Law: Difference between revisions
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===Common law=== |
===Common law=== |
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{{main|Common Law}} |
{{main|Common Law}} |
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The common law is an [[Anglo-Saxon]] legal tradition, based on judicial decisions that create binding [[stare decisis|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. |
The common law is an [[Anglo-Saxon]] legal tradition, based on judicial decisions that create binding [[stare decisis|precedent]]. Common law is law derived from decisions judges make on individual cases in narrative from as opposed to a statute drafted by a legislative body. The U.S. (except Louisiana) borrowed and built on the English common law system although every state to varying degrees also relies on statutory law made by the legislature. 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. |
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===Customary law=== |
===Customary law=== |
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Revision as of 13:53, 19 July 2006
- See also Portal:Law
Law is a set of rules or norms of conduct which forbid, permit or mandate specified actions and relationships among people and organizations. The authority upon which legal rules rest and the extent to which they are formally codified varies between jurisdictions but all legal systems are united in their attempt to ensure impartial treatment of those suspected of breaking the rules and to bring about justice. Law involves the codification of principles. The word law derives from the late Old English lagu of probable North Germanic origin.
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 substantive and procedural laws, and the manner in which laws are administered, are collectively 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.
Legal traditions
There are generally four broad legal traditions that are practiced in the world today. The academic study of comparative law reveals the differences and similarities between the law of different countries or jurisdictions, which some see as growing in importance in the age of globalization.
Civil law
In reference to legal traditions, civil law usually means a system of law which is codified and subsequently applied and interpreted by judges. In theory only legislative enactments (rather than judicial precedent) is considered legally binding, but in reality courts do pay some attention to previous decisions. Almost 60% of the world's population live in a country ruled on the civil law system[citation needed].
The civil law system finds its origins in Roman law, especially the Corpus Juris Civilis of Emperor Justinian, as later developed through the Middle Ages by mediæval legal scholars. Originally civil law was one common legal system in much of Europe, but with the rise of nationalism in the 17th century Nordic countries and around the time of the French Revolution, it became fractured into separate national systems. This change was brought about by the development of separate national codes, of which the French Napoleonic Code and the German and Swiss codes were the most influential. Around this time civil law incorporated many ideas associated with the Enlightenment.
The civil codes of many countries, particularly former French and Spanish colonies closely trail the Napoleonic code in some fashion. However, this is not true for most Central, Eastern European, Scandinavian and East Asian countries.
Notably, the German BGB was a decisive influence to the following civil codes in other countries. Because Germany was a rising power in the late 19th century when many Asian nations were introducing civil law, the German Civil Code has been the basis for the legal systems of Japan and South Korea. In China, the German Civil Code was introduced in the later years of the Qing Dynasty and formed the basis of the law of the Republic of China which remains in force in Taiwan. Some authors consider that civil law later served as the foundation for socialist law used in Communist countries, which in this view would basically be civil law with the addition of Marxist-Leninist ideas.
In the United States, only Louisiana, with its French heritage, relies on civil law - all the other states and the federal government itself adhere to the common law system. However, Louisiana has been greatly influenced by the common law system existing elsewhere in the United States, and prior court decisions can create binding precedent.
Common law
The common law is an Anglo-Saxon legal tradition, based on judicial decisions that create binding precedent. Common law is law derived from decisions judges make on individual cases in narrative from as opposed to a statute drafted by a legislative body. The U.S. (except Louisiana) borrowed and built on the English common law system although every state to varying degrees also relies on statutory law made by the legislature. 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. Indeed, in the United States, the term "civil law" is used almost to the exclusion of the term "private law." As so used, the term "civil law" contrasts with "criminal law" and is not a reference to the civil law system 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.
