politicians in a legislature, such as a parliament or congress. To follow the laws of a society is to do legal things. An activity is illegal if it breaks a law or does not follow the laws.

A legal code is a written code of laws that are enforced. This may deal with things like police, courts, or punishments. A lawyer or jurist or attorney is a professional who studies and argues the rules of law. In the United States, there are two kinds of attorneys - "transactional" attorneys who write contracts and "litigators" who go to court.

The Rule of Law is the law which says that government can only legally use its power in a way the government and the people agree on. It limits the powers a government has, as agreed in a country's constitution. The Rule of Law prevents dictatorship and protects the rights of the people. When leaders enforce the legal code honestly, even on themselves and their friends, this is an example of the rule of law being followed. "The rule of law", wrote the ancient Greek philosopher Aristotle in 350 BC, "is better than the rule of any individual."

Culture is usually a major source of the principles behind many laws, as people tend to trust the ideas based on family and social habits. In many countries throughout history, religion and religious books like the Vedas, Bible or the Koran have been a major source of law.

Contents

Types of law

  • Contract law sets rules on agreements to buy and sell items and services.
  • Property law states the rights and obligations that a person has when they buy, sell, or rent homes and land (called real property or realty), and objects (called personal property or personalty.
  • Trust law(Business Law) sets out the rules for money that is put into an investment, such as pension funds that people save up for their retirement. It involves many different types of law, including administrative and property law.
  • Tort law helps people to make claims for compensation (repayment) when someone hurts them or hurts their property.
  • Criminal law is used by the government to prevent people from breaking laws, and punish people who do break them.
  • Constitutional law is deals with the important rights of the government, and its relationship with the people. It mainly involves the interpretation of the constitution, but also involves things like the powers of the different branches of government.
  • Administrative law is used by ordinary citizens who want to challenge decisions made by governments. It also involves things like regulations, and the operation of the administrative agencies that the president creates.
  • International law is used to set out the rules on how countries can act in areas such as trade, the environment, or military action. The Geneva Conventions on the conduct of war and the Roerich Pact are examples of international law.
  • Intellectual Property (IP) law involves the rights people have over things they create, such as art, music, and literature. This is called copyright. It also protects inventions that people make, by a kind of law called patent. It also covers the rights people have to the names of a company or a distinctive mark or logo. This is called trademark.

Civil law and common law

Civil law is the legal system used in most countries around the world today. Civil law is based on legislation that is found in constitutions or statutes passed by government. The secondary part of civil law is the legal approaches that are part of custom. In civil law governments, judges do not generally have much power, and most of the laws and legal precedent are created by members of parliament.

Common law is based on the decisions made by judges in past court cases. It comes from England and it became part of almost every country that once belonged to the British Empire, except Scotland, and the Canadian province of Quebec. It is also the predominant form of law in the United States, where many laws called statutes are written by Congress, but many more legal rules exist from the decisions of the courts. Common law had its beginnings in the Middle Ages, when King John was forced by his barons to sign a document called the Magna Carta.

Religious law

Religious law is law based on religious beliefs or books. Examples include the Jewish Halakha, Islamic Sharia, and Christian Canon law. Until the 1700s, Sharia law was the main legal system throughout the Muslim world. In some Muslim countries such as Saudi Arabia and Iran, the whole legal systems still base their law in Sharia law. Religious law is often criticized by countries that are not ruled by a religious government, because it often has very harsh penalties for very minor crimes, and often results in the mistreatment of women and minorities. [1]

History of law

The history of law is closely connected to the development of human civilisations. Ancient Egyptian law developed in 3000 BC. In 1760 BC King Hammurabi, took ancient Babylonian law and organized it, and then had it chiseled in stone for the public to see in the marketplace. These laws became known as the Code of Hammurabi.

The Torah from the Old Testament is probably the oldest body of law. It was written around 1280 BC. It has moral rules such as the Ten Commandments, which tell people what things are not permitted.

Judiciary

The judiciary is a group of judges who resolve people's disputes and determine whether people who are charged with crimes are guilty. Most countries of common law and civil law systems have a system of appeals courts, up to a supreme authority such as the Supreme Court or the High Court. The highest courts usually have the power to remove laws that are unconstitutional (which go against the constitution).

Legislature

In democracies, the people in a country usually choose people called politicians to represent them in a legislature. Examples of legislatures include 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. Most legislatures have two chambers or houses, a 'lower house' and an 'upper house'. To pass legislation, a majority of Members of Parliament must vote for a bill in each house. The legislature is the branch of government that writes laws, and votes on whether they will be approved.

Executive (government) and Head of State

The executive is the governing center of political authority. In most democratic countries, the executive is elected from people who are in the legislature. This group of elected people is called the cabinet. In France, the US and Russia, the executive branch has a President which exists separately from the legislature.

The executive suggests new laws and deals with other countries. As well, the executive usually controls the military, the police, and the bureaucracy. The executive selects ministers, or secretaries of state to control departments such as the health department or the department of justice.

Other parts of the legal system

The police enforce the criminal laws by arresting people suspected of breaking the law. Bureaucrats are the government workers and government organizations that do work for the government. Bureaucrats work within a system of rules, and they make their decisions in writing.

Lawyers are people who have learned about laws. Lawyers give people advice about their legal rights and duties and represent people in court. To become a lawyer, a person has to complete a two- or three-year university program at a law school and pass an entrance examination. Lawyers work in a law firms, for the government, for companies, or by themselves.

Civil society is the people and groups that are not part of government that try to protect people against human rights abuses and try to protect freedom of speech and other individual rights. Organizations that are part of civil society include political parties, debating clubs, trade unions, human rights organizations, newspapers, and charities.

Other Things to Read

  • H.L.A. Hart, The Concept of Law, (Penelope A. Bullock & Joseph Raz eds. 2nd ed. 1994) (1961).
  • Sandro Nielsen: The Bilingual LSP Dictionary. Principles and Practice for Legal Language. Benjamins 1994.
  • A Companion to Contemporary Political Philosophy. edited by Robert E. Goodin and Philip Pettit. ISBN 0-631-19951-9.
  • Johnson, Alan (1995). The Blackwell Dictionary of Sociology. Blackwells publishers. ISBN 1-55786-116-1.
  • Handbook of Political Institutions. edited by R. A. W. Rhodes, Sarah A. Binder and Bert A. Rockman. Oxford University Press. ISBN 0-19-927569-6
  • An Introduction to IP Law. edited by John Watts. Oxford University Press. Available at Patent Professionals LLC

References

  1. http://www.ntpi.org/html/whyoppose.html

Error creating thumbnail: sh: convert: command not found
Wikimedia Commons has media related to:

Other pages








Got something to say? Make a comment.
Your name
Your email address
Message