Saturday, April 14, 2007
Law
I really hope you guys have known more about Law. I will come up with more interesting topics for all of you to read. :) Thanks!
Friday, March 30, 2007
Law: From Wikipedia
Law[1] is a system of rules that is usually enforced through a set of institutions.[2] Law affects everyday life and society in a variety of ways. Contract law regulates everything from buying a bus ticket to trading swaptions on a derivatives market. Property law defines rights and obligations related to buying, selling, or renting real property such as homes and buildings. Trust law applies to assets held for investment, such as pension funds. Tort law allows claims for compensation when someone or their property is harmed. But if the harm is criminalised, and the act is intentional, criminal law offers means to prosecute and punish the perpetrator. Constitutional law provides a framework for creating laws, protecting people's human rights, and electing political representatives, while administrative law allows ordinary citizens to challenge the way governments exercise power. International law regulates affairs between sovereign nation-states in everything from trade to the environment to military action. "The rule of law", wrote the ancient Greek philosopher Aristotle in 350 BC, "is better than the rule of any individual."[3]
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 base their law on religious scripts. 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 most important institutions for law are the judiciary, the legislature, the executive, its bureaucracy, the military and police, the legal profession and civil society.
Legal subjects
Though all legal systems deal usually with the same or 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, 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.
[edit] International law
Main articles: Public international law, Conflict of laws, and European Union law
Providing a constitution for public international law, the United Nations was conceived during World War II.
In a global economy, law is globalising too. International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organisations.
Public international law concerns relationships between sovereign nations. It has a special status as law because there is no international police force, and courts lack the capacity to penalise disobedience.[7] The sources for public international law to develop are custom, practice and treaties between sovereign nations. The United Nations, founded under the UN Charter and the Universal Declaration of Human Rights, is the most important international organisation, established after the Treaty of Versailles's failure and World War II. Other international agreements, like the Geneva Conventions on the conduct of war, and international bodies such as the International Court of Justice, International Labour Organisation, the World Trade Organisation, or the International Monetary Fund, also form a growing part of public international law.
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. This increases the number of disputes outside a unified legal framework and the enforceability of standard practices. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.
European Union law is the first and only example of a supranational legal framework. However, given increasing global economic integration, many regional agreements—especially the South American Community of Nations—are on track to follow the same model. In the EU, sovereign nations have pooled their authority through a system of courts and political institutions. They have the ability to enforce legal norms against and for member states and citizens, in a way that public international law does not.[8] As the European Court of Justice said in 1962, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states.[9]
[edit] Constitutional and administrative law
Main articles: Constitutional law 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; in those jurisdictions the constitution is composed of 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]
[edit] Criminal law
Main article: Criminal law
A depiction of a 1600s criminal trial, for witchcraft in Salem
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] In every jurisdiction, a crime is committed where two elements are fulfilled. First, the criminal must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind). Second, he must commit the criminal act, or actus reus (guilty act). 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,[15] 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 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.
