• Section: Law /Monday 13th October 2014


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    (Wikipedia) - Law   (Redirected from Legal) For other uses, see Law (disambiguation) and Legal (disambiguation). "Legal concept" redirects here.Lady Justice, a symbol of justice. She is depicted as a goddess equipped with three items: a sword, symbolising the coercive power of a court; scales, representing an objective standard by which competing claims are weighed; and a blindfold indicating that justice should be impartial and meted out objectively, without fear or favor and regardless of money, wealth, power or identity.

    Law is, generally, a system of rules which are enforced through social institutions to govern behaviour, although the term "law" has no universally accepted definition. Laws can be made by legislatures through legislation (resulting in statutes), the executive through decrees and regulations, or judges through binding precedents (normally in common law jurisdictions). Private individuals can create legally binding contracts, including (in some jurisdictions) arbitration agreements that exclude the normal court process. The formation of laws themselves may be influenced by a constitution (written or unwritten) and the rights encoded therein. The law shapes politics, economics, and society in various ways and serves as a mediator of relations between people.

    A general distinction can be made between civil law jurisdictions (including canon and socialist law), in which the legislature or other central body codifies and consolidates their laws, and common law systems, where judge-made binding precedents are accepted.

    Historically, religious laws played a significant role even in settling of secular matters, which is still the case in some religious communities, particularly Jewish, and some countries, particularly Islamic. Islamic Sharia law is the world''s most widely used religious law.


    Under civil law, the following specialties, among others, exist: Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law regulates the transfer and title of personal property and real property. Trust law applies to assets held for investment and financial security. Tort law allows claims for compensation if a person''s property is harmed. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies. International law governs affairs between sovereign states in activities ranging from trade to military action.

    To implement and enforce the law and provide services to the public by public servants, a government''s bureaucracy, military, and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress.


    • 1 Definition
      • 1.1 Whether it is possible or desirable to define law
      • 1.2 Proposed definitions
    • 2 Legal subjects
      • 2.1 International law
      • 2.2 Constitutional and administrative law
      • 2.3 Criminal law
      • 2.4 Contract law
      • 2.5 Tort law
      • 2.6 Property law
      • 2.7 Equity and trusts
      • 2.8 Further disciplines
    • 3 Legal systems
      • 3.1 Civil law
      • 3.2 Common law and equity
      • 3.3 Religious law
        • 3.3.1 Sharia law
    • 4 History
    • 5 Legal theory
      • 5.1 Philosophy
      • 5.2 Economic analysis
      • 5.3 Sociology
    • 6 Legal institutions
      • 6.1 Judiciary
      • 6.2 Legislature
      • 6.3 Executive
      • 6.4 Military and police
      • 6.5 Bureaucracy
      • 6.6 Legal profession
      • 6.7 Civil society
    • 7 See also
    • 8 Notes
    • 9 References
    • 10 External links

    Definition Main articles: Definition of law and Analytical jurisprudence Whether it is possible or desirable to define law

    There have been many attempts to produce "a universally acceptable definition of law". By 1972, no such definition had been produced. McCoubrey and White said that the question "what is law?" has no simple answer. Glanville Williams said that the meaning of the word "law" depends on the context in which that word is used. He said that, for example, "early customary law" and "municipal law" were contexts where the word "law" had two different and irreconcilable meanings. Thurman Arnold said that it is obvious that it is impossible to define the word "law" and that it is also equally obvious that the struggle to define that word should not ever be abandoned. It is possible to take the view that there is no need to define the word "law" (e.g. "let''s forget about generalities and get down to cases").

    Proposed definitions

    One definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour. In The Concept of Law Hart argued law is a "system of rules"; Austin said law was "the command of a sovereign, backed by the threat of a sanction"; Dworkin describes law as an "interpretive concept" to achieve justice; and Raz argues law is an "authority" to mediate people''s interests. Holmes said "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." Aquinas said that law is a rational ordering of things which concern the common good that is promulgated by whoever is charged with the care of the community. This definition has both positivist and naturalist elements.

    Legal subjects


    International law Main articles: Public international law, Conflict of laws and European Union lawProviding a constitution for public international law, the United Nations system was agreed during World War II.


