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Law
Lady Justice or Justitia is a personification of the moral force that underlies the legal system. Her blindfold symbolises equality under the law through impartiality towards its subjects, the weighing scales represent the balancing of people's interests under the law, and her sword denotes the law's force of reason. Legal systems around the world elaborate legal rights and responsibilities in different ways. A basic distinction is made between civil law jurisdictions and systems using common law. Some countries persist in basing their law on religious texts. Scholars investigate the nature of law through many perspectives, including legal history and philosophy, or social sciences such as economics and sociology. The study of law raises important questions about equality, fairness and justice, which are not always simple. "In its majestic equality", said the author Anatole France in 1894, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread."[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.
Legal subjectsThough all legal systems must deal with similar issues, different countries often categorise and name legal subjects in different ways. Quite common is the distinction between "public law" subjects, which relate closely to the state (including constitutional, administrative and criminal law), and "private law" subjects (including contract, tort and property).[5] In civil law systems, contract and tort fall under a general law of obligations and trusts law is dealt with under statutory regimes or international conventions. International, constitutional and administrative law, criminal law, contract, tort, property law and trusts are regarded as the "traditional core subjects",[6] although there are many further disciplines which might be of greater practical importance. International law
Providing a constitution for public international law, the United Nations was conceived during World War II.
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[10] illustrates a constitutional principle deriving from the common law. Mr Entick's house was searched and ransacked by Sheriff Carrington. When Mr Entick complained in court, Sheriff Carrington argued that a warrant from a Government minister, the Earl of Halifax, was valid authority. However, there was no written statutory provision or court authority. The leading judge, Lord Camden, stated that, "The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole? If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment." The fundamental constitutional principle, inspired by John Locke,[11] is that the individual can do anything but that which is forbidden by law, and the state may do nothing but that which is authorised by law. Administrative law is the chief method for people to hold state bodies to account. People can apply for judicial review of actions or decisions by local councils, public services or government ministries, to ensure that they comply with the law. The first specialist administrative court was the Conseil d'État set up in 1799, as Napoleon assumed power in France.[12] Criminal law
Criminal law is the body of law that defines criminal offences and the penalties for convicted offenders.[13] Apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure.[14] 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).[15] 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, which include cases like dangerous driving, proof of mens rea is not necessary. An actus reus is enough.[16] Examples of different kinds of crime include murder, assault, fraud or theft. In exceptional circumstances, defences can exist to some crimes, such as killing in self defence, or pleading insanity. Another example is in the 19th century English case of R v. Dudley and Stephens,[17] which tested a defence of "necessity". The Mignotte, sailing from Southampton to Sydney, sank. Three crew members and a cabin boy were stranded on a raft. They were starving and the cabin boy 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, especially among seafarers, was outraged and overwhelmingly supportive of the crew's right to preserve their own lives. In the end, the Crown commuted their sentences to six months in jail. Criminal law offences are viewed as offences against not just individual victims, but the community as well.[13] 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.[13] On the international field, 105 countries have signed the enabling treaty for the International Criminal Court, which was established to try people for crimes against humanity.[18] Contract law
The Carbolic Smoke Ball offer, which bankrupted the Co. because it could not fulfill the terms it advertised The concept of a "contract" is based on the Latin phrase pacta sunt servanda (agreements must be kept).[19] Contracts can be simple everyday buying and selling or complex multi-party agreements. They can be made orally (e.g. buying a newspaper) or in writing (e.g. signing a contract of employment). Sometimes formalities, such as writing the contract down or having it witnessed, are required for the contract to take effect (e.g. when buying a house).[20] In common law jurisdictions, there are three key elements to the creation of a contract. These are offer and acceptance, consideration and an intention to create legal relations. For example, in Carlill v. Carbolic Smoke Ball Company[21] 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".[21] "Consideration" means all parties to a contract must exchange something of value to be able to enforce it. Some common law systems, like Australia, are moving away from consideration as a requirement for a contract. The concept of estoppel or culpa in contrahendo can be used to create obligations during pre-contractual negotiations.[22] In civil law jurisdictions, consideration is not a requirement for a contract at all.[23] 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)[24] 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.[25] 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.[26] 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.[27] 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."[28] 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.[27] Another example of tort might be a neighbour making excessively loud noises with machinery on his property.[29] 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.[30] More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes,[31] when statute does not provide immunity.[32] 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 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.[35] 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.[36] The idea of property raises many further philosophical and political issues. The English philosopher John Locke argued that our "lives, liberties and estates" are our property because we own our bodies and mix our labour with our surroundings.[37] The idea of privately owned property has been contentious in the view of a number of thinkers. Pierre Proudhon, an anarchist thinker, argued in 1840 that "property is theft".[38] Equity and Trusts
The Court of Chancery, London, early 19th century "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."[42] 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.[43] 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 disciplinesLaw spreads far beyond the core subjects into virtually every area of life. Three categories are presented for convenience, though the subjects intertwine and flow into one another.
