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Law[1] is a system of rules, usually enforced through a set of institutions.[2] It shapes politics, economics and society in numerous ways and serves as the foremost social mediator in relations between people. Writing in 350 BC, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual."[3]


Law governs a wide variety of social activities. 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 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 criminalized in penal code, 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.

Legal systems elaborate rights and responsibilities in a variety of ways. A basic distinction is generally made between civil law jurisdictions and systems using common law. In some countries, religion informs the law. Scholars investigate the nature of law through many perspectives, including legal history and philosophy, or social sciences such as economics and sociology. The study of law raises important and complex issues concerning equality, fairness, liberty 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."[4] 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.

Laws of particular interest to psychologists

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).[5] 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",[6] although there are many further disciplines which may be of greater practical importance.

International law

Main article: Public international law
File:Naciones Unidas 3.jpg

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. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.[10]
  • 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.[11] 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.[12]

Constitutional and administrative law

Main article: Constitutional law
Declaration of Human Rights

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[13] 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."[14]

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.[15] 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.[16]

Criminal law

Main article: Criminal law

Criminal law (also known as penal law) pertains to crimes and punishment.[17] It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact.[18] Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure.[19] The paradigm case of a crime lies in the proof, in the concept of beyond reasonable doubt, the judgement 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).[20] 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.[21] 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.[22]

File:SalemWitchcraftTrial.jpg

Acts of crime 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.[23]

Criminal law offences are viewed as offences against not just individual victims, but the community as well.[18] 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.[24] On the international field, 108 are members of the International Criminal Court, which was established to try people for crimes against humanity.[25]

Contract law

Main article: Contract
File:Carbolic smoke ball co.jpg

Contract law regulates the exchange of promises between parties to perform or refrain from performing an act enforceable in a court of law. Contracts can be formed from oral or written agreements. The concept of a "contract" is based on the Latin phrase pacta sunt servanda (agreements must be kept).[26] 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".[27]

"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.[28] In civil law jurisdictions, consideration is not required for a contract to be binding.[29] 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)[30] 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.[31]

Tort law

Main article: Tort
File:Mcspotlight.jpg

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.[32] Under negligence law, 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.[33] 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."[34]

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.[33] Another example of tort might be a neighbour making excessively loud noises with machinery on his property.[35] 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.[36] More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes,[37] when statute does not provide immunity.[38]


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
File:UnisonStrikeRallyOxford20060328 KaihsuTai.jpg
Law and commerce
Law and regulation
File:1930-67B.gif

Legal systems

Main article: Legal systems of the world

In general, legal systems can be split between civil law and common law systems.[42] The term civil law should not be confused with civil law as a group of legal subjects, as distinct from criminal or public law. A third type of legal system—still accepted by some countries—is religious law, based on scriptures and interpretations thereof. 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

Main article: Civil law (legal system)
File:Code Civil 1804.png

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.[43] 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.[44] Instead a lay person, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised.[45] 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.[46] 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."[47] 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.[48] Civil law codifications based closely on Roman law, alongside some influences from religious laws such as Canon law and Islamic law,[49] 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.[50] Today countries that have civil law systems range from Russia and China to most of Central and Latin America.[51]

Common law and equity

Main article: Common law
File:Joao sem terra assina carta Magna.jpg

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 of England 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,[52] 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.[53] A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five.[54] This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law.[55] As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the King's behalf the Lord Chancellor gave judgment to do what was equitable in a case. From the time of Sir Thomas More, the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery. At first, equity was often criticised as erratic, that it "varies like the Chancellor's foot". But over time it developed solid principles, especially under Lord Eldon.[56] In the 19th century the two systems were fused into one another. In developing the common law and equity, academic authors have always played an important part. William Blackstone, from around 1760, was the first scholar to describe and teach it.[57] But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.[58]

Religious law

Main article: 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,[59] 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, which at least one scholar has claimed had an influence on the early development of the common law,[52] as well as some influence on civil law.[60] 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.

File:1879-Ottoman Court-from-NYL.png

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.[61] 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.[62] Saudi Arabia recognises Quran as its constitution, and is governed on the basis of Islamic law.[63] Iran has also witnessed a reiteration of Islamic law into its legal system after 1979.[64] 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.[65]

Legal theory

Sociology of law

Main article: 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.[66] 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.[67]

File:Max Weber 1917.jpg

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.[68] 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.[66] 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.[69] 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.[70]

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."[71] 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.[72]

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.[73] 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.[74] 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.[75]

Judiciary

Main article: 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;[76] in Australia, the High Court; in the UK, the House of Lords;[77] in Germany, the Bundesverfassungsgericht; in France, the Cour de Cassation.[78] 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.[79]

File:Public hearing at the ICJ.jpg

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.[80] 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.[81] 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.[82] In Muslim countries, courts often examine whether state laws adhere to the Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws,[83] and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam".[84]

Legislature

Main article: Legislature
File:European-parliament-brussels-inside.JPG

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.[85]

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.[86]

Executive

Main article: Executive (government)
File:33rdG8Leaders.jpg

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, whoes 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 he/she usually lacks formal political power yet 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.[87]

