Specifically, a rule of conduct laid down by a controlling authority; generally, the whole body of such rules, recognized and enforced by society in the courts by sanctions. Laws are made by the body recognized as having the constitutional authority to make them, ie in most countries, the legislature. In common law systems, the courts are particularly influential in developing the law; although they may be said to interpret the law, the growth in case decisions can be regarded as effectively creating or developing the law, even though (as in the UK) parliament is sovereign (subject to the jurisdiction of the European Parliament). In states with a written constitution, such as the USA, the Supreme Court may have the power to declare particular laws, practices, or decisions as unconstitutional, ie inconsistent with the provisions of the constitution.
| Law Portal |
The law is the body of rules of a society that are enforceable through a system of courts. Laws may be created by legislatures or, in common law jurisdictions, by the courts. and between different states (international law).
Laws vary widely between different countries and even, in some cases, within countries. An area in which a particular set of laws holds is called a jurisdiction.
History of law
The history of law is, in a broad sense, the history of human civilization. The major landmarks along the way include the legal codes of the earliest civilisations, the Roman civil law, the development of the English common law and equity, Islamic sharia law, the republican movements of the eighteenth century enlightenment period, the socialist thinkers of the nineteenth century, and the twentieth century's civil rights movements.
The two threads of legal history that are important in modern Western law are the history of Romanesque codified law, which relied and relies on a written prescribed set of legal rules, and the system English common law and equity, which was based on the ancient customs and laws of England and relies more heavily on a system of precedent.
Law in ancient civilizationsEgyptian law used a civil code, based on the concept of Ma'at. In Babylon, the King Hammurabi made the innovation of publishing his code of laws for the public to see in the market.
Roman lawRoman law underwent major codification in the Corpus Juris Civilis of Emperor Justinian, as later developed through the Middle Ages by mediæval legal scholars. Originally civil law was one common legal system in much of Europe, but with the rise of nationalism in the 17th century Nordic countries and around the time of the French Revolution, it became fractured into separate national systems. Around this time civil law incorporated many ideas associated with the Enlightenment. The European Union's Law is based on a codified set of laws, laid down in the Treaties. Law in the EU is however mixed with precedent in case law of the European Court of Justice.
Roman law, as Egyptian, Babylonian and Hebrew law before it, concentrated on private law remedies, rather than focussing on the state.
Asian lawAncient China and ancient India have independently produced their own schools of legal theory, such as the Laws of Manu and Arthashastra in India and traditional Chinese law in China.
Because Germany was a rising power in the late 19th century when many Asian nations were introducing civil law, the German Civil Code has been the basis for the legal systems of Japan and South Korea. In China, the German Civil Code was introduced in the later years of the Qing Dynasty and formed the basis of the law of the Republic of China which remains in force in Taiwan. The current legal infrastructure in the People's Republic of China reflects influences from the German-based law of the ROC, the English-based common law of Hong Kong, Soviet-influenced Socialist law, United States-style banking and securities law, and traditional Chinese law.
Legal systems
See also: Legal systems of the worldThere is a general Western distinction between civil law on the one hand and on the other, common law and equity systems. Civil Law implies a codification of laws by Parliaments or the State, as was done in the Roman Empire. English Law is the father of common law and equity, and is used in Commonwealth countries or former countries from the British Empire. Its features are the doctrine of precedent in cases, which generate judge made law. Some parts of countries and even whole countries accept law as being based on Biblical transcripts.
Civil law
Civil law implies a codified system of law, which is interpreted, not made, by judges. Civil law stretches back to ancient history.
Common law and equity
The common law and equity legal tradition is from England. The common law system is currently in practice in Ireland, United Kingdom, Australia, New Zealand, South Africa, Canada (excluding Quebec), and the United States. In addition to these countries, several others have adapted the common law system into a mixed system. For example, Pakistan, India and Nigeria operate largely on a common law system, but incorporate religious law.
Branches of law
Law may be categorised into different branches. In English law, for example, the main branches as taught at law schools are contract, tort, property law equity and trusts, criminal law, public law and European law.
Contract
The law of contracts deals with promises between people and the circumstances in which they are binding.
In common law jurisdictions there are four key elements to the creation of a contract.
Tort
A tort is a civil wrong; Stevenson, which established the modern tort of negligence in English law.
Property law
In common law legal systems, property law is the area of law that governs the ownership of real property (land as distinct from personal or movable possessions) and in personal property (essentially, everything other than land). In civil law systems, there is a division between movable and immovable property.
Trust law
The trust is a form of ownership that developed in England through the courts of Chancery. It is a feature of common law legal systems. Depending on the particular trust law of the jurisdiction, the nature of the trust property and the terms of the instrument that created the trust, the trustees will usually be expected to invest it or sell it, allow the beneficiaries to reside in it, or to transfer it to the beneficiaries absolutely.
Public law
Public law is conventionally split into administrative and constitutional law.
Administrative law covers the law relating to the administrative activities of government such as the making, adjudication, and enforcement of regulations. In common law jurisdictions, judicial review of state apparatus, from local councils to Government Ministries, is an important part of administrative law.