A trade union protest by UNISON while on strike
The New York Stock Exchange trading floor
The New York Stock Exchange trading floor after the Wall Street Crash of 1929, before tougher banking regulation was introduced
Legal systemsIn general, legal systems around the world can be split between civil law jurisdictions, on the one hand, and systems using common law and equity, on the other. The term civil law, referring to a legal system, should not be confused with civil law as a group of legal subjects, as distinguished from criminal law or public law. A third type of legal system ? still accepted by some countries in part, or even in whole ? is religious law, based on scriptures and interpretations thereof. The specific system that a country follows is often determined by its history, its connection with countries abroad, and its adherence to international standards. The sources that jurisdictions recognise as authoritatively binding are the defining features of legal systems. Yet classification of different systems is a matter of form rather than substance, since similar rules often prevail. Civil law
First page of the 1804 edition of the Napoleonic Code Common law and equity
King John of England signs Magna Carta Religious law
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.[62] In modern times, Sharia is merely an optional supplement to the civil or common law of most countries, though Saudi Arabia and Iran's whole legal systems source their law on a codified form of Sharia. During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics.[63] JurisdictionsThough the legal traditions described have resulted in a number of common traits across jurisdictions, each sovereign entity can have unique aspects. The lists below link to articles on individual jurisdictions, organised by geography.
Legal theoryHistory of law
King Hammurabi is revealed the code of laws by the Mesopotamian sun god Shamash, also revered as the god of justice. The Old Testament is probably the oldest body of law still relevant for modern legal systems, dating back to 1280 BC. It takes the form of moral imperatives, as recommendations for a good society. Ancient Athens, the small Greek city-state, was the first society based on broad inclusion of the citizenry, excluding women and the slave class from about 8th century BC. Athens had no legal science, and Ancient Greek has no word for "law" as an abstract concept.[65] Yet Ancient Greek law contained major constitutional innovations in the development of democracy.[66] Roman law was heavily influenced by Greek teachings.[67] It forms the bridge to the modern legal world, over the centuries between the rise and decline of the Roman Empire.[68] Roman law underwent major codification in the Corpus Juris Civilis of Emperor Justinian I. It was lost through the Dark Ages, but rediscovered around the 11th century. Mediæval legal scholars began researching the Roman codes and using their concepts. In mediæval England, the King's powerful judges began to develop a body of precedent, which became the common law. But also, a Europe-wide Lex Mercatoria was formed, so that merchants could trade using familiar standards, rather than the many splintered types of local law. The Lex Mercatoria, a precursor to modern commercial law, emphasised the freedom of contract and alienability of property.[69] 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. As opposed to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and for judges to apply. However, today there are signs that civil and common law are converging. European Union 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. Philosophy of law
The philosophy of law is also known as jurisprudence. Normative jurisprudence is essentially political philosophy and asks "what should law be?". Analytic jurisprudence, on the other hand, is a distinctive field which asks "what is law?". An early famous philosopher of law was John Austin, a student of Jeremy Bentham and first chair of law at the new University of London from 1829. Austin's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience".[80] This approach was long accepted, especially as an alternative to natural law theory. Natural lawyers, such as Jean-Jacques Rousseau, argue that human law reflects essentially moral and unchangeable laws of nature. Immanuel Kant, for instance, believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".