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

Main article: Military
File:US Customs and Border Protection officers.jpg

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.[88] The first modern police were probably those in 17th century Paris, in the court of Louis XIV,[89] although the Paris Prefecture of Police claim they were the world's first uniformed policemen.[90]

Weber famously argued that the state is that which controls the legitimate monopoly of the means of violence.[91] 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.[92]

Bureaucracy

Main article: Bureaucracy
File:UN Headquarters 2.jpg

The etymology of "bureaucracy" derives from the French word for "office" (bureau) and the Ancient Greek for word "power" (kratos).[93] 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."[94]

Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to private enterprise motivated by profit.[95] In fact private companies, especially large ones, also have bureaucracies.[96] 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.[96] Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support.[97] 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.[98]

Legal profession

Main article: Legal profession
File:Quentin Massys 007.jpg

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).[100] 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.[101] 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[102]), 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 of them still allow lawyers with training in traditional Islamic law to practice law before personal status law courts.[103] 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.[104]

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.[105]

Civil society

Main article: Civil society
File:1963 march on washington.jpg

Classical republican concept of "civil society" dates back to Hobbes and Locke.[106] Locke saw civil society as people who have "a common established law and judicature to appeal to, with authority to decide controversies between them."[107] German philosopher Georg Wilhelm Friedrich Hegel distinguished the "state" from "civil society" (burgerliche Gesellschaft) in Elements of the Philosophy of Right.[108] 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.[109][110] 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."[111]

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, neighbourhouds, churches and religious associations.[112]

