Law

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For other senses of this word, see Law (disambiguation).

"Illegal" redirects here. For other uses, see Illegal (disambiguation).

The law is the body of rules of a society that are enforceable through a system of courts. Laws may be created by legislatures or, in common law jurisdictions, by the courts. They regulate relations between individuals (private law); between individuals and the state (public law); and between different states (international law). The word law derives from the late Old English lagu, meaning something laid down or fixed.^[1]

Laws vary widely between different countries and even, in some cases, within countries. An area in which a particular set of laws holds is called a jurisdiction.

Contents 1 History of law 2 Legal systems 2.1 Civil law 2.2 Common law and equity 3 Branches of law 3.1 Contract 3.2 Tort 3.3 Property law 3.4 Trust law 3.5 Public law 3.6 International law 3.7 Criminal law 3.8 Further disciplines 3.9 Religious law 4 Legal theory 4.1 Jurisprudence and political philosophy 4.2 Economic analysis 5 Institutions 5.1 Judiciary 5.2 Legislature 5.3 Executive 5.4 Military and police 5.5 Bureaucratic organisation 5.6 Civil society 5.7 Legal profession 6 References 7 See also 7.1 Lists 8 Further reading 9 External links

[edit] History of law

Main article: Legal history

The history of law is, in a broad sense, the history of human civilization. The major landmarks along the way include the legal codes of the earliest civilisations, the Roman civil law, the development of the English common law and equity, Islamic sharia law, the republican movements of the eighteenth century enlightenment period, the socialist thinkers of the nineteenth century, and the twentieth century's civil rights movements.

The two threads of legal history that are important in modern Western law are the history of Romanesque codified law, which relied and relies on a written prescribed set of legal rules, and the system English common law and equity, which was based on the ancient customs and laws of England and relies more heavily on a system of precedent.

Law in ancient civilizations

Egyptian law used a civil code, based on the concept of Ma'at. Tradition, rhetorical speech, social equality and impartiality were key principles.^[2] Judges kept records, which was used as precedent, although the systems developed slowly. In Babylon, the King Hammurabi made the innovation of publishing his code of laws for the public to see in the market. The Hebrew Talmud developed in the centuries before the Birth of Christ. Most importantly, in Ancient Athens, the small Greek city-state developed the first government based on broad inclusive of the citizenry, excluding slaves and women. This was the a major step in the development of democracy.

Roman law

Roman law underwent major codification in 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 European Union's Law is based on a codified set of laws, laid down in the Treaties. Law in the EU is however mixed with precedent in case law of the European Court of Justice.

Roman law, as Egyptian, Babylonian and Hebrew law before it, concentrated on private law remedies, rather than focussing on the state.

Asian law

Ancient China and ancient India have independently produced their own schools of legal theory, such as the Laws of Manu and Arthashastra in India and traditional Chinese law in China.

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. The Kaiser's Second Reich, with its throne in Bismarck's Prussia was also followed by the Japanese Emperor as a model constitution, for its ability to manage democracy. 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. The current legal infrastructure in the People's Republic of China reflects influences from the German-based law of the ROC, the English-based common law of Hong Kong, Soviet-influenced Socialist law, United States-style banking and securities law, and traditional Chinese law.

[edit] Legal systems

See also: Legal systems of the world

There is a general Western distinction between civil law on the one hand and on the other, common law and equity systems. Civil Law implies a codification of laws by Parliaments or the State, as was done in the Roman Empire. English Law is the father of common law and equity, and is used in Commonwealth countries or former countries from the British Empire. Its features are the doctrine of precedent in cases, which generate judge made law. Some parts of countries and even whole countries accept law as being based on Biblical transcripts.

[edit] Civil law

Main article: Civil Law

Civil law implies a codified system of law, which is interpreted, not made, by judges. In theory only legislative enactments (rather than judicial precedent) are considered legally binding, but in reality courts do pay attention to previous decisions. Civil law stretches back to ancient history.

