Law
From The Book of THoTH (Leaves of Wisdom)
Law (from the late Old English lagu of probable North Germanic origin) in politics and jurisprudence, is a set of rules or norms of conduct which mandate, forbid or permit specified relationships among people and organizations, intended to provide methods for ensuring the impartial treatment of such people, and provide punishments of/for those who do not follow the established rules of conduct.
Law is typically administered through a system of courts in which judges (sometimes with the aid of a jury or lay magistrate) hear disputes between parties, and apply a set of rules in order to provide an outcome that is just and fair. The manner in which law is administered is known as a legal system, which typically has developed through tradition in each country.
Most countries rely upon the police to enforce the law. Police officers most often, must be professionally trained in law enforcement before they are permitted to act under the color of law, to issue legal warnings and citations, execute search or other legal warrants and to make arrests.
Legal practitioners, most often, must be professionally trained in the law before they are permitted to advocate for a party in a court of law, draft legal documents, or give legal advice.
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Legal traditions
There are generally four broad legal traditions that are practiced in the world today.
Civil law
The civil law system is a codified law that sets out a comprehensive system of rules that are applied and interpreted by judges. It is by and large the most commonly practiced system of law in the world, with almost 60% of the world's population living in a country ruled on the civil law system.
The most important difference to common law is that normally, only legislative enactments are considered to be legally binding, but not precedent cases, unless a similar matter has been decided upon by a superior court. However, as a practical matter, courts normally follow their previous decisions. Furthermore, in some civil law systems (e.g. in Germany), the writings of legal scholars have considerable influence on the courts.
In most jurisdictions the core areas of private law are codified in the form of a civil code, but in some, such as Scotland they remain uncodified. The civil law system has its origins in Roman law, which was adopted by scholars and courts from the late middle ages onwards. Most modern systems go back to the 19th century codification movement. The civil codes of many countries, particularly former French and Spanish colonies closely trail the Code Napoléon in some fashion. However, this is not true for most Central and Eastern European, Scandinavian and East Asian countries. Notably, the German BGB was developed from Roman law with reference to German legal tradition and was a decisive influence to the following civil codes in other countries.
The importance of the Code Napoléon should also not be overemphasized as it covers only the core areas of private law, while other codes and statutes govern fields such as corporate law, administrative law, tax law and constitutional law.
Common law
The common law is an Anglo-Saxon legal tradition, based on judicial decisions that create binding precedent. The common law system is currently in practice in Ireland, United Kingdom, Australia, New Zealand, South Africa, Canada (excluding Quebec), and the United States (although Louisiana uses both common law and Napoleonic civil law). 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 a good deal of customary law and religious law.
Customary law
Customary law are systems of law that have evolved largely on their own within a given country and have been adapted to meet the needs of the particular culture. Note that customary law may also be relevant within jurisdictions following another legal tradition in fields or subfields of law where no legislative enactment exists. For example, in Austria, scholars of private law often claim that customary law continues to exist, whereas public law scholars dispute this claim. In any case, it is difficult to find practically relevant examples.
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. In some cases these are intended purely as individual moral guidance, whereas in other cases they are intended and may be used as the basis for a country's legal system. This can be in one of two ways:
- In countries such as Iran, the religious code of Islam is integral to the country's legal system. In this case, civic law is the religious law (or based closely upon it). Some countries, where the state exists as a vehicle for a religion-based culture, are known as theocracies, and historically were often run by priests or the king (or god-king) as an earthly personification of the religion itself.
- In countries such as the United States, there is no national religion. However a religious heritage and cultural background is strongly influential in the formation of a legal system, and in the choice of certain laws and social norms.
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. However unlike Sharia which is sometimes used as a basis for a national legal code, there is currently no country that is fully governed by Halakha. 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. These are voluntary and have no judicial enforcement power, none the less (for example) two religious Jews may decide to have their dispute heard by a Jewish court and be bound by its rulings, as a matter of personal belief. Similar arrangements may hold for Islam and other religions. In such cases there may be agreed recourse to the civic courts, or it may be agreed to be foregone.
Bodies of law
In the broadest sense, bodies of law can be subdivided on the basis of who the parties to an action are. It is frequent that practiced fields of law overlap into several of these bodies of law.
Private law
The area of private law in a legal system concerns law that oversees disputes between private (non-state) persons, including groups of people, organizations and corporations. This area is, to a large extent, the most comprehensive area of law, dealing with all non-criminal harm one person does to another. Private law may be referred to as civil law, but is not to be confused with the system of civilian law predominant in many nations.
Private International Law is the extension of private law to disputes between private persons across jurisdictions. It covers both commercial contracts such as bills of lading (for shipping) and individuals' rights, e.g. to succession of property. Important elements of private international law remain uncodified in treaty provision (e.g. lex situs - the proper place of ownership of property) but are commonly recognised across countries and so remain customary law.
Where the interpretation of private international law differs between jurisdictions, there is a Conflict of Laws.
Public law
The area of public law, in a general sense, is the law in a given legal system that concerns the legal organisation of the various branches of government and institutions of state, as well as disputes between the government and private persons within the jurisdiction of the country. The state can bring actions against people or organisations for criminal acts, as well as breach of regulatory laws. Public law can be divided into four sub-categories; Administrative, Constitutional, Criminal and Military law.
Equally, individuals and groups can bring actions against the government for harm it has done. This includes grounds on the basis of a breach of regulations, legislation on matters beyond their competence, or violation of an individual's rights. These last two points are often protected under a country's constitution.