Constitutional law governs the workings of government: the functions of and relationships between the executive, legislature and judiciary. It also includes the law governing the relationship between the individual and the state. The law relating to human rights is considered a part of constitutional law insofar as it governs the rights of the individual vis-a-vis the state. in those jurisdictions the constitution is composed of statute, case law and convention.
International law
In a global economy, law is globalising too. Public International Law is the familiar kind, which deals with relations between nation states. The United Nations, the Geneva Conventions and the International Labour Organistation, the World Trade Organisation, and the International Monetary fund are all part of Public International Law's framework.
Criminal law
Criminal law is the most familiar kind of law that we hear about in the papers, or news on TV, despite it relatively small part in the legal whole.
Further disciplines
There are plenty more fields beyond the core of law.
Commercial law is essentially complicated contract law. It deals with the Sale of Goods Acts, codified common law on commercial principles. Company law sprung from the law of trusts, on the principle of separating ownership and control developed with the birth of the British East India Company. Tax Law is one of the most complicated and well paid discipline, involving Value Added Tax, Corporation Tax, Income Tax, and most importantly, lots of money. Competition Law is an evolving and relatively new kind of law that began in the late 19th Century with the restraint of trade doctrine. Labour law is the study of a tripartite industrial relationship, between worker, employer and union. Individual employment law refers to workplace rights to not be discriminated against, including unfair dismissal law. Consumer Law could include anything regulations on unfair contract terms and conditions, or directives on airline baggage insurance. Social Security law refers to the rights people have to social insurance, such as jobseekers allowances or housing benefits. Unjust enrichment is law covering a right to retrieve property from someone that has profited unjustly at your expense. Family Law covers divorce proceedings and rights of children. Environmental law is increasingly important, especially in light of the Kyoto Protocol.Religious law
Many religions contain a body of law - for example, Halakha in Judaism, Sharia in Islam, and various forms of Canon law for different denominations of Christians. Amongst religious legal codes, Halakha, followed by Orthodox and Conservative Jews (in substantially different forms) deals with both ecclesiastical relations as well as civil law. On a smaller level there are still regions of the world that practice variations of Christian Canon law used by the Catholic Church, the Eastern Orthodox Church and the Anglican Communion. However, modern-day canon law copes almost solely with ecclesiastical relations, unlike Sharia, which relates also to civil law (like property rights, contracts, partnerships and covering damages) and administrative law.
Separately from national law, individuals who practice a particular religion may agree with others to have their cases heard by religious courts to which they mutually agree to submit.
Legal theory
Jurisprudence and political philosophy
Philosophy of law, or jurisprudence, asks the question "What is law?" Another question is the relationship between law and morality, if there is one.
Weber holds that legal positions contain the basis of their own legitimacy, and related to that, the nation state is defined as that which has the legitimate monopoly on the use of force. Some commentators have gone a step further and argued that since the most influential groups control the political institutions of society, they will enjoy the most success in getting laws passed and judgements made in their favour.
Economic analysis
Economic analysis of law is an approach to legal theory that incorporates and applies the methods and ideas of economics to the concepts of law.
Institutions
The main institutions of law in industrialised countries are independent courts, representative parliaments, the military and police, bureaucratic organisation, the profession of lawyers and civil society itself.
Judiciary
Most countries have a system of appeals courts, up to a supreme authority. In the UK the highest court is the House of Lords, but on questions of European Community Law or Human Rights Law, the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg are the authorities.
Executive
In most democratic countries, like the UK, Germany, India and Japan, the executive is elected into and drawn from the legislature.
Military and police
If the state is that which controls the means of violence, as Max Weber thought, then the long arms of the law mean military and police personnel.
Bureaucratic organisation
Max Weber also believed that in the early twentieth century a definitive feature of a developed state was its bureaucratic support.
Civil society
Perhaps the most crucial institution in the law is simply the civil partnerships and associations by people holding no official positions. The more people are involved and concerned about how political power is exercised over their lives, the more acceptable and legitimate the law becomes to the people.
Legal profession
Practice of law is typically overseen by either a government organization or independent regulating body such as a bar association, bar council, barrister society, or law society. To practice law, the regulating body must certify the practitioner. This usually entails a two or three-year program at a university faculty of law or a law school, which earns the student a Bachelor of Laws, a Bachelor of Civil Law or a Juris Doctor degree. Some countries require a further vocational qualification before a person is permitted to practise law. Advanced law degrees are also often pursued, though they are academic degrees and are not required for the practice of law. These include a Master of Laws, a Master of Legal Studies, and a Doctor of Laws.
Once accredited, a lawyer will often work in a law firm, in a chambers, as a sole practitioner, for a government or as internal counsel at a private corporation. Many people trained in law put their skills to use outside the legal field entirely. A significant component to the practice of law in the common law tradition involves legal research in order to determine the current state of the law. Law practice also involves drafting documents such as court pleadings, persuasive briefs, contracts, or wills and trusts.
User Comments Add a comment…