[edit] Common law and equity

Main article: Common law

The common law and equity legal tradition is from England. The doctrine of stare decisis or precedent by courts is the major innovation. It spread throughout the former British Empire and Commonwealth over the last five centuries. The common law system is currently in practice in Ireland, United Kingdom, Australia, New Zealand, South Africa, Canada (excluding Quebec), and the United States. 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 religious law.

[edit] Branches of law

Law may be categorised into different branches. In English law, for example, the main branches as taught at law schools are contract, tort, property law equity and trusts, criminal law, public law and European law.

[edit] Contract

Main article: Contract

The law of contracts deals with promises between people and the circumstances in which they are binding. A contract is a legally enforceable set of promises. Generally, contracts may be created in writing or orally, or even simply by the conduct of the people involved.

In common law jurisdictions there are four key elements to the creation of a contract. Firstly, there must be an offer to contract on specified terms, made with the intention it will be binding upon acceptance. Secondly, there must be an unqualified acceptance of the terms of the offer, which must generally by communicated to the offeror. Thirdly, both parties must provide something of value - a promise cannot form an enforceable contract if the other party gives nothing for it. Fourthly, both parties must intend to create that the promises are to be legally binding.

[edit] Tort

Main article: Tort

A tort is a civil wrong; that is, a wrong done by one person against another that gives rise to a legal claim by the wronged person. Examples include negligence (carelessly causing loss to someone), trespass to the person (such as assault and battery), trespass to goods (destroying or damaging someone's property), trespass to land and defamation. Numerous other examples exist.

One famous case is Donoghue v. Stevenson, which established the modern tort of negligence in English law. Mrs Donoghue ordered an opaque bottle of ginger beer in a cafe. Having consumed half of it, she poured the remainder into a tumbler. The decomposing remains of a dead snail floated out. She attempted to sue the manufacturer for carelessly allowing the drink to be contaminated. The case went up to the House of Lords, where it was held that the manufacturer was liable for Mrs Donoghue's subsequent illness.

[edit] Property law

Main article: Property law

In common law legal systems, property law is the area of law that governs the ownership of real property (land as distinct from personal or movable possessions) and in personal property (essentially, everything other than land). In civil law systems, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real property.

[edit] Trust law

Main article: Trust law

The trust is a form of ownership that developed in England through the courts of Chancery. It is a feature of common law legal systems. In a trust, the legal ownership of the trust property is held by one or more persons (known as 'trustees'), whereas the 'beneficial' (or 'equitable') ownership of the trust property is held by one or more (often different) persons (known as 'beneficiaries').

The trustees must hold the property and use it for the benefit of the beneficiaries rather than for themselves. Depending on the particular trust law of the jurisdiction, the nature of the trust property and the terms of the instrument that created the trust, the trustees will usually be expected to invest it or sell it, allow the beneficiaries to reside in it, or to transfer it to the beneficiaries absolutely.

[edit] Public law

Main article: Public law

Public law is conventionally split into administrative and constitutional law.

Administrative law covers the law relating to the administrative activities of government such as the making, adjudication, and enforcement of regulations. In common law jurisdictions, judicial review of state apparatus, from local councils to Government Ministries, is an important part of administrative law. It is the chief way in which the judiciary holds the executive to account.

Constitutional law governs the workings of government: the functions of and relationships between the executive, legislature and judiciary. It also includes the law governing the relationship between the individual and the state. The law relating to human rights is considered a part of constitutional law insofar as it governs the rights of the individual vis-a-vis the state.

Most jurisdictions (such as the United States and France) have a singular written constitution. A few (such as the United Kingdom) have no such document; in those jurisdictions the constitution is composed of statute, case law and convention.