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 have capital punishment and corporal 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, 104 countries have signed the enabling treaty for the International Criminal Court, which was established to try people for crimes against humanity.[16]
[edit] Contract
Main article: Contract
The Carbolic Smoke Ball offer, which bankrupted the Co. because it could not fulfill the terms it advertised
Contract is based on the Latin phrase pacta sunt servanda (agreements must be kept).[17] 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).[18]
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 a medical firm advertised that its new wonder drug, the smokeball, would cure people's flu, and if it did not, buyers would get £100.[19] 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 merely an invitation to treat, or 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".[19]
"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.[20] In civil law jurisdictions, consideration is not a requirement for a contract at all.[21] 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)[22] 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.[23]
[edit] Tort
Main article: Tort
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.[24] Under negligence law, the most common form of tort, the injured party can make a claim against the party responsible for the injury. The principles of negligence are illustrated by Donoghue v. Stevenson.[25] Mrs Donoghue ordered an opaque bottle of ginger beer in a café in Paisley. Having consumed half of it, she poured the remainder into a tumbler. The decomposing remains of a dead snail floated out. She fell ill 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."[26]
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.[25] Another example of tort might be a neighbour making excessively loud noises with machinery on his property.[27] 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.[28] More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes,[29] when statute does not provide immunity.[30]
[edit] Property law
Main article: 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
Property law governs everything that people call 'theirs'. Real property, sometimes called 'real estate' refers to ownership of land and things attached to it.[31] Personal property, refers to everything else; movable objects, such as computers and sandwiches, or intangible rights, such as stocks and shares. A right 'in rem' is a right to a specific piece of property. If an individual loses his computer and another finds it and it changes hands, a right in rem gives the individual the ability to take the computer from whoever has it. A right 'in personam' however is a right against one specific individual for something equivalent to the property in question. If an individual loses his computer and it passes hands, the right in personam allows the individual to claim the price of the computer from the thief (but not the actual computer, as this might now belong to someone else.) The classic civil law approach to property, propounded by Friedrich Carl von Savigny, is that it is a right good against the world. This contrasts to an obligation, like a contract or tort, which is a right good between individuals.[32] Preferred in common law jurisdictions is an idea closer to an obligation; that the person who can show the best claim to a piece of property, against any contesting party, is the owner.[33] The idea of property raises important philosophical and political issues. John Locke famously argued that our "lives, liberties and estates" are our property because we own our bodies and mix our labour with our surroundings.[34] The idea of property is still contentious. French philosopher Pierre Proudhon once famously wrote, "property is theft".[35]
Land law forms the basis for most kinds of property law, and is the most complex. It concerns mortgages, rental agreements, licences, covenants, easements and the statutory systems for registration of land. Regulations on the use of personal property fall under intellectual property, company law, trusts and commercial law.
[edit] Trusts and equity
Main articles: Trust law and Equity
The Court of Chancery, London, early 19th century
Equity is a body of rules that developed in England separately from the "common law". The common law was administered by judges, whilst the Lord Chancellor, as the King's keeper of conscience, could overrule the judge made law if he thought it equitable to do so.[36] This meant equity came to operate more through principles than rigid rules. For instance, whereas the common law, and civil law systems, do not allow people to split the ownership from the control of one piece of property, equity allows this through a 'Trust'. 'Trustees' control property, whereas the 'beneficial' (or 'equitable') ownership of trust property is held by people known as 'beneficiaries'. Trustees owe duties to their beneficiaries to take good care of the trust.[37] In the early case of Keech v. Sandford[38] a child had inherited the lease on a market in Romford, London. Mr Sandford was entrusted to look after this property until the child matured. But before then, the lease expired. The landlord had (apparently) told Mr Sandford that he did not want the child to have the renewed lease. Yet the landlord was happy (apparently) to give Mr Sandford the opportunity of the lease instead. Mr Sandford took it. When the child (now Mr Keech) grew up, he sued Mr Sandford for the profit that he had been making by getting the market's lease. Mr Sandford was meant to be trusted, but he put himself in a position of conflict of interest. The Lord Chancellor, Lord King, agreed and ordered Mr Sandford should disgorge his profits. He wrote,
"I very well see, if a trustee, on the refusal to renew, might have a lease to himself few trust-estates would be renewed… This may seem very hard, that the trustee is the only person of all mankind who might not have the lease; but it is very proper that the rule should be strictly pursued and not at all relaxed."[39]
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.[40] 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.
[edit] 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 flow into one another.
Law and society
A trade union protest by UNISON while on strike
Labour law is the study of a tripartite industrial relationship between worker, employer and trade union. This involves collective bargaining regulation, and the right to strike. Individual employment law refers to workplace rights, such as health and safety or a minimum wage.
Human rights and human rights law are important fields to guarantee everyone basic freedoms and entitlements. These are laid down in codes such as the Universal Declaration of Human Rights, the European Convention on Human Rights and the U.S. Bill of Rights.
Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Both concern everybody's right to a fair trial or hearing.
Evidence law involves which materials are admissible in courts for a case to be built.
Immigration law and nationality law concern the rights of foreigners to live and work in a nation-state that is not their own and to acquire or lose citizenship. Both also involve the right of asylum and the problem of stateless individuals.
Social security law refers to the rights people have to social insurance, such as jobseekers' allowances or housing benefits.
Family law covers marriage and divorce proceedings, the rights of children and of course the rights to property and money in the event of separation.
