What different legal systems are there? What legal systems are there in the world and are they directly related to political structure? I guess something like: You're wrong until proven right You're right until proven wrong Also what is the proper terminology for a law system?
I can't do much better than the opening to Wikipedia's article on this: The contemporary legal systems of the world are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history and so incorporates individual variations. I believe that there are about 196 sovereign nations in the world so that gives 196 national systems. Many of these have sub-national jurisdictions (e.g. The USA with 50 states plus military law) so this total is at least several hundred and may run up to 1000. In addition there are systems of supra-national law such as maritime law, war crimes law and supra-national jurisdictions like the EU. So, short answer: lots. The correct terminology for a system of law is a jurisdiction. Note that many activities will be subject to multiple jurisdictions.
You have accurately summed up the conundrum. There is little else to say. You need to accept that there is confusion, even within the law itself, and rely on context to establish in any given instance which meaning is meant. You will come to find that there are many instances of such confusion in the law. The historic technical distinction in the law (especially in tort law) between assault and battery has been collapsed in the everyday vernacular and this had made its way even into the way that the words are used even by law enforcement officers and legislators, who grew up speaking the vernacular language like everyone else. Where I live, in Colorado, the word "menacing" has been used be legislators to replace the historic sense of the word "assault" and the words "assault" and "battery" have become synonymous. But, in England, they are struck with a situation in which the meaning of the word "assault" has become context specific.
Law, as such, is not a moral or a philosophical construct. It can be based on moral constructs and often it is. And, of course, the process of writing laws is often informed by philosophy. But law as such is neither one of those. Law is a set of behaviors which are known to be acceptable to the powers &quot;that be.&quot; This maybe an unsettling idea. But it is true nonetheless. The phrase that summarizes this is &quot;any law is only as good as its enforcement mechanism.&quot; What makes it seem untrue is that in the modern tradition laws are written down. And, when there is a need to resolve doubt as to whether something is illegal or not, they are carefully considered through a deductive process. Within countries, there is little question who &quot;the powers that be&quot; happen to be. But when it comes to laws governing actions between nations, it is more complicated. Yes, treaties make it clear, ahead of time, what types of expectations exist. Predictability (even in war) allows for long-term planning. And even laws of war are usually followed because wars are fought with the expectation that at some point they will end. And predictability allows to set end-goal conditions. Notably, entities which have no clear end-goals in sight are the ones least likely to follow any laws. The idea of any group of countries sitting in court of another group of countries is mostly a political theater. There is no possibility of predictable outcomes from entities which have not made commitments to those outcomes. So whether some countries have to follow &quot;laws&quot; set out for them by other countries (or non-government entities) is largely a result of those countries or entities being in positions of power to dictate their will. This is not the same as international laws being strictly de facto. Agreed-upon restrictions and restrictions which have been dictated from the top-down, by those with more power, are de jure because they create predictable boundaries on behavior. De facto restrictions are the ones which have come to be the case without any prior agreement or fiat.
That book provides advice on legal writing; it is not a source of rules for legal writing. Rather than repeatedly identifying themselves using their full name, parties customarily refer to themselves in the third person, e.g., &quot;The defendant refused to waive his Sixth Amendment right to a speedy trial.&quot; In practice, though, pro se litigants regularly refer to themselves in the first person, and there is no formal consequence for this.
Legal Theory and Philosophy of Law There are two different meanings of the word Jurisprudence A heavy word for the study or knowledge of the law. If a judge or law lecturer were to refer to &quot;the role of freedom of contract in our jurisprudence&quot; for example, this is the sense intended (this is the sense @ohwilleke refers to in his answer). The second meaning - and the more usual meaning nowadays, particularly in in academic circles (I note you are studying law so this is probably the meaning you are asking about) - could be described as the philosophy of law. In Legal Philosophies (1997) J W Harris says (p.1) Jurisprudence is a ragbag. Into it are cast all kinds of general speculations about the law. What is it for? What does it achieve? Should we value it? How is it to be improved? Is it dispensable? Who makes it? Where do we find it? What is its relation to morality, to justice, to politics, to social practices, or to naked force? Should we obey it? Whom does it serve? These are the questions of which general jurisprudence is comprised. They can be ignored, but they will no go away... Jurisprudence has to entrench on [the disciplines of moral and political philosophers] at many points, as well as upon those of social and political theory. It is a scavenger, as well as a ragbag; having no perimeter to its field of enquiry, save that what is studied must have a bearing on some general speculation about law. If jurisprudence has a heartland all its own, it is legal theory Much discussion about moral claims of the law (and moral claims on the law) takes the concept of law itself for granted. Yet, answers to such questions may turn on what picture of law we have. Legal theory asks: What is the nature of law (everywhere, or just in the modern state)? In a three year English undergraduate law degree, Jurisprudence has traditionally been studied as a compulsory module in the third year which concentrates on legal theory. One thing students immediately notice is that the exact scope and definition of jurisprudence is disputed (which can be discomforting since all the other modules they have hitherto studied - Contract, Tort, Crime, etc- have clear definitions). This uncertainty is exacerbated by the fact that legal theories which come under the umbrella term of legal