Procedural law
Procedural law concerns the areas of law that regulates the legal process. This includes who can have access to the court system, how complaints are submitted, and what the rights of the parties involved are. Procedural law is often known as "adjective" law as it is the law that concerns how other laws are to be applied. Typically, this is broadly covered by a government’s civil and criminal procedure rules. But this equally includes the law of evidence which determines what means are used to prove facts, as well as the law regarding remedies.
International law
International law governs the relations between states, or between citizens of different states, or international organizations. Its two primary sources are customary law and treaties.
Legal theory
Philosophy of law
Philosophy of law is a branch of philosophy and jurisprudence which studies basic questions about law and legal systems, such as "What is the law?", "What are the criteria for legal validity?", "What is the relationship between law and morality?" and many other similar questions.
In the Western tradition there are several schools of thought on the philosophical basis of law. First, there is natural law, which attempts to describe law as an inherent quality in humans that is derived from nature. Second, there is the positivism which believes that law is a purely human-made construct that society uses to maintain social order. Third, there is legal realism which believes that law is an arbitrary set of rules that are largely established through the tastes and preferences of judges. Legal interpretivism is a contemporary theory of law different from positivism and natural law.
Anthropology of law
Law has an anthropological dimension. It has been recognized from Montesquieu to the present that law is shaped by the kind of society in which it is practised. One continuum into which various societies can be placed contrasts the "culture of law" with the "culture of honour". In order to have a culture of law, people must dwell in a society where a government exists whose authority is both hard to evade and generally recognised as legitimate. People take their grievances before the government and its agents, who arbitrate disputes and enforce penalties. This behaviour is contrasted with the culture of honour, where respect for persons and groups stems from fear of the revenge they may exact if their person, property, or prerogatives are not respected.
Cultures of law must be maintained. They can be eroded by declining respect for the law, achieved either by weak government unable to wield its authority, or by burdensome restrictions that attempt to forbid behaviour prevalent in the culture or in some subculture of the society. When a culture of law declines, there is a possibility that a culture of honour will arise in its place.
The distinction between cultures of law and cultures of honour is anthropological; it does not directly concern philosophy of law or an internal viewpoint of law. In cultures of honour, most people will agree that they have a law. For most purposes, legal philosophers will also call their rules "law".
Economic analysis of law
Economic analysis of law (or economics and law) is the term usually employed to describe an approach to legal theory that incorporates and applies the methods and ideas of economics to the concepts of law.
Comparative law
Comparative law is the study of differences and similarities between the law of different countries or jurisdictions. more generally, of the different legal systems, including the common law family, the civil law family, the socialist law, the Islamic law family and the Asian law family. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of internationalism, economic globalization and democratization.
Legal psychology
Legal psychology involves the application of the study and practice of psychology to legal institutions and people who come into contact with the law.
Semiotics of law
Semiotics of law is the term usually employed to describe an approach to legal theory that incorporates and applies the methods and ideas of semiotics to the concepts of law. The International Journal of the Semiotics of Law specializes in this approach to legal theory. The International Round Table for the Semiotics of Law is held annually.
Practice of law
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. This course of study is followed by an entrance examination (e.g. bar admission). Some countries require a further vocational qualification before a person is permitted to practise law. In the case of those wishing to become a barrister], this would lead to a Barrister-at-law degree, followed by a year's apprenticeship (sometimes known as pupillage or devilling) under the oversight of an experienced barrister (or master).
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. Another option is to become a legal researcher who provides on-demand legal research through a commercial service or on a freelance basis. 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. This usually entails exploring case-law reports, legal periodicals and legislation. Law practice also involves drafting documents such as court pleadings, persuasive briefs, contracts, or wills and trusts. Negotiation and dispute resolution skills are also important parts of legal practice, depending on the field.
See also
- Politics
- Lawyers
- Women in the U.S. Judiciary
Lists
- Law topics overview
- List of areas of law
- List of legal topics
- List of legal terms
- List of jurists
- List of legal abbreviations
- List of case law lists
- List of law firms
Further reading
- Blackstone, William, Sir. An analysis of the laws of England: to which is prefixed an introductory discourse on the study of the law. 3rd ed. Buffalo, N.Y.: W.S. Hein & Co., 189 pp., 1997. (originally published: Oxford : Clarendon Press, 1758) ISBN 1575884135
- David, René, and John E. C. Brierley. Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law. 3d ed. London: Stevens, 1985. ISBN 0420473408.
- Ginsburg, Ruth B. A selective survey of English language studies on Scandinavian law. So. Hackensack, N.J.: F. B. Rothman, 53 pp., 1970. OCLC 86068
- Glenn, H. Patrick Legal Traditions of the World: Sustainable Diversity in Law 2nd ed. London: Oxford University Press, 432 pp., 2004. ISBN 0199260885
- Iuul, Stig, et al. Scandinavian legal bibliography. Stockholm: Almqvist & Wiksell, 196 pp., 1961. (series: Acta / Instituti Upsaliensis Iurisprudentiae Comparativae; 4) OCLC 2558738
- Llewellyn, Karl N. & E. Adamson Hoebel. Cheyenne Way: Conflict & Case Law in Primitive Jurisprudence. special ed. New York City: Legal Classics Library, 374 pp., 1992. ISBN 0806118555
- Nielsen, Sandro. The Bilingual LSP Dictionary. Principles and Practice for Legal language. Tübingeb.: Gunter Narr Verlag, 308 pp., 1994. (series: Forum für Fachsprachen-Forschung; Bd. 24) ISBN 3823345338
External links
- The Australian Institute of Comparative Legal Systems
- WorldLII - The World Legal Information Institute
- WikiCities Legal Site
- Stanford Encyclopedia of Philosophy:
- The shared law in Jurispedia
- Definition of Law
--Angel 16:18, 5 June 2006 (CDT)