[edit] International law

Main articles: International law and European Union law

In a global economy, law is globalising too. The European Union is the first example of a supra-national legal framework, where sovereign nations pool their authority for the social and economic benefit of their members. Public International Law is the familiar kind, which deals with relations between nation states. The United Nations, the Geneva Conventions and the International Labour Organistation, the World Trade Organisation, and the International Monetary fund are all part of Public International Law's framework.

[edit] Criminal law

Main article: Criminal law

Criminal law is the most familiar kind of law that we hear about in the papers, or news on TV, despite it relatively small part in the legal whole. A crime is committed, in Anglo-Saxon legal systems, when somebody has both the mens rea and actus reus requirements. These Latin words mean that someone must have a guilty mind, and do some guilty act. An actus reus might be hurting a person or burning their belongings. If somebody intends to do it, that is the mens rea. There can be many different kinds of crime, from murder, to assault, to fraud, to theft. Some industrialised countries still have capital punishment and torture for criminal activity, but the normal punishment for a crime will be imprisonment, fines, or community service.

[edit] Further disciplines

There are plenty more fields beyond the core of law.

• Commercial law is essentially complicated contract law. It deals with the Sale of Goods Acts, codified common law on commercial principles. Company law sprung from the law of trusts, on the principle of separating ownership and control^[3] developed with the birth of the British East India Company. The first Joint Stock Companies Act was passed in the United Kingdom in 1865, protecting investors with limited liability and conferring separate legal personality. Tax Law is one of the most complicated and well paid discipline, involving Value Added Tax, Corporation Tax, Income Tax, and most importantly, lots of money. Competition Law is an evolving and relatively new kind of law that began in the late 19th Century with the restraint of trade doctrine. The U.S. adopted anti-cartel and anti-monopoly statutes around the turn of that century, see Sherman Act and Clayton Act.

• Labour law is the study of a tripartite industrial relationship, between worker, employer and union. This involves collective bargaining regulation, and the right to strike. Individual employment law refers to workplace rights to not be discriminated against, including unfair dismissal law. Consumer Law could include anything regulations on unfair contract terms and conditions, or directives on airline baggage insurance. Social Security law refers to the rights people have to social insurance, such as jobseekers allowances or housing benefits.

• Unjust enrichment is law covering a right to retrieve property from someone that has profited unjustly at your expense. Family Law covers divorce proceedings and rights of children. Evidence is the study of what is admissible in courts for a case to be built.

• Environmental law is increasingly important, especially in light of the Kyoto Protocol. Regulation refers to public service provision through private companies that are bound by social responsibilities. Utilities, Telecomms and Water are regulated industries in most OECD countries. Human Rights is an important field to guarantee everyone basic freedoms and entitlements. These are laid down in codes such as the U.N. Charter, the European Convention and the U.S. Constitution.

[edit] Religious law

Main article: 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. 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.

[edit] Legal theory

[edit] Jurisprudence and political philosophy

Main article: Philosophy of law

Philosophy of law, or jurisprudence, asks the question "What is law?"^[4] Another question is the relationship between law and morality, if there is one. 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.^[5]

Weber holds that legal positions contain the basis of their own legitimacy, and related to that, the nation state is defined as that which has the legitimate monopoly on the use of force.^[6] Some commentators^[7] 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.

[edit] Economic analysis

Main article: Economic analysis of law

Economic analysis of law is an approach to legal theory that incorporates and applies the methods and ideas of economics to the concepts of law. Notable theorists include Ronald Coase, and the Chicago School of economists come lawyers.

[edit] Institutions

The main institutions of law in industrialised countries are independent courts, representative parliaments, the military and police, bureaucratic organisation, the profession of lawyers and civil society itself. John Locke in Two Treatises On Civil Government and Charles de Secondat, Baron de Montesquieu after him in Spirit of Laws advocated a separation of powers, on the principle that no person should be able to claim, as Thomas Hobbes wanted, a Leviathan of power. Karl Marx and Max Weber have been pivotal in shaping thinking in the twentieth century about the extensions of the state.