positivism have as one of their central themes the proposition that jurisprudence should only be concerned with positive law and that legal theory need not (and should not) look outside to ideas of morality or natural law. In other words not only do different legal theories have different explanations of the phenomenon of law, but they actually disagree about the scope of what it is they are supposed to be explaining! Traditionally jurists thought of God as the ultimate law-giver whose laws were written on human hearts (conscience). This is the &quot;natural law&quot; which human legislators add to by creating &quot;positive law&quot;. For example murder is contrary to natural law but you need human laws to define the different categories of homicide, the prescribed penalties, and the procedure by which accusations are tried and decided. You also need human laws to define the circumstances in which a contract comes into being etc. Note: positive in used in its old original meaning of &quot;laid down&quot; as distinct from natural. It is nothing to do with the modern meaning of positive as being the opposite of negative. William Blackstone, in Vol. 1, Commentaries on the Laws of England (1765) Page 27, wrote: This will of his maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws. Considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as be is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian1 has reduced the whole doctrine of law. This will of his maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws. Considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as be is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian has reduced the whole doctrine of law.... Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder; this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex a punishment to it, do not at all increase its moral guilt, or superadd any fresh obligation in foro conscientiae [in the court of conscience] to abstain from its perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so... In the Province of Jurisprudece Determined (1832) John Austin wrote at length about both natural law and positive law and sought to draw a line of distinction between them: AS one of the Law-Professors at the University of London, I planned and partly delivered a systematical Course of Lectures on General or Abstract Jurisprudence. In the ten lectures delivered at the beginning of my Course, I distinguished positive law (the appropriate matter of jurisprudence) from various objects with which it is connected by resemblance, and from various other objects to which it is allied by analogy. Out of those ten discourses, I have made the treatise which I now submit to the public, and which I venture to entitle “the province of jurisprudence determined.” Determining the characters of positive laws, I determine implicitly the notion of sovereignty, with the implied or correlative notion of independent political society. For the essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be stated generally in the following manner. Every positive law, or every law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons to a member or members of the independent political society wherein that person or body &gt; is sovereign or supreme. Or (changing the phrase) it is set by a monarch, or sovereign number, to a person or persons in a state of subjection to its author. To elucidate the nature of sovereignty, and of the independent political society that sovereignty implies, I examine various topics which I arrange under the following heads: First, the possible forms or shapes of supreme political government; second, the limits, real or imaginary, of supreme political power; thirdly, the origin or causes of political government and society. Examining those various topics, I complete my description of the limit or boundary by which positive law is severed from positive morality. For I distinguish them at certain points whereat they seemingly blend, or whereat the line which divides them is not easily perceptitible. Austin's account of positive law (essentially a command of a sovereign accompanied by a threat of sanction for non-compliance) has been criticised as being simplistic and of failing to provide an adequate explanation of law and legal systems, but to be fair to Austin he never claimed that his theory of positive law could alone explain what happens in legal systems. He recognised the influence of natural law/morality as part of an explanation. He simply wished to define the limits of Jurispudence as an academic subject, which he did narrowly. Some jurists, however, have subsequently sought to produce theories of law which seek to explain what the phenomenon of law is, and how it works, based only on positive law. Such theorists are called &quot;positivists&quot; and their school of thought is called legal positivism. In 1960 Hans Kelsen published Reine Rechtslehre which was translated into English in 1967 as The Pure Theory of Law. As the word pure in the title suggests Kelsen's theory is in the legal positivism school of thought - i.e. it seeks to explain law and legal systems by reference only to positive law. Kelsen himself was a moral relativist but not all legal positivists are necessarily atheists or moral relativists. Some may personally think that natural law/morality is important but nevertheless think that the discipline of law should be &quot;self contained&quot; and should be capable of being completely and satisfactorily explained without brining natural law/morality etc. into it. Natural lawyers critique the theories of legal positivism by saying that they are incomplete as they leave so much unexplained. Legal Positivists reply that their theories have a restricted scope precisely because everything outside the scope of the theory is not really law at all and so does not need to be explained by the theory. So you can see that the definition of Jurisprudence is rather woolly but philosophy of law with particular emphasis on competing theories of what the phenomenon of law actually is might be a short rough definition to convey the general idea of Jurisprudence as the word in generally used today.
No, each state is a "sovereign" and whenever a statute describes a crime it is always some act committed by a "person" and these two categories are mutually exclusive. See, for example, US Supreme Court in U.S. v. United Mine Workers of America, 330 U.S. 258, 67 SCt 677 (1947): "In common usage, the term `person' does not include the sovereign and statutes employing it will ordinarily not be construed to do so." Repeated by US Supreme Court in Wilson v. Omaha Indian Tribe 442 US 653, 667 (1979): "In common usage, the term 'person' does not include the sovereign, and statutes employing the word are ordinarily construed to exclude it."