The question "What is law?" has been examined by many great thinkers in pursuit of the philosophy of law. One of the initial challenges is to determine the relationship between law and morality, if there is one. Natural-law theorists, in a tradition which stretches back to Aristotle and Aquinas, hold that legal validity is a species of moral validity such that no immoral rule should be regarded as a rule of law. According to natural law, the fundamental principles of all law derive from nature or from a supreme being, depending on the particular perspective. Legal positivists, on the other hand, claim that although legal rules may often coincide with moral principles, a sharp line divides legal obligation from moral obligation[1]. As John Austin put it "The existence of law is one thing; its merit or demerit is another"[2]. A third important school, legal interpretivism, which is closely associated with the philosopher Ronald Dworkin, attempts to find a middle way through these debates. Its main claim is that legal rights and duties are determined both by the political practices of fallible law-makers (for example their ideology or psychology) and the values or principles which those law-makers serve. Dworkin insists that interpretation must partly be a normative process because making sense of a social practice necessarily involves the interpreter drawing out what they consider to be valuable in that practice. When judges make decisions based on their interpretation of past law, they must then be making moral judgement.
Another consideration in examining law is that of the role of rules in the workings of legal systems. The legal positivist H. L. A. Hart argued that the distinctive feature of modern legal systems is that they have a hierarchy of rules. He claims that legal systems not only have rules relating to the behaviour of ordinary citizens (so-called primary rules) but also have rules which govern the way the primary rules are created (termed secondary rules). He concludes that as the constitutional arrangements of a particular legal system are a form of law, natural-law theorists must be mistaken in believing that all laws are the commands of a sovereign backed up by the threat of punishment[3]. But Karl Llewellyn has criticized Hart's approach for paying insufficient attention to the role of law in society. Llewellyn, a legal realist argues that law is a purposive enterprise with the aim of handling disputes and conflict. He therefore claims that a proper analysis of law-jobs (the role of legislators, judges, etc.) is necessary for an understanding of how different disputes are handled. Only then can human fallibilities be rectified and law used as a tool for achieving social outcomes.
In establishing a proper definition of law one must also question the authority upon which it lies. The sociologist Max Weber identified the legal-rational form as a type of domination:
[In the legal-rational type of domination] every single bearer of powers of command is legitimated by that system of rational norms, and his power is legitimate in so far as it corresponds with the norms. Obedience is thus given to the norms rather than to the person.
— Max Weber on Law and Economy in Society[4], Max Weber (translation)
That is, Weber holds that legal positions contain the basis of their own legitimacy. Some commentators[5] have gone a step further and argued that since the most influential groups control the political institutions of society, they will enjoy the most success in getting laws passed and judgements made in their favour. Indeed from a Marxist perspective the rules and decisions within legal systems can be traced directly to the ruling economic class. In contrast to Weber and Marx, the legal philosopher Lon L. Fuller argued that a legal system has authority because it must satisfy certain principles, which establish an "inner morality", if it is to succeed. These Fullerian principles have been criticized by some as ones only of efficacy (not morality) but for Fuller the crux of the inner morality is one of congruence, for this enshrines the Rule of Law as one of fair play. In this view law is a reciprocal moral compact between government and her citizens.
Argumentation theory is applied to evaluate the premises and conclusions of legal arguments, and to demonstrate the logical fallacies in certain arguments. Some lawyers now use argumentation theory to better prepare their complex arguments for jury trials.
Anthropology of law
Law is seen by many to have an anthropological dimension. Thinkers from Montesquieu to the present day have held 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".
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.
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 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.
History
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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.
References
- ^ Adams J N and Brownsword R Understanding Law, 2003 p.20
- ^ Austin, J, The Province of Jurisprudence Determined, 1955, Weidenfeld and Nicolson
- ^ Hart, H L A The Concept of Law (1961)
- ^ Weber, M Max Weber on Law and Economy in Society (1954, p.336), (translated by M. Rheinstein and E. Shils, ed. M. Rheinstein), Cambridge, Harvard University Press
- ^ Chambliss, W J and Seidman, R B (1971) Law, Order and Power, Reading
See also
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
Definitions from Wiktionary
Media from Commons
News from Wikinews
Quotations from Wikiquote
Texts from Wikisource
Textbooks from Wikibooks
Resources from Wikiversity