    • 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, making the question of which country has jurisdiction even more pressing. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.
    Constitutional and administrative law Main articles: Constitutional law and Administrative lawThe French Declaration of the Rights of Man and of the Citizen




    Criminal law Main article: Criminal law


    A depiction of a 1600s criminal trial, for witchcraft in Salem



    Contract law Main article: ContractThe famous Carbolic Smoke Ball advertisement to cure influenza was held to be a unilateral contract


    "Consideration" indicates the fact that all parties to a contract have exchanged something of value. Some common law systems, including Australia, are moving away from the idea of consideration as a requirement. The idea of estoppel or culpa in contrahendo, can be used to create obligations during pre-contractual negotiations. In civil law jurisdictions, consideration is not required for a contract to be binding. 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) 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.

    Tort law Main article: TortThe "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. Under the law of negligence, the most common form of tort, the injured party could potentially claim compensation for their injuries from the party responsible. The principles of negligence are illustrated by Donoghue v Stevenson. A friend of Mrs Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Mrs Donoghue) in a café in Paisley. Having consumed half of it, Mrs Donoghue poured the remainder into a tumbler. The decomposing remains of a snail floated out. She claimed to have suffered from shock, fell ill with gastroenteritis and sued the manufacturer for carelessly allowing the drink to be contaminated. The House of Lords decided that the manufacturer was liable for Mrs Donoghue''s illness. Lord Atkin took a distinctly moral approach, and said,

    The liability for negligence ... is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay ... The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer''s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

    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 of her harm. Another example of tort might be a neighbour making excessively loud noises with machinery on his property. 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. More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes, when statute does not provide immunity.

    Property law Main article: Property lawA 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 ownership and possession. Real property, sometimes called ''real estate'', refers to ownership of land and things attached to it. Personal property, refers to everything else; movable objects, such as computers, cars, jewelry or intangible rights, such as stocks and shares. A right in rem is a right to a specific piece of property, contrasting to a right in personam which allows compensation for a loss, but not a particular thing back. 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 land registration. Regulations on the use of personal property fall under intellectual property, company law, trusts and commercial law. An example of a basic case of most property law is Armory v Delamirie . A chimney sweep''s boy found a jewel encrusted with precious stones. He took it to a goldsmith to have it valued. The goldsmith''s apprentice looked at it, sneakily removed the stones, told the boy it was worth three halfpence and that he would buy it. The boy said he would prefer the jewel back, so the apprentice gave it to him, but without the stones. The boy sued the goldsmith for his apprentice''s attempt to cheat him. Lord Chief Justice Pratt ruled that even though the boy could not be said to own the jewel, he should be considered the rightful keeper ("finders keepers") until the original owner is found. In fact the apprentice and the boy both had a right of possession in the jewel (a technical concept, meaning evidence that something could belong to someone), but the boy''s possessory interest was considered better, because it could be shown to be first in time. Possession may be nine tenths of the law, but not all.


    Equity and trusts Main articles: Equity (law) and Trust lawThe 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. The Lord Chancellor on the other hand, as the King''s keeper of conscience, could overrule the judge-made law if he thought it equitable to do so. This meant equity came to operate more through principles than rigid rules. For instance, whereas neither the common law nor civil law systems allow people to split the ownership from the control of one piece of property, equity allows this through an arrangement known as 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 entrusted property. In the early case of Keech v Sandford 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,


    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. This is especially the case for pension funds, the most important form of trust, where investors are trustees for people''s savings until retirement. But trusts can also be set up for charitable purposes, famous examples being the British Museum or the Rockefeller Foundation.

    Further disciplines


    Law and societyA 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 job security, health and safety or a minimum wage.
    • Human rights, civil 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 (which founded the European Court of Human Rights) and the U.S. Bill of Rights. The Treaty of Lisbon makes the Charter of Fundamental Rights of the European Union legally binding in all member states except Poland and the United Kingdom.
    • Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Both concern a citizen''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.
    Law and commerce
    • Company law sprang from the law of trusts, on the principle of separating ownership of property and control. The law of the modern company began with the Joint Stock Companies Act 1856, passed in the United Kingdom, which provided investors with a simple registration procedure to gain limited liability under the separate legal personality of the corporation.
    • Admiralty law and the Law of the Sea lay a basic framework for free trade and commerce across the world''s oceans and seas, where outside of a country''s zone of control. Shipping companies operate through ordinary principles of commercial law, generalised for a global market. Admiralty law also encompasses specialised issues such as salvage, maritime liens, and injuries to passengers.
    • Restitution deals with the recovery of someone else''s gain, rather than compensation for one''s own loss.
    • Unjust enrichment When someone has been unjustly enriched (or there is an "absence of basis" for a transaction) at another''s expense, this event generates the right to restitution to reverse that gain.
    Law and regulationThe New York Stock Exchange trading floor after the Wall Street Crash of 1929, before tougher banking regulation was introduced
    Legal systems Main article: Legal systems of the world