Law and commerce
The New York Stock Exchange trading floor
Commercial law covers complex contract and property law. The law of agency, insurance law, bills of exchange, insolvency and bankruptcy law and sales law are all important, and trace back to the mediæval Lex Mercatoria. The UK Sale of Goods Acts and the U.S. Uniform Commercial Code are examples of codified common law commercial principles.
Company law sprung from the law of trusts, on the principle of separating ownership of property and control.[41] The law of the modern company began with the Joint Stock Companies Act, passed in the United Kingdom in 1865, which protected investors with limited liability and conferred separate legal personality.
Intellectual property deals with patents, trademarks and copyrights. These are intangible assets: the right to protect your invention from imitation, your brand name from appropriation, or a song you wrote from performance and plagiarism.
Restitution deals with the recovery of someone else's gain, rather than compensation for one's own loss.
Unjust enrichment is law covering a right to retrieve property from someone that has profited unjustly at another's expense.
Law and regulation
The New York Stock Exchange trading floor after the Wall Street Crash of 1929, before tougher banking regulation was introduced
Tax law is probably the most complicated and well-paid discipline, involving value added tax, corporate tax, income tax, and most importantly, lots of money.
Banking law and financial regulation set minimum standards on the amounts of capital banks must hold, and rules about best practice for investment. This is to insure against the risk of economic crises, such as the Wall Street Crash of 1929.
Regulated industries are attached to an important body of law, for instance water law, for the provision of public services. Especially since privatisation became popular, private companies doing the jobs previously controlled by government have been bound by social responsibilities. Energy, gas telecomms and water are regulated industries in most OECD countries.
Competition law, known in the U.S. as anti-trust law, is an evolving field that traces as far back as Roman decrees against price fixing and the English restraint of trade doctrine. Modern competition law derives from the U.S. anti-cartel and anti-monopoly statutes (the Sherman Act and Clayton Act) of the turn of the 20th century. It is used to control businesses who attempt to use their economic influence to distort market prices at the expense of consumer welfare.
Consumer law could include anything from regulations on unfair contract terms and conditions to directives on airline baggage insurance.
Environmental law is increasingly important, especially in light of the Kyoto Protocol and the imminent danger of climate change. Environmental protection also serves to penalise polluters within domestic legal systems.
[edit] Legal systems
Main article: Legal systems of the world
In 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.
[edit] Civil law
Main article: Civil law (legal system)
First page of the 1804 edition of the Napoleonic Code
Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation – especially codifications in constitutions or statutes passed by government – and, secondarily, custom.[42] Codifications date back millennia, with one early example being the ancient Babylonian Codex Hammurabi, but 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 there was no professional legal class.[43] Instead a lay person, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised.[44] 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 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.[45] 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."[46] 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.[47] Civil law codifications based closely on Roman law 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.[48] Today countries that have civil law systems range from Russia and China to most of Central and Latin America.[49]
[edit] Common law and equity
Main article: Common law
King John of England signs Magna Carta
Common law and equity are systems of law whose special distinction is the doctrine of precedent, or stare decisis (Latin for "to stand by decisions"). Alongside this "judge-made law", common law systems always have governments who pass new laws and statutes. But these are not put into a codified form. Common law comes from England and was inherited by almost every country that once belonged to the British Empire, with the exceptions of Malta, Scotland, the U.S. state of Louisiana and the Canadian province of Quebec. Common law had its beginnings in the Middle Ages, 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 judgements at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country.[50] 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.[51] This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law.[52] 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 judgement 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.[53] 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.[54] But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.[55]
[edit] Religious law
Main article: Religious law
Ashkenazi Torah scroll
Religious law refers to the notion that the word of God is law. Examples include the Jewish Halakha and Islamic Sharia, both of which mean the "path to follow". Christian Canon law also survives in some Church communities. The implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments. However, religious texts usually do not provide for a thorough and detailed legal system. For instance, the Quran has some law but not much, and it acts merely as a source of further law through interpretation.[56] This is mainly contained in a body of jurisprudence known as the fiqh. The first five books of the Old Testament are known as the Torah and include Genesis, Exodus, Leviticus, Numbers and Deuteronomy. The Halakha is the interpretation of teachings and is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. Nevertheless, Israel is not governed by Halakha, but under Israeli law, the litigants may decide, because of personal belief, to have a dispute heard by a Rabbinic court and be bound by its rulings. Canon law is only in use by members of the clergy in the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Until the 18th century Sharia law reigned supreme, nominally at least, throughout the Muslim world; but since the mid-1940s efforts have been made, in country after country, to bring the law more into line with modern conditions and conceptions.[57] Nowadays, 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 in 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.[58]
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 base their law on religious scripts. 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 most important institutions for law are the judiciary, the legislature, the executive, its bureaucracy, the military and police, the legal profession and civil society.