If a law is struck-down as unconstitutional, but all the precedent used to find it unconstitutional gets reversed; what becomes of the law? In U.S. law, the law has effect again, unless it has been amended or repealed in the meantime. Is it totally dead, needing be passed anew? In the U.S., no. It is not totally dead. It is merely dormant. It stays on the books and legislators may decide not to repeal it as a political statement. It also might be considered for interpretive purposes when construing another part of the same law. For example, the meaning given to a phrase in an unconstitutional part of the law might be applied to a different part of the law that is constitutional. Can the judiciary be asked to reinstated, after which point it can be used again? In the U.S., any court can determine that a law is unconstitutional, but the extent to which that ruling is binding precedent on other courts or other parties than those to the case before it depends upon the court in question and upon the doctrine of collateral estoppel (a.k.a. issue preclusion). For example, the legal fight in the U.S. to hold bans on same sex marriage to be unconstitutional was fought in and resulted in ruling in dozens of courts at the trial court and state appellate court, and federal intermediate appellate court level before a uniform ruling was established by the U.S. Supreme Court. Further, even if the issue arises in another case where there is a controlling precedent, attorney ethics permit an attorney to make a good faith argument for a change in the law to any court, so if there is some good faith argument for doing so, the attorney can push that the issue be reconsidered. Of course, usually the answer from the court will be "no." Or can it just be enforced again without any formal process; so long as nobody sues and gets it killed again by a lower court? Sometimes government officials enforce laws that have been held unconstitutional, either because they aren't aware of the relevant court decisions, or because they think that their facts are distinguishable from those under which the law was held unconstitutional (which sometimes happens on an "as applied" basis rather than on a "facial" basis that applies to all cases), or because they think the judge before them might rule differently despite the precedent. Also, would the answer differ according to country? If so, could you please give me some examples of countries handling this differently. Yes. Many countries with legal systems based upon the legal system of countries of continental Europe like France and Germany and Spain, which are called "civil law" countries have a very different process of handling unconstitutional laws, as does the European Court of Human Rights and the highest court of the European Union. In Germany, for example, questions of the constitutionality of a law may be raised only in the Constitutional Court and not in other courts. This ruling is usually final. And, unlike U.S. courts, the Constitutional Court can rule a law unconstitutional during the legislative process, rather than in connection with an actual case or controversy relating to the law taking effect (in which case the law never gets on the books in the first place). I don't know what happens when the Constitutional Court declares a law unconstitutional. I do know, however, that in the case of the European Court of Human Rights and the highest courts of the E.U. that one of the usual remedies will be an order directed at a member state to amend its statutes to remove the offending law, with sanctions imposed if the member state fails to do so. Obviously, once such a law is repealed in this fashion, it would have to be re-enacted to take effect even if the precedent holding that the law was unconstitutional was undermined.
The main impediment is identifying exactly what "a law" is. When people talk (casually) about "the law", that can refer to statutes enacted by Congress, regulations set forth by administrative agencies to articulate specifics of those statutes, and Supreme Court rulings as to what "the law" is or says. The canonical example of "a law" is a statute passed by Congress. Under that understanding, you could point to the US Code and ask the question "how many", though you may have to also subtract things ruled unconstitutional by SCOTUS (they aren't removed from The Code, unless actually repealed by Congress). In the US code, there isn't an enumerable element "a law". Title 17 pertains to copyright; Title 18 pertains to crime. There isn't just one law about crime and one law about copyright. There are 12 chapters in Title 17; Chapter 1 has a couple dozen sections. Sections can get fairly minutely subdivided: there is no clear point at which you can say "this is one law, this is another". However, it is legally irrelevant how many there are – unless Congress passes a law that counts likes ("must repeal two laws for every new one passed"). The immediate product of congressional enactments is the US Code; the immediate product of administrative rule-making is the Code of Federal Regulations. Supreme Court decisions are also published in United States Reports, though I don't if there is an exhaustive online compendium of all rulings. Also note that things passed by Congress are "Laws" (some public, some private). Things in the US Code originate in such acts of Congree, but not every act of Congress affects the US Code, for example PL 118-81. When new subject matter is first introduced it is usually entirely contained in the corresponding law passed, but subsequently it can be amended, and an amendment to copyright law could be snuck into a bill generally about terrorism. I think that the stuff in the US Code corresponds to what most people think "a law" is, but it's better to look at the US Code as a single thing – "the law" – rather than try to count individual laws. If you are armed with access to all of these resources, you would also need to know where to find relevant law. Once you find all of the applicable text, you simply apply general legal principles to reach a conclusion, then hire a lawyer to determine where you went wrong, then hire another lawyer to determine where he went wrong. At least in difficult cases. Fortunately, although enacted bills often glue stuff together in crazy ways, when it is assembled into the US Code, it is organized more sensibly. Still, not all crimes are defined in title 18 (there 1re 52 other titles to search to find crimes).