    Civil law Main article: Civil law (legal system)First page of the 1804 edition of the Napoleonic Code.


    Common law and equity Main article: Common lawKing John of England signs Magna Carta

    Common law and equity are legal systems where decisions by courts are explicitly acknowledged as legal sources. The "doctrine of precedent", or stare decisis (Latin for "to stand by decisions") means that decisions by higher courts bind lower courts. Common law systems also rely on statutes, passed by the legislature, but may make less of a systematic attempt to codify their laws than in a "civil law" system. Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta, Scotland, the U.S. state of Louisiana, and the Canadian province of Quebec). In medieval England, the Norman conquest led to a unification of various tribal customs and hence a law "common" to the whole country. The common law developed 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 judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country. 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. This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law. 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 judgment 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 varied according to the length of the Chancellor''s foot. But over time it developed solid principles, especially under Lord Eldon. 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. But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.

    Religious law Main article: Religious law


    A trial in the Ottoman Empire, 1879, when religious law applied under the MecelleSharia law

    Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire''s Mecelle code in the 19th century being a first attempt at codifying elements of Sharia law. Since the mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions. In modern times, the legal systems of many Muslim countries draw upon both civil and common law traditions as well as Islamic law and custom. The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognise Islam as the religion of the state, obliging legislature to adhere to Sharia. Saudi Arabia recognises Quran as its constitution, and is governed on the basis of Islamic law. Iran has also witnessed a reiteration of Islamic law into its legal system after 1979. 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.

    History Main article: Legal historyKing Hammurabi is revealed the code of laws by the Mesopotamian sun god Shamash, also revered as the god of justice.





    Ancient India and China represent distinct traditions of law, and have historically had independent schools of legal theory and practice. The Arthashastra, probably compiled around 100 AD (although it contains older material), and the Manusmriti (c. 100–300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance. Manu''s central philosophy was tolerance and pluralism, and was cited across Southeast Asia. This Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire. Malaysia, Brunei, Singapore and Hong Kong also adopted the common law. The eastern Asia legal tradition reflects a unique blend of secular and religious influences. Japan was the first country to begin modernising its legal system along western lines, by importing bits of the French, but mostly the German Civil Code. This partly reflected Germany''s status as a rising power in the late 19th century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Ch''ing dynasty in the form of six private law codes based mainly on the Japanese model of German law. Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chiang Kai-shek''s nationalists, who fled there, and Mao Zedong''s communists who won control of the mainland in 1949. The current legal infrastructure in the People''s Republic of China was heavily influenced by Soviet Socialist law, which essentially inflates administrative law at the expense of private law rights. Due to rapid industrialisation, today China is undergoing a process of reform, at least in terms of economic, if not social and political, rights. A new contract code in 1999 represented a move away from administrative domination. Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organisation.

    Legal theory Main article: Jurisprudence Philosophy Main article: Philosophy of law



    The philosophy of law is commonly known as jurisprudence. Normative jurisprudence is essentially political philosophy, and asks "what should law be?", while analytic jurisprudence asks "what is law?" John Austin''s utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". Natural lawyers on the other side, such as Jean-Jacques Rousseau, argue that law reflects essentially moral and unchangeable laws of nature. The concept of "natural law" emerged in ancient Greek philosophy concurrently and in entanglement with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas, notably his Treatise on Law.

    Hugo Grotius, the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason. Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature". Jeremy Bentham and his student Austin, following David Hume, believed that this conflated the "is" and what "ought to be" problem. Bentham and Austin argued for law''s positivism; that real law is entirely separate from "morality". Kant was also criticised by Friedrich Nietzsche, who rejected the principle of equality, and believed that law emanates from the will to power, and cannot be labelled as "moral" or "immoral".