Legal subjects
Though all legal systems deal usually with the same or 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, 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.
[edit] International law
Main articles: Public international law, Conflict of laws, and European Union law
Providing a constitution for public international law, the United Nations was conceived during World War II.
In a global economy, law is globalising too. International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organisations.
Public international law concerns relationships between sovereign nations. It has a special status as law because there is no international police force, and courts lack the capacity to penalise disobedience.[7] The sources for public international law to develop are custom, practice and treaties between sovereign nations. The United Nations, founded under the UN Charter and the Universal Declaration of Human Rights, is the most important international organisation, established after the Treaty of Versailles's failure and World War II. Other international agreements, like the Geneva Conventions on the conduct of war, and international bodies such as the International Court of Justice, International Labour Organisation, the World Trade Organisation, or the International Monetary Fund, also form a growing part of public international law.
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. This increases the number of disputes outside a unified legal framework and the enforceability of standard practices. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.
European Union law is the first and only example of a supranational legal framework. However, given increasing global economic integration, many regional agreements—especially the South American Community of Nations—are on track to follow the same model. In the EU, sovereign nations have pooled their authority through a system of courts and political institutions. They have the ability to enforce legal norms against and for member states and citizens, in a way that public international law does not.[8] As the European Court of Justice said in 1962, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states.[9]
[edit] Constitutional and administrative law
Main articles: Constitutional law 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; in those jurisdictions the constitution is composed of 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]
[edit] Criminal law
Main article: Criminal law
A depiction of a 1600s criminal trial, for witchcraft in Salem
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] In every jurisdiction, a crime is committed where two elements are fulfilled. First, the criminal must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind). Second, he must commit the criminal act, or actus reus (guilty act). 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,[15] 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 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.
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 have capital punishment and corporal 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, 104 countries have signed the enabling treaty for the International Criminal Court, which was established to try people for crimes against humanity.[16]
[edit] Contract
Main article: Contract
The Carbolic Smoke Ball offer, which bankrupted the Co. because it could not fulfill the terms it advertised
Contract is based on the Latin phrase pacta sunt servanda (agreements must be kept).[17] 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).[18]
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 a medical firm advertised that its new wonder drug, the smokeball, would cure people's flu, and if it did not, buyers would get £100.[19] 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 merely an invitation to treat, or 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".[19]
"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.[20] In civil law jurisdictions, consideration is not a requirement for a contract at all.[21] 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)[22] 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.[23]
[edit] Tort
Main article: Tort
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.[24] Under negligence law, the most common form of tort, the injured party can make a claim against the party responsible for the injury. The principles of negligence are illustrated by Donoghue v. Stevenson.[25] Mrs Donoghue ordered an opaque bottle of ginger beer in a café in Paisley. Having consumed half of it, she poured the remainder into a tumbler. The decomposing remains of a dead snail floated out. She fell ill 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."[26]
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.[25] Another example of tort might be a neighbour making excessively loud noises with machinery on his property.[27] 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.[28] More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes,[29] when statute does not provide immunity.[30]
[edit] Property law
Main article: 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
Property law governs everything that people call 'theirs'. Real property, sometimes called 'real estate' refers to ownership of land and things attached to it.[31] Personal property, refers to everything else; movable objects, such as computers and sandwiches, or intangible rights, such as stocks and shares. A right 'in rem' is a right to a specific piece of property. If an individual loses his computer and another finds it and it changes hands, a right in rem gives the individual the ability to take the computer from whoever has it. A right 'in personam' however is a right against one specific individual for something equivalent to the property in question. If an individual loses his computer and it passes hands, the right in personam allows the individual to claim the price of the computer from the thief (but not the actual computer, as this might now belong to someone else.) The classic civil law approach to property, propounded by Friedrich Carl von Savigny, is that it is a right good against the world. This contrasts to an obligation, like a contract or tort, which is a right good between individuals.[32] Preferred in common law jurisdictions is an idea closer to an obligation; that the person who can show the best claim to a piece of property, against any contesting party, is the owner.[33] The idea of property raises important philosophical and political issues. John Locke famously argued that our "lives, liberties and estates" are our property because we own our bodies and mix our labour with our surroundings.[34] The idea of property is still contentious. French philosopher Pierre Proudhon once famously wrote, "property is theft".[35]
Land law forms the basis for most kinds of property law, and is the most complex. It concerns mortgages, rental agreements, licences, covenants, easements and the statutory systems for registration of land. Regulations on the use of personal property fall under intellectual property, company law, trusts and commercial law.