[81] Austin and Bentham, following David Hume, thought this conflated what "is" and what "ought to be" the case. They believed in law's positivism, that real law is entirely separate from "morality".[82] Kant was also criticised by Friedrich Nietzsche, who believed that law emanates from The Will to Power and cannot be labelled as "moral" or "immoral".[83] Thus, Nietzsche criticised the principle of equality, and believed that law should be committed to freedom to engage in will to power.[84] In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law.[85] Kelsen believed that though law is separate from morality, it is endowed with "normativity", meaning we ought to obey it. Whilst laws are positive "is" statements (e.g. the fine for reversing on a highway is ?500), law tells us what we "should" do (i.e. not drive backwards). So every legal system can be hypothesised to have a basic norm (Grundnorm) telling us we should obey the law. Carl Schmitt, Kelsen's major intellectual opponent, rejected positivism, and the idea of the rule of law, because he did not accept the primacy of abstract normative principles over concrete political positions and decisions.[86] 
Bentham's utilitarian theories remained dominant in law until the 20th century. Economic analysis of law
Richard Posner, one of the Chicago School, runs a blog with Bank of Sweden Prize winning economist Gary Becker.[91] The most prominent economic analyst of law is 1991 Nobel Prize winner Ronald Coase. His first major article, The Nature of the Firm (1937), argued that the reason for the existence of firms (companies, partnerships, etc.) is the existence of transaction costs.[93] 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.[94] 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.[95] 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.[96] 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.[97] 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.[98] Sociology of law
Max Weber in 1917 - Weber who began as a lawyer is regarded as one of the founders of sociology and sociology of law Legal institutions
The main institutions of law in liberal democracies are independent judiciaries and justice systems, representative legislatures or parliaments, an accountable executive, a competent and non-corrupt bureaucracy and police force, civilian control of the military, and a robust legal profession and civil society. John Locke, in Two Treatises of Government, and Baron de Montesquieu after him in The Spirit of the Laws, advocated a separation of powers between the institutions that wield political influence, namely the judiciary, legislature and executive.[105] 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.[106] More recently, Max Weber and many others reshaped thinking about the extensions of the state that come under the control of the executive. Modern military, policing and bureaucratic power over ordinary citizens' daily lives pose special problems for accountability that earlier writers like Locke and Montesquieu could not have foreseen. The custom and practice of the legal profession is an important part of people's access to justice, whilst civil society is a term used to refer to the social institutions, communities and partnerships that form law's political basis. Judiciary
The judges of the International Court of Justice in the Hague Some countries allow their highest judicial authority to strike down legislation determined to be unconstitutional. For instance, the United States Supreme Court struck down a Texan law forbidding assistance to women in abortion, in Roe v. Wade.[111] The constitution's fourteenth amendment was interpreted to give Americans a right to privacy, hence a woman's right to choose abortion. The judiciary is theoretically bound by the constitution, much as legislative bodies are. In most countries judges may only interpret the constitution and all other laws. But in common law countries, where matters are not constitutional, the judiciary may also create law under the doctrine of precedent. On the other hand, the UK, Finland and New Zealand still assert the ideal of parliamentary sovereignty, whereby the unelected judiciary may not overturn law passed by a democratic legislature. Legislature
The debating chamber of the European Parliament 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 U.S.A. or Brazil), and the legislature's role is reduced to either ratification or veto. Executive
The G8 meetings are composed of representatives of each country's executive branch |