    Bentham''s utilitarian theories remained dominant in law until the 20th century.

    Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law. Hart argued law is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Two of Hart''s students continued the debate: In his book Law''s Empire, Ronald Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "interpretive concept", that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. Joseph Raz, on the other hand, defended the positivist outlook and criticised Hart''s "soft social thesis" approach in The Authority of Law. Raz argues that law is authority, identifiable purely through social sources and without reference to moral reasoning. In his view, any categorisation of rules beyond their role as authoritative instruments in mediation are best left to sociology, rather than jurisprudence.

    Economic analysis Main article: Law and economics




    Sociology Main article: Sociology of law




    Legal institutions


    Thomas Hobbes, Leviathan, XVII


    Max Weber and others reshaped thinking on the extension of state. Modern military, policing and bureaucratic power over ordinary citizens'' daily lives pose special problems for accountability that earlier writers such as Locke or Montesquieu could not have foreseen. The custom and practice of the legal profession is an important part of people''s access to justice, whilst civil society is a term used to refer to the social institutions, communities and partnerships that form law''s political basis.

    Judiciary Main article: Judiciary


    The judges of the International Court of Justice in the Hague



    In communist states, such as China, the courts are often regarded as parts of the executive, or subservient to the legislature; governmental institutions and actors exert thus various forms of influence on the judiciary. In Muslim countries, courts often examine whether state laws adhere to the Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws, and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam".

    Legislature Main article: LegislatureThe debating chamber of the European Parliament




    Executive Main article: Executive (government)The G20 meetings are composed of representatives of each country''s executive branch.



    Although the role of the executive varies from country to country, usually it will propose the majority of legislation, and propose government agenda. In presidential systems, the executive often has the power to veto legislation. Most executives in both systems are responsible for foreign relations, the military and police, and the bureaucracy. Ministers or other officials head a country''s public offices, such as a foreign ministry or defence ministry. The election of a different executive is therefore capable of revolutionising an entire country''s approach to government.

    Military and police Main articles: Military and PoliceU.S. Customs and Border Protection officers

    While military organisations have existed as long as government itself, the idea of a standing police force is a relatively modern concept. For example, Medieval England''s system of traveling criminal courts, or assizes, used show trials and public executions to instill communities with fear to maintain control. The first modern police were probably those in 17th-century Paris, in the court of Louis XIV, although the Paris Prefecture of Police claim they were the world''s first uniformed policemen.

    Max Weber famously argued that the state is that which controls the monopoly on the legitimate use of force. The military and police carry out enforcement at the request of the government or the courts. The term failed state refers to states that cannot implement or enforce policies; their police and military no longer control security and order and society moves into anarchy, the absence of government.

    Bureaucracy Main article: BureaucracyThe United Nations'' New York headquarters houses civil servants that serve its 192 member states.

    The etymology of "bureaucracy" derives from the French word for "office" (bureau) and the Ancient Greek for word "power" (kratos). Like the military and police, a legal system''s government servants and bodies that make up its bureaucracy carry out the directives of the executive. One of the earliest references to the concept was made by Baron de Grimm, a German author who lived in France. In 1765 he wrote,



    Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support. Weber wrote that the typical characteristics of modern bureaucracy are that officials define its mission, the scope of work is bound by rules, and management is composed of career experts who manage top down, communicating through writing and binding public servants'' discretion with rules.

    Legal profession Main article: Legal professionIn civil law systems such as those of France, Germany, Italy, Spain and Greece, there is a distinct category of notary, a legally trained public official, compensated by the parties to a transaction. This is a 16th-century painting of such a notary by Flemish painter Quentin Massys.





    Civil society Main article: Civil societyA march in Washington D.C. during the U.S. Civil Rights Movement in 1963

    The Classical republican concept of "civil society" dates back to Hobbes and Locke. Locke saw civil society as people who have "a common established law and judicature to appeal to, with authority to decide controversies between them." German philosopher Georg Wilhelm Friedrich Hegel distinguished the "state" from "civil society" (bürgerliche Gesellschaft) in Elements of the Philosophy of Right.




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