[edit] Trusts and equity
Main articles: Trust law and Equity
The Court of Chancery, London, early 19th century
Equity is a body of rules that developed in England separately from the "common law". The common law was administered by judges, whilst the Lord Chancellor, as the King's keeper of conscience, could overrule the judge made law if he thought it equitable to do so.[36] This meant equity came to operate more through principles than rigid rules. For instance, whereas the common law, and civil law systems, do not allow people to split the ownership from the control of one piece of property, equity allows this through a 'Trust'. 'Trustees' control property, whereas the 'beneficial' (or 'equitable') ownership of trust property is held by people known as 'beneficiaries'. Trustees owe duties to their beneficiaries to take good care of the trust.[37] In the early case of Keech v. Sandford[38] a child had inherited the lease on a market in Romford, London. Mr Sandford was entrusted to look after this property until the child matured. But before then, the lease expired. The landlord had (apparently) told Mr Sandford that he did not want the child to have the renewed lease. Yet the landlord was happy (apparently) to give Mr Sandford the opportunity of the lease instead. Mr Sandford took it. When the child (now Mr Keech) grew up, he sued Mr Sandford for the profit that he had been making by getting the market's lease. Mr Sandford was meant to be trusted, but he put himself in a position of conflict of interest. The Lord Chancellor, Lord King, agreed and ordered Mr Sandford should disgorge his profits. He wrote,
"I very well see, if a trustee, on the refusal to renew, might have a lease to himself few trust-estates would be renewed… This may seem very hard, that the trustee is the only person of all mankind who might not have the lease; but it is very proper that the rule should be strictly pursued and not at all relaxed."[39]
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.[40] 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.
[edit] 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 flow into one another.
Law and society
A trade union protest by UNISON while on strike
Labour law is the study of a tripartite industrial relationship between worker, employer and trade union. This involves collective bargaining regulation, and the right to strike. Individual employment law refers to workplace rights, such as health and safety or a minimum wage.
Human rights and human rights law are important fields to guarantee everyone basic freedoms and entitlements. These are laid down in codes such as the Universal Declaration of Human Rights, the European Convention on Human Rights and the U.S. Bill of Rights.
Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Both concern everybody's right to a fair trial or hearing.
Evidence law involves which materials are admissible in courts for a case to be built.
Immigration law and nationality law concern the rights of foreigners to live and work in a nation-state that is not their own and to acquire or lose citizenship. Both also involve the right of asylum and the problem of stateless individuals.
Social security law refers to the rights people have to social insurance, such as jobseekers' allowances or housing benefits.
Family law covers marriage and divorce proceedings, the rights of children and of course the rights to property and money in the event of separation.
Law and commerce
The New York Stock Exchange trading floor
Commercial law covers complex contract and property law. The law of agency, insurance law, bills of exchange, insolvency and bankruptcy law and sales law are all important, and trace back to the mediæval Lex Mercatoria. The UK Sale of Goods Acts and the U.S. Uniform Commercial Code are examples of codified common law commercial principles.
Company law sprung from the law of trusts, on the principle of separating ownership of property and control.[41] The law of the modern company began with the Joint Stock Companies Act, passed in the United Kingdom in 1865, which protected investors with limited liability and conferred separate legal personality.