See also

Notes

  1. From Old English lagu "something laid down or fixed"; legal comes from Latin legalis, from lex "law", "statute" (Law, Online Etymology Dictionary; Legal, Merriam-Webster's Online Dictionary)
  2. 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).
  3. n.b. this translation reads, "it is more proper that law should govern than any one of the citizens" (Aristotle, Politics 3.16).
  4. 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).
  5. 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).
  6. 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.
  7. 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."
  8. 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).
  9. Petersmann, The GATT/WTO Dispute Settlement System, 32
  10. Redfem, International Commercial Arbitration, 68–69
  11. Schermers–Blokker, International Institutional Law, 943
  12. 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.
  13. Entick v Carrington (1765) 19 Howell's State Trials 1030; [1765] 95 ER 807
  14. Entick v Carrington. 19 Howell’s State Trials 1029 (1765). Constitution Society. URL accessed on 2008-11-13.
  15. Locke, The Second Treatise, Chapter 9, section 124
    * Tamanaha, On the Rule of Law, 47
  16. Auby, Administrative Law in France, 75
  17. Cesare Beccaria's seminal treatise of 1763–1764 is titled On Crimes and Punishments (Dei delitti e delle pene).
  18. 18.0 18.1 Brody, Acker and Logan, Criminal Law, 2; Wilson, Criminal Law, 2
  19. Brody, Acker and Logan, Criminal Law, 2
  20. See e.g. Brody, Acker and Logan, Criminal Law, 205 about Robinson v California, 370 U.S. 660 (1962).
  21. See e.g. Feinman, Law 111, 260–261 about Powell v Texas, 392 U.S. 514 (1968).
  22. Dörmann, Doswald-Beck and Kolb, Elements of War Crimes, 491
    * Kaiser, Leistungsstörungen, 333
  23. About R v Dudley and Stephens [1884] 14 QBD 273 DC, see Simpson, Cannibalism and the Common Law, 212–217, 229–237
  24. Pelser, Criminal Legislation, 198
  25. The States Parties to the Rome Statute, International Criminal Court
  26. Wenberg, Pacta Sunt Servanda, 775
  27. About Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256, and the element of consideration, see Beale and Tallon, Contract Law, 142–143
  28. Austotel v Franklins (1989) 16 NSWLR 582
  29. e.g. In Germany, § 311 Abs. II BGB
  30. § 105 Abs. II BGB
  31. Smith, The Structure of Unjust Enrichment Law, 1037
  32. Bolton v Stone [1951] AC 850
  33. 33.0 33.1 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.
  34. Donoghue v Stevenson [1932] AC 532, 580
  35. Sturges v Bridgman (1879) 11 Ch D 852
  36. e.g. concerning a British politician and the Iraq War, George Galloway v Telegraph Group Ltd [2004] EWHC 2786
  37. Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] AC 426
  38. In the UK, Trade Union and Labour Relations (Consolidation) Act 1992; c.f. in the U.S., National Labor Relations Act
  39. A Guide to the Treaty of Lisbon, The Law Society
  40. Berle, Modern Corporation and Private Property
  41. WIPO, Intellectual Property, 3
  42. 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)
  43. 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).
  44. Gordley-von Mehren, Comparative Study of Private Law, 18
  45. Gordley-von Mehren, Comparative Study of Private Law, 21
  46. Stein, Roman Law in European History, 32
  47. Stein, Roman Law in European History, 35
  48. Stein, Roman Law in European History, 43
  49. Badr, Islamic Law, 187–198 [196–8]
    * Makdisi, The Islamic Origins, 1635–1739
  50. Hatzis, The Short-Lived Influence of the Napoleonic Civil Code in Greece, 253–263
    * Demirgüç-Kunt -Levine, Financial Structures and Economic Growth, 204
  51. The World Factbook — Field Listing – Legal system, CIA
  52. 52.0 52.1 Makdisi, The Islamic Origins, 1635–1739
  53. Magna Carta, Fordham University
  54. Gordley-von Mehren, Comparative Study of Private Law, 4
  55. Gordley-von Mehren, Comparative Study of Private Law, 3
  56. Gee v Pritchard (1818) 2 Swans. 402, 414
  57. Blackstone, Commentaries on the Laws of England, Book the First – Chapter the First
  58. Gordley-von Mehren, Comparative Study of Private Law, 17
  59. Glenn, Legal Traditions of the World, 159
  60. Badr, Islamic Law, 187–198 [196–8]
  61. Anderson, Law Reform in the Middle East, 43
    * Giannoulatos, Islam, 274–275
  62. Sherif, Constitutions of Arab Countries, 157–158
  63. Saudi Arabia, Jurist
  64. Akhlagi, Iranian Commercial Law, 127
  65. Hallaq, The Origins and Evolution of Islamic Law, 1
  66. 66.0 66.1 Jary, Collins Dictionary of Sociology, 636
  67. Rottleuthner, La Sociologie du Droit en Allemagne, 109
    * Rottleuthner, Rechtstheoritische Probleme der Sociologie des Rechts, 521
  68. Rheinstein, Max Weber on Law and Economy in Society, 336
  69. Johnson, The Blackwell Dictionary of Sociology, 156
  70. Gurvitch, Sociology of Law, 142
    * Papachristou, Sociology of Law, 81–82
  71. Hamilton and Spiro, The Dynamics of Law, 3
  72. Jakobs, Pursuing Equal Opportunities, 5–6
    * Karkatsoulis, The State in Transition, 275 etc.
  73. Montesquieu, The Spirit of Laws, Book XI: Of the Laws Which Establish Political Liberty, with Regard to the Constitution, Chapters 6–7
  74. Thomas Hobbes, Leviathan, XVII
  75. Curtin–Wessel, Good Governance, 73
    * Fukuyama, State-Building, 132
  76. A Brief Overview of the Supreme Court, Supreme Court of the United States
  77. House of Lords Judgements, House of Lords
  78. Entscheidungen des Bundesverfassungsgerichts, Bundesverfassungsgericht
    * Jurisprudence, publications, documentation, Cour de cassation
  79. Goldhaber, European Court of Human Rights, 1–2
  80. Roe v Wade (1973) 410 U.S. 113 Retrieved 2007-01-26
  81. Dicey, Law of the Constitution, 37–82
  82. 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
  83. Sherif, Constitutions of Arab Countries, 158
  84. Rasekh, Islamism and Republicanism, 115–116
    * Sherif, Constitutions of Arab Countries, 158
  85. Riker, The Justification of Bicameralism, 101
  86. About "cabinet accountability" in both presidential and parliamentary systems, see Shugart–Haggard, Presidential Systems, 67 etc.
  87. Haggard, Presidents, Parliaments and Policy, 71
    * Olson, The New Parliaments of Central and Eastern Europe, 7
  88. 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."
  89. History of Police Forces, History.com Encyclopedia
  90. Des Sergents de Ville et Gardiens de la Paix à la Police de Proximité, La Préfecture de Police
  91. Weber, Politics as a Vocation
    * Weber, The Theory of Social and Economic Organisation, 154
  92. In these cases sovereignty is eroded, and often warlords acquire excessive powers (Fukuyama, State-Building, 166–167).
  93. Bureaucracy, Online Etymology Dictionary
  94. Albrow, Bureaucracy, 16
  95. Mises, Bureaucracy, II, Bureaucratic Management
  96. 96.0 96.1 Kettl, Public Bureaucracies, 367
  97. Weber, Economy and Society, I, 393
  98. Kettl, Public Bureaucracies, 371
  99. Hazard–Dondi, Legal Ethics, 22
  100. Hazard–Dondi, Legal Ethics, 1
  101. The Sunday Times v The United Kingdom [1979] ECHR 1 at 49 Case no. 6538/74
  102. Higher academic degrees may also be pursued. Examples include a Master of Laws, a Master of Legal Studies or a Doctor of Laws.
  103. Ahamd, Lawyers: Islamic Law
  104. Hazard–Dondi, Legal Ethics, 22–23
  105. Fine, The Globalisation of Legal Education, 364
  106. Warren, Civil Society, 3–4
  107. Locke, Second Treatise, Chapter 7, section 87
  108. Hegel, Elements of the Philosophy of Right, 3, II, 182; Karkatsoulis, The State in Transition, 277–278
  109. (Pelczynski, The State and Civil Society, 1–13; Warren, Civil Society, 5–9)
  110. Zaleski, Pawel (2008). Tocqueville on Civilian Society. A Romantic Vision of the Dichotomic Structure of Social Reality. Archiv für Begriffsgeschichte 50.
  111. Robertson, Crimes Against Humanity, 98–99
  112. 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.

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