[edit] Judiciary

Most countries have a system of appeals courts, up to a supreme authority. In the U.S. this would be the Supreme Court, in Australia the High Court. In the UK the highest court is the House of Lords, but on questions of European Community Law or Human Rights Law, the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg are the authorities. The Bundesverfassungsgericht is the counterpart in Germany, for example. Some courts are bound by constitutions and may interpret them, whilst the UK continues to assert the ideal of Parliamentary Sovereignty.

[edit] Legislature

The Palace of Westminster in London, the Congress in Washington D.C., the Bundestag in Berlin, the Kremlin in Moscow, and so on, are examples of Parliament. The principle of representative government means that people vote for political decision makers to carry out their wishes. Most Parliaments are bi-cameral, so that in a 'lower house' the politicians may return from elected constituencies, and in the 'upper house' they are elected through proportional representation (as in Australia), Crown appointment (as in the UK), or state elections (as in the U.S.). Parliaments are the legislative authorities in most countries. To enact legislation a majority of Members of Parliament must vote for a bill, unless a country has an entrenched constitution, requiring some special majority for constitutional amendments. A government usually leads the process, formed either from Members of Parliament, or elected to executive office separately and appointing a cabinet that is unelected (as in the U.S.).

[edit] Executive

In most democratic countries, like the UK, Germany, India and Japan, the executive is elected into and drawn from the legislature. There will sometimes be an hereditary, or usually an appointed head of state, such as the Queen of England, or the Bundespraesident. In other important exceptions, such as France, the U.S. and Russia, the President is directly elected, and may appoint a cabinet that is not directly elected.

[edit] Military and police

If the state is that which controls the means of violence, as Max Weber thought, then the long arms of the law mean military and police personnel. These people uphold directions by state governments to carry out orders. Failed states are those where security order by military and police can no longer be upheld.

[edit] Bureaucratic organisation

Max Weber also believed that in the early twentieth century a definitive feature of a developed state was its bureaucratic support. Armies of white collared workers control and produce information, and distribute resources at the wish of the people, or the direction of leaders.

[edit] Civil society

Perhaps the most crucial institution in the law is simply the civil partnerships and associations by people holding no official positions. Freedom of Speech, and Freedom of Association are human rights, or civil liberties, upheld in most developed and developing countries that form the basis of an active participatory democracy. The more people are involved and concerned about how political power is exercised over their lives, the more acceptable and legitimate the law becomes to the people. Developed political parties or debating clubs are signs of health civil society.

[edit] Legal profession

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.

Law
	Legal systems	Common law | Civil law | Customary law | Religious law | Socialist law | International law
	Sources of law	Statutory law (Legislation | Civil code | Statutory interpretation)
		Non-statutory law (Custom | Case law | Equity)
	Adjudication	Public law (Criminal law | Constitutional law | Administrative law)
		Private law (Civil law | Law of obligations | Contract | Tort | Wills and Trusts)
		Courts (Adversarial system | Inquisitorial system | Evidence | Judiciary | Lawyers)
	Jurisprudence	Philosophy of law | Natural law | Legal positivism | Legal formalism | Legal realism | Legal interpretivism | Feminist legal theory | Law and economics | Critical legal studies | Comparative law
	See also:List of areas of law

[edit] References

[edit] See also

• Portal:Law
• Judiciary
• Justice
• Politics
• Lawyers
• Legality

[edit] 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

[edit] 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 1-57588-413-5
• 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 0-420-47340-8.
• 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 0-19-926088-5
• 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 0-8061-1855-5
• 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 3-8233-4533-8

[edit] External links

• The Australian Institute of Comparative Legal Systems
• WorldLII - The World Legal Information Institute
• WikiCities Legal Site
• Stanford Encyclopedia of Philosophy:
  • Law and Ideology
  • Law and Language
• The shared law in Jurispedia
• The Roman Law Library
• JURIST - Legal News & Research