Intellectual property deals with patents, trademarks and copyrights. These are intangible assets: the right to protect your invention from imitation, your brand name from appropriation, or a song you wrote from performance and plagiarism.
Restitution deals with the recovery of someone else's gain, rather than compensation for one's own loss.
Unjust enrichment is law covering a right to retrieve property from someone that has profited unjustly at another's expense.
Law and regulation
The New York Stock Exchange trading floor after the Wall Street Crash of 1929, before tougher banking regulation was introduced
Tax law is probably the most complicated and well-paid discipline, involving value added tax, corporate tax, income tax, and most importantly, lots of money.
Banking law and financial regulation set minimum standards on the amounts of capital banks must hold, and rules about best practice for investment. This is to insure against the risk of economic crises, such as the Wall Street Crash of 1929.
Regulated industries are attached to an important body of law, for instance water law, for the provision of public services. Especially since privatisation became popular, private companies doing the jobs previously controlled by government have been bound by social responsibilities. Energy, gas telecomms and water are regulated industries in most OECD countries.
Competition law, known in the U.S. as anti-trust law, is an evolving field that traces as far back as Roman decrees against price fixing and the English restraint of trade doctrine. Modern competition law derives from the U.S. anti-cartel and anti-monopoly statutes (the Sherman Act and Clayton Act) of the turn of the 20th century. It is used to control businesses who attempt to use their economic influence to distort market prices at the expense of consumer welfare.
Consumer law could include anything from regulations on unfair contract terms and conditions to directives on airline baggage insurance.
Environmental law is increasingly important, especially in light of the Kyoto Protocol and the imminent danger of climate change. Environmental protection also serves to penalise polluters within domestic legal systems.
[edit] Legal systems
Main article: Legal systems of the world
In 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.
[edit] Civil law
Main article: Civil law (legal system)
First page of the 1804 edition of the Napoleonic Code
Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation – especially codifications in constitutions or statutes passed by government – and, secondarily, custom.[42] Codifications date back millennia, with one early example being the ancient Babylonian Codex Hammurabi, but 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 there was no professional legal class.[43] Instead a lay person, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised.[44] 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 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.[45] 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."[46] 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.[47] Civil law codifications based closely on Roman law 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.[48] Today countries that have civil law systems range from Russia and China to most of Central and Latin America.[49]
[edit] Common law and equity
Main article: Common law
King John of England signs Magna Carta
Common law and equity are systems of law whose special distinction is the doctrine of precedent, or stare decisis (Latin for "to stand by decisions"). Alongside this "judge-made law", common law systems always have governments who pass new laws and statutes. But these are not put into a codified form. Common law comes from England and was inherited by almost every country that once belonged to the British Empire, with the exceptions of Malta, Scotland, the U.S. state of Louisiana and the Canadian province of Quebec. Common law had its beginnings in the Middle Ages, 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 judgements at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country.[50] 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.[51] This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law.[52] 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 judgement 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.[53] 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.[54] But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.[55]
[edit] Religious law
Main article: Religious law
Ashkenazi Torah scroll
Religious law refers to the notion that the word of God is law. Examples include the Jewish Halakha and Islamic Sharia, both of which mean the "path to follow". Christian Canon law also survives in some Church communities. The implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments. However, religious texts usually do not provide for a thorough and detailed legal system. For instance, the Quran has some law but not much, and it acts merely as a source of further law through interpretation.[56] This is mainly contained in a body of jurisprudence known as the fiqh. The first five books of the Old Testament are known as the Torah and include Genesis, Exodus, Leviticus, Numbers and Deuteronomy. The Halakha is the interpretation of teachings and is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. Nevertheless, Israel is not governed by Halakha, but under Israeli law, the litigants may decide, because of personal belief, to have a dispute heard by a Rabbinic court and be bound by its rulings. Canon law is only in use by members of the clergy in the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Until the 18th century Sharia law reigned supreme, nominally at least, throughout the Muslim world; but since the mid-1940s efforts have been made, in country after country, to bring the law more into line with modern conditions and conceptions.[57] Nowadays, 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 in 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.[58]
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